Saurabh Mishra And Another vs State Of U.P.
2015 Latest Caselaw 1985 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 2216 of 2006
 
Appellant :- Saurabh Mishra And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vivek Shrotria,Udai Pratap Singh
 
Counsel for Respondent :- Govt.Advocate,Chandra Dhari Singh,Nagendra Mohan,Prashant Singh Atal,Ratnesh Agnihotri,Rishad Murtaza,Vimal Shukla
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Mrs. Ranjana Pandya,J.

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. This criminal appeal has emanated from the judgment passed by Sessions Judge, Balrampur in S.T. No. 83 of 2004, registered as case crime no. 224 of 2004, under Sections 302/34, 307/34, 323, 506 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Kotwali Nagar, District Balrampur by which the appellants were found guilty for committing the offence and awarded punishment under aforesaid sections and each had been sentenced to undergo imprisonment for life and Rs. 5000/- under Section 302 /34 I.P.C., 6 months R.I. Under Section 323/34 I.P.C. with default stipulation. All the sentences were ordered to run concurrently. Succinctly stated the prosecution story in brief is that PW-1 Amar Nath Mishra has submitted a written report at police station stating that his son Pankaj Mishra accompanied by his brother Shrikant Mishra @ Golu were going to the market from his house. On 21.05.2004, as soon as they reached near the Kali Temple at 10:00 A.M., the accused Saurabh and Abhishek Mishra @ Munna with the common object attacked with knife, scissors etc. Fire was also shot by a country made pistol due to which Pankaj fell down on the spot. The other son Shrikant Mishra @ Golu also sustained injuries. On hue and cry being raised Manish, Madhav came to the spot. The accused fled away from the spot firing shots in the air and challenging to kill the sons of the informant. The nearby shops were shut down due to fear. Nobody came to the rescue of the deceased and injured due to fear of the accused persons. The complainant took both his sons to the hospital with the help of companions where Pankaj was declared dead and the other son of the informant was admitted for treatment.

2. On the basis of this report a case was registered at the police station bearing case crime no. 224 of 2004, under Sections 302, 307, 323, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act. The report of the said incident was lodged on the same day at 11:20 A.M. The distance of the police station being 1 Km. away from the place of occurrence. Investigation of the case was entrusted to PW-6 Om Prakash Chaubey, S.I. who was informed telephonically about the same. He collected the papers from the police station, reached Memorial Hospital, Balrampur where S.I. Nand Lal Sing was preparing the inquest report, recorded the statement of the informant Amar Nath Mishra. Then this witness prepared the site plan, collected the blood stained and simple, earth from the place of occurrence, prepared its memo which was proved as Exhibit Ka-10, site plan as Exhibit Ka-11. The investigating officer further arrested the accused persons on the same day. The weapon of assault i.e. scissor was recovered from Abhishek which was blood stained. Recovery memo was prepared as Exhibit Ka-2. The accused Abhishek was sent to P.H.C. For treatment on his request. The site plan of the arrest spot was prepared and proved as Exhibit Ka-12. The statement of the inquest witnesses were recorded. Medical of Shrikant was taken on record. The weapon of assault and blood stained earth etc. were sent for chemical examination and this witness has submitted charge sheet against the accused persons and proved it as Exhibit Ka-3. Dr. Ram Gopal, PW-4 has conducted the post-mortem on the dead body of the deceased on 21.05.2004. The dead body was brought by Constable Virendra Kumar Singh and Constable Shyam Sundar Singh. The deceased was of average body built, his eyes were closed, rigour motis were present on upper and lower extremetes and the following ante-mortem injuries were found on the body of the deceased:-

Contusion 2.5 cm. X 1.5 cm. on the left side of face just below left lateral angle of eye.

Incised wound 7 cm. X 2.5 cm. X Cavity deep on the junction of left shoulder and chest.

Incised wound 1.5 cm. X 1 cm. X muscle deep, on the left side root of neck.

Incised wound 1.5 cm. X 1 cm. X cavity deep on the left side in front of chest lateral to left nipple.

Incised would 1.5 cm. X 1 cm. X cavity deep on the left front of chest, 0.5 cm. below injury no. 4.

Incised would 1.5 cm. X 1 cm. X cavity deep on the front of left upper abdomen, 10 cm. below the left nipple.

Incised would 1 cm. X 0.5 cm. X muscle deep on left front of abdomen, 1.5 cm. lateral to injury no. 6.

3. On the body was being opened, the left chamber of the heart was found punctured. The upper lobe of the left lung was also found punctured. About 2.4 liters of blood was found in the chest cavity. On internal examination, the doctor found that the chest cavity was punctured. The pleura was punctured on the left side. There was congestion blood in the right lung. The left chamber of the heart was punctured. 50g. of pasty material was found in the stomach. Pasty material was also found in the small intestine. Fecal material and gas was present in the large intestine. The deceased died due to ante-mortem injuries, shock and hemorrhage. This witness has proved the post-moretem report as Exhibit Ka-3.

4. After investigation, charge sheet was submitted by the I.O. against the accuses persons under Sections 302/34, 307/34, 323, 506 I.P.C. and Section 7 Criminal Law Amendment Act.

5. Charges were framed against the accused persons under Section 302/34, 307/34, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act. The accused denied the charges and claimed trial.

6. The prosecution examined nine witnesses. PW-1 being Amar Nath Mishra, the informant and eye witness, PW-2 is Awadhesh Tiwari who is said to be the witness in whose presence the accused were arrested and blood stained scissor was recovered from Abhishek Mishra. This witness proved the recovery memo as Exhibit Ka-2 and the scissor as Exhibit-1. PW-3 is Shrikant Mishra @ Golu, who is said to be the eye witness and also the injured witness. PW-4 is Dr. Ram Gopal. PW-5 is Nand Lal Yadav, Sub Inspector who prepared the inquest report proved as Exhibit Ka-4. Letter R.I., letter C.M.O. as Exbibit Ka-5 to Exhibit Ka-9. PW-6 is I.O. Om Prakash Choubey. PW-7 is Dr. M. K. Prajapati who examined the injuries of injured Shrikant @ Golu which is as follows :-

* A soft scabbed abraded contusion 3 cm. X 2 cm. on back and top of head kept under observation and advised X-ray.

