Jai Singh & Anr. vs The State (Delhi Admn
2010 Latest Caselaw 5891 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               Crl.A. No.821/2001

%                          Date of Decision: 24.12. 2010

Jai Singh & Anr.                                         .... Appellants
                         Through Ms. Ritu Gauba, Advocate

                                    Versus

The State (Delhi Admn)                           .... Respondent
                   Through Mr.Jaideep Malik, APP
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.          Whether reporters of Local papers              YES
            may be allowed to see the judgment?
2.          To be referred to the reporter or not?         YES
3.          Whether the judgment should be                 YES
            reported in the Digest?

ANIL KUMAR, J.

*

1. The appellants, Jai Singh and Smt.Savitri Devi, husband and

wife, have challenged their conviction by judgement dated 11th

October, 2001 under Sections 302/34 of Indian Penal Code for

murdering Rakesh Kumar and their sentence to life imprisonment

and a fine of Rs.1,000/- each and in default to undergo rigorous

imprisonment for one year by order dated 12th October, 2001 in

Sessions Case No.350 of 1996, titled as „State v. Jai Singh & Another‟

arising from the FIR No.434 of 1992, under Sections

307/302/342/34 of the Indian Penal Code, PS S.P. Badli.

2. According to the prosecution, a vacant piece of land at the

back of the house of the appellants, which was also behind the

house of Rakesh, deceased and his family members had led to

disputes between the appellants and the family of Rakesh, the

deceased. The disputes were going on for some time and on 27th

October, 1992, appellant No.1 allegedly went to the house of Rakesh,

deceased, and asked him to settle the disputes amicably. At the

instance of the appellants, Rakesh, the deceased allegedly

accompanied appellant No.1 to his house.

3. At about 6/6.15 pm, 10 minutes after Rakesh had left for the

settlement of disputes with appellant No.1, PW-8 Sh. Mahender

Singh the elder brother of Rakesh heard his voice saying "Bachaao

Bachaao". According to PW-8 Sh. Mahender Singh, he went to the

house of appellant No.1 and he found the doors of the house closed

from inside. He also heard the appellants shouting loudly and saying

that they would eliminate Rakesh. Sh. Mahender Singh, therefore,

pushed open the door and witnessed the appellants holding the

lathies in their hands and Rakesh lying in a pool of blood. According

to him, on account of fear he could not muster courage to extricate

his brother from the clutches of the appellants and he went to make

a call to the police station from a PCO located at a distance of about

one and half kilometers on foot. When he had gone to call the police

from the PCO, a PCR Van came and removed Rakesh to the hospital.

Later on Mahender Singh also went to the hospital where his brother

succumbed to his injuries. An FIR No.434 of 1992 was registered.

4. On 27th October, 1992 the police challaned the appellants for

illegally confining Rakesh in their house and for attempt to murder

him by causing injuries on him. The injuries caused to the deceased

resulted into his death in the hospital on 28th October, 1992 and so

the appellants were challaned under Sections 307/302/342/34 of

the Indian Penal Code.

5. The appellants pleaded not guilty and claimed trial. During the

trial, the prosecution examined 14 witnesses including doctor

L.T.Ramani, PW-1 who had conducted the post mortem on 28th

October, 1992 and noticed 19 external injuries as under:

EXTERNAL INJURIES

1. Stitched wound 5 cm long, vertically placed on the right side of fore-head area/frontal area.

2. Stitched wound 1 cm long transversally placed on the right tempo region with abrasion around.

3. Stitched would 1 cm long just below the right eye.

4. Defused bruising over the lips.

5. Stitched wound on the muscous surface of both limbs 1 cm and 1.5 cm long.

6. Stitched wound 2.5 cm long on the right side of chin.

7. Bruise 6 cm x 5 cm with abrasion on the right temporal region.

8. Abrasion 2.5 cm x 2.5 cm on the epigastric region of abdomen.

9. Abrasion 2.05 cm x 1 cm on the right lumber region of abdomen.

10. Abrasion 3 cm x 2 cm on the top of right shoulder.

11. Abrasion 5 cm x 5 cm on the left hip region.

12. Abrasion 4 cm x 2 cm on the right knee.

13. Multiple abrasion scattered on the front of left knee.

14. Lacerated 1 cm x 0.5 cm with abrasion on the left leg shin.

15. Defused swelling on the back of rt. Hand with abrasion 2 cm x 1 cm on the dorsem of wrist and 6 cm x 4 cm on the dorsem of hand.

16. Abrasion 1 cm x 1 cm on the right elbow.

17. Abrasion 2 cm x 1 cm on the lateral surface of left elbow.

18. Irregular ligature marks present horizontal on the right postero-lateral aspect of neck of 2 and a half x 1/2", intermittently seen on the left postero-lateral aspect of neck.

19. Small incised wound 1 cm muscle deep on the back at the level of 8th thoracic vertibra.

6. PW-1 had opined that the injuries were ante mortem and

injury No.19 on the back of the chest was caused by sharp

penetrating weapon and injury No.18 was possible with some rough

ligature material whereas all other injuries were caused by blunt

object force. The Doctor had also opined that the injury on the skull

was sufficient in the ordinary course of nature to cause death.

