VERY IMPORTANT POINTS
1. Where the evidence is absolutely clear, cogent and consistent coming from an independent source that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries on the accused, in such a case a conviction can be based notwithstanding injury is not being explained.
2. When an injury of a grievous nature was sustained by the accused which had not been explained by the prosecution witnesses who are grossly interested in the prosecution being all related to each other, an inference can be drawn that the prosecution has not presented the true version at least so far as the role played by that accused and the witnesses who have ascribed a positive role to that accused are not true on material point.

Headnote:(i) Indian Penal Code, 1860-Sections 302/149, 324, 302, 307-Convictions under-Appeal-Ill feeling between two groups-Death of 2 persons-Grievous injury sustained by accused 1 during incident-Obligation on prosecution to explain such an injury-Non-explanation-Eye witnesses being interested witnesses -Independent witnesses though available, not examined by prosecution-Infirmities in prosecution case-Accused-appellant No. 1 held entitled to benefit of doubt-His conviction u/ss 302/34 and 324 set aside-Scope of power under Art. 136 Constitution of India.
       Held; we are only applying a principle of criminal jurisprudence which casts an obligation on the prosecution to explain the injuries on the accused particularly when the injuries are of grievous nature and the consequences of such non-explanation of the injury. That apart in appropriate cases there is no bar on the powers of this Court even to examine the evidence if the appreciation of such evidence by the courts below on the face of it appears to be erroneous and such erroneous appreciation causes miscarriage of justice. However, we are not delving further into the question since we are not appreciating the evidence in the case in hand. The High Court in our opinion committed gross error in coming to the conclusion that non-explanation of the injuries on A-1 is not material. The very approach of the High Court that since police did not confront the witnesses about the accused receiving injuries while examining them under Section 161 Cr.P.C., no explanation is forthcoming is erroneous. (Para 9)
       Further held that the prosecution has not offered any explanation for the grievous injuries on accused-appellant No. 1 which the prosecution was obliged to explain and such omission on the part of the prosecution to explain the injuries on accused appellant No. 1 assumes greater significance since all the eye-witnesses to the occurrence are related to the deceased and thus were interested in the prosecution. Such non-explanation persuades us to draw an inference that the prosecution has not presented the true version at least so far as the role played by accused appellant No. 1 and the witnesses who have been examined and who have ascribed a positive role to the appellant No. 1 that he caught hold of Mohan when appellant No. 2 stabbed Mohan are not true on material point and their evidence thus has become vulnerbale. Even though the accused-appellant No. 2 also sustained some injuries as indicated earlier but those injuries being simple and superficial the prosecution may not be obliged to offer the explanation to the same but the same principle will have no application when an injury of such grievous nature as was sustained by accused-appellant No. 1 had not been explained by the prosecution witnesses who are grossly interested in the prosecution being all related to one another. (Para 8)
       Prosecution witnesses are not sure as to where the occurrence took place. It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution. Further Mr. Parasaran is right in his submission that the witnesses ascribed the role of catching hold of Mohan by accused No. 1 and role of catching hold of Sekhar by accused No. 3 and the High Court gave the benefit to accused No. 3 since the witnesses had not narrated the same to the police when examination under Section 161 Cr.P.C. took place and therefore the self same infirmities having crept in when the prosecution witness stated about catching hold of Mohan by accused No. 1, the said accused No. 1 is entitled to the benefit of doubt. In fact as stated earlier Mrs. Amreshwari, the learned senior counsel appearing for the State also fairly stated that possibly it would be difficult to sustain the conviction of accused No. 1 when the accused No. 3 has got benefit and has been acquitted and no appeal against the said order of acquittal has been filed by the State. On account of such infirmities in the prosecution case as indicated above and more particularly when the prosecution has failed to offer any explanation for the grievous injuries sustained by accused No. 1 on his head and the High Court has already found that the said injury was caused in course of the incident, we have no hesitation to hold that the accused-appellant No. 1 D.V. Shanmugam is entitled to the benefit of doubt and we accordingly set aside the conviction and sentence of the said accused-appellant No. 1 both under Section 302/34 IPC as well as under Section 324 IPC. (Para 10)
       (ii) Indian Penal Code, 1860-Sections 302 and 307-Conviction under-Appeal-Eye witnesses consistently stating that accused No. 2 stabbed deceased on his abdomen with knife-Their evidence corroborated from medical evidence as well as post-mortem examination of two deceased-Injuries sustained by accused 2 are simple and superficial-Name of accused No. 2 stated in FIR with his specific role-Prosecution case as against accused 2 proved beyond reasonable doubt-His conviction recorded is legally sustainable notwithstanding his injury is not being explained.
       Held that the injuries on the accused-appellant No. 2 are all simple and superficial in nature and the prosecution is not bound to explain such minor and superficial injuries. That apart where the evidence is absolutely clear, cogent and consistent coming from an independent source that it far outweights the effect of the omission on the part of the prosecution to explain the injuries on the accused, in such a case a conviction can be based notwithstanding injury in not being explained. (Para 11)