7. This witness PW-7 has proved the memo report as Exhibit Ka-14 and injury report as Exhibit Ka-15. Prosecution has further examined PW-8 Head Constable C.P. No. 10 Izaj Ahmad Siddiqui who prepared the chick report and proved it as Exhibit Ka-16. PW-9 is S.I. Hari Shankar Singh who made entry in the G.D. at report no. 19 time 11:20 hrs. on 21.05.2004 and proved it as Exhibit Ka-17.

8. The statement of Accused Saurabh Mishra was recorded under Section 313 Cr.P.C. who denied the prosecution case and said that Shrikant was not taken to the hospital. A forged report was lodged after consultation and a forged medical report was got prepared. He has further stated that prior to the occurrence, the deceased and his companions had teased his wife and has misbehaved with her which incident was reported to the police station Kotwali Balrampur, due to which Inspector, Police Station Kotwali had scolded Pankaj Mishra and his companions due to which Pankaj Mishra and his companions were angry. On the date of occurrence, when he and his brother Abhishek were going from their house, Pankaj Mishra and his companion Anshu Mishra chased Saurabh Mishra. His brother co-accused Abhishek Scuffled Pankaj Mishra and Anshu Mishra to save his brother. At this Pankaj Mishra and Anshu Mishra started beating Abhishek and this accused namely Saurabh Mishra saw that Pankaj and Anshu mishra would kill his brother Abhishek Mishra, then he saved his brother due to which Panbkaj Mishra sustained injuries. The accused namely Saurabh Mishra accompanied by his brother Abhishek went to Police Station Kotwali City, Balrampur to lodge report but his report was not written and he was made to sit there and a forged recovery of scissor was shown from Abhishek Mishra.

9. The statement of accused Abhishek Mishra was also recorded under Section 313 Cr.P.C., in which he has also denied the prosecution case and said that Shrikant was not taken to the hospital and a forged report was lodged after consultation. A forged report of Shrikant @ Golu was prepared and the statement given by his brother may be read as his statement.

10. The defence has examined two witnesses as DW-1 Dr. R.P. Gupta who is said to have examined the accused Abhishek Mishra. This witness has proved the injury report of Abhishek as Exhibit Kha-1 and the reference slip as Exhibit Kha-2. The following injuries were found on the body of the accused Abhishek Mishra :-

i. Lacerated wound was present on left side of the head on the parietal part running in length, which was 8.5 cm. above the left ear and 4.5 cm. away from the mid-line of head, whose area was 4 cm. X 0.5 cm. X subcutaneous deep. Blood clot was present on it which was reddish brown in colour. There was a coppice (Gulma) around it, measuring 7.5 cm. X 4 cm. margins of wound were uneven and pieces of hair were embedded in it on cleaning the injury fresh blood was oozing out of it.

ii. One L-shape abrasion was present on right side of back, 12 cm. above the birth-mark, which was 4.5 cm. away from the mid-line, whose colour was red. Both the margins of 'L' shape were measuring 2.5 cm. X 2.5 cm. each.

iii. He used to complain about pain in both the sides of the chest, but no visible mark of injury was present.

11. DW-2 is Constable Dhanwan Singh who took the injured Abhishek Mishra to the hospital for his medical examination.

12. The learned trial court after hearing the counsel for the parties convicted and sentenced both the two accused as indicated earlier.

13. Feeling aggrieved, the appellants have come up in the present appeal.

14. We have heard Mr. Rakesh Dwivedi, learned Senior Advocate assisted by Mr. Udai Pratap Singh, Mr. Vivek Shrotria, learned Advocate appeared on behalf of Appellants, Mr. Umesh Verma, learned A.G.A. On behalf of State and Mr. Nagendra Mohan for complainant at length and perused the original record carefully.

15. Learned counsel for the appellants while assailing the impugned judgment of the trial court has argued on the following points.

That the first information report is anti time subscribed by the lawyer.

There was no motive for the accused to kill the deceased.

The witnesses of fact examined by the prosecution are related and interested witnesses. There are contradictions in the statement of witnesses, hence they are not reliable.

PW-3 Shrikant @ Golu did not sustain injuries on the spot and since he is not an injured witness, his presence at the place of occurrence is doubtful.

The recovery of alleged weapon is doubtful.

The injuries on the person of the accused have not been explained by the prosecution.

The accused has the right of private defence which was exercised by them.

The investigation is highly defective.

(i) Whether the first information report is anti time

It has been submitted on behalf of the appellants that the first information report is anti time which causes a shadow of doubt on the whole prosecution story. It has also been submitted that the first information report did not come into existence when the inquest was being prepared, inasmuch as in the inquest report only Section 302 I.P.C. was written and Sections 307, 323, 506 I.P.C. and Section 7 Criminal Law Amendment Act have subsequently been added as has also been admitted by the Sup-Inspector who has prepared the inquest report namely PW-5 Nand Lal Singh who has explained that since initially these Sections were inadvertently omitted, they were added subsequently. This is an honest answer placed by the witnesses. PW-1 Amar Nath Mishra the informant has stated that after the occurrence, he took both his sons to the hospital where the doctors declared Pankaj Mishra dead and Shrikant @ Golu was admitted in the hospital for his treatment. He has further stated that Jai Prakash wrote his report on his dictation. It has come on record that scribe of the first information report namely Jai Prakash is a practicing Advocate but I think even a practicing advocate is initially a human being and though the informant was educated who could write his first information report himself. The mental state of this witness has to be kept in mind whose one son was sought dead before his eyes and the other was injured. Besides no enmity with Jai Prakash has been asserted by the accused. On being cross-examined on this point, Amar Nath Mishra, PW-1 has stated that when the written report was being subscribed, none of the police officers were present. He has further stated that when he was dictating the written report to Jai Prakash, thousands of people were standing outside but he did not talk to the police official by that time. He has also explained that he dictated the report in the emergency to Jai Prakash. The statement of this witness is corroborated by chick report according to which the occurrence took place at 10:00 A.M. On 21.05.2004 and report was lodged very promptly on the same day at 11:20 A.M. The police station being 1 Km. away from the place of occurrence. The entry of this report is also present in Exhibit Ka-7, copy of G.D. which shows that informant Amar Nath went alone to the police station.