7. The post mortem was conducted on 28th October, 1992 and

the death had occurred 6 hours prior to the post mortem and was on

account of coma resulting from head injury. There was one stitched

wound 5 cms long. Other stitched wounds were of 1 cm and 1.5 cm

and other injuries were the abrasions and lacerations. Original post

mortem report was not traceable and, therefore, the photocopy of the

post mortem was exhibited as Ex.PW1/A. The prosecution had

examined Head Constable Krishan Kumar as PW-3 who was given

information by PCR van about a quarrel in the village Khera Kalan

and that three persons had been injured. In his statement recorded

on 2nd March, 1998 he stated that he had accompanied the PCR van

and had removed deceased Rakesh and appellant and one lady

Natho to Hindu Rao Hospital. The said witness was not cross

examined on that day and his statement was concluded. However,

without any request or application by either of the parties, he was

recalled for examination when he deposed that condition of Rakesh

was very bad when he was taken in the PCR van and he had told HC

Krishan Kumar that he was beaten up by accused Jai Singh and

Savitri by lathis. This witness was cross examined on 6th July, 2000

after about four months. In his cross examination he denied that on

the way to hospital Rakesh was saying that jelly of his own brother

had struck him in the back. He also denied that Rakesh was

unconscious and could not have given any statement. About not

deposing these facts earlier when he was examined on 2nd March,

1998, he stated that he did not remember these facts at the time

and, therefore, he had not deposed about the same and had deposed

later on about them.

8. Dr. Alexander of Safdarjung Hospital Forensic Science

Department was examined as PW-7 who deposed that on 27th

October, 1992 he was posted as casualty medical officer when he

had examined Mukesh (he referred to Rakesh as Mukesh) who was

admitted by Constable Krishan Kumar and at that time he was

unconscious. He also opined that most of the injuries were caused by

blunt objects.

9. The elder brother of the deceased Rakesh, Sh. Mahender Singh

was examined as PW-8 who deposed that the disputed land was

behind their house and behind the house of the appellants. He

further deposed that Jai Singh had come to his house and had taken

his younger brother Rakesh in order to settle the dispute about the

concerned land. According to him his brother was beaten by lathis

and jelly or such like object and on seeing him the appellant had

moved towards him also, which had scared him. Apprehending

trouble he ran away and went to PCO and informed the police. When

he came back to the house of the appellant, he came to know that

his brother Rakesh had already been removed to the hospital by PCR

van. According to him his brother expired during the night and his

death was declared in the morning. He categorically deposed that two

lathis and the blood were lifted from the house of the appellant.

According to him one lady‟s salwar suit was also seized from the

spot. In his cross examination he deposed that the settlement of the

land was to be arranged with his brother and not with him though he

was living jointly. He also admitted that Ram Singh was his elder

brother and he was living with him. He deposed that both the

appellants were taken in the PCR van with the dead body of Rakesh.

He also admitted that the telephone booth was at a distance of 1 or

1½ Kms from the spot and that he had gone running to the

telephone booth and it had taken him about 10-15 minutes to reach

there and return to the spot. According to him he had telephoned

police station Samaipur Badli and he got the number of the police

station Samaipur Badli from the booth owner. He disclosed that the

distance between the place of incident and police station Samaipur

Badli is about 6-7 kms.

10. PW-8 Mahender Singh denied that his brother Rakesh was

friendly with Jai Kumar and Raj Kumar, however, he admitted that

Raj Kumar was killed in an encounter with police on 6th January,

1993. He also admitted that he had read in the newspaper that Raj

Kumar was accused of murdering Inspector Pratap Singh Rana of

Delhi Police. He denied the suggestion that on 27th October, 1992 at

about 6.30 PM his brother deceased Rakesh with Jai Kumar and Raj

Kumar had trespassed in the house of the appellants and had tried

to kill Jai Singh. However, he admitted that a cross case was pending

where his deceased brother and his friends Jai Kumar and Raj

Kumar were the accused persons and the appellant No.1 was the

complainant.

11. SI Ramesh Narang who was under suspension was examined

as PW-14, and he admitted that at the spot he had found three

injured persons, the appellants and deceased Rakesh who were

removed to the hospital in the police van. According to him blood

samples were lifted from two places i.e room and the verandah. He

also deposed about finding a blood stained rope behind the trunks in

the house. He further deposed about finding two lathies and one

lady‟s suit in the house which was seized and sealed vide memo Ex.

PW14/G. The said police witness during cross examination admitted

that he was under custody and earlier he was arrested in a case

under Section 451 and 509 of IPC. At the time of his cross

examination he was in custody in a case under Section 304 of IPC.

He denied the suggestion that nothing was recovered from the house

of the appellants and that the recoveries were planted by him.

12. In the statement under Section 313 of the Criminal Procedure

Code, the appellant No.2 stated that there is only one door in the

house and so there was no question of closing the door from inside.

