IMPORTANT POINT
Appellant 1 is rightly convicted for offences under Sections 326 and 323 IPC and appellant 2 for offence under Section 323 IPC by Courts below. Their contentions regarding interestedness of witnesses, false in one thing, false in everything and exercise of private defence have no merit.

Headnote:Indian Penal Code, 1860-Sections 147, 148, 307 r/w 32 and 323-Offences under-Six persons tried-Two convicted, Rizan for offences under Sections 326 and 323-Sentenced to RI and 2 years and 2 months and Duda under Section 323 IPC sentenced to RI for two months-Confirmed by High Court-Appeal against to Supreme Court-Plea of inimical witnesses-Same evidence acquitting four -Cannot be relied to convict other two -Right of private defence under Sections 96 to 102 IPC-Whether tenable? (No)-Whether sentence needs any modification? (No)-Result-Appeal dismissed-Case law referred.
       Held : We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (Para 6)
       Held then : We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon has no substance. This theory was repelled by this Court as early as in Dalip Singh s case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. (Para 9)
       Held further : Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguished features in evidence so far as acquitted and convicted accused are concerned. (Para 12)
       Held further : In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to the considered. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence. Similar view was expressed by this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87) and recently in Sekar @ Raja Sekharan v. State represented by Inspector of Police, Tamil Nadu (2002 (7) Supreme 124). (Para 16)
       Held finally : Sentences imposed do not in any way appear to be harsh. Merely because the occurrence took place sometime back, same cannot be a factor to reduce the sentences. The appeal is without merit and is dismissed. (Para 17)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. Appellants call in question legality of impugned judgment rendered by the Madhya Pradesh High Court at Jabalpur, whereby it upheld the conviction and sentence awarded by the Additional Sessions Judge, Jashpurnagar.

3. Prosecution version which led to the trial of the appellants (hereinafter referred to as the accused by their respective names) is as follows:

On 29.11.86 information was lodged by Jhanguram (PW-2) that six persons had assaulted him with intention to take his life, and had also caused injuries to his wife Pandri Bai (PW-4) and his daughter-in-law Tilobai (PW-5). On the basis of such information, the case was registered and investigation was undertaken. On completion of investigation charge was framed for commission of offences punishable under Sections 147, 148, 307 read with Section 34 and Section 323 of the Indian Penal Code, 1860 (in short IPC ). It was alleged that accused Khodhibai (since acquitted) and Pandri Bai (PW-4) are sisters. There was a bad blood between them over certain properties and civil litigation was going on. The six accused persons were cutting the crops raised by Jhanguram (PW -2) on the date of the of the occurrence. When he asked them not to do so, the accused persons did not pay any heed. Suddenly accused appellant, Rizan snatched the axe which Jhanguram (PW -2) was holding and assaulted him with the said weapon and caused several injuries on different parts of his body i.e. lips, hands and feet. More particularly, accused-appellant, Duda hit Jhanguram and Pandri Bai with a stick. Other accused persons also hit him with their hands and feet. Some persons standing nearby came to their rescue. The injured P.Ws. 2, 4 and 5 were examined by the Doctor (PW -1). During investigation the weapon of assault i.e. axe was seizes from the accused-appellant. Rizan and some other weapons from the other persons. Six witnesses were examined to further the prosecution version. Accused persons pleaded innocence and false implication. On consideration of the evidence on record, the Trial Court held that the prosecution has not been able to bring home the accusations against accused - Paras, Vinod, Khodibai and Jaymala.

4. Accused-appellant Rizan was found guilty for the offences punishable under Section 326 IPC for inflicting injuries on Jhanguram (P.W.2) and under Section 323 IPC for the injuries inflicted on Pandri Bai (P.W. 4). Accused Duda was found guilty for the offences punishable under Section 323 IPC for inflicting injuries on aforesaid two witnesses. However, both the accused-appellants Rizan and Duda were acquitted of the offences relatable, to Sections 147 and 148 IPC. It was also held that the offence committed by the accused persons is not covered by Section 307 IPC. After hearing the accused persons on the question of sentence, accused-appellant. Rizan was sentenced to undergo RI for two years and two months respectively for the offence punishable under Sections 326 and 323 IPC. Both the sentences were directed to run concurrently. Accused Duda was sentenced to undergo RI for two months. In appeal, by the impugned judgment, the High Court dismissed the appeal maintaining the convictions and the sentences.

5. In support of the appeal, learned counsel for the accused-appellants submitted that this is a case where the conviction is not maintainable as the injuries were inflicted by the accused - appellants while exercising their right of private defence. Further on the same set of evidence four persons have been acquitted and, therefore, so far as the appellants are concerned, conviction does not stand to reason. It is also submitted that the witnesses who claim to have seen the occurrence are witnesses who were in inimical terms with the accused-appellants. Residually, it is submitted that the sentences as imposed are high, and considering the fact that the occurrence took place five years back, the sentences should be reduced

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2003 Supreme(SC) 67

Cases Referred (24)