Allahabad High Court
Gyan Prakash vs State Of U.P. And Others on 11 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 6401 of 2011 Appellant :- Gyan Prakash Respondent :- State of U.P. and Others Counsel for Appellant :- Satish Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Dictated by Hon'ble Vikas Budhwar, J.)
1. This is an appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.') has been instituted by the appellant-complainant- Gyan Prakash Singh s/o Shekhraj Singh against the judgment and order dated 08.09.2011, passed by Additional Sessions Judge, Court No.3, Jaunpur in Sessions Trial No.361/2003 (State vs. Panna Lal and two Others), arising out of Case Crime No.13/2000, under Sections 325/34, 307/34 IPC, Police Station- Shahganj, District Jaunpur whereby the accused respondents no.2 to 4 have been acquitted.
2. This appeal was presented before this Court on 9th November, 2011 wherein on 14.11.2011 this Court proceeded to pass the following order:-
"Summon the record and list thereafter."
3. Thereafter on 04.04.2014 and 07.05.2022 this Court proceeded to pass the following order:-
4.4.2014 "Counsel for the appellant is not present.
The lower court record has been received.
List peremptorily on 24.4.2014"
7.5.2022 "Case is taken up.
None is present for the appellant.
Learned AGA is present.
Appeal is yet to be admitted.
List this case in the week commencing 11.7.2022 for hearing on admission.
It is made clear that if on the next date learned counsel for the appellant will not remain present, the Court will proceed to decide the case appointing Amicus Curiae or with the help of learned AGA."
4. Orders passed in the present appeal reveals that after passing of the initial order dated 14.11.2011 nobody was present to press this appeal and ultimately this Court on 07.05.2022 proceeded to fix the matter today making it clear that in case on the date so fixed therein (today) if the counsel for the appellant is not present, the Court will proceed to decide the case appointing Amicus Curiae or with the help of learned AGA.
5. Yet today itself nobody appears to press the present appeal, thus this Court has no option to decide the appeal with the assistance of learned AGA.
6. The factual matrix of the case as worded in the present appeal are that the appellant-complainant being Gyan Prakash Singh on 12.01.2000 at 12:30 noon was about to proceed while carrying sugarcane in a tractor from the village Chhatai Khurd then at that point of time the accused herein being Rama Shankar alias Jhuri Yadav, Panna Lal Yadav and Nand Lal Yadav dragged the complainant from the tractor in question and with the aid of cuddle, wooden stick and hockey administered beating. Pursuant thereto ruckus was created and on account of hue and cry, the villagers, who were doing their agricultural activities in the farm land so situated in the vicinity came in and Indra Pal Singh and Hari Nath Singh came to be rescued along with others and on account of their intervention the complainant could save his life. While running away the accused respondent no.3 fired with country-made pistol and the complainant saved himself. However, as per the prosecution version, the complainant sustained injuries in his shoulder and fracture was occasioned in his right leg. It has been further alleged that the accused herein hurled abuses and threatened to kill the complainant. It has also come on record that a written complaint was filed on the instructions of the complainant by one Shreekant Mishra, Advocate and accordingly first information report was registered under Sections 323, 325, 504, 506, 307 IPC before Police Station -Shahganj, District Jaunpur.
7. As per the prosecution case the complainant after lodging of the first information report got himself medically examined and according to prosecution case complainant received 9 injuries. As per the medical report the injuries were on account of hard and blunt object and so far as the injury no.9 is concerned, it was referred for X-Ray. The other injuries were simple in nature but fresh ones. Prosecution has also come up with the stand that the complainant got himself subjected to X-Ray, which is Ka-7, according to which on the left shoulder fracture was found and so far as legs are concerned, there was no fracture. Consequently, Investigating Officer was nominated, who conducted the investigation and as per the prosecution site plan was prepared and statements of the prosecution witnesses were also taken and chargesheet under Sections 323, 325, 504, 506, 307 IPC was submitted. The case was committed for trial and the accused persons pleaded not guilty of the charges levelled against them.