She denied that Rakesh the deceased was tied with the rope and was

beaten up by lathis. She deposed that she and her husband are

innocent as the deceased and his brothers were aggressors and they

wanted to kill them after trespassing in their house. Appellant no.1

Jai Singh in his statement under Section 313 of the Criminal

Procedure Code also deposed that he and his wife are innocent and

the deceased and his brothers were aggressors and they wanted to

kill them after committing a trespass in their house. The witness

examined by the appellants as defence witness brought the record of

FIR No.459/1992 registered under Section 308/452/34 of IPC P.S.

Samaipur Badli and proved the copy of the FIR as exhibit Ex.

DW1/A.

13. On the basis of the evidence in this case and the record of FIR

No.459/1992 under Section 308/452/34 which was registered

against the deceased and his accomplices, Jai Kumar and Raj Kumar

who were killed in police encounters, it is contended by the learned

counsel, Ms. Gauba that the appellants had acted on account of

their right of private defence as deceased Rakesh and his friends Raj

Kumar and Jai Kumar had trespassed in their house with a view to

kill them and even had fired at them. Relying on the copy of the case

diary produced on the record she has pointed out that three blank

cartridges with the inscription .8 MM were recovered and another

blank cartridge of .12 bore was also recovered. She has also

contended that though the allegation of the prosecution is that the

appellants had attacked the deceased with a lathi and a jelly or a like

substance, however, neither the jelly nor any article similar to jelly or

having a sharp edge which could have caused a sharp edged injury

was recovered from their house. Reliance has also been placed on the

post mortem report indicating that the deceased had suffered an

injury at the back which was 1 cm deep at the level of eighth thoracic

vertebra caused by a sharp penetrating weapon and not by the

lathis.

14. According to the learned counsel the right of self defence need

not be taken by the appellants specifically and she placed reliance on

Satya Narain Yadav vs. Gajanand and Anr. AIR 2008 SC 3284.

According to her the right of self defence can be established on the

preponderance of probabilities. To augment her argument that

deceased Rakesh with his friends had been the aggressors and had

come to their house, she relied on the FIR No.459/1992 which was

registered on a later date of 15th November 1992. She contended

that as Rakesh Kumar died and his two accomplices also died in

police encounter, one of whom was even accused of murdering a

police Inspector, the case had abated and in the circumstances she

requested that this Court should exercise its power and call for the

case relied on and case diary of FIR No.459/1992.

15. The learned Additional Public Prosecutor who had the record

and the case diary of FIR No.459/1992 after perusing the same very

fairly conceded that the case diary records the statement of Sh. Raj

Kumar stating that due to anger he had attacked with jelly at Jai

Singh and by chance he had injured Rakesh during attack and he

succumbed to his injuries later on. He also stated that he was having

enmity over a piece of land situated behind the house of Jai Singh.

The FIR No.459/1992 was registered pursuant to complaint of Smt.

Nathu Devi, wife of Sh. Sheo Chand under Section 308/452/34 of

IPC who had disclosed that she along with her son Jai Singh and his

wife Savitri Devi and children were present in her house when

suddenly Rakesh son of Har Lal and his accomplices Raj Kumar and

Jai Kumar both sons of Chote Lal who were also residents of the

same village entered their house using abusive language and

attacked her son Jai Singh with lathis and jelly as her family is

having a dispute over a piece of land at the back of their house. She

disclosed that she ran and couldn‟t save her son from getting

injured. She saw deceased Rakesh having a lathi whereas Jai Kumar

had a jelly and Raj Kumar was having a pistol in his hand. According

to her she along with her daughter-in-law Savitri Devi sustained

injuries and accidentally jelly of Jai Kumar had hit Rakesh in his

back and he had fallen on the ground in the verandah of the house.

16. This Court had directed the learned Additional Public

Prosecutor to file the copies of the police file and case diary of FIR

No.459/1992 under Section 308/452/34 of IPC dated 15th

November, 1992 P.S. Samaipur Badli, Delhi. The copies were filed,

which were taken on record and perused, especially the alleged

statement of Jai Kumar that on account of anger he had attacked Jai

Singh with jelly and by chance during one of his attack he had

injured Rakesh with the jelly. The learned counsel, Ms. Gauba also

contended that the incident was reported by the appellants to police

on number 100 which is substantiated from the statement of PW-10

HC Usha No.1179 regarding the receipt of information on telephone

about the incident of stabbing. However on the complaint of mother

of the appellants, the FIR was not registered and it was registered

only with the intervention of the higher police officials on 15th

November, 1992.

