Samunder vs The State
2010 Latest Caselaw 1667 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl.A.No.382/2005

%                   Reserved on:      19th March, 2010
                    Date of Decision: 25th March, 2010

#     SAMUNDER                         ..... Appellant
!                   Through:   Mr.R.S.Malik, Adv.

                    versus

$     THE STATE                         ..... Respondent
^                   Through:    Mr.O.P.Saxena, APP

+                   Crl.A.No.378/2005

#     SURESH KUMAR                     ..... Appellant
!                Through:      Mr.R.S.Malik, Adv.

                    versus

$     THE STATE                         ..... Respondent
^                   Through:    Mr.O.P.Saxena, APP

+                   Crl.A.No.380/2005
-

#     RAJESH KUMAR                     ..... Appellant
!                Through:      Mr.R.S.Malik, Adv.

                    versus

$     THE STATE                         ..... Respondent
^                   Through:    Mr.O.P.Saxena, APP

+                   Crl.A.No.379/2005

#     KISHAN CHAND                     ..... Appellant
!                 Through:     Mr.R.S.Malik, Adv.



Crl.A.No.382/2005                             Page 1 of 23
                         versus

$     THE STATE                              ..... Respondent
^                       Through:     Mr.O.P.Saxena, APP

+                       Crl.A.No.388/2005

#     VIJAY                      ..... Appellant
!                       Through:    Mr.R.S.Malik, Adv.

                        versus

$     THE STATE                              ..... Respondent
^                       Through:     Mr.O.P.Saxena, APP


*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.      Whether the Reporters of local papers
              may be allowed to see the judgment?        Yes

      2.      To be referred to the Reporter or not?     Yes

      3.      Whether the judgment should be
              reported in the Digest?                    Yes


: V.K. JAIN, J.

1. By this common judgment, I shall dispose of all the

five appeals referred to above, which are directed against a

common judgment dated 30.3.2005 and order on sentence

dated 1.4.2005, whereby the appellants were convicted under

Sections 323/452/506/34 of IPC and were given benefit of

probation.

2. On 16th September, 2003, an information was received

in Police Control room that a quarrel had taken place in

Village Poot, and two persons had sustained bullet injuries.

The information was recorded vide DD No.25-A, a copy of

which was given to SI Ved Pal Singh of PS Bawana. He,

thereupon, went to Bhram Shakti Hospital, where the

complainant Rajpal as well as Rajnikant, S/o Satveer, were

found admitted. In his statement to IO, Rajpal alleged that

on that day at about 9.00 p.m., when he was present in his

house, his neighbour Kishan Chand, along with his sons

Samunder, Vijay, Rajesh and Suresh, banged at his door and

started abusing and asking him as to why he was objecting to

the land of trust. They entered his house and gave legs and

fist blows to him. He, thereupon climbed his roof. He further

stated that Kishan Chand and his sons armed with Lathies

and Jelly reached the roof, where he was caught hold by

Kishan Chand and Samunder, whereas Vijay, Rajesh and

Suresh started giving Lathi blows to him. When he raised

alarm, his nephews Rajnikant and Yogender reached there to

mediate, whereupon the appellants started beating Rajnikant,

as a result of which, he sustained injuries on his head. They

also gave legs and fist blows to Yogender. He further claimed

that Samunder, Vijay and Suresh threw him from the roof as

a result of which he sustained injuries on his head.

3. The complainant came in the witness box as PW-5 and

stated that on 16th September, 2003, at about 9.00 p.m.

when he was lying in his house, all the five accused, who

were residing in his neighbourhood, came to his house and

started abusing him. At that time, Kishan Chand was having

a Jelly in his hand, whereas other four persons were having

Lathies with them. They started beating him inside his

house. He climbed the roof in order to save himself. The

accused persons, however, came to the roof, where he was

held by Kishan Chand and Samunder, whereas remaining

three accused gave him beatings with lathies. When he

raised alarm, his nephews Rajnikant and Yognder came to

the roof to save him from them. Rajesh, Suresh and Vijay

started beating Rajnikant. In the process of beating

Samunder and Kishan Chand threw him from the roof, as a

result of which he sustained injuries on his head and other

parts of his body.

