IMPORTANT POINT
As prosecution has suppressed the facts and has not come up with a true story, the appellants are acquitted of the charges framed against them.

Headnote:Indian Penal Code, 1860-Sections 148, 302 r/w 149, 325 r/w 149, 323 r/w 452 r/w 149, 436 r/w 149-Offences under-Nine persons convicted under by trial Court-Affirmed by High Court without re-appraisal of evidence appeals to Supreme Court-Complainant party and accused party are related but inimical-FIR lodged late at police station nearby-Version of PW 2 found to be an improvement on the basis of medical evidence-Not reliable-Prosecution story found suppressed and unreliable-No explanation of injuries on accused person which are of serious nature-Prosecution has failed to establish its case-Result-Appeals allowed (Criminal Trial-Prosecution suppressing facts-Result).
       Held : As already noticed, the FIR was lodged on 19.12.94 at 2.30 a.m. for the incident said to have taken place on 18.12.94 at about 9.30 p.m. An accident which is stated to have taken place in the village Teekli, is stated to be at a distance of about 14 KM from Gurgaon. It is in the evidence on record that Sadar Police Station, Gurgaon, and police post Badshahpur fall on the way from village Teekli to General Hospital, Gurgaon. The complainant party did not stop at the two police stations and proceeded straight to the General Hospital, Gurgaon. It is urged that the conduct of the complainant party is unusual and this has created doubt about genesis of the prosecution story. This contention has been rejected by the learned trial court that the complainant party was busy in getting the first and immediate aid to the injured persons of the family. We are of the view that in the ordinary circumstances, it is quite imperative that the complainant party could have stopped at the police station, sought necessary help from the police station and also given the first hand information to the police. From the evidence of P.W.4 - Dr. B.B. Sharma, it appears that the injuries suffered by the complainant party are simple in nature except that of Kundan Lal (deceased). In our view, therefore, there are no mitigating circumstances for not reporting to the police station at the first hour especially when the police stations are on the way to the General Hospital. (Para 11)
       It is utterly unbelievable story of the prosecution that the right of private defence is directed against only accused Ram Kishan who has sustained as many as six injuries on his body, as described above. At the same time, the nature of the injury sustained by accused Ram Kishan would disclose that the complainant party was armed and had sufficient time to inflict the injuries. This circumstance would lend support to the defence version that Ram Kishan was kidnapped and forcibly lifted to the house of Kundan Lal and beaten up mercilessly by the complainant party. (Para 16)
       Similarly, in the FIR PW-2 Sumer Singh did not mention about the particulars of the injuries suffered by him at the hands of the accused. He has, however, stated in his statement recorded under section 161 on 19.12.1994 that Desh Raj caused injury on his left shoulder by stone, accused Sunil caused injury on his left ankle and left foot by lathi, accused Satish caused injury on his right ankle and below right knee by stone. This witness deposed before the court that accused Desh Raj caused him injury on his right shoulder and accused Sunil on the right ankle and accused Satish on left knee respectively. This, in our view, is a substantial contradiction which is fatal to the prosecution story. No reliance can be placed on such a contrary statement with regard to the injuries sustained by him caused by each of the accused. (Para 17)
       In our view, the aforesaid discrepancies appearing in the statement of PW-2 would render the prosecution story wholly unreliable, concocted and well an after thought. (Para 19)
       The High Court is a final Court of appeal and normally this Court would not interfere, if the High Court on the reappraisal of evidence confirms the trial court judgment. But in the present case, going through the judgment of the High Court, with respect we may point out that the High Court merely affirmed the findings of the trial Court without reappraisal of the evidence on its own. As already pointed out, accused Ram Kishan sustained as many as six injuries on his body, injury Nos. 3 and 4 stated to be grievous in nature. Both the trial court and the High Court accepted the version of PW-2 that injuries were caused in self-defence. We have already disbelieved the version of PW-2. No explanation whosoever has been afforded by the prosecution with regard to the injuries on the person of the accused - Ram Kishan. (Paras 21 and 22)
       In the present case, as noticed earlier, the prosecution evidence consists of interested or inimical witnesses. Therefore, non-explanation of the injuries sustained by Ram Kishan may assume greater importance. There is also the defence version which competes in probability with that of the prosecution. In our view, therefore, non-explanation of the injuries sustained by the accused Ram Kishan, which are grievous in nature, renders the prosecution story not wholly true. (Para 24)
       Held thereafter : As already noticed, out of the injured complainant party, only Karan Singh - PW-1 and Sumer Singh - PW-2 have been cited as witnesses. The others were not examined. The nature of the injuries sustained by the complainant party would clearly suggest that such injuries could be caused in a melee which is the version of the defence that injuries sustained by deceased Kundan Lal and other members of the complainant party have been caused by a mob consisting of 300-350 while trying to rescue the accused Ram Kishan. Considering the nature of the injuries sustained by the complainant party it is quite probable that they sustained injuries accidentally while being involved in a mob fight. We are clearly of the view that the nature of the injuries sustained by the complainant party would clearly suggest that such injuries could only be caused in a melee wherein the mob of 300-350 gathered at the place as projected by the defence. Such injuries sustained by the complainant party could not be attributed to the accused in the circumstances as explained above. In the fact and circumstances recited above, we are clearly of the view, that the prosecution has not come up with a true story. It has suppressed the facts. If that be the case, the whole prosecution story would stand on a quick sand. The prosecution has failed to establish its case beyond reasonable doubts. It is now well settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favoring the accused must be accepted. (Paras 32 and 33)
       Held consequently : In the result, these appeals are allowed, the convictions and sentences passed on the appellants are set aside and all the appellants are acquitted of the charges framed against them. The appellants are in jail. They are directed to be set at liberty forthwith, if not required in connection with any other case. The impleadment application is dismissed. (Paras 34 and 35)

