Delhi High Court
Naik Satya Narain vs State on 4 December, 2015
Author: R. K. Gauba
$~R-7 & 8 (Part-B)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th November, 2015
% Date of Decision: 04th December, 2015
+ CRL.A. 50/2000
NAIK SATYA NARAIN ..... Appellant
Through Mr. Jai Gupta, Mr. Rakesh
Kumar and Mr. Amit Verma, Advocates.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP with SI
Karamvir, PS-Narela.
CRL.REV.P 310/1999
OM PARKASH ..... Petitioner
Through Mr. Aakash Sharma, Advocate.
versus
SATYA NARAIN AND ANR ..... Respondent
Through Mr. Jai Gupta, Mr. Rakesh
Kumar and Mr. Amit Verma, Advocates.
Ms. Aashaa Tiwari, APP with SI Karamvir,
PS-Narela.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. The appellant Naik Satya Narain was held guilty and convicted
by the court of Additional Sessions Judge by judgment dated
15.05.1999 on the charge for an offence punishable under Section 304
Part-II of Indian Penal Code, 1860 (IPC) for causing death of Balbir
Singh son of Ramji Lal ("the victim") on 01.07.1992 as a result of
injuries allegedly suffered in an incident that had occurred on
28.06.1992. Naik Satya Narain challenges the said judgment through
criminal appeal number 50/2000.
2. By order dated 17.05.1999, the convicted appellant was
sentenced to fine of ₹5000/- in default Rigorous imprisonment for six
months. Feeling dissatisfied with the said order, criminal revision
petition no. 310/1999 has been preferred by Om Prakash son of
Mahabir Singh (PW-1), nephew of the victim, praying that the
conviction to be converted into one for offence under Section 304 Part-
I IPC and punishment commensurate therewith to be awarded.
3. Since the appeal and the revision petition arise out of the same
judgment and order, they have been heard together and are being
decided through this common judgment.
4. On 28.06.1992, Balbir Singh son of Ramji Lal aged about 33
years resident of house no. 1167, Ishwar Colony, Bawana, Delhi
suffered injuries which included fissured fracture of the left parietal
bone radiating to the left temporal wound and of the middle cranial
fossa alongwith the contusion of right temporal lobe of brain. He was
first taken to a private clinic of Dr. Rajiv Aggarwal (PW-13) and
administered first aid (vide OPD slip Ex.PW-13/A) and then to Hindu
Rao Hospital by his brother Mahabir Singh (PW-12). At the time of
arrival in Hindu Rao Hospital at 1:30 PM, he was found by the
examining medical officer, per medico legal report (Ex.PW-15/A), to
be conscious and oriented though with history of unconsciousness and
vomiting after assault. The MLC (Ex.PW-15/A) took note of the
following injuries revealed by the external examination:
"1. CLW left temporal region of scalp 1" long, stitched.
2. Swelling left side of forehead.
3. CLW ½ long right ear lobule
4. Contusion 2" long over left lower abdomen
5. Multiple abrasion left arm and right lower leg."
5. It must be added here that history of the injuries as given to the
examining medical officer at the time of the MLC was noted as
"assaulted by unknown persons". Since the victim was conscious and
oriented and because his brother Mahabir Singh (PW-12) did not say
otherwise, it has to be assumed that the history was given to the
medical officer by the victim himself.
6. It is pertinent to further note here that MLC (Ex.PW-15/A) bears
two endorsements one dated 28.06.1992 and the other dated
01.07.1992, both purportedly recorded by the medical officer(s)
attending on the victim in the hospital stating that he was "unfit for
statement". The exact time of the first certification (28.06.1992) is not
spelt out whereas there is reference to 8:30 PM in relation to the
second one (01.07.1992). There is, however, an unexplained gap/space
between the noting about the time and the certification as to fitness.
For the record, it must be added that no witness was adduced to
formally prove any of the said two endorsements.
7. The clinical notes, in the form of death summary (Ex.PW-15/B),
in the hand of Dr. Ajit Deshmukh, duly proved (in his absence and
non-availability since he had left the service of the hospital) by Mr.
