Full Judgment Text
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PETITIONER:
HARE KRISHNA SINGH & ORS. ETC.
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT24/02/1988
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
SHETTY, K.J. (J)
CITATION:
1988 AIR 863 1988 SCR (3) 1
1988 SCC (2) 95 JT 1988 (1) 423
1988 SCALE (1)405
ACT:
Sections 34, 96, 100, 302 and 379-Common intention is
not by itself an offence-It creates a joint and constructive
liability for the crime committed in furtherance of such
common intention-Guilt of accused-Burden of proof is on
prosecution-Not necessary for prosecution to explain how and
in what circumstances injuries inflicted on person of
accused.
Indian Evidence Act, 1872: Section Test Identification
parade-Failure to identify accused by P.W. effect of on case
of prosecution.
HEADNOTE:
%
The prosecution case as appearing from the Fardbeyan or
the FIR lodged by P.W. 3, a social worker was that on
12.12.1987 at about 7.00 A.M. he was going to his brother-
in-law and just as he reached the main gate of the Sadar
Hospital, he saw seven persons: (1) Hare Krishna Singh. (2)
Sheo Narain Sharma, (3) Ram Kumar Upadhyaya, (4) Jagdish
Singh’s nephew-Paras Singh of Birampur, (5) Hare Krishna
Singh’s brother-in-law, Paras Nath Singh of Dhobaha, the
appellants and two more whom he could not identify. All
these persons were armed with rifle, gun and pistol and were
standing near the northern side of the eastern gate, of the
Hospital. At that time two Rickshaws were coming from the
eastern side. In the front rickshaw the deceased-Jitendra
Choudhary, was sitting along with another person and in the
rear rickshaw were his two sisters, PW I and PW 2. As the
rickshaw of the deceased came close to these seven persons,
Hare Krishna Singh fired at the deceased from his gun,
whereupon the latter fell down from the rickshaw with the
rifle which he was carrying. The other persons also fired
upon the deceased as a result of which he died. After that
Hare Krishna Singh picked up the rifle of the deceased and
took to his heels. After investigation by PW 9, the charge
sheet was submitted against all the appellants and they were
put up for trial.
The prosecution examined as many as 9 witnesses of whom
PWs. 1, 2, 3 and 8 were eye witnesses. The defence of the
appellant-Hare
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2
Krishna Singh was that while he was going to Patna along
with appellant-Ram Kumar Upadhyaya and one Madan Singh in a
rickshaw, and that when the rickshaw in which the deceased
was travelling came close to him, the deceased fired at him
and that he sustained injuries. He examined five witnesses
DWs. 1 to 5, to prove the nature of injury sustained by him.
The defence of Paras Singh of Dhobaha was that he had not
visited the village for the last fifteen years, while the
defence of the other remaining appellants was a denial of
their complicity in the crime.
The Additional Sessions Judge accepted the prosecution
case, and convicted and sentenced the appellants to various
periods of imprisonment.
On appeal by the appellants the High Court affirmed the
convictions and sentences.
In the appeals by certificate to this Court it was
contended: (a) on behalf of Hare Krishna Singh, appellant in
Crl. A. No. 690/82 that the prosecution having failed to
explain the injury sustained by Hare Krishna Singh in the
same occurrence, such injury being a serious one, the
prosecution witnesses should be disbelieved, and that in
such circumstances it should be held that the plea of the
appellant of self-defense shall be probabilised and that the
prosecution must have withheld the true facts as to the
genesis and origin of the occurrence, and that in any event
a great doubt had been cast on the prosecution case and the
benefit of that doubt should go to the appellant.
(b) on behalf of Paras Singh of Birampur, the nephew of
Jagdish Singh, the sole appellant in Cr. A. No. 616/82 that
in the FIR his name was not mentioned, that PW 3 failed to
identify him in the T.I. Parade, that PW 8 did not attend
the T.I. Parade, and that he was not present at the time of
occurrence.
(c) on behalf of Sheo Narain Sharma the remaining
appellant in Crl. A. No. 690/82 and Ram Kumar Upadhayaya
sole appellant in Crl. A. No. 615/82, that no specific overt
act had been attributed to either of them and the fact that
they were found in the company of Hare Krishna Singh and
Paras Singh of Dhobaha could not be sufficient to impute
common intention to them.
