Rajasthan High Court

Ishab And Others vs State on 17 February, 2023

Bench: Mahendar Kumar Goyal

[2023/RJJP/000409]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Criminal Appeal No. 457/1988

1. Ishab son of Jagroop
2. Nabbu son of Jagroop
3. Jumrat son of Ishab
All residents of Village, Samler, Police Station, Pahadi, District
Bharatpur,     at     present     all    are     in    Sub-Jail,      Deeg,   District,
Bharatpur.
                                                           ----Accused-Appellants
                                        Versus
State of Rajasthan through the Public Prosecutor
                                                                      ----Respondent

For Appellant(s) : Shri Biri Singh Sinsinwar, Sr. Adv.

                                   With Shri Dharmendra Choudhary
For Respondent(s)             :    Imran Khan, P.P.



        HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Reserved on                                :       :                11/01/2023

Pronounced on                              :       :                17/02/2023

This criminal appeal is directed against the judgement dated

7.12.1988 passed by the learned Additional Sessions Judge, Deeg

(Bharatpur) in Sessions Case No.47/1985; State of Rajasthan vs.

Ishab & Ors. whereby, the accused-appellants have been

convicted and sentenced as under:

Accused-appellant Ishab:

1. Under Section 304 Part-I IPC: 10 years rigorous imprisonment

with a fine of Rs.100; in default thereof, to further undergo 1

month simple imprisonment.

2. Under Section 307/34 IPC: 10 years rigorous imprisonment

with a fine of Rs.100; in default thereof, to further undergo 1

month simple imprisonment.

[2023/RJJP/000409] (2 of 20) [CRLA-457/1988]

3. Under Section 323/34 IPC: 1 month simple imprisonment.

Accused-appellant Nabbu:

1. Under Section 304 Part-I IPC read with Section 34 IPC: 10

years rigorous imprisonment with a fine of Rs.100; in default

thereof, to further undergo 1 month simple imprisonment.

2. Under Section 307/34 IPC: 10 years rigorous imprisonment

with a fine of Rs.100; in default thereof, to further undergo 1

month simple imprisonment.

3. Under Section 323 IPC: 1 month simple imprisonment.

Accused-appellant Jumrat:

1. Under Section 304 Part-I IPC read with Section 34 IPC: 10

years rigorous imprisonment with a fine of Rs.100; in default

thereof, to further undergo 1 month simple imprisonment.

2. Under Section 307 IPC: 10 years rigorous imprisonment with a

fine of Rs.100; in default thereof, to further undergo 1 month

simple imprisonment.

3. Under Section 323 IPC read with Section 34 IPC: 1 month

simple imprisonment.

All the sentences to run concurrently.

At the outset, it may be observed that as per the report

dated 12.7.2022 furnished by SHO, Police Station Pahadi, District

Bharatpur, the accused-appellant Ishab S/o Jagroop has expired

on 10.8.2020. The report is accompanied with a death certificate

dated 14.9.2020 issued by the Registrar-Savler, Pahadi, Bharatpur

and a certificate dated 12.7.2022 issued by the Sarpanch, Gram

Panchayat, Sanwler, Panchayati Samiti Pahadi, District Bharatpur.

In view thereof, the appeal of accused-appellant Ishab stands

abated.

[2023/RJJP/000409] (3 of 20) [CRLA-457/1988]

Relevant facts in brief are that the informant/complainant

Kamal Khan (PW7) lodged a written report (Ex.P1) dated 1.7.1985

with the Police Station Pahadi, District Bharatpur stating therein

that on 30.6.1985 at about 10 am, Ishab, who was digging a

foundation in complainant's land, when objected by the

complainant, Ibrahim and Islam, inflicted a barbed wire lathi blow

on the head of Ibrahim, Nabbu inflicted a barbed wire lathi blow

on the temple of Ibrahim, Nabbu and Jumrat inflicted lathi blows

on the head of Islam and a lathi blow on his thigh. It was averred

that they were saved by Fajjar, Buddha Singh and others lest they

would have been murdered. On this report, an FIR No.306/85

(Ex.P2) was registered under Sections 326, 307, 323 read with

Section 34 IPC. On death of Ibrahim during the course of

investigation, offence under Section 302 IPC was added. The

police after investigation filed charge sheet against the accused-

appellants under Sections 302, 307, 326, 323, 447 and 34 IPC in

the Court of learned Judicial Magistrate, Kaman which was

committed to the Court of learned Additional Sessions Judge,

Deeg (Bharatpur) (for brevity-`the learned trial court') for trial.