K.B. Singh (PW-15), the medical record clerk, are of crucial import
and need to be quoted verbatim as under:-
"Pt. was admitted with h/o assault by unknown person
with h/o unconsciousness & vomiting. There was no
vomiting & no bleeding ENT. Pt. was conscious when
seen in casualty co-operative & well oriented. Vital
signs were stable. There were multiple small injuries.
Pt. was alright on 29.06.92 with c/o headache, was
conscious and well oriented. Pt. was responding to
painful stimuli but not responding to oral commands on
30.06.92.
On 01.07.92 Pt was referred to Ophthalmic
surgeon for opinion & further exam & found to have
papilledema.
Pt. was put on Mannitol 100 cc sh, Decadron 8mg sh and
IV fluids.
Pt. became irritable around 4PM. Other findings
remaining the same.
Pt. became drowsy again around 8 PM. He was
given milk P.O. & was later found unconscious.
Pt. started gasping around 11:25PM and had
cardiovascular arrest later. Pt. was resuscitated but
could not be revived and declared dead on 01.07.1992 at
11:55 PM."
8. The first intimation about the occurrence which was the subject
matter of the case at hand reached police post Bawana of police station
Narela (herein referred to as the "police station") vide DD No. 9,
reference to which has been made in the rukka (Ex.PW-16/B) on the
basis of which FIR (Ex.PW-6/A) was recorded on 01.07.1992. The
contents of the said intimation (vide DD No. 9 of 28.06.1992) have not
been strictly proved as no evidence was led. We may add that a copy
of the said DD entry is available (at page 285) on the trial court record
and reveals that the intimation had been received in the police post
through Police Control Room (PCR) at 12:10 PM from some unknown
person indicating it to be a case of quarrel (jhagda).
9. The matter arising out of the first intimation was entrusted to
Head Constable Kali Ram (PW-16) who reached the place
accompanied by Constable Surender. For the present, we note from
the rukka (Ex.PW-16/B) sent by the police official at 5:40 PM on
01.07.1992 that on arrival at H.No.1167, Ishwar Colony, Bawana, he
learnt that the victim (Balbir) and the appellant (Satya Narain) had
gone to Hindu Rao Hospital and Base hospital, Delhi Cantt.,
respectively. Head Constable Kali Ram (PW16) first proceeded to
Base Hospital, Delhi Cantt. where he found the appellant admitted
against MLC No. 202 (Ex.PW-18/DA), and, per the opinion of the
medical officer, unfit for giving a statement. He then proceeded to
Hindu Rao Hospital where he found the victim admitted against MLC
No.4507 (Ex.PW15/A) and, per the opinion of the medical officer,
unfit for giving statement.
10. Pertinent to note here that in the endorsement (Ex.PW-16/B),
forming the basis of the FIR, Head Constable Kali Ram (PW-16) at the
time of his enquiry (into DD No. 9) was unable to come across any
eye-witness to the occurrence. He reported in the FIR that, on
01.07.1992, having learnt about the serious condition of the victim, he
had gone again to H.No.1167, Ishwar Colony, Bawana, accompanied
by Constable Vishnu Dayal (PW-11) where he met one Chander son of
Udhmi resident of H.No.1167, Ishwar Colony, Bawana who had given
his statement (Ex.PW-16/A) narrating the sequence of events of
28.06.1992 leading to the injuries. The FIR (Ex.PW-6/A) purports to
have been registered at 6:20 PM on 01.07.1992 for an offence under
Section 308 IPC. As noted above, the death summary (Ex.PW-15/B)
shows that the condition of the victim had started deteriorating around
4:00 PM on 01.07.1992. He turned drowsy around 8:00 PM, fell into
unconsciousness and passed away at 11:55 PM on 01.07.1992.
11. The prosecution referred to DD No. 41 (Ex. PW-18/A) statedly
recorded at 6:45 AM on 02.07.1992 in the police post Bawana by
Constable Ghanshyam (PW-15), Rojnamchar Munshi (PW-18). As per
the said record, the information about the death of the victim in Hindu
Rao Hospital was conveyed by Mahabir Singh, brother of the victim.
