2002 Supreme(SC) 871

2002(6) Supreme 97
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
R.C. Lahoti & Brijesh Kumar, JJ.
Dharminder   -Appellant
versus
State of Himachal Pradesh -Respondent
Criminal Appeal No. 445 of 2001
With
Criminal Appeal No. 838 of 2001
With
Criminal Appeal No. 693 of 2001
Decided on 3-9-2002
Counsel for the Parties :
For the Appearing Parties : Chandrakant Nayak (A.C.), Anil Soni, Ms. Abha Joshi and Ms. Meenakshi Arora, Anil Nag, Rajeev Bansal, Akshay Ghai, Advocates.

IMPORTANT POINT
The Courts below rightly disbelieved plea of self defence by appellants despite gun shot injury received by one of them in the facts, circumstances of the present case. Their conviction under Sections 302/34, 307/34 and 323/34 IPC cannot be disturbed.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34, 307/34, 323/34-Offences under-Chapter IV-Exception-Right of private defence-Evidence Act, 1872 - Section 105-Onus of proof-High Court holding that proof to establish right of self defence is not as onerous as that of prosecution to prove the case-Whether correct? (Yes).

       Held : The High Court considered the relevant provisions of law pertaining to the right of self defence available to the accused persons as contained under Chapter IV of the Indian Penal Code and Section 105 of the Evidence Act relating to onus of proof on the accused persons to establish the plea relating to of exceptions e.g. right of private defence. After considering the relevant law on the point it has been observed, and in our view rightly, that onus of proof to establish the right of private defence is not as onerous as that of the prosecution to prove its case. And where the facts and circumstances lead to pre-ponderance of probabilities in favour of the defence case, it would be enough to discharge the burden to prove the case of self defence. (Para 24)

       (ii) Indian Penal Code, 1860-Sections 302/34, 307/34, 323/34-Offences under-Courts below holding appellants Dharminder and Durga Nand murdered Laiq Ram, attempted to murder his son Neel Kanth and caused simple injury to wife of Laiq Ram and mother of Neel Kanth (Gangawati) in furtherance of common intention to grab some immovable property-But acquitted others-Appeal by appellants against their conviction-Prosecution alleging appellants as aggressor and appellants pleading self defence on the basis of injuries received by Durga Nand from gun of Gangawati fired by Laiq Ram-Whether non-mention of injury on appellant Dayanand in FIR fatal? (No)-Is it explained? (Yes, though later)-Case law referred-(Cr.P.C. 1973-Section 161-Statement to police and Section 233-Written statements to Court).

       Held : Apart from what has been indicated above, in so far as the question of the suppression of the injuries of Durga Nand by the prosecution is concerned, it may be observed that factually it does not appear to be so. It is true that the FIR does not mention about the injuries of Durga Nand but the fact cannot be lost sight of that the FIR was lodged by PW 6 Shiv Lal who was not an eye witness to the incident. But PW 14 Kanta in her statement under Section 161 Cr. P.C. had come out with the fact that Laiq Ram had fired gun shot injuring Durga Nand because of the murderous assault on Neel Kanth by the accused persons. In the statement in court she appears to have stated that the fire was shot by Dharaminder but she was confronted with her previous statement which has been brought on record. In the statement, other witnesses have also stated about the firing on their behalf. Thus it cannot be said that there was any suppression as such of the injuries of Durga Nand. It was disclosed at the first opportunity to the investigating agency in the statement under Section 161 Cr.P.C. (Para 20)

       (iii) Criminal Trial-Appeal against conviction-State s appeals against acquittal-Both appeals against concurrent decisions of Courts below-Prosecution proving assault by appellants, causing death of Laiq Ram serious injurious and simple injury to Neel Kanth and Gangawati respectively-Non-presence and non-involvement of acquitted accused made out by evidence-Result-All the appeals dismissed.