Charges under Sections 302, 307/34, 324/34 IPC were

framed against accused-appellant Ishab, under Section 302/34,

307/34, 324/34 and 323 IPC against accused Nabbu and under

Sections 302/34, 307 and 324 IPC against accused Jumrat.

Accused-appellants pleaded not guilty and demanded trial.

After trial, the learned trial court convicted and sentenced

the accused-appellants vide its judgment dated 7.12.1988 as

stated hereinabove.

[2023/RJJP/000409] (4 of 20) [CRLA-457/1988]

Learned senior counsel for the appellants submits that

although the incident is alleged to have taken place on 30.6.1985

at about 10 am; but, the FIR has been lodged with inordiante

delay i.e. at about 5 pm on 1.7.1985 despite the distance of the

police station from the place of incidence being about 6 kms only

which raises serious doubt about genesis of the case. Inviting

attention of this Court towards the FIR, learned senior counsel

submits that it was received in the court of concerned

jurisdictional Judicial Magistrate as late as on 3.7.1985 which

further raises doubt about veracity of the prosecution case. He

submits that from the site plan (Ex.P3) and statements of the

prosecution witnesses, it is apparent that when the accused-

appellants were digging foundation in the land under their

ownership and long possession, the complainant party attacked

them armed with deadly weapons and the injuries came to be

inflicted upon them by the accused-appellants in exercise of their

right of private defence. Drawing attention of this Court towards

the statement of Dr. K.M. Saklecha (PW6), learned senior counsel

submits that the accused-appellants have received 15 injuries,

some of which were incised wounds and grievous in nature which

remained unexplained. He submitted that it was case of the

prosecution neither in the FIR nor, in the statements of the

witnesses recorded under Section 161 Cr.P.C. that the accused

were inflicted with injuries by the complainant as they had

attacked his sons with lathis and for the first time, after recording

the statement of Dr. K.M. Saklecha (PW6) who has exhibited the

injury reports of the three accused persons as Ex.D3, D4 and D5

as also the statements of eye witnesses S/Shri Nihal Khan (PW3)

[2023/RJJP/000409] (5 of 20) [CRLA-457/1988]

Fajjar (PW4) and Ibra (PW5), the complainant eye witness Shri

Kamal Khan (PW7) has come out with a plea that he inflicted

injuries on the person of accused-appellants as they had attacked

his sons which apparently, is an afterthought. Learned senior

counsel submits that the incident occurred at the spur of moment

with no premeditation. He further submits that even if the

prosecution case is taken to be true on its face value, no offence

u/s.307 IPC is made out as injury no.1 on the person of Islam,

though grievous in nature caused with blunt weapon, was not

opined to be dangerous to life by Dr. K.M. Saklecha and the

learned trial court erred in taking the opinion of the Doctor in this

regard qua injury no.1 on the body of Ibrahim as the opinion in

respect of Islam. Shri Biri Singh further submits that the

investigating officer has not conducted investigation fairly. Inviting

attention of this Court towards his statement as PW1, learned

senior counsel submitted that he has stated the subject land to be

belonging to the complainant side on the basis of statements of

S/Shri Nasru Khan, Nihal Khan and Bhuddha Jatav; but, neither

Shri Nasru nor, Shri Buddha Jatav were produced in the witness

box. He submits that the investigating officer has not carried out

any investigation with regard to injuries suffered by the accused-

appellants in the incident. He submits that the learned trial court

erred in convicting the accused-appellants on the basis of sketchy

evidence. He, therefore, prays that the appeal be allowed, the

judgement dated 7.12.1988 passed by the Additional Sessions

Judge, Deeg be quashed and set aside and the accused-appellants

be acquitted from the charges. He, in support of his submissions,

relied upon following judgements:

[2023/RJJP/000409] (6 of 20) [CRLA-457/1988]

1) Arvind Kumar & Ors. vs. State of Rajasthan-

MANU/SC/1108/2021;

2) Kashiram vs. State of M.P.-(2002) 1 SCC 71;

3) Dev Raj vs. State of H.P.-19094 Supp (2) SCC 552;

4) Lakshmi Singh vs. State of Bihar-(1976) 4 SCC 394;

5) Thulia Kalis vs. State of Tamil Nadu-AIR 1973 SCC 501;

6) Ishwar Singh vs. State of U.P.-1976 SC 2423;

7) Gadadhar Chandra vs. State of West Bengal-

MANU/SC/0329/2022;

8) Sunil vs. State of Haryana-AIR 2010 SC 392.