No doubt PW-1 Amar Nath informant is an educated person but even if an educated person see, his son being killed before his eyes and the other son being injured, his mental condition will not be such that he could comfortably write the report. In the same context, perusal of the inquest report shows that the Annexures annexed with the inquest report were copy of chick, sample of the seal, photo of dead body, challan of dead body, report of R.I. and report of C.M.O. The preparation of the inquest report started at 12 O'clock in the day time. The inquest report has also been challenged on the ground that the signature of PW-1 Amar Nath is lacking on the inquest report, to this PW-5 Nand Lal who prepared the inquest report has stated that he did not see Amar Nath Mishra on the spot, hence, he was not mentioned as Panch in inquest report. He also admitted that he started the inquest proceedings after 12 O'clock. Thus, the argument of the defence counsel that the first information report is anti time has no legs to stand.

There is neither any delay nor the first information report is anti time. In support of this fact learned counsel for the appellants has placed reliance upon (2002) 9 Supreme Court Cases 147, (Bijoy Singh and another vs. State of Bihar) in which it has been laid down as under:-

"The first information report is a report giving information of the commission of a cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to writing by the officer in charge of the police station which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept by such officer in such form as the State Government may prescribe in that behalf. The registration of the FIR empowers the officer in charge of the police station to commence investigation with respect to the crime reported to him. A copy of the FIR is required to be sent forthwith to the Magistrate empowered to take cognizance of such offence. After recording the FIR, the officer in charge of the police station is obliged to proceed in person or depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in that behalf to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Evidence Act or to contradict him under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind."

Thus, inconsistent pleas has been taken by the defence inasmuch as on one hand the defence has taken plea of first information report being anti time, where as on the other hand the defence has pleaded that there is delay in lodging the first information report. Thus on what has been stated above, the first information report is not anti time or belated.

(ii) Whether there is no motive for the accused to commit the offence

It has been submitted on behalf of the accused that there is no motive to commit the offence. Perusal of the first information report shows that motive is wanting in the first information report. Motive is a double edged weapon which on one hand proposes the accused to commit the crime and on the other hand it works as a catalyst in falsely roping the accused in the case. It is only the perpetrator of the crime, who knows what are the circumstances and cause of action leading to the commission of the crime. Different persons react different under giving circumstances. Murder can be committed even on very trivial issues. It is also difficult to say and lay down any hard and fast rule as to how and in what manner a person would react and could go to extent to achieve his motive in the commission of the crime under a particular circumstance. It is not possible to measure the extent of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a giving circumstances. The Hon'ble Apex Court in the case of Ranganayaki vs. State (2004) 12 SCC 521 has held as under:

"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."

In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Terriotiry of Chdndigarh 2003 (47) ACC 7 (SC) are also relevant:

"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."

The Hon'ble Apex Court in Mangaru and others vs. State of U.P. 2008 (62) ACC 40 has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value.

After all motive is psychological phenomenon to translate the mental deposition of the accused. Though, no motive has been mentioned in the first information report, the motive finds place in the statement of PW-1 Amar Nath Mishra. The informant Amar Nath Mishra has stated that in the year 2003 election in the M.L.K., P.G. College were concluded in which altercation took place between the deceased and the accused and the accused threatened to kill the deceased. Learned A.G.A. While supporting the judgment of the trial court has submitted that in cases of direct evidence, motive looses its value.

Counsel for the appellants has submitted that the accused had no motive to commit the offence, whereas the deceased had a motive to commit the offence, inasmuch as according to the statement recorded under Section 313 Cr.P.C. of the accused Saurabh Mishra which matter was report at the police station Kotwali, Balrampur due to which Inspector, Kotwali had scolded Pankaj Mishra and his companions. This fact was admitted by the I.O. also being PW-6 who has stated that about two or three days prior to the occurrence, Inspector had warned him that his son crack, jokes with the wife of the accused and the accused, they should be instructed to behave properly. PW-1 Amar Nath Mishra has said that although his son told him that the accused Abhishek had threatened to kill Pankaj Mishra but the witness asked his son not to initiate anything because he would make understand the accused Abhishek. During this period, the accused committed the offence. It has been submitted on behalf of the accused that this matter was not reported to the police and there was no plausible reason for not doing so. I think, if such triveal matters are reported to the police, the police station will be flooded with reports. It has further been submitted that the informant did not produce any evidence to prove that the deceased was student of B.Sc. (private student in M.L.K. College). I do not think, this is relevant at all to decide the matter. If the informant does not know whether Abhishek was student of M.Sc. or not this should also not make any difference. Although PW-1 at one place has stated that the accused and the deceased were friends but later on this fact has been denied.

As far as teasing of the wife of the accused Abhishek is concerned, the deceased was scolded by the police, as per defence case. Thus, the deceased had come on the back foot and since they had already been scolded by the police, they had probably no reason to assault the accused. PW-1 Amar Nath Mishra has also stated that at one point of time, the accused and the deceased were friends but later on it appears that the friendship did not last. Thus, on the basis of the record, it is clear that the deceased had a motive to commit the offence, although, motive is irrelevant when there is direct evidence about the offence, hence it is proved on record that accused had motive to commit the offence.

(iii) Whether witnesses being interested, their evidence has to be ignored and there are contradictions in the statement of witnesses.

There is no dispute about the fact that both the eye witnesses are related to each other and also to the deceased. PW-1 Amar Nath Mishra is father of the deceased whereas PW-3 Shrikant @ Golu is the brother of the deceased. It has also been submitted that Awadhesh Tiwari PW-2 is witness of recovery is also an interested witness as such their testimony cannot be relied upon.