17. The learned counsel for the appellant, Ms. Gauba has also

relied on the report dated 20th July, 1993 of Central Forensic Science

Laboratory, Central Bureau of Investigation stipulating receipt of

parcel Nos.1 to 7 containing one .12 bore fired cartridge case marked

C/1 and three .315/8 mm fired cartridge cases marked C/2 to C/4

which were sent in connection with FIR No.434/1992 dated 28th

October, 1992 under Section 307/342/34 P.S. Samaipur Badli to

contend that the blank cartridges were recovered from the house of

the appellant and could be recovered only if the guns/pistols were

fired by the deceased and his friends. The learned counsel relying on

the charge sheet in the case FIR No.459/1992 has also drawn our

attention to MLC, X-Ray report of Jai Singh and Nathu. According to

her these reports have not been produced deliberately by the

respondent nor was constable Naresh examined to whom the blank

cartridges were given by a boy to suppress the relevant material and

implicate the appellants.

18. The learned counsel for the appellants has very emphatically

contended that the version of the solitary witness PW-8 brother of

the deceased is highly unreliable and incredulous and should not be

relied on to inculpate the appellants. According to her he has made

grave contradictions in his testimony and his conduct is not natural.

In the first information report it was disclosed that the appellants

were holding lathis in their hands whereas in the Court PW-8 had

deposed that the deceased Rakesh was beaten with lathi or jelly or

such like object. According to her this is a vital inconsistency and

contradiction which makes his statement unreliable. According to

her he had also not witnessed the incident and his version that he

intimated the police from the booth after taking the phone number of

the police, is also not substantiated as the information was received

at police number 100 pursuant to which DD No.20 was recorded and

it has not been established that a complaint was registered pursuant

to the alleged call made by Mr. Mahender Singh, PW-8 brother of the

deceased to the police station Samaipur Badli. According to the

learned counsel as it has been established beyond all reasonable

doubt that the appellants had also received injuries, consequently

the appellants had a grave apprehension and if they had acted in self

defence with lathis, they cannot be inculpated in the facts and

circumstances. Relying on AIR 2009 SC 1262, Ravishwar Manjhi &

Ors v. State of Jharkhand the learned counsel contended that if the

accused had sustained injuries and they were also removed to the

hospital and their MLCs were recorded which is apparent from the

charge sheet of FIR No.459/1992 then it casts a duty on the

prosecution to explain the same and in its absence the plea of the

appellant for entitlement of private defence would deserve serious

consideration.

19. The learned counsel, Ms. Ritu Gauba relying on AIR 2008 SC

3284, Satya Narain Yadav v. Gajanand & Anr regarding the right of

private defence contended that the appellants were not required to

raise a specific plea and the Court can consider its availability even

in absence of a specific plea by the appellants. In any case, according

to her it has even been put to the witnesses of the prosecution, with

regards to what has been categorically stated by the appellants in

their statement under Section 313 of the Criminal Procedure Code

that the deceased and his two companions Raj Kumar and Jai

Kumar who were killed in an encounter with the police were

aggressors and that they had trespassed in the house of the

appellants and attacked them by lathis, jelly and guns and that both

the appellants had acted only in self defence. The learned counsel

also asserted that though the burden of proof of self defence lies on

the appellants, however, the burden of proof of self defence is not as

onerous as on the prosecution to prove the guilt of the appellants

beyond reasonable doubt as the right of self defence can be

established even on the basis of the preponderance of probabilities.

According to her in order to find whether right of private defence is

available or not what is to be seen is whether the injuries were

received by the accused; imminence of the threat to their safety and

in the circumstances whether the appellants had time to take

recourse to public authorities. According to her all these factors are

present and have been established on the basis of record in the case

of the appellants and, therefore, they are entitled to the plea of self

defence and are liable to be acquitted. It is further submitted that

since the aggression on the appellants was in their own house and

they had used only lathis whereas the deceased and his companions

Raj Kumar and Jai Kumar had come with pistols, jelly and lathis it

cannot be inferred that the appellants have used the right of self

defence as a weapon of retribution or aggression though there have

been disputes in respect of land at the back of their houses. The

learned counsel has also relied on AIR 1975 SC 1674, Puran Singh

and Ors v. The State of Punjab to contend that in the facts and

circumstances of the present case, appellants had not used more

force than what was necessary and the deceased and his friends

were the aggressors as they had come and trespassed in their house

with guns and deadly weapons whereas the appellants had tried to

defend themselves only with lathis and though the deceased died of a

wound on his head which was on account of a blunt weapon,

however, he was also injured by his own friend Jai Kumar, which

was admitted by him and which fact has also been established from

the post mortem report which proves that an injury at the back was

sustained by the deceased by a sharp edged weapon.

20. Regarding the testimony of PW-8, elder brother of the deceased

and his conduct where instead of saving his brother on account of

alleged attack by the appellants he went on foot to complain to the

police at a distance of 1½ kms instead of going to his own house

which was opposite to the house where the alleged attack had taken

place where admittedly his father and elder brother were also

staying, it is apparent that he had not witnessed anything and has

been planted by the prosecution. The inconsistencies in the version

given in the FIR and in the Court also make his deposition unreliable

and his conduct also is apparently unnatural and in the

circumstances such conduct raises doubt about him being an eye

witness. According to her PW-8 is a planted witness and on the basis

of his testimony the appellants cannot be convicted and sentenced.