Per contra, learned Public Prosecutor submitted that there

was no delay in lodging the FIR and even if it is assumed to be so,

it has well been explained by the prosecution inasmuch the

complainant was busy in treatment of his son Ibrahim who had

received grievous injuries in the incident resulting into his death

on the next day of the incident. Refuting the contention of learned

senior counsel for the appellants as to delay in dispatching the

FIR, Shri Imran Khan submitted that the FIR was lodged on

1.7.1985 at about 5 pm and was sent to the jurisdictional

Magistrate Court on 3.7.1985, 2.7.1985 being local holiday.

Referring to the prosecution evidence, he submitted that it was

established that the subject land was under ownership and

possession of the complainant party on which the accused-party

was encroacher. He submitted that the accused-appellants

attacked the complainant party when they were requested to stop

the digging of foundation and therefore, it is not permissible for

them to take shelter of right of private defence. Learned Public

Prosecutor submits that after taking into consideration the entire

[2023/RJJP/000409] (7 of 20) [CRLA-457/1988]

evidence on record, the learned trial court has passed the

judgement dated 7.12.1988 which does not warrant any

interference by this Court. He, therefore, prayed for dismissal of

the appeal.

Heard the learned counsels and perused the judgement

dated 7.12.1988 as also the evidence available on record.

The undisputed facts are that the accused-appellants were

digging foundation or finishing it on the subject land which was

objected by the members of the complainant party resulting into

the incident in which persons from both sides have received

injuries and Ibrahim died.

The accused-appellants have set up a plea of right of private

defence. All the accused-appellants have received injuries in the

incident as established from the statement of Dr. K.M. Saklecha

(PW6) and their injury reports Ex.D3, Ex.D4 and Ex.D5 and they

have also admitted presence of S/Shri Kamal Khan (complainant),

Ibrahim (deceased) and injured Islam, both sons of the

complainant at the time of incident. In view thereof, the issue of

delay in lodging the FIR as also delay in its dispatch to the

concerned jurisdictional Magistrate which, even otherwise also is

well explained by the prosecution, loses significance and does not

require any further deliberation by this Court.

The first question which arises for consideration of this Court

to examine the plea of right of private defence is as to whether

the accused-appellants were digging the foundation in the land

under their ownership and/or under their settled possession. None

of the parties has produced any document to prove their title over

the subject land. As per Ex.P3, the site plan, on one end of the

[2023/RJJP/000409] (8 of 20) [CRLA-457/1988]

foundation abutting it, is thatched roof kuchha house of the

accused-appellants Ishab and at point `D', abutting the

foundation, there is a "kothi" (small kuchha room used to keep

grains) of the accused-appellants. The star prosecution witness

Shri Kamal Khan (PW7), the complainant and father of deceased

Ibrahim, admitted in his cross examination that about 4-5 months

ago, with his permission, the accused-appellants had put the

stones on the subject land. He further admits that the thatched

roof house of the deceased Ishab was constructed on his land

about 35-40 years ago. Going against the site plan to which he is

a witness, he has denied that "grain kothi" is abutting the

foundation. Corroborating the statement of Kamal Khan,

prosecution witness Nihal Khan (PW3), his brother, has stated

during his cross examination that the stones on the subject land

were lying since last winter with the consent of Shri Kamal Khan.

He has admitted that "grain kothi" was abutting the foundation.