8. In order to bring home the charges, the following prosecution witnesses were produced.
1Gyan Prakash P.W.1 2 Indra Pal Singh P.W.2 3 Hari Ram Singh P.W.3 4 S.I. Amar Singh P.W.4 5 Dr. D.V. Singh P.W.5 6 Dr. K.P. Mishra P.W.6
9. As per the defence an alibi was also taken under Section 313 Cr.P.C. that on 12.01.2000 at 12.00 hours the accused respondent no.3-Rama Shankar alias Jhuri Yadav was proceeding to one brick kiln owned by one Rambali possessing Rs.9400/- and when he reached near the house of one Sanjay Singh then Ajay, Vijay, Gyan Prakash, Prakash alias Sadhu, Shailendra alias Pintu with the aid of cuddle, wooden stick etc. administered beating upon the accused respondent no.2 and took away the money which he possessed at that point of time and threatened the accused herein and he sustained 9 injuries.
10. The defence in order to substantiate their version got examined the following witnesses:-
1Arvind Kumar Yadav D.W.1 2 Sushil Kumar D.W.2 3 Vijay Kumar Pharmacist D.W.3 4 Dr. R.K. Rai D.W.4 5 Mohd. Mushlim D.W.5 6 Abdul Rahman D.W.6 7 Laxmi Shankar Yadav D.W.7 8 Hari Shankar D.W.8
11. The defence also produced paper no.28Kha being an application under Section 156(3) of the Cr.P.C. for lodging of the proceedings against the complainant fraction. It was also pleaded that one Ajay, Vijay s/o Ramchet, Gyan Prakash s/o Puran Singh, Prakash alias Sadhu s/o Shekhraj, Shailendra alias Pintu s/o Indra Nath, accused Rama Shankar belonging to the same village and there happens to be a Pradhan election rivalry between them and on the date of the commission of the crime so sought to be alleged by the prosecution the complainant- Gyan Prakash committed the crime with regard to the motive being with relation to election of the Pradhan and also land dispute. So far as the accused-opposite party no.3-Rama Shankar alias Jhuri Yadav is concerned, he also got himself medically examined, wherein 9 injuries are stated to be sustained by him whereas injury nos.2 and 9 was put to observation and referred for X-Ray and the said injuries were shown to be received by virtue of weapon which is blunt.
12. We have heard Sri Ratan Singh, learned AGA, who appears for the State of U.P. and with his assistance the present appeal is being decided.
13. Before delving upon the issue in question which is being sought to be raised at the behest of the informant/complainant while filing the present appeal purported to be under Section 372 Cr.P.C. against the order of acquittal so passed in favour of the accused herein.
14. This Court has to bear in mind the judicial verdict and the mandate so envisaged by the Hon'ble Apex Court wherein the courts of law have been cautioned while exercising jurisdiction under Section 372 Cr.P.C. as well as Section 378 of the Cr.P.C. when the courts of law have been occasioned to deal with the Government Appeal against the acquittal.
15. The Hon'ble Apex Court in the series of decisions have been consistently mandating that it is well settled principle of law that appellate courts hearing the appeal filed against the judgment and the order of the acquittal should not overrule or otherwise disturbing the judgment acquittal, if the appellate court does not find substantiate and compelling reasons for doing so.
16. Nonetheless if the trial courts conclusion with regard to the facts is palpably wrong if the trial court decision was based on erroneous view of law and the judgment is likely result in grave miscarriage of justice and the approach proceeded towards wrong direction or the trial court has ignored the evidence or misread the material evidence which should have determining the factor in the lis of the matter then obviously the appellate court is right in interfering with the order acquitting the accused. However, Hon'ble Apex Court has further held that in case two views are possible and the view so taken by the trial court while acquitting the accused is a plausible view then in the backdrop of the fact that there is double presumption of innocence available to the accused then obviously the appellate court should not interfere with the order of acquittal.
17. The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219.
18. The Apex Court recently in Jafarudheen & Ors. vs. State of Kerala, JT 2022(4) SC 445 has observed as under:-
"DISCUSSION Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents:
Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
''10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
''8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under:
''5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: -
"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
19. Bearing in mind the proposition of law so culled out by the Hon'ble Apex Court in the above noted decisions coupled with the limitations so envisaged while deciding the present appeal which emanates at the instance of an informant against the acquittal of the accused, now the present case in hand is to be analysed while giving the verdict as to whether the trial court was in error in acquitting accused or not.
