2001 Supreme(SC) 985

2001(5) Supreme 337
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
M.B. Shah and S.N. Variava, JJ.
State of Madhya Pradesh -Appellant
versus
Sardar -Respondent
Criminal Appeal No. 871 of 1997
With
Criminal Appeal No. 872 of 1997
Decided on 25-7-2001
Counsel for the Parties :
For the Appellants : Mr. K.N. Shukla, Sr. Advocate, Ms. Geetanjali Mohan, Ms. Bharti Tyagi, Ms. Sushila Shukla and Mr. Uma Nath Singh, Advocates.
For the Respondent : Mr. U.R. Lalit and Mr. S.K. Gambhir, Sr. Advocates, Mr. Anil Sharma, Mr. Awanish Sinha, Mr. T.N. Singh and Mr. K.M.K. Nair, Advocates.

IMPORTANT POINT
Right of self defence by accused in the incident cannot be invoked as a shield to justify an act of aggression which went to the extent of causing murder of one and causing serious injuries to three others.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34 and 307-Offences under-Seven persons tried-Sessions Court acquitted two and convicted five-High Court acquitted Sardar out of 5 and convicted remaining four-State s appeal against acquittal of Sardar and appeals by four convicted against their conviction-Contention that acquittal of Sardar is proper as not proved to have participated in crime-Conviction of remaining four not sustainable due to interested/biased evidence of prosecution and doubt about incident of occurrence-Evidence on record not supporting the contention-Whether calls for any interference in appeal under Art. 136 of Constitution ? (No).

       Held : In our view, the evidence of injured witnesses as well as eye-witnesses including that of PW 14 Bhagirath Patwari, who prepared the site map, and PW 7 Head Constable Ramesh Chander, who visited the house on receipt of information, proves beyond reasonable doubt that the door of Mubarik s house was broke open. This would mean that incident took place as narrated by the injured witnesses. Their testimony has not been affected by cross-examination nor there is any contradiction or omission on this aspect. Further, the suggestion made to the witnesses in the cross-examination would also indicate that door in question was broken. It was suggested by the defence that door was broken by the injured witnesses. In the cross-examination, Yakub (PW 1) stated that it is wrong that we people had assaulted Sikander, Daulat and accused Ahmad Noor with stick and axe, in which Daulat s head was fractured; it is wrong that no door of Mubarik s house was broken nor any assault was done; it is wrong that Mubarik himself had broken the door of his house to save him from the report of these accused persons. Yusuf (PW 4) stated that it is wrong that we ourselves had broken the door of our house to save us from the responsibility of the assault of accused persons; it is wrong that incident had taken place at our house, it occurred in the street which is in front of the house of Gokul. In this set of circumstances, there is no reason to disbelieve the prosecution evidence that accused entered the house of Mubarik after breaking open the door and inflicted injuries to the prosecution witnesses. Further, Ismile (PW 5) has stated that injuries were caused to him by accused Ahmad Noor, Daulat and Ramzu and injuries to deceased Ahmad Noor were caused by accused Usman and Sardar. Yusuf (PW 4) has stated that injured Mubarik was attacked by accused Daulat, Sikander and Ahmad Noor and he himself was attacked by Ramzu, Sikander and Usman and deceased Ahmad Noor was attacked by Usman and Sardar. As per third injured witness Mubarik (PW 2), accused Sardar and all other accused assaulted Ahmad Noor, he was assaulted by accused Sikander and Yusuf was assaulted by accused Ahmad Noor. From the above evidence of all the injured witnesses one thing is clear that all have stated that accused Sardar had assaulted Ahmad Noor. It is true that there is contradiction in naming the accused with regard to the assault on the injured witnesses. For assault and injury to self, they named different accused, but out of them PW 2 and PW 4 named accused Sikander and Ahmad Noor who assaulted and injured them. PW 5 stated that he was assaulted by Ahmad Noor, Daulat and Ramzu. Question would be whether evidence of these injured witnesses should be discarded on some omissions or contradictions ? Normally, omissions or contradictions which affect the basis structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused. From the facts narrated above, all the witnesses have named all the accused as assailants. On the basis of some contradictions, no doubt, benefit of doubt is given to two accused, but that would not mean that basic structure of the prosecution version that accused came at the house of Mubarik and assaulted injured witnesses as well as the deceased is affected at all and it stands proved beyond reasonable doubt. Hence, in our view, after considering the omissions and contradictions and after appreciating the entire evidence, if the courts below have arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against some accused, it would not be a case for interference under Article 136 of the Constitution. (Paras 23, 24 and 25)

       (ii) Evidence Act, 1872-Question whether accused were aggressors to such extent that they caused murder of one and seriously injured three-Accused also receiving serious injuries-Non-explanation by prosecution-Whether suppressed the genesis of occurrence or changed the scene of occurrence? (No)-The right of self defence rejected-Result-Acquittal reversed-Convictions confirmed.