4. PW-4 Satbir is the brother of the complainant. He has

stated that on 16th September, 2003, on hearing alarm raised

by the complainant, he sent his son Rajnikant to his house

and also himself reached there. He saw Kishan Chand and

his sons beating his brother Raj Pal, with Lathies and Jelly.

Kishan Chand was having Jelly with him, whereas other four

persons were having Lathies with them. When Rajnikant

intervened, he was beaten by Rajesh and Kishan Chand. His

brother Raj Pal was thrown by them on the ground. When

his son Rajnikant became unconscious, he informed the

police on telephone, whereafter the accused persons ran away

from the spot. This witness was cross-examined by the

learned Additional PP and during the course of his cross-

examination, he admitted that he had told the police that

Yogender was also beaten with fist and legs.

5. PW-6 Rajnikant has stated that on 16th September

2003, at about 9.00 p.m, he rushed to the house of the

complainant on hearing the alarm raised by him. He saw the

accused persons beating his uncle Raj Pal. At that time,

Kishan Chand was having Jelly with him, whereas other

accused were having Latheis with them in their hands. When

he tried to intervene, he was also beaten by Kishan Chand

and Raju @ Rajesh. During that process, the accused

Samunder, Vijay and Suresh threw Raj Pal from roof to the

ground. As a result of beating given to him, he became

unconscious and when he regained consciousness, he found

himself in Brahm Shakti Hospital.

6. PW-7 Yogender has stated that on 16 th September,

2003, he was present in the Gher, along with his brother

Rajnikant and on hearing alarm raised by the complainant,

they went to the roof and found the accused persons beating

him. At that time, Kishan Chand was having Jelly with him,

whereas other persons were having Lathies with them. He

further stated that accused Samunder, Vijay and Suresh

threw Raj Pal from the roof to the ground and he also was

beaten by them. According to him, Raj Pal was beaten by all

the five accused and he became unconscious and was taken

to Brahm Shakti Hospital.

7. PW-1, Dr.Alok Chaubay, examined the complainant

and Rajnikant in the hospital vide MLC Ex.PW-1/A and

Ex.PW-1/B respectively. PW-8 ASI Ved Pal, who is the IO of

the case went to the hospital, recorded the statement of the

complainant and carried out investigation in this case.

8. In their statements under Section 313 Cr.P.C., the

appellants denied the allegations against them and claimed

that they have been falsely implicated in this case.

9. The main contention of the learned counsel for the

appellants was that though the appellant Vijay had

sustained injuries, as admitted by the Investigating Officer,

the prosecution has not explained the injuries sustained by

him and, has also not explained the genesis of the quarrel

that took place on 16 th September, 2003, and therefore, the

appellants are liable to be acquitted on this ground alone.

10. In "State of Gujarat Vs. Bai Fatima", (1975) 2 SCC

7, the Supreme Court was of the view that:

"in a situation when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

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

(ii) 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.

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

11. In "Laxmi Singh & Others Vs. State of Bihar" ,

(1976) 4 SCC 394, the Supreme Court held that in a murder

case non-explanation of injuries sustained by the accused at

about the time of occurrence or in the course of altercation is

a very important circumstance, from which the court can

draw following inference:

(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

12. In the case of Bai Fatima(supra), the Supreme Court

specifically held that there may be cases where the non-

explanation of injuries by the prosecution may not affect the

prosecution case. This principle would apply to cases where

the injuries sustained by the accused are minor and

superficial or where the evidence is so clear and cogent,

witnesses are independent and disinterested, and their

testimony is so probable, consistent and creditworthy that it

far outweighs the effect of the omission on the part of the

prosecution to explain the injuries.

13. In "State of Madhya Pradesh Vs. Sardar", 2001 (5)

AD (SC) 566, the Supreme Court held that where the evidence

is clear, cogent and creditworthy, a reasonable inference

which can be drawn is that the accused received injuries

during the course of occurrence and some members of the

prosecution party inflicted such injuries. It was further held

that if the prosecution establishes that the accused were the

aggressors and went to the residence of the deceased or the

prosecution witnesses and inflicted injuries to the deceased

and the witnesses, there was no question of right of private

defence to the accused. On the contrary in such a situation

the prosecution party would have the right of private defence.