20. To begin with the ocular testimony of the prosecution is to be first marshaled. Gyan Prakash Singh, who happens to be the informant and the injured appeared as P.W.1. According to him the accused herein attacked him and resorted to gun shot fire but he could save himself, however he received as many as 9 injuries and fracture was also found in his shoulder. According to P.W.1, Gyan Prakash, he in his cross examination has come up with the stand that sugarcane field is 2-3 kms from his house and thus the place of occurrence is 2-3 kms. from his house. He has further deposed that the complainant as well as the accused belongs to the same village Chhatai Khurd. It has been alleged that he received injuries from cuddle, wooden stick and hockey and after sustaining the injuries the other witnesses came up and they have saved him and even in fact firing was also resorted in the air but he could save himself. P.W.2-Indra Pal Singh, who claims to be an eye witness, who has seen the commission of the crime he in his cross examination has stated that the accused Rama Shankar had beaten the complainant-injured with the butt of the country-made pistol and when he came there then the accused fired which was a single shot. P.W.3-Hari Ram Singh, who happens to be another witness, who has seen the commission of the crime. According to him he had gone to do the agricultural work in the sugar farm while harvesting the sugarcane belonging to Gyan Prakash Singh and at that relevant point of time there were 50-60 people working there. P.W.3-Hari Ram Singh in his statement has further made a deposition that the other co-accused being Nand Lal Yadav- opposite party no.4 was having hockey in his hand, however, nobody else has stated about the possession of hockey in the hand of Nand Lal Yadav as they had though seen the same but on account of party politics they are not coming forward to give their statements. P.W.2- Indra Pal Singh has further deposed in his cross examination that he has a post office in his house and he works as a post master and the same is 2-3 kms away. It has also come on record that the P.W.2 reached the place of occurrence earlier to P.W.3-Hari Ram Singh.
21. Analysing the testimony of prosecution witnesses it is clear that the incident took place on agricultural field whereat sugarcane was being grown and more than 40-50 people were doing the agricultural activities. The court below while analysing the entire story so set up by the prosecution have come to the conclusion that once the accused side wanted to eliminate the complainant then there was no occasion for them to have beaten the complainant-injured with the help of cuddle, wooden stick and hockey as according to the prosecution the accused is stated to be in possession with the country-made pistol and then if they had the intention to kill the complainant-accused then they could have resorted to gun shot fire and not resorted to use of pistol butt, cuddle, wooden stick or hockey. There is cloud over the prosecution theory regarding commission of crime particularly when the place whereat the incident is being shown to be occurred is the place whereat about 40-50 people as stated by the prosecution, were doing the agricultural activities. Another aspect which needs to be considered is the material contradictions with relation to the fact that P.W.3- Hari Ram Singh is shown to be working in the agricultural field while harvesting the sugarcane just adjacent to the place of the occurrence, however, in relation to the said fact P.W.2, who happens to be Indra Pal Singh is working as a post master 2-3 kms wherein a post office is established in his house and he came to the site in question prior to P.W.3 who was just adjacent to the place of occurrence. The aforesaid sequence and the chain of events itself shows that the entire prosecution story is engineered just to paint an occurrence which did not occur at all.
22. The court below has also analysed the issue with regard to the medico legal report while observing that in the first information report P.W.1-Gyan Prakash had come up with the stand that there was fracture in his left shoulder and his right leg was also fractured. However, in the X-Ray report being Ex.7, it was found that there was no fracture in the leg. Nonetheless all the three prosecution witnesses have come up with the stand that the injured sustained fracture in his leg. Even otherwise the X-Ray plate was also not produced before the learned trial court. So far as the other injuries are concerned, they were found to be simple in nature having scratch only. In order to prove the same P.W.6-Dr. K.P. Mishra was produced. However, the court below record a finding that the medical report being Ex.8 itself makes it clear that the reference of the wounds was made in the Accidental register, however, Trial Court casted suspicion upon the fact that when the issue was with regard to marpeet then why the said endorsement was made in the Accidental register. On being specifically asked about the said aspect, P.W.6- Dr. K.P. Mishra did not tender his reply.