Reliance has also been placed by the learned counsel on AIR 2010

SC 3398 Birappa & Anr v. State of Karnataka

21. Per contra the learned Additional Public Prosecutor has very

vehemently contended that the appellants cannot take the plea of

self defence as the same is not established merely on the basis of

exhibit DW1/A which is the copy of the FIR proved by the witness of

the appellants. It is further contended that Ramesh Narang

Investigating officer had not found any cartridges in the room of the

appellants where the alleged attack by the deceased and his alleged

companions had been mounted. Relying on the recovery of the rope,

the learned counsel also contended that if the deceased was tied with

a rope and beaten by the appellants then the appellants could not

have been injured as is sought to be contended on their behalf.

22. The learned Additional Public Prosecutor has also emphasized

on the testimony of the real brother of the deceased who was

examined as PW-8 and has contended that in view of his testimony

the plea of self defence of the appellants cannot be sustained nor are

they entitled to take benefit of the same. According to him in the

circumstances even on the allegation of the appellants, it cannot be

inferred that they had reasonable apprehension of death or grievous

hurt from deceased Rakesh so as to attack him with lathis. Relying

on the post mortem report it is submitted that the death of the

deceased occurred on account of the injuries inflicted by a blunt

object on the head of the deceased and consequently the appellants

cannot propound the right of private defence.

23. This Court heard the learned counsel for the parties in detail

and has perused the trial Court record especially the testimonies of

the witnesses and the relevant documents. This has been established

that the DD No.20A which was exhibited as Ex PW 14/A reflected

that HC Usha No.1179 had passed on a wireless message that one

lady has been stabbed and that the police may be sent which was

passed on to P.S.Samaipur Badli. The case of the appellants is that

when they were attacked by the deceased Rakesh and his two

accomplices Jai Kumar and Raj Kumar, a telephone call was made

by their mother, whereas the testimony of PW-8 brother of the

deceased is that from the place of incident he went on foot for about

1½ kms to a PCO booth and from there after taking the phone

number of P.S.Samaipur Badli he made a complaint. The call alleged

to have been made by PW-8 to Samaipur Badli has not been

established. Rather the testimony of PW-10 HC Usha No.1179 is

categorical in stating that she was working in PCR and had received

an information on telephone about the incident of stabbing which

information was passed on to P.S.Samaipur Badli on the basis of

which DD No.20A was recorded.

24. The trial Court has based the conviction of the appellants

solely on the basis of the testimony of PW-8 brother of the deceased

Rakesh Kumar and has not considered the plea of self defence of the

appellants who have proved a copy of the FIR No.459/1992

pertaining to the incident of 27th October, 1992 at 6.30 AM which

was proved as exhibit DW 1/A. The trial Court was of the view that

the defence of the appellants has not been proved by them by

examining all the witness and that the FIR does not prove that the

accused had acted in self defence and as no other evidence has been

produced by the accused persons, so they have not been able to

prove their plea of self defense. From the perusal of the cross

examination of the witnesses of the prosecution and the statement of

the appellants under Section 313 of the Criminal procedure Code it

cannot be denied that the appellants have taken the plea that they

acted in self defence when deceased Rakesh and his accomplices Jai

Kumar and Raj Kumar trespassed in their house and attacked them

with pistol, jelly and a lathi.

