2005 Supreme(SC) 740

2005(3) Supreme 711
Supreme Court of India
(From Punjab and Haryana High Court)
B.P. Singh & Arun Kumar, JJ.
Balwan Singh —Appellant
versus
State of Haryana —Respondent
Criminal Appeal No. 1245 of 1999
Decided on 27-4-2005
Counsel for the Parties :
For the Appearing Parties : A.T.M. Rangaramanujani, Sr. Advocate, D.B. Goswami, J.P. Sharma, Khwairakpam, Nobin Singh, Manjit Singh, Harikishan, Advocate for T.V. George, Ms. Kusum Chaudhary, B.V. Niren, Advocates.

Important point
While prosecution has to prove its case beyond reasonable doubt, defence has only to produce evidence or show material on record which probablise its defence.

Headnote:Indian Penal Code, 1860—Sections 302 and 323/34—Appellant A1 convicted under where other two accused were acquitted of murder charge by High Court—Appeal—Four accused including appellant armed with Jailis and lathis assaulted deceased, father of PW5 and PW7 wife of deceased and PW8 a neighbour were injured when they intervened—Defence plea that prosecution party was the aggressor—Non-explanation of injuries on person of accused—Consequence of failure to explain injuries depends upon facts and circumstances of the case, nature of occurrence and injuries—Three accused had suffered numerous injuries and some of them were serious on skull—Mere fact that accused were found to have sustained serious unexplained injuries would not necessarily give rise to an inference that there was a free fight—Prosecution did not disclose true genesis of occurrence—Motive alleged by prosecution did not appeal—Defence of accused was probablised—Conviction was liable to be set aside.

       Held : The question then arises whether the failure of the prosecution to explain the injuries suffered by the accused is not fatal to the case of the prosecution. It is true that in all cases failure of the prosecution to explain injuries to accused may not be fatal, and that the consequence of failure to explain such injuries depends upon the facts and circumstances of the case, the nature of the occurrence and the nature of the injuries suffered by the accused. In this case we find that the injuries suffered by A1 to A3 are numerous. We can say that the injuries were serious because any of the injuries on the skull could have proved fatal. Fortunately, that did not happen. The High Court noticing the evidence took the view that though the prosecution had not explained the injuries on the accused persons and may not have come out with a correct version of the occurrence, this could be said to be a case of a free fight and, therefore, right of private defence was not available to any of the participants and each one must be held responsible for is own conduct and action. We do not find ourselves in agreement with this view. The mere fact that the accused are also found to have sustained serious injuries unexplained by the prosecution does not necessarily give rise to an inference that there must have been a free fight. In the instant case, we find that there is ample evidence on record to establish that the occurrence took place in a different manner altogether in which the accused were also injured. They were promptly examined by the doctor who was examined as PW6, and they had also lodged a first information report stating relevant facts and alleging that it was the prosecution party which was the aggressor. From the facts of the case it becomes apparent that the prosecution has not disclosed the true genesis of the occurrence. The motive suggested by the prosecution does not appeal to us, because if there was an altercation between A1 and A2 in village Juan when a request was made by PW5 to A1 to take the groom on his motor cycle to the Choupal, there appears to be no reason why the accused would have assaulted his father after returning to the village, particularly, when PW5 was not with his father. The motive as alleged by the prosecution does not appeal to us because it does not appear to be natural that for the conduct of his son at a different place, the appellant would return to the village and kill his father. Having regard to the place of occurrence as found by the High Court, the defence of the accused is probablised. It is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probablise its defence. Having regard to the facts of the case and the findings of the High Court, we are satisfied that the case of the prosecution is not proved beyond reasonable doubt. The prosecution has not disclosed the true genesis of the occurrence. On the other hand, the evidence discloses that the occurrence took place in a different manner and at a different place in which three members of the defence party also suffered serious injuries. In these circumstances, the appellant and the other co-accused were at least entitled to the benefit of doubt. (Paras 13 and 14)