Dismissing Criminal Appeal No. 690 of 1982 in so far as
it relates to Hare Krishna Singh and Paras Singh of Dhobaha,
and allowing it in
3
respect of Sheo Narain Sharma and acquitting him of all the
charges; and allowing Crl. A. Nos. 615 and 616 of 1982 and
setting aside the convictions and sentences of Ram Kumar
Upadhayaya and Paras Singh of Birampur and acquitting them
of all the charges.
^
HELD: 1. It is not an invariable rule that the
prosecution has to explain the injuries sustained by the
accused in the same occurrence. The burden of proving the
guilt of the accused is undoubtedly on the prosecution. The
accused is not bound to say anything in defence. The
prosecution has to prove the guilt of the accused beyond all
reasonable doubts. If the witnesses examined on behalf of
the prosecution are believed by the court in proof of the
guilt of the accused beyond any reasonable doubt, the
question of the obligation of the prosecution to explain the
injuries sustained by the accused will not arise. [12E-F]]
2. When the prosecution comes with a definite case that
the offence has been committed by the accused and proved its
case beyond any reasonable doubt, it becomes hardly
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necessary for the prosecution to again explain how and in
what circumstances the injuries have been inflicted on the
person of the accused. [12G]
3. Simply because the accused has received injuries in
the same occurrence, it cannot be taken for granted that the
deceased or the injured person was the aggressor and
consequently, he had to defend himself by inflicting injury
on the deceased or the injured person. [13B-C]
4. It is not the law or invariable rule that whenever
the accused sustains an injury in the same occurrence the
prosecution has to explain the injuries failure of which
will mean that the prosecution has suppressed the truth and
also the origin and genesis of the occurrence. [13D-E]]
5. Common intention under section 34 IPC is not by
itself an offence. But, it creates a joint and constructive
liability for the crime committed in furtherance of such
common intention. [16E-F]
6. As no overt act whatsoever has been attributed to
the appellants, Ram Kumar Upadhyaya and Sheo Narain Sharma,
it is difficult to hold, in the facts and circumstances of
the case, that they had shared the common intention with
Hare Krishna Singh and Paras Singh of Dhobaha. When these
two appellants were very much known to the eye witnesses PW
3 and 8 non-mention of their names in the evidence as to
4
their participation in firing upon the deceased, throws
a great doubt as to their sharing of the common intention.
The conviction and sentences of these two appellants cannot
therefore be sustained. They are therefore acquitted of all
the charges. [16F-G]
7. The Additional Sessions Judge has not believed the
case of R Hare Krishna Singh that he had sustained a bullet
injury in the same occurrence and he has given reasons
therefor. The High Court has, however, come to the finding
that Hare Krishna Singh was admitted in the hospital in an
injured condition immediately after the occurrence. In the
facts and circumstances of the case the prosecution is not
obliged to account for the injury and that the failure of
the prosecution to give a reasonable explanation of the
injury would not go against or throw any doubt on the
prosecution case. All the eye witnesses have stated that the
appellant Hare Krishna Singh had fired on Jitendra Choudhary
as a result of which he died. The prosecution witnesses have
been believed by the Additional Sessions Judge and High
Court. In these circumstances it cannot be thought that the
materials on record including the statement of Hare Krishna
Singh under section 313 Cr. P.C. probablise any case of self
defence or that the deceased had inflicted on him the injury
by firing at him from his rifle. The appellant Hare Krishna
Singh has therefore, been rightly convicted and sentenced.
[13E-G; 14B-C, F]
8. As regards Paras Singh of Dhobaha he was found with
the accused persons including Hare Krishna Singh. It is not
disputed that he is the brother-in-law of Hare Krishna Singh
as has been described in the FIR. It is the categorical
evidence of PWs. 1, 2, 3 and 8 that Paras Singh of Dhobaha
had fired at the deceased. He has been identified by PW1 in
the T.I. Parade. In these circumstances there is no reason
to interfere with the order of conviction and sentence
passed by the Courts below. [14F-G]]
9. The prosecution has not been able to identify the
appellant Paras Singh of Birampur with the description of
Jagdish Singh’s nephew as given in the FIR. PW. 3 failed to
identify the appellant in the T.I. Parade. PW. 8 did not
attend the T.I. Parade. In such circumstances, the High
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Court was not justified and committed an error of law in
relying upon the statements of PWs 3 and 8 made before the
police mentioning the names of Paras Singh of Birampur. The
prosecution has failed to prove the complicity of Paras
Singh of Birampur in the crime and that he was present at
the time of occurrence. His conviction and sentence cannot
therefore be sustained and are set aside. He is acquitted of
all the charges. [15C-F]
5
Bhaba Nanda Sharma v. State of Assam, [1977] 4 SCC 396;
Ramlagan Singh v. State of Bihar, [1973] 3 SCC 881;
Onkarnath Singh v. State of U.P., [1975] 3 SCC 276; Bankey
Lal v. State of U.P., [1971] 3 SCC 184 and Bhagwan Tana
Patil v. State of Maharashtra, [1974] 3 SCC 536, relied on.
