2004 Supreme(SC) 877

2004(6) Supreme 248
SUPREME COURT OF INDIA
(From Allahabad High Court)
P. Venkatarama Reddy & B.P. Singh, JJ.
Dashrath Singh -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 909 of 2001
With
Criminal Appeal No. 910 of 2001
Decided on 13-8-2004
Counsel for the Parties :
For the Appellant : R.D. Mehra, Deepak Dhingra and Pradeep Kumar Bakshi, Advocates.
For the Respondent : Pramod Swarup, Ms. Pareena Swarup, Praveen Swarup and A.S. Pundir (NP), Advocates.

IMPORTANT POINT
Non explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 302/34, 307 and 326-Fight between two groups over land dispute-Plea of self defence-Question as to who were the aggressors and which was the scene of offence-Non explanation of injuries on accused-Deceased and accused, related to each other, they being descendants of common ancestor-Dispute over the rights on a small parcel of joint land known as Khajiha close to house of deceased-When deceased brought his cattle and tied them up at Khajiha, accused persons threatened him and after a few minutes, appellants came armed with weapons-When deceased came out of his room, appellant D made unsuccessful attempts to fire at him-Deceased was then hit on the head with kanta-He fell down and taken to the hospital-Dying declaration recorded by Executive Magistrate at the hospital-Whether High Court was justified in holding that appellants acted as aggressors in absence of explanation for injuries received by five of the accused-(Yes).

       Held : The High Court took note of the fact that the prosecution witnesses did explain that the injuries came to be inflicted on the accused with bamboos picked up by PW2 and his brother in order to repel the further attack by the accused. The High Court observed that the mere fact that the FIR was silent regarding the injuries received by the accused is not a ground to discard the explanation given at the trial. There may be initial reluctance on the part of the informant to disclose that the prosecution party made a counter attack causing injuries to some of the accused. The High Court was of the view that in the face of the clear and consistent evidence of independent and natural witnesses supported by the dying declaration, all of which revealed that the accused party was the aggressor and initiated the attack on Pratap Singh in front of his house, the non-explanation of injuries at the earliest point of time cannot be put against the prosecution. Broadly speaking, the approach of the High Court seems to be correct and in conformity with the legal position clarified and explained by this Court in a series of decisions. (Para 17)

       The injuries of serious nature received by the accused in the course of the same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. It is here the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may prima facie make a dent on the credibility of their evidence. So also where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of non-explanation of the injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions above cited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version. (Para 20)

       The High Court found that independent and reliable evidence including dying declaration of the victim is available. The defence version does not inspire confidence in the estimation of the Court and does not compete in probability with that of the prosecution. That is how the High Court has approached the matter and we cannot find fault with the same. To add to what the High Court has said, we may point out that there is every possibility that PW 4 - the informant, would not have been in a position to notice that some of the accused received severe injuries. It is true that one of the appellants Dashrath had a facture of the little finger which is described as a grievous injury but there could hardly be any occasion to observe such injury in the melee that followed the aggressive attack of the accused party. So also, the injuries on the other accused might not have been noticed by PW4 - the informant. (Para 22)

       (ii) Indian Penal Code, 1860-Sections 326, 302, 302/34 and 307-Nature of offence-Head injury inflicted with kanta-Attempt on his life by resorting to firing, missing the target-Concurrent finding that common object of unlawful assembly was not to kill deceased or any member of his family but only to cause hurt to desist him from asserting his rights over disputed site-Whether intention to cause death can be imputed to accused persons-(No)-Medical evidence does not establish that ultimate cause of death was the head injury-Victim was alive for 23 days after the surgery-He survived for 38 days after the injury was received-Appellants conviction u/s 302 or Section 304 IPC held not sustainable-He was held guilty u/s 326 IPC for voluntarily causing a grievous hurt.

       Held : It must be noted that the intention to cause the death of Pratap Singh cannot be imputed to the accused Raja Ram. Apart from the finding of both the Courts that the common object of the unlawful assembly was not to kill Pratap Singh or any other member of his family but only to cause hurt or apply criminal force in order to desist them from asserting the rights over the disputed site, one more circumstance that rules out the intention on the part of any of the accused to kill Pratap Singh is that after the single blow inflicted on the victim with the kanta, there was no further move to attack him. PW1 made this clear in his deposition. If Raja Ram intended to kill him, he would not have stopped at injuring him once only. Still, the question remains whether the offensive act done by the appellant Raja Ram falls within clause thirdly of Section 300. That the appellant intended to cause bodily injury to the victim by striking him on his head with a sharp-edged weapon the appellant was carrying cannot be denied in view of the sequence of events deposed to by PWs 1 to 4. From the medical evidence of PWs 6 & 8 coupled with the magnitude of the injury caused on head with a dangerous weapon, it can be presumed that the injury which was inflicted and intended to be inflicted is sufficient in the ordinary course of nature to cause death. PW 8 who performed the surgery on 13.8.1977 noted the pre-operative diagnosis. (Para 26)

       PW 8 stated that the death was on account of the head injury which caused brain abscess and such injury could lead to the occurrence of death in the ordinary course of nature. The evidence of PW8 leaves no doubt that the skull and brain injury caused to the victim was sufficient in the ordinary course of nature to cause death. PW6 who attended on the victim on the day of occurrence itself noticed the incised wound of 15 cm x 5 cm x brain tissue deep found on the head of the patient. He stated that the injury was appearing to be dangerous to life and the injury must have been inflicted by a sharp-edged object thrust with sufficient force. The medical evidence however does not establish beyond reasonable doubt that the ultimate cause of death was the aforesaid injury. From the date of the surgery, the victim was alive for 23 days and undergoing treatment in the hospital. He survived for 38 days after the injury was received. Not a word has been said and no report or case-sheet has been filed to indicate the condition of the patient after the surgery. No doubt, there was no cross examination of the Doctor (PW8) on this aspect. Yet, it was the primary duty of the prosecution to adduce evidence in regard to the post-operative condition of the patient so that the scope for any intervening ailment unconnected with the injury is ruled out. This becomes all the more important because of the long time lag and the omission to hold post-mortem. Apparently, there was a callous indifference or lack of vigilance on the part of the Investigating Officer in failing to ensure the post-mortem examination in a case of this nature. PW8 came forward with the explanation that the post-mortem is not absolutely necessary to ascertain the cause of death. But, then, the prosecution has to establish beyond reasonable doubt that the eventual cause of death was only the injury inflicted by the appellant and nothing else, but it has failed to do so. (Paras 27 and 28)

       The appellant Raja Ram cannot be held guilty of an offence under Section 302 or Section 304. He must be held guilty under Section 326 for voluntarily causing a grievous hurt by means of a dangerous weapon. Accordingly, his conviction is modified to Section 326 and he is sentenced to undergo rigorous imprisonment for six years and to pay the fine of Rs. 1,000. (Para 29)