14. In "Kashmir Lal & Others Vs. State of Punjab",

1996 1 SCC 471, the Supreme Court held that a person who

is unlawfully attacked has every right to counteract and

attack his assailant and cause such injury as may be

necessary to ward off the apprehended danger or threat.

15. In "Rajender Singh Vs. State of Bihar", AIR 2000 SC

1779, the Supreme Court reiterated that ordinarily the

prosecution is not obliged to explain each injury on an

accused even though the injuries may have been caused in

the course of the occurrence, provided that the injuries are

minor in nature. But if the prosecution fails to explain a

grievous injury to one of the accused persons, which is

admitted to have been caused in the course of the same

occurrence, then certainly the court looks at the prosecution

evidence with a little suspicion on the ground that the

prosecution has suppressed true version of the incident.

16. The following proposition of law emerge from these

cases:

(i) The prosecution needs to explain the serious

injuries sustained by an accused in the course of

the some transaction in which he is alleged to have

committed the offence attributed to him. This

applies particularly to a murder case.

(ii) The prosecution is not bound to explain the

minor injuries, if any, sustained by an accused.

(iii) If the serious injuries sustained by an

accused in the course of some transaction is not

explained by the prosecution, a defence version is

put up by the accused and the injuries sustained

by the accused are compatible with the defence

version, the court may believe the defence version,

giving benefit of doubt to the accused.

(iv) Even if the prosecution fails to explain the

serious injury sustained by an accused, that by

itself will not result in the entire case of the

prosecution being rejected on this ground alone

where the testimony of the witnesses is found to be

unambiguous, creditworthy and reliable and the

court is in a position to ascertain the true facts of

the incident by separating chaff from the grain.

(v) If the court, on analyzing the evidence produced

by the prosecution, finds that the accused was the

aggressor who went to the place of the prosecution

witness(es) and inflicted injuries to him, right of

private defence will not be available to the accused

who by going to the place of the prosecution

witness and attacking him had invited a counter-

attack on him.

17. In the present case, there is absolutely no evidence

which would show the nature of the injuries sustained by the

appellant Vijay Kumar. The MLC of appellant Vijay Kumar

has not been produced in evidence. He has not chosen to

come in the witness box. In his statement under Section 313

of Cr.P.C. neither the appellant Vijay Kumar nor any other

appellant claimed that Vijay Kumar had sustained any

serious injury during the incident which took place on 16 th

September, 2003. The only evidence which the court has in

this regard is an admission by the IO that appellant Vijay

Kumar was also found in the hospital and he had recorded

his statement. This, by itself, does not show that any serious

injury was sustained by the appellant Vijay Kumar. The

inevitable inference, in these circumstance, is that the

appellant Vijay Kumar sustained only some minor injury.

Since no serious injury was sustained by the appellant Vijay

Kumar, it was not obligatory for the prosecution to explain

those injuries.

18. The second important aspect in this regard is that the

appellants themselves have not given their own version of the

incident which took place on 16th September, 2003. When

the appellants were examined under Section 313 Cr.P.C.,

they had ample opportunity to give their version of the

incident, but they did not avail the opportunity. During

cross-examination of prosecution witnesses, no such

suggestion was given to them as would constitute any defence

version of the incident which took place in this case. During

their cross-examination only general suggestions were given

to them to the effect that no such incident had taken place

and that the accused have been implicated in a false case.

Therefore, it cannot be said that the injuries sustained by the

accused are compatible with the version given by the defence

in this case.

19. The testimony of PW-4 Satbir, PW-5 Raj Pal, PW-6

Rajnikant and PW-7 Yoginder show that the incident in

question took place primarily on the roof of the house of PW-5

Raj Pal. When the appellants were examined under Section

313 Cr.P.C., they did not claim that the incident had taken

place at some place other than the roof of the house of PW-5

Raj Pal. In these circumstances, there is no reason to

disbelieve the prosecution witnesses, according to whom, the

appellants had entered the house of PW-5 Raj Pal and had

then caused injuries to Raj Pal and others at the roof of his

house. Since the appellants entered the house of Raj Pal

armed with Jelly and Lathies, they obviously were the

aggressors. Hence, in the process of defending themselves

from attack by the appellants, the prosecution witnesses were

entitled to counteract in their defence and cause such

injuries, in exercise of their right of self-defence, as were

necessary to save themselves from more injuries, that could

have been caused to them.