In this regard learned A.G.A. has vehemently controverted and placed reliance upon Dalip Singh and others vs. State of Punjab (AIR 1953 SC 364), it has been laid down as under by the Hon'ble Apex Court as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship for from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judge on its own facts."

Observations of the Hon'ble Apex Court in Masalti and others vs. State of U.P., AIR 1965 SC 202, are worth mentioning:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

The above decision has been followed in Guli Chand and others vs. State of Rajasthan, 1974 (3) SCC 698, in which VadiveluThevar vs. State of Madras, AIR 1975 SC 614 was also relied upon. The following observations made by the Hon'ble Apex Court in Israr vs. State of U.P. (2205 (51) ACC 113) in para-12 of the judgment are also important:-

".....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the 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 analyze evidence to find out whether it is cogent and credible."

The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P., 2008 (60) ACC 370, in which reference has been made to some other cases also.

In the case of Ravi vs. State of U.P., 2004 (11) SCC 266, the following observations have been made by the Hon'ble Apex Court:-

"It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others."

Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others, 2006 (1) AAR 259 (SC) dealing the evidence of related / interested witnesses has observed as under:-

".....By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."

In para 8 Hon'ble Apex Court has further observed as under:-

"The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously...."

In the case of Satvir vs. State of U.P., (2009) 4 SCC 289, the Hon'ble Supreme Court has observed in para 24 as under:-

"The eye witnesses have been cross examined at length by the learned counsel, but nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They have given reliable, consistent and creditable version of the crime and their evidence inspires confidence. It is well settled that if the witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would inter alia be interested in ensuring that real culprits are punished."

Counsel for the accused has placed reliance upon 2004 Cr.L.J. Page 22 SC, (Badam Singh vs. State of Madhya Pradesh), in which Hon'ble Apex Court has laid down that the mere fact that the witnesses are consistent in what they say, is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a court to hold, that though consistent, their evidence is not acceptable for any other reason. If the court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the court may reject their evidence.

It has also been submitted by the counsel for the defence that independent witness have not been produced by the prosecution, hence, conviction of the accused cannot be based on the testimony of interested eye witnesses.

In 1998 (36) ACC 73 (Nazrul Mondal and others vs. State of W.B.) in which it has been laid down that if the occurrence took place in the village itself, number of independent persons are not produced, the prosecution case could not be discarded.

In 2006 (1) Supreme Court Cases (Cri) 160, (Jaishree Yadav vs. State of U.P.) in which the Hon'ble Apex Court has laid down that the evidence of interested witnesses cannot be thrown out on the ground of their relationship.

Hon'ble Apex Court has persistently laid emphasis on the law laid down on interested and related witnesses in 2008 AIR SCW 6210 (Maranadu and another vs. State by Inspector of Police, T.N.) in which it has been held that "merely because the eye witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased, they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible".

As far as the evidence of PW-2 Awadhesh Kumar, witness of recovery is concerned, he was cross-examined by the defence on the point of being relative of the informant. At this point of time, we cannot loose site of the fact that in the villages, all the old men are called "Baba" and lesser older men called as "Tau" etc. So, the evidence of interested witnesses shall also be admissible provided, they pass the test of credibility and worthiness. Thus, I conclude that although the witnesses are related to the deceased but their evidence is credible, trustworthy and reliable.

It has to be seen, whether there are major contradictions in the statements of the witnesses which are fatal in the present case. It has to be kept in mind that the perception of every person is different. It has been submitted that there are contradictions in the statements of PW-1 Amar Nath and PW-3 Shrikant @ Golu regarding manner of assault, hence these witnesses are not reliable. But in (1979) Crl.L.J. Page 727 (Ramesh vs. State) in which it has been held that "if the statement of the witnesses has been recorded about one and half year after the occurrence and the witnesses are subjected to lengthy cross-examination, then minor discrepancies live a trail of imprint that witnesses are untutored and credible."

In 2000 SCCr.R page 147, (Leela Ram (D)through Duli Chand vs. State of Haryana and another), it has been held as follows:-

"Unless discrepancies in ocular account is vital; it will not affect credibility of the witnesses and same should not be used to jettison the entire evidence. Corroboration of evidence with mathematical niceties cannot be expected. Witnesses react differently under different situations, some become speechless, and some start waiting, some run away and some come with courage to remedy the wrong to depose the facts. There cannot be a set pattern to give evidence. Some exaggeration or embellishments cannot be avoided and evidence is to be considered from view of trustworthiness. "

In 1993 L.Cr.R. page 379 (Badri Narain Singh and others vs. State of U.P.), it has been laid down that minor contradictions are bound to occur in testimony of natural witnesses.

Thus on the basis of what has been said above, contradictions in the statement of witnesses are minor and natural which are not fatal to the prosecution.

(iv) Since PW-3 Shrikant was not injured on the spot, he is not an injured witness and his presence was doubtful at the seen of occurrence

Learned counsel for the appellants has submitted that PW-3 Shrikant was not at all injured in the aforesaid incident, if any, hence is present on the spot is doubtful. He is not a reliable witnesses, his evidence is shaky and unreliable, thus, his evidence is not admissible.