25. This cannot be disputed that even in absence of direct evidence

the Court may infer compulsion of the appellants to act in self

defence from the attendant circumstances. Rather it is not necessary

for the appellants to have led the evidence on the point as they can

rely on the evidence adduced before the Court even by the

prosecution. It is not that the appellants have not led any evidence

as they examined DW-1 Shri Daya Chand who proved the copy of the

FIR 459/1992. Though DW 1/A copy of FIR No.459/1992 per se

does not prove the plea of the appellants but this FIR coupled with

other evidence on record does establish the right of the appellants on

the preponderance of probability that they acted in self defence. The

other evidence on record is report dated 20th July, 1983 sent by

Central Forensic Science laboratory regarding 9 parcels which were

sent to the laboratory in connection with the FIR No.434/1992 dated

28th October, 1992 P.S.Samaipur Badli. The respondent had sent

parcel nos.1 to 7 the contents of which are described as, 12 bore

fired cartridge case (marked C/1) and three .315 inch/8 mm fired

cartridge cases marked C/2 to C/4. Though this report was not

proved by calling the concerned Senior Scientific officer, Ballistic

division or leading any other evidence, however, this report is filed by

the prosecution and it is admissible under Section 293 of the

Criminal Procedure Code. Reliance can be placed on the same in

support of the plea raised by the appellants that they had acted in

self defence. If the cartridges were recovered and they were sent by

the prosecution to Central Forensic Science Laboratory, then they

must have been recovered from the site. It was for the prosecution to

explain as to from where these fired cartridges had come. Though the

learned Additional Public Prosecutor has contended that these fired

cartridges were given to constable Naresh Kumar by a child who had

deposited the same in the Malkhana which is apparent from the case

diary, a copy of which is produced on the record of the case. The

photograph of the case diary at page 235 of the trial Court record

stipulates that the three fired cartridges of brass with the inscription

8 mm and 1 fired cartridge of .12 bore were deposited by him which

was given to him by one child. The prosecution for the reason best

known to them did not examine constable Naresh Kumar who could

have deposed as to from where the child had brought these fired

cartridges, if not from the site of the incident. This is also not

disputed and cannot be disputed that constable Naresh Kumar was

involved with the case and in the circumstances it will be difficult to

infer that the fired cartridges were brought by the child from

somewhere else other than the place of incident. In any case it was

for constable Naresh Kumar to have enquired from the child who had

given the fired cartridge to him as to from where he had picked up

those cartridges. This would also be relevant to consider that a police

constable will not just pick up any fired cartridge given by a child in

a particular case without enquiring whether the fire cartridge handed

over to him are relevant to that particular case or not. In any case in

order to clear the doubt which is sought to be created now at this

stage by the learned Additional Public Prosecutor, the respondent

ought to have examined constable Naresh Kumar. Since the fired

cartridges were sent for forensic analysis with reference to the FIR

which was registered at the instance of the brother of the deceased, it

has to be inferred that the cartridges were recovered from the site

where the deceased was injured otherwise the respondent would not

have sent these cartridges for analysis with the reference of FIR no.

434 of 1992. In the absence of any cogent or reliable explanation by

the respondent. the inevitable inference is that the cartridges were

picked up by a child from the spot, that is the house of the

appellants and handed over to constable Naresh Kumar as the

appellants had been injured in the incident and admittedly were

removed by PW-3 Krishan Kumar in the PCR van along with the

deceased Rakesh Kumar to the hospital.

26. This Court had directed the respondents to produce the case

file of FIR No.459/1992 which was registered later on, even though

the complaint was made by the mother of the appellants at the same

time when the incident had taken place indicating that there had

been a stabbing incident and that a man was injured. The FIR No.

459 of 1992 which was registered at the instance of the mother of the

appellants stipulates about an MLC, X ray report of Jai Singh and

MLC, X-ray report of Natho. It cannot be disputed in the

circumstances that the MLC of appellant no.1 was done on his

admission in the hospital. However, the report has not been

produced by the respondent. Even if the report has not been

produced, a fact can be inferred that the appellants were injured in

the incident. Had the MLC been produced, it could have only

established the extent of injuries suffered by the appellants. In the

circumstances on the preponderance of probabilities it cannot be

held that Jai Singh appellant No.1 had not suffered any injury

because if he had not suffered any injury there would not have been

any MLC of Jai Singh which also necessitated taking his X-rays.

27. This is no more res integra that the burden which rests on the

appellants to prove self defence is not of the same rigor as the

burden of the prosecution to prove the guilt of the appellants as the

standard of proof required to discharge the burden of proof resting

on the accused propounding the plea of self defence is not proof

beyond reasonable doubt but is one of preponderance of

probabilities. A plea of private defense stands discharged by showing

preponderance of probabilities in favor of the plea. These

propositions are authoratively settled by the decisions of the

Supreme Court in Munshi Ram and ors. v. Delhi Administration, AIR

1968 SC 702; Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC

577 and State of Punjab v. Gurbux Singh and ors. (1996) SCC (Crl.)

88. The absence of a specific plea invoking the right of private

defense or any affirmative evidence to prove the same is, therefore,

inconsequential. What is important is whether the evidence available

on record probalilises the plea raised. If it does reasonably do so, the

appellants must have the benefit of the same no matter if the plea is

not proved to the hilt. A division Bench of this High Court in Maya v.

State, 2004 (3) C.C.Cases (HC) 149 had held so especially in para 17

at page153. In AIR 2008 SC 3284, Satya Narain v. Gajanand & anr.

the Supreme Court had held that abstract test for availability of right

of self defense cannot be laid down. It being a question of fact, the

Court has to consider all surrounding circumstances for determining

its availability and accused need not raise a specific plea and the

Court can consider its availability even in absence of plea by

accused. The Supreme Court in Surendra & anr. v. State of

Maharashtra (2006) 11 SCC 434 in paras 26 had commented about

the duty of the prosecution to explain the injuries on the part of the

accused. The Supreme Court had held as under:

„26. We are not unmindful of the fact that in all circumstances injuries on the person of the accused need not be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would not mean that the burden can be discharged only by examining defence witnesses.

27. The learned courts below committed a manifest error of law in opining that the appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case.

32. In regard to the duty of the prosecution to explain the injuries on the part of the accused, this Court observed: (SCC pp. 683-84, paras 78-80)

"78. Section 105 of the Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence of proof, it may not be possible for the court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove the said fact by eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself.

79. In a large number of cases, this Court, however, has laid down the law that a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the 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 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. All circumstances are required to be viewed with pragmatism and any hypertechnical approach should be avoided.

80. To put it simply, if a defence is made out, the accused is entitled to be acquitted and if not he will be convicted of murder. But in case of use of excessive force, he would be convicted under Section 304 IPC."