20. As regards genesis of the incident which took place on

16th September, 2003, it has come in the testimony of the

prosecution witnesses that there were disputes between the

parties in regard to the land of the Trust in the Village. The

land, therefore was the bone of contention between the

parties and resulted in the appellants entering the house of

the complainant and causing injuries to him.

17. The learned counsel for the appellants has referred

to the decision of Gujarat High Court in "Momna Babu

Jamal & Others Vs. State of Gujarat", 1995 (1) Crimes

174. In the case before the Gujarat High Court, one of the

accused persons Jiva Punja had sustained serious injuries in

fight and had succumbed to the same. Admittedly, the

prosecution was not able to explain the injuries sustained by

him. In these circumstances, it was held that the gist and

genesis of prosecution version may have been concealed. In

the present case, however, no one has died and no one has

sustained any serious injury.

18. The next judgment referred by the learned defence

counsel is "Rahis Ahmed Vs. State", 1994 (2) CC Cases

570, which was a case under NDPS Act and it was found that

the appellant had sustained injuries when he was in police

station. He was found bleeding from his head. In these

circumstances, the defence taken by the accused was found

to be creditable. This judgment is of no help to the

appellants since neither any serious injury has been

sustained by any of them nor have they given any particularly

version of the incident.

19. In the case of Laxmi Singh (supra), which is the next

judgment relied upon by the learned counsel for the

appellants, accused Dashrath Singh had sustained serious

injuries which were testified by the doctor during trial. Injury

No.1 was found to be grievous in nature, having been

resulted in compound fracture and other two injuries were

found inflicted by a sharp cutting weapon. Some of the

witnesses made a clear statement that they did not see any

injury on the person of the accused. It was, therefore, held

that in a murder case, where one of the accused was proved

to have sustained injuries in the course of the same

occurrence, the non-explanation of such injuries by the

prosecution was a manifest defect in the prosecution case

and showed that the origin and genesis of the occurrence had

been deliberately suppressed which led to the irresistible

conclusion that the prosecution had not come out with a true

version of the occurrence. This judgment is of no help to the

appellants, since there is no evidence of any serious injury

having been suffered by Vijay Kumar and more importantly,

during cross-examination of the prosecution witnesses not a

single question was put to them to elicit their response as to

how Vijay Kumar had sustained injuring during the course of

the incident. It was obligatory for the appellants to cross-

examine the witnesses on this aspect and given them an

opportunity to tell the court as to how Vijay Kumar had

sustained injury during the course of the incident. In fact,

even the Investigating Officer was not asked as to how Vijay

Kumar had sustained injury during the incident which took

place on 16th September, 2003. In the absence of any

opportunity to the witnesses to explain the injuries, if any,

caused to the appellant Vijay, no adverse inference can be

drawn against them on the ground that they had failed to

explain the injuries caused to Vijay.

20. The learned defence counsel has next referred to the

decision in "Patori Devi & Another Vs. Amar Nath &

Others", AIR 1988 SC 560, which again was a murder case.

In that case a right of private defence was put forward by the

appellant which the trial court did not accept. The Supreme

Court found that prosecution witnesses had suppressed their

own part and had exaggerated the part played by the accused

besides suppressing the injuries caused to him. In the

present case, however, no defence version has been put

forward by the appellants and no opportunity has been given

to the witnesses to explain the injuries, if any, sustained by

the appellant Vijay Kumar.

21. The learned counsel for the appellants has next

referred to the decision in "State of Rajasthan Vs. Madho &

Another" , AIR 1991 SC 1065. In that case the prosecution

was unable to explain how the respondent had sustained

injuries. The court noticed that the respondent Kishna had

sustained as many as six injuries, five of which were on the

skull. The respondent Madho had sustained six injuries,

some of which were on exposed part of the body. The Apex

Court felt that the prosecution witnesses should have

explained how those injuries were sustained by the

respondent and since they did not do so, the impression

formed by the court was that they were suppressing some

part of the incident. Again, this judgment is of no help to

the appellants since neither any serious injuries have been

sustained by any of them nor had they called upon the

prosecution witnesses to explain the injuries sustained by

Vijay.