23. Admittedly, before the trial court it was pleaded that the injuries were also sustained by the defence- accused side. The injuries so stated to be received by Rama Shankar was 9 in number. Details whereof has been given in the body of the judgment under challenge. A plea was also taken by the defence that no explanation has been given by the prosecution with regard to the injuries so sustained by the accused side despite the fact that the same was available on record and in order to prove the same D.W.4- Dr. R.K. Rai came to the witness box and proved the same wherein the complainant fraction also sustained injuries. Much reliance has also been placed by the defence that in absence of any explanation so sought to be offered by the prosecution regarding explaining the injuries so sought to be sustained by the defence the accused are liable to be acquitted in this regard.
24. The Hon'ble Apex Court in the case of Laxmi Singh and Others vs. State of Bihar, (1976) 4 SCC 394 in paragraph 12 has observed as under:-
"12. P.W. 8 Dr. S. P. Jaiswal who had examined Brahmdeo deceased and had conducted the postmortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22. 1966 and found the following injuries on his person:
1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.
2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the late ral part of the left upper arm, near the shoulder joint.
3. Punctured wound 1/2" x 2 m. m., x 4 m. m. on the lateral side of the left thigh about 5 inches below the hip joint.
According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:
The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro-babilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:
In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows:
In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
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 sup- pressed 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 prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
25. The Hon'ble Supreme Court in the case of Bhaba Nanda Sarma and Others vs. State of Assam, (1977) 4 SCC 396 in paragraph 2 has observed as under:-
"2.The eye witnesses of the occurrence were P.W. 2 Gopi Nath Sarma; P.W. 3 Danesh Ali; P.W. 4 Nur Mohammad and P.W. 6 Kurpan Ali. The High Court in its judgment has catalogued the main five reasons which led the Sessions Judge to make an order of acquittal in favour of the appellants. In our opinion the High Court was right in reversing the judgment of the Trial Judge and interfering with the order of acquittal. It did so well within the limits of its power and the law as enunciated by this Court in several decisions. The four reasons given by the learned Sessions Judge were of a flimsy nature. It did not justify the entertaining of any doubt in regard to the prosecution story on the basis of these reasons. One of the five reasons was that the P.Ws did not state about the injuries of Bhaba Nanda and they were not explained by the prosecution. In our opinion the High Court has rightly not attached much significanceto the alleged failure of the prosecution to explain the injuries on Bhaba Nanda. The injuries on his person were of a very minor nature, three of them being ecchymosis and one swelling of the root of right index finger. The evidence of the Doctor D.W. 1 was not sufficient to prove that the injury on the right index finger was grievious in nature. The ecchymosis inquiries however, were all very simple. Bhaba Nanda did not claim in his statement under section 342 of the Code of Criminal Procedure, 1898 as to with what weapon the injuries were caused on his person. He merely said that Gopinath and Shashi gave blows on his back. He did not attribute the right index finger injury as having been caused by either of the two. No defence witness was examined to give any counter version of the occurrence. Bhaba Nanda did not show his injuries to the Investigating Officer, as is apparent from his evidence, when he arrested him soon after the occurrence. No counter information 9-951 SCI/77 was lodged with the police nor any counter case filed. In a case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries oil the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. In the instant case the Sessions Judge was not justified in doubting the truth of the version given by the eye witnesses-three of whom were wholly independent witnesses. Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eye witnesses."
26. The Hon'ble Apex Court in the case of Vijayee Singh and Others vs. State of U.P. reported in (1990) 3 SCC 190 in paragraphs 9 and 10 has observed as under:
"9. Now the question is whether the prosecution has explained these injuries and if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. He placed considerable reliance on some of the judgments of this Court. In Mohar Rai & Bharath' Rai v. The State of Bihar, [1968] 3 SCR 525, it is observed:
"Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabi- lised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circum- stances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecu- tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the inci- dent is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."
In another important case Lakshmi Singh and Ors. v. State of Bihar, [1976] 4 SCC 394, after referring to the ratio laid down in Mohar Rai's case, this Court observed:
"Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is un- true; and (2) that the injuries probabilise the plea taken by the appellants."