       Held : We may now consider the merits of the present case, in the light of the evidence available on the record as well as the circumstances and pre-ponderance of probabilities as emanating from record and surrounding circumstances. The prosecution witnesses have categorically stated that PW 4 Gangawati was attacked first by Durganand and others and on her alarm her son arrived at the spot who was also severely assaulted by Durganand Dharaminder and other accused persons. The prosecution case further is that Laiq Ram who also arrived in the meantime seeing the murderous assault on his son picked up the licensed gun of his wife, Gangawati and fired the shot which hit Durga Nand causing multiple pellet injuries on his legs, thighs and some pellets on his abdomen. Thereafter the gun was snatched from Laiq Ram by Durganand, Laiq Ram thereafter was assaulted by the accused persons as a result of which he received head injury, under which multiple fractures were found. He succumbed to his injuries and died at the spot. We have already noticed the injuries received by Neel Kanth quite a few of them are multiple injuries which in all would not be less than 20 injuries spread all over his body including five on the head itself. A simple injury was also found on the person of Gangawati. It is not understandable, if Laiq Ram had gone determined armed with a loaded gun for an aggression to deal with Durganand, he would fire a shot from a distance of about 20 meters, causing injury only on the lower part of the body rather most of which are on legs and thighs. This circumstance strengthens the case of the prosecution that Laiq Ram had used the licensed gun of his wife Gangawati to rescue his son Neel Kanth, who was being mercilessly beaten. It also militates against the story set up by the defence to claim right of private defence alleging aggression on the part of Laiq Ram. The medical evidence also supports the prosecution case, looking the large number of injuries which have been found on the person of Neel Kanth including on the vital parts of the body. According to Durganand he was alone on his side. He dis-armed Laiq Ram of his gun and Gangawati of her Danda and assaulted Laiq Ram and Neel Kanth. Later Bimla daughter of Durga Nand and his wife Smt. Hukmu Devi also arrived and they were also assaulted. They are said to have one simple injury each. What seems to be highly improbable is that Durganand after receiving the gun shot would be able to cause such large number of injuries to Neel Kanth and also the head injury with such force to Laiq Ram which caused multiple fractures of his head resulting in instantaneous death at the spot. It may also be noted that Neel Kanth would obviously be younger in age to Durganand. According to the doctor Durganand was brought to the hospital, who was then crying with agonizing pain. Later pellets were also recovered from his scrotum. In such a condition it is not possible that Durganand would be able to snatch Dandas and gun from the complainant party and would also assault in the manner indicated above. It is not a question of number of injuries caused to each side, at times an aggressor may receive more injuries than the defenders but the case in hand is not a case of that kind. Sequence of events as given out in the prosecution case also gets support from the medical evidence as well as broad probabilities leading to the conclusion that Smt. Gangawati and Neel Kanth had been assaulted first by Durganand and Dharminder, and Laiq Ram arrived later to rescue his son and by that time his son had already received a large number of injuries. The accused persons may have been successful in dis arming Laiq Ram and to hit on his head with such a great force that it proved to be a decisive blow causing injury sufficient to cause death in the ordinary course. Neel Kanth must have received injuries before and not after Durganand was fired at and received fire arm injuries. We don t attach much significance to the one simple injury received by Gangawati and Bimla each so as to make it necessary to deal with them in detail. It only indicates their presence at the spot at one or the other stage. It supports prosecution case that Gangawati was assaulted first at the initial stage. It is true that DW 1 Baldev Singh supports the version given by Durga Nand but DW 2 Jagat did not support the defence case, as when he arrived, he found Durganand being removed from the spot, he had not seen any assault on any one. It is difficult to place reliance on the statement of DW 1 Baldev Singh. The prosecution case is also supported by the circumstance that at the time Laiq Ram was not present at the scene then it would be better possible for Durganand and Dharminder to cause such large number of injuries to Neel Kanth numbering 20, all over the body. It could not be possible after Laiq Ram had arrived and fired the shot and Durganand had received the injuries. Yet another feature of the defence case that Laiq Ram wanted his property back and came determined for the purpose is not borne out from any circumstances. There is no dispute that Laiq Ram had left the village and the property and according to prosecution in Sheer disgust. He remained away from home for about 20-22 years. He did not return to the village at his own or for the love of his property but on pursuation of his son Neel Kanth i.e. for the affection of his son. It is nowhere indicated that during 20 - 22 years or during the period of one year after he came back to the village, he may have moved any authority or court agitating against the entries in the records made in the name of Durganand, or may have asked them to return the property. Nor that he may have made any effort earlier to get back the property. In this background it does not appeal to reason that one fine morning he would suddenly go armed with a gun to take possession of the property. On the other hand there is evidence on the record to indicate that none else but Padama Ram had told Neel Kanth that they may not go out of the house on that day as accused persons were not happy on the return of Laiq Ram and some trouble was in the offing on the fateful day. The above discussion clearly shows that the incident occurred in the manner indicated by the prosecution and pre-ponderance of probabilities also do not support the defence case. (Paras 25 to 29)

       Held consequently : For the reasons indicated above we find that the Court of Sessions as well as the High Court committed no error in recording the conviction of Dharminder and Durga Hand. (Para 31)

       Held further : So far appeal against acquittal is concerned, PW14 Kanta had stated that Padma Ram was in the house. A finding has been recorded that Pramod and Padma Ram do not seem to have participated in the assault and they seem to have arrived at the scene of occurrence later on. So far as Smt. Hukmu is concerned, it was found that though she was present and participated yet her involvement has not been satisfactorily established. We do not find it a case fit for interference with the acquittal of the respondents which has been recorded and affirmed by the High Court. (Para 33)

       Held finally : In the result all the appeals - viz filed by Durga Nand and Dharminder against their conviction and the one filed by the State of Himachal Pradesh against the acquittal of Hukmu Devi, Pramod and Padma Ram are devoid of merit and they are dismissed. (Para 32)