Interestingly, another copy (mark Ex.PW-19/A) of the said DD entry
(No. 41) was brought on record during the statement of Inspector
Manohar Singh (PW-19) who had taken over the investigation on
02.07.1992, this copy (Ex. PW-18/A) proved by the Roznamcha
Munshi on the basis of daily diary register is not identical to the other
one. Be that as it may, upon information regard the death coming to
the notice of the police, the case was converted into one for
investigation into offence under Section 304 IPC, as revealed by the
further endorsement to such effect on the FIR (Ex.PW-6/A).
12. The formal proceedings conducted in the wake of the above
development (death of the victim) included preparation of the inquest
papers, namely, death report (Ex. PW-19/C), and brief facts (Ex.PW-
19/A) which were submitted with the application for autopsy (Ex.PW-
19/F) to the medical superintendent, Civil Hospital, Delhi.
13. The post-mortem examination on the dead body of the victim
was conducted in the mortuary of the Civil Hospital by Dr.L.T.Ramani
(PW14) on 02.07.1992. The autopsy doctor has proved his report Ex.
PW-14/A) which indicates that he had found the following injuries on
the dead body :-
"1. Bruise 2" x 1½ " on the right side of the forehead.
2. Partly healed up irregular abrasion on the right
cheek wound area 1½" x 1" area with soft scab
formation.
3. Stitched wound 2½ " long on the left frontal area.
4. HAEMATOMA 3"x 2" on the left side of forehead.
5. Stitched wound 1½" long placed antero-
posteriorly on the left parital region of skull.
6. HAEMATOMA 3"x2" area on the left temporal
region.
7. Diffused bruising 3½" x 2" area on the upper
outer part of left arm.
8. Abrasion 1" x ½" on the left elbow with soft
brown scab formation."
14. The autopsy doctor further testified as under :-
On removing the stitches of the stitched wounds
the margins of the wounds showed early union and
injuries showed gap on the margins being pulled apart.
On internal examination scalp tissues showed
massive blood clot all over. There was fissured fracture
of the left parietal bone, radiating to the left temporal
wound. There was extra-dural hemorrhage on the left
side beneath the fracture and generalized sub-dural
haemorrhage. There was contusion of right temporal
region of brain. Base of the sculp showed fracture of
middle cranial fossa. Neck tissues were normal. Lips
were intact. Lungs and heart were normal. Stomach
contained two ounces of food and other abdominal
organs were normal.
15. In the opinion of the autopsy doctor (PW-14), the injury to the
skull was sufficient to cause death in the ordinary course of nature and
the death had occurred due to coma resulting from the head injury.
16. Chander son of Udhmi, the first informant, on whose statement
(Ex.PW-16/A), recorded on 01.07.1992, the FIR had been registered,
described himself as resident of H.No.1167, Ishwar Colony, Bawana,
Delhi. He was 62 years old person who had retired from service in the
Canal department. The FIR (Ex.PW6/A) mentions that the quarrel had
taken place because a small child (of the victim) had defecated in the
drain opposite the house, the faeces having floated (in the wash)
towards the house of the appellant, who had objected to the same. The
first informant stated that his attention had been drawn at about 11:00
AM on 28.06.1992 by the noise created by the appellant and the victim
both abusing each other and so he had come out of the house and
questioned them as to why they were quarrelling. Statedly, both the
appellant and the victim would not pay heed and had started grappling
with each other and picked up bricks in their respective hands. As per
the version of Chander (the first informant), the appellant had hit on
the head of the victim with a brick and the victim, in his defence, had
also hit the appellant with a brick. He stated that as a result of this
assault, the victim had fallen down on the drain. At that stage, victim's
nephew Om Prakash (PW1) son of Mahabir Singh (PW-12) had come
on the scene followed by victim's mother. They had picked up him
(the victim) up as he had suffered bleeding injury in his head. They
took him to the clinic of Dr.Rajiv Aggarwal (PW-13) from where he
was referred to the Hindu Rao Hospital.