Counsel for the appellants has pointed out some contradictions with regard to the time when PW-3 Shrikant became unconscious inasmuch as PW-1 Amar Nath Mishra has said that Shrikant PW-3 fainted as soon as he reached the hospital, whereas Shrikant PW-3 has stated that he fainted on the spot. These are very minor variances in the statement of natural witnesses which do not go to strike at the root of the case. How can a father be expected to narrate each and every thing when his son is being killed in front of his eyes. It has vehemently been argued on behalf of the accused appellants that although according to PW-1 Amar Nath, the injured Shrikant was taken to the hospital on 21.05.2004 but he was not examined on 21.05.2004. there is no record to show that he was in the hospital on 21.05.2004 and his evidence on his point is shaky. It is an admitted position on record that Shrikant @ Golu was examined by the doctor on 22.05.2004. Vide medical report as Exhibit Ka-15, he was taken to the hospital by Deepak Tiwari, vide Exhibit Ka-14. But this will not falsify the prosecution story because in the first information report, it has specifically been mentioned that Shrikant @ Golu also sustained injuries who was taken to the hospital. PW-1 Amar Nath Mishra has said that after the incident he carried both his sons to the hospital by rickshaw. Doctor gave two to three injections to Shrikant. In cross-examination, this witness has said that Shrikant was lying in the emergency in an injured position. He was bandaged by the doctors. Shrikant ran away from the hospital due to fear on 21.05.2004 but when again he felt pain in his head on 22.05.2004, he took Deepak Tiwari with him to get his treatment done and his medical report was also prepared. According to the first information report, the informant has written that his second son Shrikant @ Golu also sustained injuries. In his statement, he has said that injured Shrikant @ Golu was attacked with the barrel of the country made pistol on the head. PW-3 Shrikant @ Golu has said that he was accompanying his brother on the fateful day when the accused came, Saurabh Mishra fired at Pankaj but the fire missed. Suddenly Abhishek attacked Pankaj with the scissor. Saurabh attacked this witness with the barrel of his country made pistol and then Saurabh attacked Pankaj Mishra with a knife. In cross examination, this witness has stated that he could not state that as to who had bandaged him but he came back to his house at 04:30 to 04:45 P.M. He has further stated that he was uncomfortable with the injury and when he became conscious then he was on the bed of the hospital. He inquired about his brother who was reported dead. He could not find any family member beside him he was told that the dead body of his brother was taken to Gonda for post mortem. He got frightened, came out of the hospital and went on rickshaw to his house. This conduct of the witness is not unnatural because the age of the witness is only 21 years. He is a young boy and must definitely have gone perplexed on seeing the murder of his brother. This witness has given a very plausible reason thereafter on that day he came to his home and on the next day when he feel uncomfortable, he went to the doctor. Although the injuries of this witness are simple in nature but according to his statement, tested critically. We think he is a reliable witness.

Learned lower court has also found him to be reliable and an injured witness. PW-1 Amar Nath has also stated that his son Shrikant @ Golu was taken on rickshaw by Manish and Madhav and Anshu was running behind Rickshaw. It has also been submitted on behalf of the accused appellants that when the informant had lost his one son his common conduct would have been to save the other son and to look after him. I feel the last rites of the dead son would be more important for the informant inasmuch as the occurrence took place at Balrampur, whereas the dead body was sent to Gonda for post mortem. Everybody must be busy in weeping and in lamenting on the murder of Pankaj Mishra. There is every possibility that this injured witness PW-3 Shrikant @ Golu being a boy of hardly 21 years of age would have quietly slipt away from the hospital and slept at home. The statement of I.O. Being PW-6 corroborates the presence of Shrikant @ Golu who has said when he went to the hospital, he saw Shrikant @ Golu lying on the bed but he was not in a position to give the statement.

The injury report of Shrikant @ Golu are connected to the time when the incident took place, hence, his presence at the spot is not doubtful and his injuries being examined on the next date would not prove fatal to the prosecution case. Hence we conclude that the injured witness Shrikant @ Golu was present at the spot and he received injuries on the spot itself.

The attention of the court has also been drawn to the statement of Dr. M.K. Prajapati PW-7 who has said that he did not find any bandage on the injury of the injured nor there was any medicine. He has also admitted that prior to this incident, a show cause notice was issued to him for mentioning wrong injuries in which he has submitted his explanation due to which, the District Judge has written to his department for taking action against him. This will not caste a shadow of doubt in the injury of Shrikant. Hence, it is proved that injured witness Shrikant PW-3 was present on the spot.

(v) Whether recovery of alleged weapon of assault is doubtful

It has been contended on behalf of the appellants that the country made pistol by which the injured Shrikant @ Golu was said to have caused injury has not been recovered. I think, the non recovery of weapon of assault would be no consequence.

As far as recovery of the scissor is concerned, although, the version of the defence is not clear at this point but during the course of argument, the counsel for the accused appellants submitted that the accused Abhishek defended himself with the scissor but the scissor was not recovered in the manner set forth by the prosecution. The prosecution has stated that infact the accused Abhishek went along with his brother Saurabh to the police station to lodge the report against the deceased. The mentioning of the accused being armed with country made pistol, knife and scissor finds place in the first information report and the statement of the witness. PW-2 is Awadhesh Tiwari in the presence of whom the scissor is said to have been recovered.

Perusal of the record shows that this is not a recovery envisaged under the provisions of Section 27 of the Indian Evidence Act. PW-2 Awadhesh Tiwari has said that in his presence, the weapon of assault was handed over by Abhishek Mishra to the police which was kept in the belt of his pant. The statement of witness of the alleged weapon of assault is supported by the statement of PW-6 who has said that the informer told him that the accused would be going away, at this he took Awadhesh and Jankikant in whose presence Abhishek Mishra, handed over scissor to the police which was blood stained. It has been contended on behalf of counsel for the appellants that this conduct of the accused is not possible because no accused will roam with the weapon of assault after committing murder. The evidence of I.O. PW-6 Om Prakash Chaubey, as far as recovery is concerned, it is reliable. There is no infirmity in the evidence of PW-2 Awadhesh Tiwary. The oral and the documentary evidence are supported by each other. Exhibit Ka-18 is the forensic lab report which reveals that even on the scissor, blood was found but it was disintegrated. Thus, the recovery of the alleged weapon of assault is not doubtful.

(vi) Since injuries of accused have not been explained, hence prosecution case should be thrown out on this score alone

In 2003 Supreme Court Case (Cri) page 69 (Hukam Chand vs. State of Haryana), it has been laid down that if the explanation set up by accused under Section 313 Cr.P.C. that the deceased received fatal blow on his head from his own arms not creditworthy. Hence plea of self-defence could not be acceptable.

In (2009) 11 Supreme Court Cases 414, (State of Uttar Pradesh vs. Gajey Singh and another), it has been held that non explanation of the injuries on accused rendered the prosecution version doubtful and makes the defence version more probable and that the deceased was shot in exercise of right of private defence.