10. It was further observed 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 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."
Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected. We are unable to agree. In Mohar Rai's case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case also it is observed that any non-expla- nation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume 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. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. In the instant case, the trial court as well as the two learned Judges of the High Court accepted the prosecu- tion case as put forward by P.Ws 1 to 3 in their evidence. The presence of these three witnesses could not be doubted at all. P.Ws 1 and 2 are the injured witnesses and P.W. 1 gave a report giving all the details. However, he attributed specific overt acts to accused Nos. 1, 3, 4 and 6 and made an omnibus allegation against the remaining accused. It is for this reason that Justice Seth found it to be safe to convict only accused Nos. 1, 3, 4 and 6 who are the appellants before us. P.Ws 1, 2 and 3 are the eye witnesses. We have carefully considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly untrustwor- thy. No doubt they have not explained the injuries found on accused Nos. 13 and 14. From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true ver- sion. Though they are interested, we find that their evi- dence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party."
27. The Hon'ble Apex Court in the case of Dev Raj And Another vs. State of H.P. reported in 1994 Supp (2) SCC 552 in paragraphs 8 and 9 has observed as under:
"8. Learned Counsel for the appellants submits that the prosecution has failed to explain the injuries on the two accused persons and as a matter of fact, later a medical board was constituted, and the doctor found on the body of Des Raj accused that there was fracture on the postro lateral aspect of the left forearm with scab off 1" above the lower ulnar prominence transverse in direction 2.5 cm x 1 cm and 6" below the elbow joint 1 cm x 1/2cm - among other wounds. His further submission is the failure on the part of the prosecution to explain the injuries on the accused would go to show that they suppressed the genesis of the occurrence and the right of private defence to these two accused cannot be denied. It is also his further submission that the accused need not prove their defence like the prosecution and it is enough if by preponderance of probabilities and on the basis of the circumstances they can show that they had such a right, then, they should be given the benefit of doubt.
9. As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible, the accused should be given the benefit of doubt. Having regard to the nature of the injuries on the two accused persons, we find it difficult to hold that their pleas altogether are unfounded. Then the next question would be whether they had exceeded the right of self-defence. Admittedly, the occurrence is said to have taken place in a sudden manner. Even, according to the prosecution, they did not come there armed. A quarrel ensued there and they picked up iron pipes and wooden patties that were lying there and a clash took place. In such a situation, their plea of right of private defence has to be accepted, but having regard to the injuries inflicted by them on the two deceased persons as well as on PW-23, they have definitely exceeded the right of private defence and the accused are entitled to the benefit of Exception 2 of Section 300 and the offence punishable is one under Section 304, Part 1, I.P.C. . Accordingly, conviction of Dev Raj under Section 302, I.P.C. and the sentence of imprisonment for life awarded thereunder are set aside and, instead, he is convicted under Section 304 Part I, I.P.C. and sentenced to R. I. for seven years. His conviction under Section 307, I.P.C. and the sentence of five years R.I., are, however, confirmed. The sentences are to run concurrently . His conviction under Section 451, I.P.C. and the sentence of six months' R.I. and fine on default clause, if any, are confirmed. Sentences to run concurrently. Dev Raj shall surrender and serve out the remaining sentence. In the result, the appeal abates so far as Des Raj is concerned and allowed partly so far as Dev Raj is concerned to the extent indicated above."
28. The Hon'ble Apex Court in the case of Takhaji Hiraji vs. Thakore Kubersing Chamansing and Others reported in (2001) 6 SCC 145 in paragraph 17 has observed as under:
"17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh & Ors. Vs. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. Vs. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors. Vs. State of U.P., (1990) 3 SCC 190, all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions : (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."
29. The Hon'ble Apex Court in the case of Kashiram and Others vs. State of M.P. reported in (2002) 1 SCC 71 in paragraphs 22, 23, 24 and 28 has observed as under:
"22. A few relevant factual and legal aspects overlooked by the High Court may not be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the accused in their defence. The investigating officer having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one- sided.