17. Chander son of Udhmi, the first informant, was not examined at
the trial. It is stated that he had died before his evidence could be
taken on board. The prosecution, however, examined a number of
other public witnesses, based on whose testimony it expected to piece
together the sequence of events leading to the injuries suffered by the
victim. These included Om Prakash (PW-1), the neighbour of the
deceased; Natho Devi (PW-2), wife of the deceased; Chanda (PW-3),
wife of the first informant Chander; Aasha (PW-4), minor daughter of
the deceased; Kalawati (PW-5), mother of the deceased; two
neighbours viz. Satya Narayan @ Satte (PW-8) and Brahma (PW-9);
and, Mahabir Singh (PW-12), brother of the deceased.
18. The evidence of Natho Devi (PW-2), Chanda (PW-3), Satya
Narayan @ Satte (PW-8) and Brahma (PW-9) is of no value to the
prosecution since these witnesses conceded that they were not present
when the incident took place and, therefore, they were not in a position
to vouchsafe the prosecution charge as to the role attributed to the
appellant.
19. Natho Devi (PW-2) admitted that she had gone away to nearby
jungle to fetch fire wood and had learnt about the incident upon return.
Chanda (PW-3) claimed to be a witness to a quarrel between the
appellant and Om Prakash (PW-1) which, according to the latter (PW-
1), had occurred after the victim had been assaulted and injured.
Therefore, her word is of no assistance in proving the charge
respecting the injuries of the victim. We may, however, note that PW-
3 confirms that the appellant had also suffered bleeding injuries. The
testimony of Satya Narayan @ Satee (PW-8) is similar to that of
Chanda (PW-3). It is clear that he had not seen the incident involving
the deceased as he would also restrict his account to the incident
concerning the quarrel between the appellant and Om Prakash (PW-1).
Brahma (PW-9) the village chowkidar did speak about a quarrel
involving the appellant. But, he refused to identify the victim as the
other person. The prosecution had claimed that he was a witness of the
quarrel between the appellant and the victim, as shown by his
statement (Ex.PW9/A) under Section 161 of the Code of Criminal
Procedure, 1973 ("Cr.P.C."). In spite of being cross-examined by the
public prosecutor, and being confronted with his statement under
Section 161 Cr.P.C., the witness stuck to his ground and showed
ignorance as to the identification of the other person involved. We,
however, must note that this witness clearly stated that both parties to
the quarrel were "hitting (at) each other" and had "fallen down".
20. Mahabir Singh (PW-12) fairly conceded that he was on his duty
in Azadpur area and had learnt about the injuries suffered by his
brother Balbir Singh (the victim) when the latter was brought to him by
certain relatives. He had only accompanied the victim to Hindu Rao
Hospital.
21. Om Prakash (PW-1) admittedly was also not present when the
victim suffered injuries. The narration in his deposition begins with
his arrival at the scene around 11:00 AM on 28.06.1992 when he had
come home for lunch. He had seen that his uncle (the victim) was
lying in the nala (drain) at a place near his house, bleeding from his
head. Though he stated that the appellant had hit the victim with the
brick, his assertion to the effect is apparently hearsay since he has
nowhere claimed to be present at that time of the core incident. He
deposed about the appellant having come up to him (PW1), engaging
him in a fight, dragging him up to his house by the collar and
extending threats with a brick in his hand and he being rescued from
the clutches of the appellant by Chanda (PW-3) and Satya Narayan @
Satte (PW-8).