The same principle of law has been laid down in a catena of decisions by the Hon'ble Supreme Court in the following cases:-

(1976) 4 Supreme Court Cases, 394 (Lakshmi Singh and others vs. State of Bihar)

(2010) 3 Supreme Court Cases, 648, (Boddella Babul Reddy vs. Public Prosecutor, High Court of Andhra Pradesh)

(2003) 9 Supreme Court Cases 426, (State of M.P. vs. Mishrilal (Dead) and others)

(2009) 15 Supreme Court Cases 612, (State of Punjab vs. Rajinder Singh)

1991 Supp (2) Supreme Court Cases 396, (State of Rajasthan vs. Madho and another)

As the law is laiddown, it cannot be said to be the duty of the prosecution to explain injuries on the person of the accused in each and every case and non-explanation of injuries of accused is fatal in each case.

The injuries sustained by the accused have been proved by DW-1 Dr. R.P. Gupta and DW-2 is said to have taken the accused Abhishek Mishra to the hospital.

Counsel for the State has vehemently argued that since the injuries of the accused have not been notified in the G.D. and no Mazrobi Letter was prepared, there is no entry in the G.D. regarding going and returning of the police constable with the injured, hence, the injury of the accused cannot be relied upon.

As far as non explanation of the injuries of the accused are concerned, PW-1 Amar Nath Mishra has specifically stated that he did not see any injuries on the person of accused Abhishek. The presence of injuries on the person of the accused is also wanting in the first information report besides the I.O. PW-6 Om Prakash chaubey has specifically said that he did not see any injury on the person of Abhishek Mishra when he was arrested but at P.S. Kotwali when he examined the body of Abhishek, he found injuries.

Perusal of the record shows that the injuries are said to have been sustained by Abhishek, were on the head. The nature of the injuries shows that these injuries cannot be termed as grievous injuries. Even the doctor has opined that injury no. 2 was simple and injury no. 1 would be only fatal, if there was internal hemorrhage. Admittedly the X-ray was not conducted. Thus, these injuries were probably hidden among the hair of the accused Abhishek which could not be visible to the informant or the injured and even to the police when he was arrested. Why the Mazrobi Letter was not given, would be a matter to be inquired from the I.O. But no explanation in this regard was sought from the I.O. It is well settled law that simple and superficial injuries have not to be explained by prosecution. The injury of the accused Abhishek is superficial and simple, thus, there is no need on the part of the prosecution to explain the injury of the accused Abhishek.

(vii) Right of private defence

It has been submitted by counsel for the appellants that the death of the deceased was caused by accused Abhishek by a scissor in exercise of right to private defence.

Reliance has been placed upon (1996) 1 Supreme Court Cases 458 (Wassan Singh vs. State of Punjab) in which it has been held that while exercising right of private defence, one can also cause death of a person. It has been laid down as under:-

"While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the `light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation."

In (2010) 2 Supreme Court cases (Cri) 1037, (Darshan Singh vs. State of Punjab and another) it has been laid down that "in order to justify act of causing death of assailant, accused has simply to satisfy court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. Question whether apprehension was reasonable or not is a question of fact depending upon facts and circumstances of each case and no straitjacket formula can be prescribed in this regard. Weapon used, manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether apprehension was justified or not."

The same liberty of law has been laid down in (2007) 1 Supreme Court Cases (Cri) 437, (Krishnan vs. State of Tamil Nadu).

The right to private defence has been enumerated by the Apex Court in 1975 AIR page 1478, (State of Gujarat vs. Bai Fatima and another), in which it has been laid down that the effect of non explanation of injuries on the person of accused have been given which are as follows:-

"(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all."

The basic principle underlying the doctrine of right of private defence have been laid down in Criminal Appeal No. 1057 of 2002 (Darshan Singh vs. State of Punjab), in which it has been held as under:-

"SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

24. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:

"..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."

When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.

25. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book `Principles of Penal Laws' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.

26. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.

27. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.

28. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.

29. The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: "It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other." But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.

30. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.

31. Right of private defence of person and property is recognized in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.

32. A legal philosopher Michael Gorr in his article "Private Defense" (published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:

"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".

33. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

34. This court in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife".

35. According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.

36. The courts have always consistently held that the right of private defence extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100 of the IPC. According to the combined effect of two clauses of section 100 IPC taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. When we see the principles of law in the light of facts of this case where Darshan Singh in his statement under section 313 has categorically stated that "Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the gandasa. I apprehended that I too would be killed and I then pulled the trigger of my gun in self defence." Gurcharan Singh died of gun shot injury.

37. In the facts and circumstances of this case the appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself.

BRIEF ENUMERATION OF IMPORTANT CASES:

38. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28 Madras 454; Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.

39. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.

40. A Full Bench of the Orissa High Court in State of Orissa v. Rabindranath Dalai & Another 1973 Crl LJ 1686 (Orissa) (FB) summarized the legal position with respect to defence of person and property thus: "In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.

41. In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 this court observed that it is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation.

42. In Raghavan Achari v. State of Kerala 1993 Supp. (1) SCC 719 this court observed that "No court expects the citizens not to defend themselves especially when they have already suffered grievous injuries".

43. In Jagtar Singh v. State of Punjab AIR 1993 SC 970 this court held that "the accused has taken a specific plea of right of self-defence and it is not necessary that he should prove it beyond all reasonable doubt. But if the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him by the deceased or their companions, then if he had acted in the right of self- defence, he would be doing so lawfully."

44. In Puran Singh & Others v. The State of Punjab (1975) 4 SCC 518 this court observed that in the following circumstances right of private defence can be exercised :-

i. There is no sufficient time for recourse to the public authorities.

ii. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned.

iii. More harm than necessary should not have been caused.

45. In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406 this court had held as under:-

"It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified."

46. The facts of this case are akin to the facts of the instant case.

47. In Kashmiri Lal & Others v. State of Punjab (1996) 10 SCC 471, this court held that "a person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat."

48. In James Martin v. State of Kerala (2004) 2 SCC 203, this court again reiterated the principle that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

49. In Gotipulla Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh & Another (1970) 1 SCC 235, this court held that "the right to private defence is a very valuable right and it has been recognized in all civilized and democratic societies within certain reasonable limits."