Lakshmi Singh v. State of Bihar, [1976] 4 SCC; 394;
Mohar Rai v. State of Bihar; [1968] 3 SCR 525; Jagdish v.
State of Rajasthan, [1979] 3 SCR 428; Munshi Ram v. Delhi
Administration and State of Gujarat v. Bai Fatima, [1975] 3
SCR 993, distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
690 of 1982 etc.
From the Judgment and order dated 20.5.1982 of the
Patna High Court in Criminal Appeal No. 329 of 1980.
R.K. Garg, R.K. Jain, Rajendra Singh, S.N. Jha, R.P.
Singh, Rakesh Khanna, Md. Israeli and Ranjit Kumar for the
Appellants.
Pramod Swaroop and Mrs. G.S. Misra for the Respondents.
B.B. Singh (Not Present) for the Respondents.
A.K. Panda for the Complainant in all the appeals.
The Judgment of the Court was delivered by
DUTT, J. These appeals are directed against the
judgment of the Patna High Court affirming the order of the
First Additional Sessions Judge, Arrah, convicting all the
appellants under sections 302/34 IPC and section 27 of the
Arms Act and sentencing each of them to rigorous
imprisonment for life and rigorous imprisonment for three
years respectively and further convicting the appellant Hare
Krishna Singh under section 379 IPC and sentencing him to
rigorous imprisonment for three years; all the sentences are
to run concurrently. The accused included two persons having
the same name Paras Singh, one of Village Dhobaha, brother-
in-law of Hare Krishna Singh, one of the appellants in
Criminal Appeal No. 690 of 1982, and the other of Village
Birampur and nephew of Jagdish Singh, the appellant in
Criminal Appeal No. 616 of 1982. We shall hereinafter refer
to
6
the said two persons as ’Paras Singh of Dhobaha’ and ’Paras
Singh of Birampur’ respectively.
The prosecution case as appearing from the Fardbeyan or
the FIR lodged by one Sarabjit Tiwary (P.W. 3), a social
worker, on 12.12.1987 in the Arrah Sadar Police Station, was
that on that day at about 7.00 A.M. he was going to his
brother-in-law Raghubir Mishra and just he reached near the
main gate of the Sadar Hospital, he saw seven persons,
namely, "(1) Hare Krishna Singh, resident of Dhanpura; (2)
Sheo Narain Sharma, resident of Berkhembe Gali; (3) Ram
Kumar Upadhyaya, resident of village Dumaria; (4) Jagdish
Singh’s nephew of Birampur in military service; (5) brother-
in-law of Hare Krishna Singh of Dhobaha in military service"
and two more persons whom he could not identify. All the
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said persons were armed with rifle, gun and pistol, and were
standing near northern side of the eastern gate of the
hospital. At that time, two Rickshaws were coming from the
eastern side. In the front Rickshaw, Jitendra Choudhary and
another person named Lallan Rai, Resident of village Maniya,
were sitting and in the rear Rickshaw there were two girls.
As the Rickshaw of Jitendra Choudhary came near the persons
mentioned above, all of a sudden, Hare Krishna Singh fired
at Jitendra Choudhary from his gun, whereupon the latter
fell down from the Rickshaw with the rifle which he was
carrying with him. The other persons also fired upon
Jitendra Choudhary along with Hare Krishna Singh, as a
result of which he died. After that Hare Krishna Singh
picked up the rifle of Jitendra Choudhary and touching his
body said, "He is dead, let us take to our heels". It may be
mentioned here that the two girls referred to in the
Fardbeyan or FIR are Premlata Choudhary (P.W. 1) and Sobha
Choudhary (P.W. 2), sisters of the deceased Jitendra
Choudhary.