Judgement Key Points

Key Points: - The prosecution is obliged to explain grievous injuries on an accused when independent evidence clearly supports the prosecution, else conviction can be reversed. [Para 1][Para 9] - Where eye-witnesses are related/interested, non-explanation of grievous injuries on an accused by the prosecution can cast doubt on the prosecution's version and affect credibility. [Para 8][Para 7] - Court may exercise Article 136 of the Constitution to re-evaluate evidence if its appreciation below appears erroneous and may set aside or modify convictions accordingly; non-explanation of injuries can lead to benefit of doubt or acquittal for the grievous-injury accused, depending on the case. [Para 9][Para 11]

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JUDGMENT

Pattanaik, J.-This appeal is directed against the judgment of the High Court of Andhra Pradesh dated 15th April, 1994 in Criminal Appeal No. 695 of 1993 arising out of Sessions Case No. 251 of 1991. The two appellants alongwith three others stood charged of having committed several offences and were tried by the Additional Sessions Judge, Chittoor at Tirupati and by judgment dated 9th July, 1993 all of them were convicted under different sections of the Penal Code. All of them except A-2 were convicted under Section 302/149 IPC and were sentenced to imprisonment for life. They were also convicted under Section 148 and sentenced to imprisonment for one year, under Section 307/149 they were sentenced to imprisonment for five years and under Section 324/149 were sentenced to imprisonment for one year, all the sentences have been directed to run concurrently. A-2 was convicted under Section 302 for causing murder of Mohan and Sekhar and was sentenced to imprisonment for life, convicted under Section 307 and sentenced to rigorous imprisonment for 5 years and a fine of Rs. 200/- in default imprisonment for 2 months, convicted under Section 324 IPC and sentenced to imprisonment of one year, and 324/149 IPC and sentenced to imprisonment for one year, sentences to run concurrently. In appeal, the High Court by the impugned judgment set aside the conviction of accused Nos. 3, 4 and 5 and acquitted them of all the charges. The High Court also set aside the conviction and sentence of accused No. 1 under Sections 148, 307/149 and 324/149 IPC. His conviction under Section 302/149 was modified to one under Section 302/34 and sentence of imprisonment for life was confirmed. His conviction under Section 324 for causing hurt to PW-2 was also maintained. So far as accused No. 2 is concerned the High Court confirmed the conviction and sentence passed by the learned Sessions Judge for the offence under Sections 302 and 307 IPC. His conviction under Sections 148 and 324/149 and the sentence passed thereunder was set aside and thus the present appeal.

2. The prosecution case in nutshell is that all the accused persons belong to village Dasarimatam and the complainant party belong to the same village. Some incident had happened between the two groups on 6th May, 1990 in respect of which a complaint had been lodged by accused No. 1. On account of the same there was ill feeling between the two groups and on the date of occurrence on 22nd September, 1990 at 8.00 p.m. when one Natarajan was coughing on account of his fever the accused No. 1 was passing by that road on his scooter. He took this to be a taunting, and therefore, brought his brother accused No. 2 and picked up quarrel and challenged him. Said Natarajan was a relation of the complainant. Shortly thereafter at 10 p.m. the complainant PW 1 and the deceased-Mohan were returning from a theatre and when they had reached the house of one V. Murli the five accused persons formed themselves into an unlawful assembly and attacked the complainant and the deceased with deadly weapons. While accused No. 1 caught hold of deceased-Mohan accused No. 2 stabbed him with a knife on the abdomen and Mohan fell down wounded. When the complainant, PW-1 intervened he was also stabbed with a knife by accused No. 2 on his left hand and accused No. 1 dealt a blow with a stick on the right hand. PW-1 then raised an alarm and on hearing the cries his relatives including Sekhar who is the other deceased came out of their houses and rushed towards Mohan. The five accused persons then also attacked these people and while accused No. 3 caught hold of Sekhar, accused No. 2 stabbed him with knife on his abdomen and caused fatal injury. These accused persons more particularly accused Nos. 4 and 5 hurled stones which caused injury to the member of the complainant group. Accused No. 1 also stabbed one Ravi Kumar with a knife on his left elbow, as a result of which said Ravi Kumar was injured. The injured persons were take

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1997 Supreme(SC) 748

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Cases Referred (1)