If that be so then on the basis of the evidence on record on the

preponderance of probabilities it is inevitable to infer that the

appellants were injured in the incident in their house and there was

firing which is established from the fired cartridges which were

recovered and had been sent by the prosecution for analysis to the

Forensic Laboratory. It is also established by the documents on

record especially post mortem report which was exhibited as PW 1/A

that the deceased was also inflicted with an injury in his back by a

sharp edged weapon which could be a jelly or such similar object

having a sharp edge.

28. From the record it is also apparent that what is recovered from

the residence of the appellants are two lathis and not one lathi and

one jelly or a similar thing having a sharp edge which could be used

as sharp edged weapon. If the jelly or a similar thing having a sharp

edge had not been recovered from the residence, where the incident

had taken place, it cannot be concluded that the appellants had used

lathis and jelly both to inflict injury on the deceased. If the injuries 1

to 17 are in the front of the deceased by a blunt edged weapon and

only one injury was at the back of the deceased which was from the

sharp edged weapon, the probability that the sharp edged injury at

the back was inflicted by the companions of the deceased cannot be

ruled out.

29. Although the case diary of first information report

No.459/1992 which was summoned by this Court had been perused

where it is stated that Sh.Jai Kumar, accomplice of the deceased had

admitted that when he attacked appellant No.1 with jelly, by chance

in one of his attack he had injured the deceased who succumbed to

his injuries later on. This case diary, however, is not admissible in

evidence.

30. The fact that the deceased died due to injuries and his

accomplices against whom the FIR No.459/1992 was registered

under Section 308/325/452/34 of IPC had died in police

encounters, cannot be ignored altogether. These facts enumerated

hereinbefore give credence to the plea of the appellants that the

deceased and his accomplices had attacked them with a firearm, a

jelly and a lathi and that the appellants defended themselves with

lathis in their own property. On the basis of preponderance of

probability the plea of self defense in the facts and circumstances by

the appellants cannot be ruled out altogether and creates a doubt in

the version as propounded by the prosecution.

31. The statement of PW-3, HC Krishan Kumar was recorded on

2nd March, 1998 who deposed that he was given information by PCR

van that a quarrel had taken place in village Khera Kalan and that

three persons had been injured pursuant to which he accompanied

the PCR van and removed the deceased and the appellants to Hindu

Rao Hospital. On 2nd March, 1998 he did not depose about any

statement given by deceased Rakesh to him. On 2nd March, 1998

since nothing adverse was deposed by HC Krishan Kumar to the

appellants, he was not cross examined on behalf of appellants and

his statement was closed. Though his statement was closed and

none of the parties, it appears from the record had recalled him for

further examination, his statement was again recorded on 6th March,

2000 when he improved from his earlier statement and deposed that

the deceased Rakesh Kumar was in a bad condition, however, he was

speaking intermittently and in a feeble voice he told PW-3 that he

was beaten up by appellants in their house after being tied with a

rope and he was called to their house by appellant Jai Singh. This

witness, thereafter, was cross examined almost after 4 months when

he said that he did not depose about the alleged statement of the

deceased made in a feeble voice in the first instance on 2nd March,

2000 when he had appeared in the witness box, as he did not

remember all the facts on that date. The alleged statement allegedly

made to him by the deceased was not recorded by him anywhere.

According to HC Krishan Kumar the deceased Rakesh Kumar was in

a bad condition and was speaking intermittently. The testimony of

the doctor who attended to him when he was admitted in the

hospital, however, reveals that when he was admitted in the hospital

he was in an unconscious state. The brother of the deceased PW.8

Mahender Kumar had rather deposed that when Rakesh Kumar was

removed from the house of the appellants to the hospital he was

already dead. If according to PW-8 his brother was already dead

when he was removed in the PCR van to the hospital, then PW-3

could not have head his statement. PW-3 also did not disclose about

this alleged statement on 2nd March, 2000 when his statement was

recorded and closed. Hence his statement recorded again later on is

not reliable and cannot be accepted in the entirety of the facts and

circumstances. PW-8 Sh.Mahender Singh in his cross examination

was categorical that both the accused (appellants) were taken to the

hospital by the police with the dead body of Rakesh Kumar. In the

circumstances, the statement of Krishan Kumar that the deceased

had told him in a feeble voice that he was beaten up by the

appellants after being tied with the rope cannot be believed. Mere

recovery of alleged rope also does not establish that the deceased was

tied up with the rope as PW-18 has not deposed as to how the

deceased was tied up though the injury No.18 is an irregular ligature

mark on the right posterior lateral aspect of the neck but it has not

been established that the said injury had been caused from the

alleged rope recovered from the house of the appellants.

32. While considering the right of the appellants of self defence the

cardinal principles which must be kept in mind are that: 1) everyone

has a right to defend one‟s person and the property and the law does

not require anyone to be a coward or to run away in the face of peril;

2) the right of self defence is not to be exercised for causing more

harm than necessary or for taking revenge. It is also to be considered

that the right of self defence commences when necessity begins and

ends when necessity ends.