After investigation by P.W. 9, the chargesheet was
submitted against all the appellants and they were put up
for trial. The prosecution examined as many as 9 witnesses,
of whom P.Ws. 1, 2, 3 and 8 were eye witnesses. The defence
of Hare Krishna Singh was that he was going to Patna along
with the appellant Ram Kumar Upadhyaya and one Madan Singh
in a Rickshaw and when the Rickshaw reached near the shop of
Sita Ram, he received a bullet from behind and fell down. He
looked back and saw that one Dipu Prasad and Ram Lal were
firing. He also saw the deceased Jitendra Choudhary, Chhatu
Choudhary and Lallan Rai (P.W. 8) firing from the eastern
gate of the Hospital. He examined five witnesses, D.Ws. 1 to
5, to prove the nature of injury sustained by him.
7
The defence of Paras Singh of Dhobaha was that he had
not visited the village Dhanpura for the last fifteen years.
The defence of other appellants is also a denial of their
complicity in the crime.
The learned Additional Sessions Judge, after an
elaborate discussion and analysis of the evidence adduced on
behalf of the parties, accepted the prosecution case and
convicted and sentenced the appellants as mentioned above.
Regarding the injury sustained by Hare Krishna Singh, the
learned Additional Sessions Judge was of the view that such
injury had been deliberately introduced by him and held that
he was not injured in the occurrence. On appeal by the
appellants, the High Court affirmed their convictions and
sentences. Hence these appeals be special leave.
It is contended by Mr. Garg, learned Counsel appearing
on behalf of Hare Krishna Singh, one of the appellants in
Criminal Appeal No. 690 of 1982, that the prosecution having
failed to explain the injury sustained by the appellant in
the same occurrence, such injury being a serious one, the
prosecution witnesses should be disbelieved. Counsel submits
that in such circumstances, it should be held that the plea
of the appellant of self-defence has been probabilised, and
that the prosecution must have withheld the true facts as to
the genesis and origin of the occurrence. Further, it is
submitted that in any event, it has cast a great doubt on
the prosecution case and the benefit of that doubt should go
to the appellant.
The question, however, is whether it is an invariable
rule that whenever an accused sustains an injury in the same
occurrence, the prosecution is obliged to explain the injury
and on the failure of the prosecution to do so, the
prosecution case should be disbelieved. Before answering the
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question we may refer to a few decisions of this Court cited
at the Bar. Mr. Garg has placed much reliance upon the
decision of this Court in Lakshmi Singh v. State of Bihar,
[1976] 4 SCC 394. In that case, the accused sustained
injuries in the same occurrence. Fazal Ali, J., who
delivered the judgment of the Court, observed that no
independent witness had been examined by the prosecution to
support the participation of the appellant in the assault.
Further, it was observed that the evidence of P.Ws. 1 to 4
clearly showed that they gave graphic description of the
assault with regard to the order, the manner and the parts
of the body with absolute consistency which gave an
impression that they had given a parrot-like version acting
under a conspiracy to depose to one set of facts and one set
of facts only. In view of the nature of evidence of P.Ws. 1
to 4, this
8
Court accepted the contention made on behalf of the accused,
particularly taking the entire picture of the narrative
given by the witnesses, that P.Ws. 1 to 4 had combined
together to implicate the accused falsely because of the
long-standing litigation between them and the said
witnesses. Thereafter, the Court considered the injuries
that were inflicted on the person of the accused Dasrath
Singh and laid down that where the prosecution fails to
explain the injuries on the accused, two results follow: (1)
that the evidence of the prosecution witness is untrue; and
(2) that the injuries probabilise the plea taken by the
appellants. The principle of law laid down in the earlier
decision of this Court in Mohar Rai v. State o f Bihar,
[1968] 3 SCR 525 was followed.
In Mohar Rai’s case it has been laid down 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
case 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 principles that have been laid down in Lakshmi
Singh’s case have to be read in the context of the facts of
that case. It has been already pointed out that the
prosecution witnesses have been disbelieved by this Court
before it considered the question of failure of the
prosecution to explain the injuries sustained by one of the
accused. If the prosecution witnesses had been believed in
that case, the non-explanation of the injuries sustained by
the accused would not have affected the prosecution case.
Indeed, it has been laid down in Lakshmi Singh’s case that
the non-explanation of the injuries by the prosecution will
not affect the prosecution case where 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.
In Mohar Rai’s case (supra), the first appellant Mohar
Rai was convicted under section 324 IPC for shooting and
injuring P.W 1 at the instigation of the second appellant
Bharat Rai, who was himself convicted of an offence under
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section 324 read with section 109 IPC.