50. In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107 this court held that "the High Court erred in holding that the appellants had no right to private defence at any stage. However, this court upheld the judgment of the sessions court holding that since the appellants had right to private defence to protect their property, but in the circumstances of the case, the appellants had exceeded right to private defence. The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing".

51. In Munshi Ram & Others v. Delhi Administration (1968) 2 SCR 455, this court observed that "it is well settled that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of materials available on record.

52. In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this court observed "every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."

53. In Triloki Nath & Others v. State of U.P (2005) 13 SCC 323 the court observed as under:-

"No decision relied upon by the Appellants lays down a law in absolute terms that in all situations injuries on the persons of the accused have to be explained. Each case depends upon the fact situation obtaining therein."

54. In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."

55. In Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as under:-

"as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."

56. In order to find out 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.

57. In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact."

58. The following principles emerge on scrutiny of the above noted judgments:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

In the light of the aforesaid law and on the basis of statement of the accused recorded under Section 313 Cr.P.C., the evidence of defence witnesses and even on the basis of prosecution witnesses and attending circumstances, it has to be seen, whether accused had the right of private defence and if so, whether, it was not exceeded.

In cross-examination of PW-1 Amar Nath, he was suggested that Pankaj Mishra and his companions attacked accused Abhishek to kill him. At this, the accused Saurabh attacked Pankaj Mishra to save Abhishek Mishra due to which Pankaj Mishra received injuries.

The statement recorded under Section 313 Cr.P.C. Pertaining to the accused Saurabh Mishra is very important which is being reproduced as under :-

"bl gR;k ds iwoZ esjh iRuh dks e`rd o muds lkfFk;ksa us NsM+k Fkk o cnrehth dh Fkh bldh f'kdk;r eSus Fkkuk dksrokyh cyjkeiqj es fd;k Fkk ftlds QyLo:i Fkkuk dksrokyh ds balisDVj us iadt feJk o muds lkfFk;ksa dks MkVk QVdkjk Fkk ftlds dkj.k iadt o muds lkFkhx.k ukjkt gks x;s Fks blh fy;s ?kVuk ds fnu tc eS vkSj esjk HkkbZ vfHklsd ?kj ls ckgj fudy dj tk jgk Fkk rks iadt feJk o muds lkFkh va'kw feJk us eq>s ekjus ds fy;s nkSM+k;k rks esjs HkkbZ vfHklsd muls cpkus ds fy, fHkM+ x;k rks ;s yksx vfHklsd dks ekjus yxsa tc eSus ns[kk fd ;s yksx esjs HkkbZ dks tku ls ekj Mkysxs rks eSus vius HkkbZ dks cpk;k ftlls iadt feJk dks pksVsa vk;h eS vkSj esjk HkkbZ Fkkuk dksrokyh uxj cyjkeiqj fjiksVZ djus x;s ysfdu esjh fjiksVZ ugh fy[kh x;h vkSj eq>s ogh cSBk fy;k x;k vkSj tcjnLrh dSph dh cjkenxh vfHklsd feJk ls fn[kk nhA

lqudj rlnhd fd;k "

Perusal of the statement reveals that according to the accused Saurabh, he was going with Abhishek, suddenly Pankaj Mishra and Anshu chased to kill him. Abhishek came to rescue, at this Pankaj and his companions started beating Abhishek. When Saurabh saw that Abhishek was being beaten, he tried to save Abhishek due to which Pankaj Mishra sustained injuries.

The argument submitted on behalf of the appellants belies the statement of the accused inasmuch as in this statement, there is not even a whisper that Pankaj Mishra and Anshu Mishra were carrying any weapon. Infact, according to this statement, they were empty handed.

According to the statement, Pankaj Mishra was accompanied with Anshu and both the accused were there. Thus, they were two vs. two and it could not be shown as to how there was eminent chance of causing grievous hurt or death by empty handed persons, when the hurt sustained by Abhishek are simple and superficial.

Although, during the course of argument, learned counsel for the appellants has admitted that the accused Abhishek was having a scissor since he was doing business of stitching of clothes and in self defence, he used scissor to cause injuries on Panbkaj Mishra but the injuries of Pankaj Mishra are speaking volumes because there are as many as six incised wounds on the chest and abdomen and the deceased Pankaj Mishra has been brutally murdered in the presence of his father and brother.

Infact, right to private defence has not at all been established, what to say of exceeding the right to private defence.

The suggestion put to doctor PW-4 Ram Gopal is also very strange, inasmuch as, it has been suggested that there was no possibility of injuries been inflected on the deceased by scissor. There was no right to private defence at all available with the accused persons and thus, we conclude accordingly.

(viii) Defective investigation

It has been submitted that there are many loopholes and shortcomings in the prosecution case and the investigation is defective.

In 1998 C.A.R. (S.C.) 208 (State of U.P. vs. Harban Sahai and others, the Hon'ble Apex Court has held that lapses on the part of the I.O. Cannot be a ground to give benefit of doubt to the accused especially if the ocular and medical evidence corroborate the prosecution case.

In 2000 (S.C.) page 648 (Ambika Prasad and another vs. State (Delhi Administration), the Hon'ble Supreme Court has laid down that the defective investigation or negligence of the I.O. Should not result in acquittal of the accused when the prosecution case is otherwise established. It has also been held that the court should not only see that no innocent person is punished but should also see that no guilty person should escape unpunished. As said earlier in 2004 (2) J.I.C. 322 (S.C.) (Dhanaj Singh @ Shera and others vs. State of Punjab), the Hon'ble Apex Court has held that non sending of blood staind earth for chemical examination and weapon for ballistic examination are not always fatal. Here we would like to refer to the verdict of (2005) 7 Supreme Court Cases page 408, (State of Punjab vs. Hakam Singh), which shows that failure of I.O. to seize the firearm or empties for examination by ballistic expert is not fatal in view of categorical testimony of eye-witnesses implicating the accused.