33. After considering the testimony of PW-8 Mahender Singh,

brother of the deceased, this Court considers it to be unreliable. The

houses of the appellants and the deceased and the said witnesses

are adjacent to each other in as much as there is only the disputed

land between the two houses, still when Mahender Singh allegedly

saw his brother being beaten up, he opted not to extricate or save his

brother from the clutches of the appellants who only had lathis but

opted to walk on foot to a distance of 1½ kms to a PCO Booth to call

the police instead of going to his house adjacent to the house of the

appellants where admittedly his elder brother and father were also

residing and he must have also known other neighbours to call them

to help him to save his brother. The said witness also deposed that

he enquired the phone number of P.S.Samaipur Badli and intimated

the said police station and that when he came back to the house of

the appellants, the PCR van had already come and removed his

brother and the appellants to the hospital. The allegation that he had

called the police from the PCO booth has not been established rather

what has been established is that the mother of the appellants had

called the police at number 100 pursuant to which information was

sent to PCR van which was dispatched to the scene of occurrence

and which had removed the deceased Rakesh Kumar and the

appellants in the injured condition. The conduct of the brother is

quite unnatural in the facts and circumstances. In AIR 2010 SC

3398, Birappa & anr. v. State of Karnataka where an alleged eye

witness brother of the deceased had deposed though he had seen his

brother being cut, had left him and had come after some time to

enquire about him, it was disbelieved by the Apex Court and it was

held that such a conduct of the brother raises a doubt in him being

an eye witness. In this case relied on by the appellant the Supreme

Court had not relied on the testimony of such a brother and no other

witness had supported the prosecution and had therefore acquitted

the accused. It was further held that where prosecution story rests

on a single witness, the evidence of such a witness must inspire full

confidence. Considering the entire testimony of PW-8 in the light of

the other testimonies on the record, it is apparent that for the

foregoing reasons it is unreliable and he appears to have been

planted by the prosecution though he was not an eye witness. The

prosecution has also failed to explain as to how the cartridges were

recovered and sent to Central Forensic Laboratory and how the

deceased had suffered an injury in his back with a sharp edged

weapon when no sharp edged weapon had been recovered from the

appellants except two lathis. Taking all these factors into

consideration on the basis of preponderance of probabilities, it can

be inferred that the deceased with his accomplices Jai Kumar and

Raj Kumar had trespassed on the property of the appellants and had

attacked them. An injury with a sharp edged weapon and non

recovery of jelly or a sharp edged weapon from the house or at the

instance of the appellants is also indicative of the fact that the said

injury at the back of the deceased was not caused by the lathis

which was with the appellants which they used to save themselves

from the attack on them.

34. This is no more res integra that where an individual citizen

and his property is faced with danger and immediate aid from the

state machinery is not readily available, the individual citizen is

entitled to protect himself and his property and in the circumstances

the individual citizen is entitled to use violence to defend himself and

his property. In the case of the appellants it is to be inferred that the

deceased with his accomplices Jai Kumar and Raj Kumar who were

later eliminated in police encounters on account of murdering a

police inspector, attacked the appellants at their residence. It is not

that there was no reason for the deceased to attack the appellants

but it has been admitted and established that the land adjacent to

their respective house was the bone of contention between the two.

The incident took place at the residence of the appellant as is also

indicated by the prosecution version that the blood samples were

lifted from the room and the verandah of their house. The appellants

tried to have the aid from the state by calling the police and as long

as the police authorities did not reach them, if the appellants used

lathis to protect themselves against the attack on them with the fire

arms, jelly or such sharp edged weapon and lathis, the use of lathis

by the appellants cannot be termed to be unduly disproportionate

and cannot be termed to have exceeded their legitimate purpose.

From the facts of the case it is also inevitable to infer that the right of

the appellants to private defence was not vindictive or malicious.

35. On the cumulative reading of all the testimonies and the plea

of the appellants, this Court is of the opinion that the judgement of

the trial Court convicting and sentencing the appellants cannot be

sustained. Accordingly this Court allows the appeal of the appellants

and sets aside the judgement of conviction dated 11th October, 2001

and order of sentence dated 12th October, 2001 of the appellants in

Sessions Case no. 350 of 1996, titled as „State v. Jai Singh &

Another‟ arising from the FIR No.434 of 1992, under Sections

307/302/342/34 of the Indian Penal Code, PS S.P. Badli. The

sentence of appellant no.2 was suspended and she was released on

bail on her furnishing personal bond of Rs.10,000/- with two

sureties of like amount pursuant to order dated 26th October, 2005

whereas the sentence of the appellant no.1 was suspended and he

was released on bail on furnishing personal bond of Rs.10,000/- and

one surety of like amount pursuant to order dated 6th November,

2006. Since their conviction and sentence have been set aside their

bail bonds are cancelled and their sureties are discharged. The

appellants shall be entitled to their freedom unless they are required

in any other case. Ordered accordingly

ANIL KUMAR J.

December 24, 2010                                S.L.BHAYANA J.
„k/rs‟