       Held : Undisputedly, incident took place. However, defence version is that incident took place at a different place, namely, near a public water tap. That defence is disbelieved by both the courts below and as discussed hereinabove, in our view, there is no reason to take a different view from the view taken by the High Courts as well as the Sessions Court. Then, next question is-what is effect of non-explanation of injuries sustained by the accused at about the time of occurrence? It is settled law that in case of non-explanation of injuries to the accused, Court can draw following inferences:

        (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.

        (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.

        (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

       But, non-explanation of injuries may loose its importance where the evidence is clear, cogent and creditworthy and where court can distinguish the truth from falsehood without much difficulty. It is also true that the reasonable inference which could be drawn in such cases is that accused persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted such injuries. On that basis again, the question would be whether the accused caused the injury to the prosecution witnesses and the deceased by exercising right of private defence? If the prosecution establishes that the accused were the aggressors and went at the residence of the deceased or the prosecution witness and inflicted injuries to the deceased and witnesses, there is no question of right of private defence to the accused. On the contrary in such situation, the prosecution party would have the right of private defence. In Kashmiri Lal and Others v. State of Punjab, 1996(10) SCC 471 : 1996(6) Supreme 424, the Court observed thus:-

       "The law does not confer a right of self-defence on a person who invites an attack on himself by his own attack on another. The principle of right of self-defence cannot legitimately be utilized as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat."

       Facts proved on record establish that accused were aggressors. Accused and the prosecution witnesses were having long standing dispute over the land. Because of previous incident of assaulting Yakub, it is the prosecution story that all the six accused came at the scene of offence, first assaulted Ismile and at the house of Mubarik by breaking open the door which was closed, assaulted Ahmad Noor, Yusuf and Mubarik. At that stage, if someone from prosecution party counter attacked the assailant, there is no question of disbelieving the prosecution witnesses nor any right of private defence to the accused could be inferred. In such cases, there must be some evidence on record to probabilise such defence. In this view of the matter, we see no infirmity in the judgment of the trial Court or in the judgment of the High Court in convicting the Appellants in Criminal Appeal No.872 of 1997. As set out hereinabove, accused Sardar had been acquitted by the High Court only on the ground that he should be given the same benefit of doubt which had been given to accused Usman and Ramzu. The High Court also accepts the fact that the door was broken open and 3 persons of the complainant party were injured in the house. The High Court also notes that circumstances indicate presence of "more persons". The High Court also notes that as door was broken open there was possibility of presence of axe in the hands of some persons. Yet the High Court acquits Sardar only on ground that acquittal of two accused had become final. It is to be noted that Sessions Court gave benefit of doubt to Usman and Ramzu on the basis of contradiction in deposition of witnesses. Ismile, Yusuf and Mubarik with regard to the assault to the witnesses and also as there was no mark of injuries on their person. But this would not mean that there was any reason to discard the consistent evidence of prosecution witnesses with regard to the assault made by Sardar. The High Court also observed that according to Yaqub, Usman and Sardar both were armed with axe, but no axe injury, i.e. incised wound has been found on the body of any person of the complainant party. Mubarik has stated that Sardar caused injury to Ahmad Noor by blunt part of the axe, but this does not find place in the FIR. Ismile has also stated that Usman and Sardar had axe, but as observed earlier, no incised injury has been found on the body of any person from the complainant side. The High Court observed that Sardar allegedly caused injury by axe, but no incised injury has been found and, therefore, Sardar deserved the same benefit as his participation becomes doubtful and does not stand corroboration from the medical evidence. In our view, this part of reasoning is entirely fallacious. It is to be seen from the evidence on record that Sardar is the main aggressor. It is established beyond reasonable doubt that he was the person who first accosted Yaqub, caught hold of him, beat him and threatened him. Thereafter within few minutes, he along with other accused came at the house of Mubarik, first assaulted Ismile and thereafter broke open the door of the house of Mubarik which was closed and assaulted deceased Ahmad Noor as well as Mubarik and Yusuf. Merely because the trial Court has given benefit of doubt to Usman and Ramzu, it would not mean that Sardar who is the main person should also be given benefit of doubt despite the fact that all the witnesses have named him and stated that he was the aggressor and assaulter. It is true that incised injury is not found on the person of the injured witnesses or the deceased, but that would not be a ground for giving him benefit of doubt in the facts and circumstances of the present case because it would depend on whether the blunt side or the sharpedged side of the axe was used, but considering the evidence of prosecution witnesses entirely is required to be convicted for the offence punishable under Section 302 read with 34 IPC and not only under Section 302 IPC. In the result, Criminal Appeal No. 871 of 1997 filed by the State is allowed. The judgment and order passed by the High Court acquitting respondent is set aside and the order of the trial Court convicting the respondent for the offence punishable under Section 302 read with Section 34 is restored. He is directed to surrender within two weeks from today before the trial court for undergoing remaining part of his sentence. Criminal Appeal No. 872 of 1997 filed by the accused is dismissed. (Paras 27, 28, 29, 30, 31 & 32)