9
The prosecution proceeded on the basis that the revolver
(Ex. III), which was recovered from Mohar Rai, was the
weapon that was used by him in the commission of the
offence. The ballistic expert, who was examined as D.W. 1,
was positive that the seized empties as well as the misfired
cartridge could not have been fired from Ex. III. The
evidence of D.W. 1 was accepted both by the trial court as
well as by the High Court. This Court rejected the
prosecution case that Mohar Rai had fired three shots from
Ex. III. This Court held that once it was proved that the
empties recovered from the scene could not have been fired
from Ex. III, the prosecution case that those empties were
fired from Ex. III by Mohar Rai stood falsified. Thereafter,
the injuries sustained by the two appellants, Mohar Rai and
Bharath Rai, were considered by the Court and it held that
the prosecution had failed to explain the injuries sustained
by the appellants and observed that the failure of the
prosecution to offer any explanation in that regard showed
that the evidence of prosecution witnesses relating to the
incident was not true or, at any rate, not wholly true.
Thus, in this case also the question of non-explanation of
the injuries on the accused was considered by the Court
after it had rejected, on a consideration of evidence, the
prosecution case that Mohar Rai had fired from the revolver
(Ex. III). In other words, if the prosecution case had been
believed that the appellant Mohar Rai had fired from Ex. III
injuring P.W. 1, the non-explanation of the injuries
sustained by the accused would not have affected the
prosecution case.
On the other hand, in Bhaba Nanda Sharma v. State of
Assam [1977] 4 SCC 396 it has been categorically laid down
by this Court that the prosecution is not obliged to explain
the injuries on the person of the accused in all cases and
in all circumstances. It depends upon the facts and
circumstances of each case whether the prosecution case
becomes reasonably doubtful for its failure to explain the
injuries on the accused. In Ramlagan Singh v. State of
Bihar, [1973] 3 SCC 881 this Court again examined the
question and it has been laid down that the prosecution is
not called upon in all cases to explain the injuries
received by the accused persons. It is for the defence to
put questions to the prosecution witnesses regarding the
injuries of the accused persons. When that is not done,
there is no occasion for the prosecution witnesses to
explain the injuries on the person of the accused. In the
instant case also, the injury sustained by the appellant
Hare Krishna Singh, has not been put to the prosecution
witnesses and so they had no occasion to explain the same.
In such circumstances, as laid down in Ramlagan Singh’s
case, the non-mention of the injuries on the person of the
appellant in the prosecution evidence would not
10
affect the prosecution case, which-has been accepted by the
courts below.
In Onkarnath Singh v. State of U. P., [1975] 3 SCC 276
this Court has reiterated its view as expressed in Bankey
Lal v. State of U.P., [1971] 3 SCC 184 and Bhagwan Tana
Patil v. State of Maharashtra, [1974] 3 SCC 536 that the
entire prosecution case cannot be thrown overboard simply
because the prosecution witnesses do not explain the
injuries on the person of the accused. Thereafter, it was
observed as follows:
"Such non-explanation, however, is a factor which
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is to be taken into account in judging the
veracity of the prosecution witnesses, and the
court will scrutinise their evidence with care.
Each case presents its own features. In some case,
the failure of the prosecution to account for the
in juries of the accused may undermine its
evidence to the core and falsify the substratum of
its story, while in others it may have little or
no adverse effect on the prosecution case. It may
also, in a given case, strengthen the plea of
private defence set up by the accused. But it
cannot be laid down as an invariable proposition
of law of universal application that as soon as it
is found that the accused had received injuries in
the same transaction in which the complainant
party was assaulted, the plea of private defence
would stand prima facie established and the burden
would shift on to the prosecution to prove that
those injuries were caused to the accused in self-
defence by the complainant party. For instance
where two parties come armed with a determination
to measure their strength and to settle a dispute
by force of arms and in the ensuing fight both
sides receive injuries, no question of private
defence arises.
Much reliance has been placed by Mr. Garg on the
following observation of Fazal Ali, J. in Jagdish v. State
of Rajasthan, [1979] 3 SCR 428:
"It is true that where serious injuries are found
on the person of the accused, as a principle of
appreciation of evidence, it becomes obligatory on
the prosecution to explain the injuries, so as to
satisfy the Court as to the circumstances under
which the occurrence originated. But before this
obligation is placed on the prosecution two
conditions must be satisfied;
11
1. that the injuries on the person of the
accused must be very serious and severe and
not superficial;
2. that it must be shown that these injuries
must have been caused at the time of the
occurrence in question."