22. No credence can be given to the evidence of Om Prakash (PW1)
for several reasons. The assault on the person of Om Prakash (PW-1)
was not the subject-matter of the charge on which the appellant was
called upon to stand trial. He (PW1) referred to Chanda (PW-3) and
Satya Narayan @ Satte (PW-8) as witnesses to the sequence wherein
Balbir (the victim) was supposedly lying injured in the drain with
bleeding from his head. Both PW-3 and PW-8, however, were
categorical in stating that they had not seen Balbir Singh (the victim)
present at the scene. Kalawati (PW-5), the mother of the victim, also
testified about she having come on the scene during the scuffle
between the appellant and the victim followed by Om Prakash (PW-1)
being accosted by the appellants and subjected to he being dragged and
assaulted. Om Prakash (PW-1) having not referred to the presence of
his grandmother at any of these crucial stages, thus, ruled out the
possibility of the occurrence having been witnessed by her (PW-5). If
Om Prakash (PW-1) indeed had come and helped his uncle (the victim)
in being moved from the drain (where he was lying injured) first to the
clinic of private doctor (PW-13) and then to the place of duty of his
father (PW-12) on way to Hindu Rao Hospital, and if the incident had
actually happened in the manner he narrated, he would have met Head
Constable Kali Ram (PW-16) on 28.06.1992 itself for the case to be
immediately registered on the basis of his eye-witness account. As
noticed earlier, Head Constable Kali Ram (PW-16) was categorical in
his rukka (Ex.PW-16/B), and also in his court deposition, that he had
not met any eye-witness on 28.06.1992 when he had visited the place
of occurrence after visits to the two hospitals where the appellant and
the victim had been taken. What renders the narration of quarrel by
PW-1 between the appellant and Om Prakash (PW1) doubtful is the
fact that the former having also suffered multiple injuries had been
rushed by his father to far away Base Hospital in Delhi Cantt.
immediately after the incident.
23. The prosecution depended heavily on the version of Aasha (PW-
4) and Kalawati (PW-5) to prove the allegations against the appellant.
Out of these two witnesses, PW-4 is stated to be the witness who saw
the incident from the point of its genesis. Though Kalawati (PW-5)
and Aasha (PW-4), mother and daughter respectively of the victim,
testified as eye-witnesses, their presence is rendered doubtful, inter
alia, by the version of Om Prakash (PW-1).
24. The above impression is reinforced by the fact that the two
witnesses (PW4 and PW5) gave what is apparently a coloured account.
Both of them falsely denied the fact that the appellant had also suffered
injuries in the process. Their statements suffer from exaggerations, in
that both of them stated that the appellant had given tooth-bites to the
victim on his cheek and shoulder. Neither the MLC, nor the post-
mortem report, noticed above mentioned any tooth-bite on any part of
the body of the victim. All that can be safely gathered from the
testimony of PW-4 is the fact that quarrel had taken place because
appellant had objected to the younger daughter of the victim defecating
in the drain in front of the house, the same version as was mentioned in
the FIR founded on the statement (Ex.PW-16/A) of Chander son of
Udhmi, the first informant and resident of the same address.
25. In the given circumstances, it cannot be said with conviction that
any of the public witnesses examined by the prosecution were present
at the stage when the appellant and the deceased had grappled with
each other. The first informant Chander (son of Udhmi) later died and
his testimony is not available. But his version, as available in the
statement (Ex.PW-16/A) being the first such documented account on
the subject, may be looked into for the limited purpose of deciding
what has been the defence of the appellant and to test, in turn, the
credibility of the prosecution charge. As mentioned earlier, in the said
statement forming the basis of the FIR, Chander (son of Udhmi) had
stated that both the appellant and the victim were engaged in abusive
exchange and, thereafter, had started grappling with each other in
which course both of them had picked up bricks which they had used
for hitting and causing injuries to each other.
26. When the prosecution had rested its case, the incriminating
evidence brought on record was put by the trial court to the appellant to
seek his explanation under Section 313 Cr.P.C. At that stage, the
appellant disputed the prosecution evidence, referred to his own
injuries and stated his defence in the following words :-
"It is a false case. In fact, on hearing altercation I came
out on the alleged date of incident. I was on leave from
my office on that day, my wife was objecting and
protesting and child of Balbir Singh was sitting in front
of my house on the drain for easing herself and that
Balbir deceased was abusing her. When I tried to reason
him that he should not abuse my wife, he pulled out lathi
and gave a blow with the same on my head. When I tried
to ward off the attack he again gave me a blow on my
hand. I then snatched that lathi from his hand and
during that scuffle Balbir fell down on the drain. I due to
the injury, had become unconscious and regained my
consciousness in the Base Hospital, where I remained for
about 8 days and thereafter sent to my unit in Punjab.