23. Section 105 of Evidence Act, 1872 provides that the burden of proving the existence of circumstances which would bring the act of the accused alleged to be an offence within the exercise of right of private defence is on him and the Court shall presume the absence of such circumstances. However, it must be borne in mind that the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If on the material available on record a preponder-ance of probabilities is raised which renders the plea taken by the accused plausible then the same should be accepted and in any case a benefit of doubt should deserve to be extended to the accused (See : Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR (1964) SC 1563; State of Punjab v. Gurbux Singh and Ors., [1995] Suppl. 3 SCC 734, Vijayee Singh v. State of U.P, AIR (1990) SC 1459). In Vijayee Singh's case this Court emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would threfore indirectly succeed. "It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence which is reasonable".
24.The High Court was also not right in criticising and discarding availabil- ity of plea of self defence to the accused persons on the ground that the plea was not specifically taken by the accused in their statements under Section 313 Cr.P.C. and because the accused Prabhu did not enter in the witness box. Though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313 Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtain-ing in the case as held by this Court in Vijayee Singh's case (supra). It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn agsint the defence merely because an accused person has chosen to abstain from the witness box.
28. In Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523 this Court has held that where the accused received injuries during the same occurrence in which complainants were injured and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution."
30. The Hon'ble Apex Court in the case of Sucha Singh and Another vs. State of Punjab reported in (2003) 7 SCC 643 in paragraphs 24, 25 and 26 has observed as under:
"24. One of the pleas is that the prosecution has not explained the injuries on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR 525), it was observed:
"...In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."
In another important case Lakshmi Singh and Ors. v. State of Bihar (1976 (4) SCC 394), after referring to the ratio laid down in Mohar Rai's case (supra), this Court observed:
"Where the prosecution fails to explain the injuries on the accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants."
It was further observed 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 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."
25. In Mohar Rai's case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case (supra) it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and Ors. v. State of U.P. (AIR 1990 SC 1459).
26. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case, particularly, when the accused who claimed to have sustained injuries has been acquitted.
27. The fact that name of PW10 does not figure in the inquest report or that the DDR entry does not contain the name of Pritam Singh does not in any way corrode the credibility of the prosecution version, particularly when the reason as to why these were absent in the relevant documents has been plausibly explained by the witnesses, and after consideration accepted by the trial Court and the High Court."
31. The Hon'ble Apex Court in the case of Surendra Paswan vs. State of Jharkhand reported in (2003) 12 SCC 360 in paragraph 8 has observed as under:
"8.Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case."
32. The Hon'ble Apex Court in the case of Bishna AliasBhiswadeb Mahato and others reported in (2005) 12 SCC 657 in paragraph 50 has observed as under:
"50.The fact as regard failure to explain injuries on accused vary from case to case. Whereas non-explanation of injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, in a given situation it may also be possible to hold that the explanation given by the accused about his injury is not satisfactory and the statements of the prosecution witnesses fully explain the same and, thus, it is possible to hold that the accused had committed a crime for which he was charged. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or where coming out with the partial truth, the prosecution may fail. But, no law in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe."
33. The Hon'ble Apex Court in the case of Ram Pyare Mishra vs. Prem Shanker and Others reported in (2008) 14 SCC614 in paragraph 18 has observed as under:
"18. So far as non-explanation of superficial injuries on the accused persons is concerned, in Anil Kumar v. State of U.P. (2004 (13) SCC 257), it was held as follows:
"11.Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476)."
34. The Hon'ble Apex Court in the case of Ram Pat and Others vs. State of Haryana reported in (2009) 7 SCC 614 in paragraphs 38 to 40 has observed as under:
"38. On the date of occurrence, PW 8 started cultivating. It has been amply proved that the scuffle lasted for only two minutes to two and half minutes. PW8 - Rajbir was not armed with any weapon, so was not Harda Ram (the deceased). It was Lal Singh alone who had in his hand a small twig (Kamari). According to him, the same is used to drive camels. Kamari was said to be used by Lal Singh in his sole defence as a result whereof Sheo Ram and Raja Ram were injured. We have noticed hereinbefore that the injuries on the person of the said two accused were simple in nature.
