IMPORTANT POINT
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 now and under what circumstances injuries have been inflicted on the person of the accused.

Headnote:(i) Indian Penal Code, 1860—Sections 302, 304-II, 323/34, 324/34—Murderous assault—Non explanation of injuries on accused—Effect on prosecution case—Whether in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe—(No)—Non explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of omission to explain the injuries—It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.
       Held : We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe.(Para 9)
       But non-explanation of the injuries sustained by the accused may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case.(Para 9)
       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. In the case at hand, trifling and superficial injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case.(Para 10)
       (ii) Indian Penal Code, 1860—Sections 304-II and 324/34—Conviction—Accused closely related to each other harbouring enmity towards PW5 and his younger brother, deceased—Prosecution case that to cause hurt to brothers with dangerous weapons, A1 pulled the deceased by catching hold of his legs when A2 stabbed him with knife and A4 cut him with chopper—When PW5 intervened to rescue deceased, A4 inflicted a cut injury on PW5—Trial Court convicted accused for offences u/ss 302 and 324 rw/s 34 IPC—On appeal, High Court convicted A2 for offence u/s 304-II, IPC instead of that u/s 302 IPC—Plea of non-explanation of injuries on accused and exercise of right of private defence—Injuries suffered by accused were of very minor nature—Defence case that accused was attacked by an iron rod ruled out by nature of injuries suffered—No case was instituted against the deceased or prosecution—Whether impugned judgment of the High Court was sustainable—(Yes).(Paras 11 and 21)
       (iii) Indian Penal Code, 1860—Sections 96, 97, 100, 101, 105—Private defence—Plea of exercise of right of—Maintainability—In determining this question of fact, Court must consider all the surrounding circumstances—No test in the abstract for determining such a question can be laid down—Burden of proof of self defence is on the accused—Burden stands discharged by showing preponderance of probabilities in favour of that plea.
       Held : 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.(Para 15)
       The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.(Para 19)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. The appellants call into question the legality of the judgment rendered by a Division Bench of the Kerala High Court while partially altering the conviction of Nujum (Appellant No.2) who is, hereinafter referred to for the sake of convenience as A2 and maintaining the conviction of Shajahan (appellant No.1 for short A1), Manzoor (A3) and Musthafa (Appellant No.4 for short A-4) under Section 323 read with Section 34 IPC. A-2 was convicted in terms of Section 304 Part II of the Indian Penal Code, 1860 (in short the ‘IPC’) instead of Section the conviction under Section 302 IPC by the trial Court, and sentenced to undergo rigorous imprisonment for five years. The conviction of A2 and the sentence for offence, punishable under Section 324 Part I IPC, was not interfered with.

3. The prosecution version as unfolded during trial was as follows:

The accused who are closely related to each other were harbouring extreme enmity towards Ashraf (PW-5) and his younger brother Abdul Samad (hereinafter referred to as ‘deceased’). On 18.9.1994 at or about 1.50 P.M. at Kulasekharapuram in Adinadu Village, Punnakulam Muri and to the south of Puthentheruvu junction near the eastern boundary of the paramba of Laila, (the sister of PW5 and the deceased) accused in furtherance of their common intention to voluntarily cause hurt to the aforesaid brothers with dangerous weapons attacked them. A1 pulled the deceased by catching hold of his legs, Nujum-A2 stabbed him with M.O.1 knife, A4 cut him with M.O.2 chopper. When PW5 intervened to rescue the deceased, Musthafa-A4 inflicted a cut injury on PW5 with M.O.2 chopper, A2 inflicted a stab injury on Shuhra Beevi (PW1) with M.O. 1 knife and Manzoor-A3 assaulted PW5 using his hands. The deceased succumbed to the injuries and injured PW5 was admitted in the hospital. The accused thereby committed offences punishable under Sections 302 and 324 read with Section 34 IPC.

4. The allegations against them were as follows:-

Shajahan-A1 had caught hold the legs of the deceased facilitating A2 for stabbing him. A2 not only stabbed the deceased but also inflicted injuries on PW1. Manzoor-A3 assaulted the deceased. Musthafa-A4 assaulted the deceased with the chopper and also caused injury on PW-5.

5. On considering the evidence of the witnesses more particularly the evidence of PW-1 and PW-5 the accused persons were found guilty as follows:

A2 was guilty of offence punishable under Section 302 and Section 324 IPC. A1, A3 and A4 were guilty for offences punishable under Section 323 read with Section 34 IPC. A3 was a student and was released on probation for the conviction under Section 323 IPC.

6. In appeal, the High Court held that the accusations were established so far as A1, A3 and A4 are concerned. It further held that it would be appropriate to convict A2 for offence punishable under Section 304 Part II IPC instead of Section 302 IPC and custodial sentence of five years was awarded. The sentence awarded to A2 in respect of Section 324 IPC was maintained.

7. In support of the appeal, learned counsel for the appellant submitted that the injuries on the accused were not explained. The investigating officer accepted that there were injuries but he did not focus the investigation on that aspect. Once the exercise of right of private defence was partially accepted, the conviction as recorded cannot be maintained.

Learned counsel for the appellants submitted that the incident took place in the property of the accused and the High Court accepted that up to a certain extent the right of private defence was exercised. But the High Court wrongly observed that the appellants continued the attack. Same is wrong as according to the factual position only one blow was given.

Learned counsel for the respondent-State on the other hand supported the impugned judgment.

8. It is to be noted that during the pendency of the appeal appellant No.1 has expired. So the appeal stands abated so far as he

Click Here to Read the rest of this document

2007 Supreme(SC) 257

Cases Referred (20)