Another prosecution witness Shri Islam (PW9), brother of the

deceased and himself injured, has stated during his cross

examination that the stones on the subject land were put by the

deceased Ishab about a year ago with the permission of his father

Kamal Khan. Although, he denies that the "grain kothi" abuts the

foundation; but, states in the same breathe that when it was

constructed by the accused Ishab many years ago, he or his father

did not raise any objection. There is another important

prosecution witness namely Fajjar (PW4), son of Nihal Khan (PW3)

and first cousin of deceased Ibrahim, who has categorically stated

in examination-in-chief that the subject land was under joint

ownership of the deceased appellant Ishab and his father Nihal

[2023/RJJP/000409] (9 of 20) [CRLA-457/1988]

Khan and uncle Kamal Khan which was divided by the Panchayat

about a month ago from the date of incident. He admits in his

cross examination that the subject land fell in the share of

accused Ishab where the foundation was dug. He has further

stated that the thatched roof house and "grain kothi" were

constructed by Ishab about 14-15 years ago. The investigating

officer, Shri Aale Ahmed (PW1) though, has stated in his

examination-in-chief that in his investigation, he found the subject

land to be under ownership and possession of complainant Kamal

Khan but, in his cross examination, he states that his statement is

based on the information provided by the Sarpanch Nasru Khan,

Nihal Khan, Buddha Jatav; but, neither Nasru Khan, nor Buddha

Jatav has been produced in the witness box. Therefore, statement

of Aale Ahmed is not trustworthy.

From the conspectus of statements of prosecution witnesses

such as S/Shri Nihal Khan, Fajjar Khan, Kamal Khan and Islam, it

is established that the subject land, even if not under their

ownership, was in the settled possession of the accused-appellants

and it was abutting their immovable property.

In view of the prosecution case that the accused-appellants

attacked the complainant party when objected while digging the

foundation, this Court analyses the evidence as to ascertain the

status of foundation at the relevant time.

Shri Nihal Khan (PW3) submits in his cross examination that

at the time the incident occurred, the foundation was dug at about

15-16 hand in length (23 feet approx) and one and half biland

(13.5 inches approx) in depth. Complainant Kamal Khan (PW7)

feigns ignorance in his cross examination as to the extent to which

[2023/RJJP/000409] (10 of 20) [CRLA-457/1988]

the foundation was dug. Shri Buddha Singh (PW8) states that

when he was smoking hukka at about 10-10.30 am at the chaupal

of Nihal Khan, accused party came and started digging which was

objected by S/Shri Kamal Khan and Ibrahim. However, during the

course of his cross examination, he submits that the accused-

appellants were already digging foundation when he started

smoking hukka with Nihal Khan about an hour before the incident

occurred. He further submits that he or Nihal Khan did not object

to digging. No objection by Nihal Khan, brother of complainant

Kamal Khan, to the digging of foundation by the accused-

appellants in his presence for more than an hour raises serious

doubt as to the prosecution case of the subject land being under

ownership and possession of the complainant. Injured Islam

(PW9) has stated during his cross examination that before the

incident occurred, the foundation was dug about 20 feet in length

and about a foot in depth. Fajjar (PW4) has stated during his cross

examination that the accused-appellants started digging the

foundation about 2-3 days before the date of incident and it was

ready when the incident took place. Thus, the prosecution witness

Fajjar corroborates the defence case wherein, Ishab (DW1) has

stated that the foundation was being dug for last three days and it

was being filled in when they were attacked by the complainant

party. In view of aforesaid evidence, it can safely be inferred that

the foundation was already dug to a substantial extent before the

incident took place to the knowledge of the complainant party and

without any objection by them. It raises serious doubt about

veracity of the prosecution case.

[2023/RJJP/000409] (11 of 20) [CRLA-457/1988]

It is also revealed from the site plan, Ex.P3 and from the

testimony of Nihal Khan (PW3) and Kamal Khan (PW7) that stones

for filling in the foundation were lying on its both sides. In the

aforesaid factual backdrop coupled with the fact that the subject

land was under the settled possession of the accused-appellants,

the foundation was already dug to a substantial extent to the

knowledge of the complainant party without objection, it is

apparent that the incident did not occur in the manner the

prosecution has stated.

The evidence on record also reveals that although, the

prosecution has tried to develop a story that when objected by the

complainant party, on asking of the deceased appellant Ishab to

murder them, all the three accused persons brought "lathi" from

their house and attacked the complainant party in furtherance of

their common intention as is apparent from the statements of

S/Shri Nihal Khan (PW3), Kamal Khan (PW7), Buddha Singh

(PW8) and Islam (PW9); but, they all have admitted during the

course of their cross examination when confronted specifically that

no such statement was made under Section 161 Cr.P.C. Therefore,

it cannot be held that the accused-appellants attacked the

complainant party in furtherance of their common intention.

