IMPORTANT POINTS
1. To find out whether right of private defence was available or not, injuries received by accused, the imminence of threat to his safety, injuries caused by accused and circumstances whether accused had time to have recourse to public authorities are relevant factors to be considered.
2. Where evidence is clear, cogent and creditworthy and where Court can distinguish the truth from falsehood, mere fact that injuries of accused were not explained cannot by itself be a basis to reject evidence and prosecution case.

Headnote:(i) Indian Penal Code, 1860-Sections 96 to 98 and 100 to 106-Plea of right of self defence-High Court repelled contention in appeal that it was free fight but converted offence under Section 304 IPC-Appeal-Question of right of private defence-Number of injuries is not always a safe criterion for determining who was aggressor-Mere non-explanation of injuries on person of accused may not affect prosecution case in all cases-Burden is on accused that he had a right of private defence which extended to causing death.
       Held : We shall next deal with the aspect relating to injuries on accused and the question of right of private defence. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries found were suffered in the same occurrence and that such injuries on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence. 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 be considered. (Paras 7 to 9)
       (ii) Indian Penal Code, 1860-Sections 147, 323, 302/149-Conviction for offences under-Non-explanation of injuries on accused-Not an inevitable rule that prosecution has to explain injuries sustained by accused in same occurrence.
       Held : Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. (Para 12)

JUDGMENT

Arijit Pasayat, J.-The appellant along with seven others faced trial for alleged commission of offence punishable under Sections 147, 302 and 323 of the Indian Penal Code, 1860 (for short the IPC ). The appellant was found guilty of offence punishable under Sections 147 and 302 IPC. Other seven persons were found guilty for offences punishable under Sections 147, 302 read with 149 IPC. Accused Mangilal, Durilal, Bhagatram and Ganpat were also found guilty of offence punishable under Section 323. All were also found guilty of offence punishable under Sections 147 and 302 read with Section 149 IPC. The appellant was sentenced to undergo imprisonment for life with several other custodial sentences. In appeal, one Ganpat whose name did not appear in the first information report was acquitted. All other except appellant-Shriram were convicted under Sections 304 Part II IPC and 323 read with 149 IPC and others were convicted under Section 323 read and 149 IPC but were acquitted of the offence punishable under Section 302 read with Section 149 IPC. Custodial sentence of five years was imposed on the appellant-Shriram with fine of Rs. 5000/- with default stipulation. Because of passage of time already spent in custody instead of custodial sentence, five was imposed on each one of the other accused. During pendency of appeal before the High Court one Chainram died and the appeal so far he is concerned stood abated.

2. In a nutshell the prosecution case as unfolded during trial is as follows :

On 4.9.1987 at about 8.00 p.m. informant Laxmansingh, Piyarsingh, Mansingh, Ghansi, Ratan, Machan Singh, Madan and Lalu had gone to the house of Hemraj Mina (hereinafter referred to as deceased ) for participation in a Bhajan on the festival of Dol-Gyaras. After participating in the Bhajan programme all of them were returning to their village. While returning as such, they were required to go through a road which passes nearby the house of accused-appellant Shriram Jat. The moment they reached in front of his house, all the accused persons and their associates including some women assaulted and caused injuries to complainant party by lathi and stones. One Ratan escaped and went to Sarpanch Dulasingh and came along with him in a jeep. Laxmansingh, Piyarsingh, Ghansi, Mansingh Narain and Hemraj sustained injuries. Deceased Hemraj was seriously injured.

Information was lodged at the police station and injured witnesses were examined. The accused persons also claimed to have sustained injuries and were also examined. According to accused persons, the prosecution witnesses who claimed to have been injured were aggressor since without any reason they started assaults and they pelted stones to protect themselves. Alternatively, it was pleaded that since fight took place and specific roles were not attributed to any particular accused, they were entitled to the benefit of doubt. The trial Court after considering material on record convicted the accused persons as noted above. Appeal was preferred by the accused persons before the Madhya Pradesh High Court.

3. The High Court after consideration of the submissions made came to hold that the accused persons were the aggressors and merely because they claimed to have sustained injuries which were simple in nature, this was not a case of free fight and they were rightly held guilty by the trial Court. However, considering the nature of the evidence brought on record it was held that case under Section 302 IPC was not made out and the same was altered to Section 304. The judgment is under challenge in the present appeal.

4. Learned counsel for the appellant submitted that the witnesses PWs 2, 8, 9 and 11 were interested witnesses and related to the deceased and, therefore, their evidence was partisan. Non-examination of independent witnesses renders prosecution version unacceptable. Moreover, the injuries on the accused persons were not explained and, therefore, adverse inference should have been drawn.

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2003 Supreme(SC) 1193

Cases Referred (11)