There I got further treatment. The witnesses had deposed
falsely against me being close to each other"
27. That the appellant had also suffered extensive injuries was a fact
unfairly withheld from the court by the prosecution. In the report
under Section 173 Cr.P.C. there was no whisper to this effect. The
appellant tried to ascertain facts on the score by questioning the
material (prosecution) witnesses during their respective cross-
examination. By and large, those related to the victim were reluctant
to confirm that the appellant had also been injured. The neighbours,
mercifully, were more truthful. Chanda (PW-3) and Satya Narayan @
Satte (PW-8) two material witnesses, conceded that the appellant had
also been wounded. Formal confirmation and corroboration, however,
came on record only when the IO (PW-19), during his cross-
examination, conceded that he had collected the MLC (Ex. PW-
19/DA) of the appellant. The documentary proof about the injuries
suffered by the appellant, thus, was brought on record (from police
file). It was later confirmed by Subedar Sri Ram (DW-1), an official of
Base Hospital, Delhi Cantt. Speaking on the basis of hospital record
(Ex.DW-1/A), he proved that the appellant had been admitted, in
injured state, in the said hospital on 28.06.1992 and was discharged on
06.07.1992.
28. The MLC (Ex.PW-19/DA) shows that the appellant had been
brought to the Base Hospital by his father (Ratan Lal) who had given
the history of a fight and the appellant having been beaten by "local
village goondas". The appellant was found unfit for statement having
suffered multiple injuries on the head, left hand and left thigh by use of
lathi (wooden stick).
29. In the face of our conclusion that the presence of the witnesses
examined by the prosecution at the time of the incident is doubtful, the
only substantive material available is the version given by the first
informant (Chander), in the FIR and the explanation offered by the
appellant himself. The moot questions, in these circumstances are as to
whether the prosecution has proved that the appellant was the
aggressor or whether his plea of self-defence deserves to be accepted.
30. Section 96 of IPC states that nothing is an offence which is done
in the exercise of the right of private defence. Section 97 IPC
proclaims that every person has a right, subject to restrictions
contained in Section 99, to defend, inter alia, "his own body". Section
99 IPC clarifies that, in order to invoke the right of private defence, it
must be shown that there was a reasonable cause for apprehending
"death" or "grievous hurt" at the hands of the person against whom the
said right is exercised though the right would not extend to inflicting of
more harm than necessary "for the purpose of defence". The right of
private defence of the body commences, per Section 102 of IPC, when
reasonable apprehension of danger to the body arises. It continues as
long as such apprehension continues. Section 100 IPC enumerates the
circumstances in which the right of private defence of the body may
extend to causing death.
31. Section 101 of the Indian Evidence Act, 1872 (the Evidence
Act) lays down the general rule on the question of burden of proof and
declares that it is one who asserts a fact must prove that such fact
exists. In criminal cases, the primary onus to prove its case beyond all
reasonable doubts is always on the prosecution. The accused is
obliged only to raise doubts in the mind of the court or to satisfy it that
defence version is the more probable one. Ordinarily, the court shall
presume absence of any circumstances as may bring the case under
general exceptions. Section 105 of the Evidence Act stipulates that
burden of proving that the case of the accused comes within any of the
exceptions that include the right of private defence. If the accused
seeks to invoke the benefit of general exceptions, it is his burden to
prove the existence of the circumstances that would attract the general
exception to the case.