39. It is true that the fact that two of the accused persons had suffered injuries had not been disclosed in the FIR or in their statement before the Investigating Officer, but the same, in our opinion, was not necessary inasmuch as they got themselves medically examined by Dr. Goel almost at the same time when the other prosecution witnesses got themselves examined. By that time they had already been arrested. It was the police authorities who had submitted an application along with the injuries chart. They had been brought by Constable Satbir Singh. Thus, the fact that two of them had suffered injuries in the same incident was known to the Investigating Officer.
40. It has furthermore well settled that whereas grievous injuries suffered by the accused are required to be explained by the prosecution, simple injuries need not necessarily be. Non explanation of simple injuries of the nature suffered by the accused would not be fatal. In Hari vs. State of Maharashtra [2009 (4) SCALE 103], this Court held:
"30. On the other question, namely, non- explanation of injury on the accused persons, learned Counsel for the appellant has cited a decision in Lakshmi Singh and Ors. v. State of Bihar (1976) 4 SCC 394. In the said case, this Court while laying down the principle that the prosecution has a duty to explain the injuries on the person of an accused held that non-explanation assumes considerable importance where the evidence consists of interested witnesses and the defence gives a version which competes in probability with that of the prosecution case.
31. But while laying down the aforesaid principle, learned Judges in paragraph 12 held that there are cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This would "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 outweighs the effect of the omission on the part of the prosecution to explain the injuries." Therefore, no general principles have been laid down that non-explanation of injury on accused person shall in all cases vitiate the prosecution case. It depends on the facts and the case in hand falls within the exception mentioned in paragraph 12 in Lakshmi Singh (supra)."
35. Applying the proposition of law so culled out by the Hon'ble Apex Court in the above noted decisions and irresistible conclusion stands drawn that no universal rule can be laid down while acquitting the accused in the matter of non-explanation offered by the prosecution with respect to the injuries suffered by the accused. However, each and every case is to be decided on its facts looking into the ocular testimony and the evidences so sought to be adduced in that regard. Here in the present case the court finds that the prosecution story itself proceeds on weak evidence as the testimony of the witnesses do not lead to a conclusion that the accused herein had committed the crime. Bearing in mind the fact that the incident alleged to have been occurred is during day time in a place wherein more than 50-60 workers were already working in the agricultural field which was in close vicinity and further the fact that the accused are stated to be in possession of a country-made pistol then too beating is stated to be administered by cuddle, wooden stick and hockey. In normal circumstances, it would be safely said that the possession of country-made pistol does not imply that use of cuddle, wooden stick and hockey cannot be resorted to while inflicting injuries but in the present case the allegation is with regard to resorting of firing and disposing the injured. It is quite abnormal and inconceivable that in an open place wherein 50-60 people were already there, 3 accused persons will administer beating by hockey and cuddle. The court below has further analysed the medical reports as well as the other relevant facts including the fact that P.W.3, who was working and who had witnessed the said incident while being in the farm which is just closeby to the place of occurrence reached the place after a long time after the presence of P.W.2, who came to rescue the victim from the accused who was 2-3 kms. away. Nonetheless, the first information report recites the fact that the complainant's leg was also fractured and is also borne out from the statement given by all the 3 prosecution witnesses, however, in the medical report it has come on record that there was no fracture in the leg.
36. In the aforesaid factual backdrop, the relevance of explanation of the injuries of the accused assumes importance and significance. Despite the medical report being available with respect to the injuries so sustained by the accused opposite party no.3-Rama Shankar and proving of the same by the medical practitioner herein, no explanation has been given by the prosecution which itself creates a cloud and suspicion that the entire story so built up by the prosecution stands no legal and factual foundation and proceeds on weak evidences. The court below has further held that the injuries so sustained by the accused (even if it is true) are not fatal. This Court further finds that the prosecution case proceeds on weak evidences and in any view of the matter, this is not a case wherein the appellant/complainant can insist the Court to take a different view from the view taken by the Trial Court while acquitting the accused, while reversing the judgment in question.
37. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
38. The present criminal appeal stands dismissed.
39. Records of the present case be sent back to the concerned court below.
Order Date :- 11.7.2022 Nitendra