The Hon'ble Supreme Court in Munshi Ram & Ors. vs.

Delhi Administration-MANU/SC/0072/1967, held as under:

"15.xxxxxxxxxxx It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of

[2023/RJJP/000409] (12 of 20) [CRLA-457/1988]

trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner."

Thus, in view of the aforesaid dictum, since, the accused-

appellants were in settled possession of the subject land, this

Court holds that they acted in exercise of their right of private

defence.

There is another important aspect of the matter. As is

evident from Exhibits D3, D4 and D5, the injury reports of Jumrat,

Ishab and Nawab respectively and the statement of Dr. K.M.

Saklecha (PW6), the accused-appellants have received in all 15

injuries including two incised wounds on the head of Nawab which

have been found to be grievous in nature. No investigation has

been carried out as to how the accused-appellants received

injuries. While, the eye witnesses namely Nihal Khan (PW3) and

Fajjar (PW4) have not whispered a word in their deposition as to

how the accused-appellants received these injuries; after the

statement of Dr. K.M. Saklecha (PW6) who has proved the Exhibits

D3, D4 and D5, for the first time, Shri Kamal Khan (PW7) has

come out with a plea that he inflicted these injuries on the person

of accused-appellants in order to save his sons. S/Shri Aale

Ahmad (PW1), Nihal Khan (PW3) and Fajjar (PW4) have denied so

when specifically asked during the course of their cross

examination. There is no reason as to why the prosecution did not

come with this case from the inception, if it was so. It is also not

digestible that an old man could inflict 15 injuries to three persons

[2023/RJJP/000409] (13 of 20) [CRLA-457/1988]

with a "jelly", a two or four pronged agricultural tool as different

witnesses have described it differently. In view thereof, the

prosecution evidence in this regard is not trustworthy.

The Hon'ble Apex Court in the case of Kashiram vs. State

of M.P.-(2002) 1 SCC 71, held as under:

"22. A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the accused in their defence. The investigating officer having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one- sided."

In Dev Raj & Anr. vs. State of H.P.-1994 Supp (2) SCC

552, the Hon'ble Supreme Court, held as under:

"9. As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are

[2023/RJJP/000409] (14 of 20) [CRLA-457/1988]

possible, the accused should be given the benefit of doubt xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx."

Their Lordships in Lakshmi Singh vs. State of Bihar-

(1976) 4 SCC 394, held as under:

"18. Thus in view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Normally this Court does not interfere in an appeal by special leave with concurrent finding of fact, but this is one of those cases where the judgment of the High Court is manifestly perverse and where the High Court has not considered important circumstances which completely demolish the prosecution case. In fact the High Court has hardly made any real attempt to analyse or discuss the evidence and has merely affirmed the finding of the Sessions Judge by narrating the evidence relied upon by it. We have already pointed out that on one of the most important points arising in a criminal trial, namely, the non-explanation of the injuries on the person of the accused by the prosecution, the High Court has not only committed an error of fact but an error of law by showing a lack of proper appreciation of the principles decided by this Court. For these reasons, therefore, we think there are special circumstances in the present case which have compelled us to interfere in this appeal by special leave."

In the aforesaid factual and legal backdrop, this Court has no

hesitation in recording a finding that the complainant party

attacked the accused persons while they were finishing the work

of foundation in the land under their settled possession and the

injuries on the person of complainant party came to be inflicted in

[2023/RJJP/000409] (15 of 20) [CRLA-457/1988]

exercise of their right of private defence of the property as also of

the person at spur of moment without any premeditation. Since,

the deceased Ibrahim has received three injuries, the injury no.1

with blunt weapon on his head grievous in nature and dangerous

to life and rest two injuries simple in nature with blunt weapon,

Islam has received four injuries, the injury no.1 on his head with

blunt weapon grievous in nature and rest injuries simple in nature

with blunt weapon, this Court is of the opinion that the accused-

appellants did not exceed their right of private defence. This Court

finds that while convicting the accused-appellants, the learned

trial court has not considered this important aspect of the matter

which vitiates its findings.