32. It is not an unexceptional rule of law that the prosecution is
always or invariably obliged to explain the injuries suffered by the
accused. The injuries of the accused assume significance if there is
material to show that the same were suffered at the time of occurrence
in question and are of serious nature. The failure of the prosecution to
offer explanation on the subject assumes greater significance when its
case is founded on the evidence of interested or partisan witnesses or
where the defence gives a version which competes in probability with
that of the prosecution. Non-explanation of the injuries of the accused
need not necessarily lead to the inference that the case against him is
false or that it must be discarded for the reason that an aggressor at
times may receive more injuries than the defender. But such defence
plea cannot be based upon only speculation or mere surmises. The
burden on the accused, however, is not as onerous as that which lies on
the prosecution. Unlike the prosecution which must prove its case
beyond reasonable doubts the accused can discharge his onus by
establishing his defence by preponderance of probabilities. The
accused taking the plea of private defence need not call evidence in
support. He may establish his plea by reference to circumstances
transpiring from the prosecution evidence itself. But the defence must
undoubtedly show that its plea is based on a reasonable and probable
version that the harm caused by the accused was necessary for either
warding off or blocking of the attack or for fore-stalling further
reasonable apprehension from the side of the accused. [ Vijayee Singh
vs. State of U.P. (1990) 3 SCC 190; Ram Sunder Yadav vs. State of
Bihar (1998) 7 SCC 365; Rajender Singh vs. State of Bihar (2000) 4
SCC 298; Takhaji Hiraji vs.Thakore Kubersing Chamansing & others,
(2001) 6 SCC 145; Kashiram & others vs. State of M.P., (2002) 1 SCC
71; Dharminder vs. State of H. P., (2002) 7 SCC 488; Krishnan vs.
State of Tamil Nadu, (2006) 11 SCC 304 and Surendra & another vs.
State of Maharashtra, (2006) 11 SCC 434].
33. The death summary (Ex.PW15/B), read alongside the MLC
(Ex.PW15/A) unmistakably shows that the victim was conscious and
well oriented, when brought to Hindu Rao hospital on 28.06.1992. The
two endorsements, about he being unfit for statement, have not been
substantiated. The clinical note leaves no room for doubt that he
remained in good condition, conscious and well oriented till
01.07.1992. In these circumstances, it cannot be said that the victim
was not available to the investigating officer for giving his side of the
story. From this, it can be inferred that it was either the lapse on the
part of the police officer to elicit the information from the victim in
time or reluctance on the part of the latter to give his version. The
possibility of the second being the more probable state of things,
cannot be ruled out for the reason the appellant himself had suffered
multiple injuries and had to be treated as an indoor patient in the Base
Hospital, from where he was discharged only on 06.07.1992. The
omission on the part of the victim, to lodge a police report, though he
had the opportunity and the time to do so, would render the delay in
lodging of the FIR unexplainable, giving rise to adverse inference.
34. We observed earlier that the witnesses who seek to show the
appellant as the aggressor were not only partisan but also not wholly
truthful. We are not satisfied about the claim of their presence at the
time of incident in which the victim suffered the injuries that led to his
death. Such being the position, the prosecution has not been able to
muster credible evidence to either show that the injuries suffered by the
victim had been voluntarily caused or, even further, that they were
inflicted with such intention or knowledge as is requisite to bring home
the change of culpable homicide.
35. The independent version in the FIR renders the defence plea to
the right of private defence reasonable and probable. The quarrel had
clearly occurred on the spur of the moment. There was no pre-
meditation on the part of the appellant. In the midst of the abusive
exchange, passions seem to have been aroused on both sides. As they
started grappling with each other, both seem to have picked up brick
pieces. There is no reason why, in the absence of any positive credible
evidence in support of the charge from the prosecution side, the plea of
the appellant that he was first hit by lathi and about he having snatched
the lathi and grappled with the victim in the effort to ward off further
attack resulting in his fall in the drain should be disbelieved.
36. On the afore-noted facts, and in the circumstances, we find it
difficult to uphold the view taken by the trial court in the impugned
judgment. Benefit of doubts that consequently inure, will have to be
extended to the appellant.
37. In the result, the impugned judgment and order on sentence are
set aside. The appeal is allowed. The appellant stands acquitted.
38. The criminal revision, therefore, is rendered infructuous and so
dismissed.
R. K. GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
DECEMBER 04, 2015/mr/ss