22. The learned counsel for the appellants has lastly relied

upon the decision in "Ram Singh & Others Vs. The State of

Haryana", 1998 III AD (SC) 683, where besides a number of

infirmities in the evidence, the court found that they had not

explained the injuries caused to the accused persons. The

appellants before the court had given their own version of the

circumstances in which they had gone to the spot and had

caused injuries to the other side and the court found the

version given by them to be more probable. This judgment

does not help the appellants since they have not given their

own version of the incident to the court.

23. It was submitted by the learned counsel for the

appellants that had the complainant been thrown from the

roof, as claimed by him, he would have sustained injuries on

all over the body, as stated by PW-1 Dr.Alok Chaubay and

since injuries were not found on the whole body of the

complainant the version given by him should not be believed.

The submission, I feel, is based upon a misreading of the

testimony of PW-1. What the witness stated was that if a

person is thrown from the roof, he can sustain injury on all

over his body. He did not say that in every case where a

person is thrown from the roof, he must necessary sustain

injuries all over his body. It is difficult to accept that in

every case a person who is thrown from the roof he must

necessarily sustain injuries all over his body. Extent of

injuries will depend upon a number of factors, including the

height from which he was thrown, the force that was applied

for throwing him, the nature of the surface on which he was

thrown and the portion of the body which came into contact

with the surface when he was thrown from the roof. A

perusal of the MLC of complaint Raj Pal would show that he

had CLW on right frontal region, right parieto occipital region

on right side cheek. These injuries would indicate that it was

right side portion of the body of the complainant which came

into contact with the surface when he was thrown from the

roof of his house.

24. The learned counsel for the appellants has pointed

out some contradictions. He has pointed out that as per FIR

lodged by the complainant, he was thrown from the roof by

the appellants Samunder, Vijay and Suresh, whereas when

he came in the witness box, he stated that he was thrown

from the roof by Samunder and Kishan. PW-6 and PW-7,

however, maintained the version given in the FIR and stated

that it were the appellants Samunder, Vijay and Suresh who

had thrown the complainant from the roof of his house. It

was further pointed out that according to the complainant,

Rajnikant was beaten by Rajesh Samunder and Vijay,

whereas according to Rajnikant himself as well as Satbir, he

was beaten by Rajesh and Kishan. These discrepancies, to

my mind, cannot be said to be material in the facts and

circumstances of this case. All the witnesses have supported

each other on the core parts of their testimony. All of them

have stated that the appellant Kishan was armed with Jelly,

whereas other appellants were armed with Lathies. All of

them have stated that the incident took place on the roof of

the complainant. All of them have stated that the

complainant was thrown from the roof of his house. The

contradictions on peripheral matters which do not impinge

upon the core part of the case set up by the prosecution can

be attributed to poor recollection of the incident which took

place years long before the witnesses were examined in the

court and, therefore, do not destroy the testimony of the

witnesses which has otherwise been found to be credible.

The court needs to appreciate that when there is an incident

of this nature involving a number of aggressors, it may not

even be possible for the injured person to notice as to what

particular role was played by a particular accused, since his

main concern at that time is to save himself. It would be

unrealistic to expect him to concentrate on the individual

acts of each accused during the course of the incident. The

testimony of PW-1 coupled with MLC of complainant Ex.PW-

1A and MLC of Rajnikant PW-1/B leaves no reasonable doubt

that they had sustained injuries in the incident. Even if the

testimony of Satveer and Yoginder is excluded from

consideration, the deposition of Raj Pal and Rajnikant who

were injured in the incident and therefore whose presence on

the spot cannot be disputed is sufficient to prove the charge

against the appellants.

25. Since the appellants committed trespass in the house

of the complainant for the purpose of causing injuries to him

and they were armed with weapons at that time, the charge

under Section 452 of IPC stands duly established against

them. Since injuries were caused to the complainant and

Rajnikant, they are also guilty of offence punishable under

Section 323 of IPC. The testimony of the complainant and

other witnesses shows that the appellants had also criminally

intimidated them. Hence, the charge under Section 506 of

IPC also stands proved against them. Hence, conviction of

the appellants is maintained.

26. As regards sentence, the trial court has been most

liberal with them and there is no scope for any interference

by this court. The appeals have no merit and are, hereby

dismissed.

(V.K.JAIN) JUDGE MARCH 25, 2010 RS/