The Hon'ble Apex Court in Arvind Kumar & Ors. vs. State

of Rajasthan-MANU/SC/1108/2021, held as under:

"46. A private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual Accused alone, to be applied to the others.

Though the initial onus is on the Accused to satisfy the court, the extent of evidence is that of preponderance of probabilities. Thereafter, the onus shifts. Once a private defence is accepted, there are two questions alone to the answered by the court, namely, the defence coming within the purview of Section 96 to Section 102 Indian Penal Code and the other acting in excess. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger. When the apprehension gets effaced with the attack being continued by an Accused taking the plea of private defence, exceeding the said right would occur. The weapons used in the process would attain significance depending upon the facts of the case and if the injuries

[2023/RJJP/000409] (16 of 20) [CRLA-457/1988]

suffered by the Accused unless being minor and superficial or suppressed on purpose, the benefit shall enure. The following paragraphs of the celebrated judgment of this Court in Kashiram v. State of M.P., MANU/SC/0655/2001 : (2002) 1 SCC 71 would be felicitous:

22. A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the Accused in their defence. The investigating officer having found one of the Accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of Accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of Accused Prabhu. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided.

23. Section 105 of the Evidence Act, 1872 provides that the burden of proving the existence of circumstances which would bring the act of the Accused alleged to be an offence within the exercise of right of private defence is on him and the court shall presume the absence of such circumstances. However, it must be borne in mind that the burden on the Accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the Accused to its hilt, that is, beyond any reasonable doubt, the Accused has to satisfy the standard of a prudent man. If on the material

[2023/RJJP/000409] (17 of 20) [CRLA-457/1988]

available on record a preponderance of probabilities is raised which renders the plea taken by the Accused plausible then the same should be accepted and in any case a benefit of doubt should deserve to be extended to the Accused (see Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [MANU/SC/0068/1964 : AIR 1964 SC 1563], State of Punjab v. Gurbux Singh [1995 Supp (3) SCC 734 : 1996 SCC (Cri.) 88] and Vijayee Singh v. State of U.P. [MANU/SC/0284/1990 : (1990) 3 SCC 190 :

1990 SCC (Cri.) 378 : AIR 1990 SC 1459]). In Vijayee Singh case [MANU/SC/0284/1990 : (1990) 3 SCC 190 : 1990 SCC (Cri.) 378 : AIR 1990 SC 1459] this Court emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would therefore indirectly succeed. "It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence which is reasonable". (SCC p. 218, para

29)

28. In Dev Raj v. State of H.P. [MANU/SC/0106/1994 : 1994 Supp (2) SCC 552 : 1994 SCC (Cri.) 1489 :

AIR 1994 SC 523] this Court has held that where the Accused received injuries during the same occurrence in which the complainants were injured and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution.

47. In Lakshmi Singh v. State of Bihar, MANU/SC/0136/1976 : (1976) 4 SCC 394, this Court considered the effect of suppression of injuries suffered by

[2023/RJJP/000409] (18 of 20) [CRLA-457/1988]

the Accused. Accordingly, it was held that if the injuries on the Accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured Accused deposes otherwise. Paragraph 12 of the aforesaid judgment, states thus:

12. ...It seems to us that in a murder case, the non-explanation of the injuries sustained by the Accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

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

(2) 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;

(3) 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.

The omission on the part of the prosecution to explain the injuries on the person of the Accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the Appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the Accused. Thus

[2023/RJJP/000409] (19 of 20) [CRLA-457/1988]

neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [MANU/SC/0217/1975 : (1975) 2 SCC 7] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the Accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."

Upshot of the aforesaid discussion is that conviction of the

accused-appellants cannot be sustained in the eye of law.

Consequently, the appeal is allowed. The judgement dated

7.12.1988 passed by the learned Additional Sessions Judge, Deeg

(Bharatpur) in Sessions Case No.47/1985 is quashed and set

aside. The accused-appellants Nabbu and Jumrat are acquitted

from the charges under Sections 304 Part-I IPC read with Section

34 IPC, 307/34 IPC & Section 323 IPC and under Section 304

Part-I IPC read with 34 IPC, 307 IPC and 323 IPC read with

Section 34 IPC respectively. The accused-appellants Nabbu and

Jumrat are on bail, therefore, their bail bonds and sureties are

discharged. They need not surrender.