Now, if at all the investigating officer fail to discharge his duties properly, who is to be blamed? The poor victim or the investigating officer! Thus, pain is found in the observation of the Full Bench of this High Court in the case of Gopal vs. State of U.P. ,1999 (39) ACC page 981, wherein it has been held as under:-

"At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only, this human cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officer, who investigate the case, also know that they should take prompt action and should immediately record statement of the witnesses, should not make cuttings and overwriting etc. in the police papers so as to create suspicion about sanctity of the papers. They should fairly prepare the inquest report and police papers and should writ the case diary with accuracy and correctly. The preposition of law and fact cannot be disputed, but if the police officers deliberately slip over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officer did. If they intervene, a judicial notice of the fact can be taken they are humiliated even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are ignorant of the fact that what shall be effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In out view that investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the FIR promptly. If the FIR is recorded soon, or in recorded after 4 or 5 hours why should the prosecution or the person who have died suffer? Each and every case has to be decided on its intrinsic evidence. If the eye witnesses are believable, the mere weakness of the investigation should not be a ground to reject their testimonies."

16. It has been submitted that according to the documentary evidence adduced by the prosecution, the dead body of Pankaj Mishra was brought by Anshu Mishra, whereas according to the prosecution case and first information report, the dead body of Pankaj Mishra was taken by Amar Nath Mishra, PW-1.

17. Perusal of the statement of Amar Nath reveals that only he has said that he took two rickshaws to take the injured and the deceased to the hospital. He himself was with the dead body of Pankaj Mishra whereas Shrikant @ Golu was accompanied by Manish and Madhav on another Rickshaw and Anshu was running following Rickshaw. It has also come in evidence, that after the I.O. Reached the spot, he contacted the informant and asked him to give statement and to get the spot inspected.

18. Obviously, the informant had to talk to the I.O. and the name of Anshu was mentioned as the person bringing the dead body of Pankaj Mishra, thus, there is no reason to doubt the veracity of prosecution case. If many people are accompanying the dead body the names of one can be mentioned.

19. Defence has placed reliance upon (2008) 16 Supreme Court Cases 290 (State of Punjab vs. Kulwant Singh alias Kanta) in which it has been held that "if the witness claimed to be eye witness who has said to be injured in the occurrence and is examined three weeks after his release from the hospital and no explanation has been offered for this delay then it is an infirmity. In the present case PW-3 Shrikant @ Golu has stated that he was frightened and went back to his house but on the next date when he fell uneasy, he came to the hospital for treatment.

20. The statement of PW-3 Shrikant @ Golu has also been attacked on the ground that his statement was recorded after a delay by the I.O. which supports the fact that prosecution story is un-reliable. In support he has placed reliance upon (1998) 4 Supreme Court Cases page 494 (Mohd. Iqbal M. Shekh and others vs. State of Maharashtra), in which the Hon'ble Apex Court has held that "merely because a witness was examined after a considerable period from the date of occurrence his evidence need not be discarded on that ground alone but at the same time while testing the credibility and assessing the intrinsic worth of such witnesses the delay in their examination by the police has to be borne in mind and their evidence would require a stricter scrutiny before being accepted." In this regard the I.O. PW-6 has given a very valid explanation inasmuch has he has said that when he went to the hospital, the injured Shrikant @ Golu was lying on the bed of the hospital. He was not in a position to give statement. The statement of Shrikant @ Golu was recorded on 27.05.2004 in the house. During this period, due to his injury he was not in a position to give any statement. He has further stated that even on 22.05.2004 also he went to record the statement but his mental state was not stable.

21. There is no cross case in the matter. According to the accused persons when they had gone to the police station to report about the occurrence, the report was not lodged but they were taken into custody. The defence taken by the accused persons in their statement under Section 313 Cr.P.C has to be evaluated very carefully. Why application under Section 156(3) was not moved is not clear.

22. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), the Court has held as under:

"22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration." (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700."

23. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-

"18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

"21. .... The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."

24. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

25. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."

26. The opportunity was given to the accused at the time of recording of the statement under Section 313 Cr.P.C. to explain all the circumstances. Even he was given opportunity of defence, but nothing was done by the accused. He did not even dare to say that the deceased and his companions were armed with any weapon. It is not even the case of the defence that the deceased and his companions tried to throttle the deceased.

27. Another aspect giving support to the prosecution version is that in the Statement under Section 313 Cr.P.C. both the accused persons have admitted the presence of Abhishek Mishra and Saurabh Mishra on the spot besides Anshu Mishra and Pankaj Mishra.

28. Argument was also submitted by the learned counsel for the appellants that it was not possible for PW-1 Amar Nath to see the occurrence and he cannot be relied upon. PW-1 Amar Nath has specifically stated that he was standing outside the Sadan Gate of the college and he saw the occurrence from there.

29. Perusal of the site plan Exhibit Ka-11 reveals that place where the informant was standing have been shown by "B". The occurrence is said to have been taken place at "A". Obviously, person standing at "B" can very well see the occurrence occurring at "A".

30. There are few contradictions as to what this witness has stated to the I.O. those contradictions were also put to the I.O. and this witness both, but these contradictions do not render the prosecution case doubtful.

31. It has also been submitted that the I.O. has not mentioned the time of his commencing and concluding the proceedings on particular date in the C.D. But as said earlier, these shortcoming do not go to the root of the case and on this ground, the prosecution case when otherwise fully proved cannot be shattered. Thus, there are slight shortcoming in the investigation of the case which are not fatal and deep rooted.

32. In view, what has been sated above and on the basis of evidence on record the conclusion of the trial is well based, does not need any interference. The prosecution has brought home the guilt of the accused beyond reasonable doubt and the accused persons have rightly been convicted. Consequently, the appeal is liable to be dismissed.

33. Accordingly the appeal is dismissed.

34. The accused persons are on bail. Their bail bonds are cancelled and sureties are discharged.

35. Let the certified copy of this judgment be sent to the trial court for ensuring compliance which should be reported to this Court within four weeks. The court should take the accused persons into custody to take all steps for executing on the sentences.

Order Date :- 26.08.2015

sailesh