JUDGMENT

Sema, J.-These two appeals arise out of a common judgment and order passed by the learned Additional Sessions Judge, Gurgaon convicting the appellants in Sessions Case No. 32 of 1995 and sentenced them to suffer Rigorous Imprisonment on the following Sections of law as under:-

Offence U/s Sentence Amount of Sentence in awarded fineImposed default of payment

148 IPC Two years Nil -

302 IPC Imprisonment Rs. 1000/- Six months RI r/w l49IPC for life

325 IPC Three years RI Rs. 300/- Two months r/w 149 IPC RI

323 IPC Six months RI Nil -- r/w 149 IPC

452 IPC Three years RI Rs. 300/- Two months r/w 149 IPC RI

436 IPC Seven years RI Rs. 700/- Five months r/w 149 IPC RI

The substantive sentences were ordered to run concurrently. By the aforesaid judgment all the nine accused have been convicted. The convictions and sentences have been confirmed by the High Court Criminal Appeal No. 73 of 2002 is preferred by accused Raghunath and Criminal Appeal No. 74 of 2002 is preferred by the remaining eight accused, namely, Ram Kishan s/o Ram Pat, Anil @ Ajay Kumar s/o Ram Kishan, Manohar Lal s/o Bohru, Desh Raj s/o Ram Pat, Siri Chand s/o Bohru, Satish s/o Siri Chand, Sunil s/o Ram Kishan and Jagmal s/o Ram Pat.

2. The complainant parties are close relatives of deceased Kundan Lal. The accused are also inter-related (accused Nos. 2 and 6 being the sons of accused No. 1 Ram Kishan, accused Nos. 3 and 7 brothers of accused No. 1, accused Nos. 4 and 9 inter-se brothers, accused No. 5 being the son of accused No. 4), except accused No. 8.

3. Before adverting to the points urged by counsel for the appellants we may, at this stage, notice that there is a rift between the two groups. While considering the evidence of witnesses, particularly of PWs 1 and 2, one could not loose sight that it is in the evidence of the prosecution that the deceased Kundan Lal had contested the election of Sarpanch against accused Manohar Lal earlier. It is also in the evidence of the prosecution that just a day after the date of incident Panchayat elections were to be held. The fight for the post of Sarpanch was between Raj Singh and one Satbir. The complainant party was supporting Raj Singh and the accused were the supporters of Satbir. It is also in the evidence on record that both criminal and civil litigation was pending between the complainant and the accused groups. Therefore, the rift between the complainant and the accused groups was writ large prior to the date of the incident. In such a situation one should be cautious while appreciating the evidence of the prosecution witnesses.

4. The prosecution case, as revealed in the FIR, was set in motion on receipt of information received from Badshahpur Police Station through wireless that there was a fight in village Teekli and the injured were admitted in the hospital. On the basis of the said information, ASI Bhup Singh had noted the Farad Bayan. After recording the statement of the complainant party, a prima facie case was found and a case under Sections 148, 323/302/325/452/436/427 read with Section 149 of the Indian Penal Code was registered.

5. PW-2 complainant, Sumer Singh lodged the FIR stating that on 18.12.1994, at about 9.30 p.m., his wife Smt. Indrawati, father Kundan Lal, mother Smt. Premwati, brothers Sher Singh and Sunder Lal, and Smt. Munni wife of Sher Singh were present in their house. Accused Ram Kishan, Sunil, Anil, Deshraj, Jagmal, Raghunath, Siri Chand, Satish, Manohar Lal, lass with lathis and stones entered the house of the deceased Kundan Lal by breaking the door open and on entering accused Anil Kumar inflicted a lathi blow which fell on the head of Kundan Lal (deceased)

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2002 Supreme(SC) 1111

IMPORTANT POINTAs prosecution has suppressed the facts and has not come up with a true story, the appellants are acquitted of the charges framed against them.

Cases Referred (3)

IMPORTANT POINT
As prosecution has suppressed the facts and has not come up with a true story, the appellants are acquitted of the charges framed against them.