In Jagdish’s case, the High Court believed the
prosecution witnesses and accepted the prosecution case that
the injuries found on the deceased were very severe which
resulted in his death and this Court agreed with the view
taken by the High Court in convicting the appellant under
section 302 IPC.
In regard to this point we may cite two other decisions
relating to the plea of the accused of private defence. In
Munshi Ram v. Delhi Administration, [1968] 2 SCR 455 it has
been held by this Court that although the accused have not
taken the plea of private defence in their statements under
section 342 Cr. P.C., necessary basis for that plea had been
laid in the cross examination of the prosecution witnesses
as well as by adducing defence evidence. It has been
observed that even if an accused does not plead self-
defence, it is open to the court to consider such plea if
the same arises from the material on record. The burden of
establishing that plea is on the accused and that burden can
be discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record.
Munshi Ram’s case arises out of a dispute over the
possession of land. The case of the appellants that their
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relation was a tenant of the disputed land for over thirty
years and that his tenancy was never terminated, was
accepted by this Court. In other words, the appellants were
found to be in lawful possession of the land in question and
that P.Ws. 17 and 19 had gone to the land with their
friends, P.W. 19 being armed with a deadly weapon, with a
view to intimidating the relation of the appellants, whose
tenancy was not terminated. They were held to be guilty of
criminal trespass and of constituting an unlawful assembly.
In the context of the above facts, this Court made the
observation that it is open to the court to consider the
plea of private defence even though the same does not find
place in the statement under section 342 Cr. P.C.
The next case that has been relied upon by Mr. Garg is
that of State of Gujarat v. Bai Fatima, [1975] 3 SCR 993 in
that case, on behalf of the appellants the decision in
Munshi Ram’s case (supra) was relied
12
upon in regard to the question of the plea of private
defence. In rejecting the contention of the accused, this
Court pointed out that not only the plea of private defence
was not taken by the accused in their statements under
section 342 Cr. P.C., but no basis for that plea was laid in
the cross-examination of the prosecution witnesses or by
adducing any defence evidence. As regards the injuries
sustained by one of the accused, this Court observed as
follows:
"In material particulars the evidence of the three
eye witnesses as also the evidence of dying
declaration of the deceased before P.W. Gulamnabi
is so convincing and natural that no doubt creeps
into it for the failure of the prosecution to
explain the injuries on the person of respondent
No. 1. The prosecution case is not shaken at all
on that account.
We have referred to the above decisions in extenso in
order to consider whether it is an invariable proposition of
law that the prosecution is obliged to explain the injuries
sustained by the accused in the same occurrence and whether
failure of the prosecution to so explain the injuries on the
person of the accused would mean that the prosecution has
suppressed the truth and also the genesis or origin of the
occurrence. Upon a conspectus of the decisions mentioned
above, we are of the view that the question as to the
obligation of the prosecution to explain the injuries
sustained by the accused in the same occurrence may not
arise in each and every case. In other words, it is not an
invariable rule that the prosecution has to explain the
injuries sustained by the accused in the same occurrence.
The burden of proving the guilt of the accused is
undoubtedly on the prosecution. The accused is not bound to
say anything in defence. The prosecution has to prove the
guilt of the accused beyond all reasonable doubts. If the
witnesses examined on behalf of the prosecution are believed
by the court in proof of the guilt of the accused beyond any
reasonable doubt, the question of the obligation of the
prosecution to explain the injuries sustained by the accused
will not arise. When the prosecution comes with a definite
case that the offence has been committed by the accused and
proves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how
and in what circumstances injuries have been inflicted on
the person of the accused.
The accused may take the plea of the right of private
defence which means that he had inflicted injury on the
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deceased or the injured
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person in exercise of his right of private defence. In other
words, his plea may be that the deceased or the injured
person was the aggressor and inflicted injury on the accused
and in order to defend himself from being the victim of such
aggression, he had inflicted injury on the aggressor in the
exercise of his right of private defence. As has been held
in Munshi Ram’s case (supra) the burden of establishing the
plea of private defence is on the accused and the burden can
be discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record.
It, therefore, follows that simply because the accused has
received injuries in the same occurrence, it cannot be taken
for granted that the deceased or the injured person was the
aggressor and consequently, he had to defend himself by
inflicting injury on the deceased or the injured person.
All the decisions of this Court which have been
referred to and discussed above, show that when the court
has believed the prosecution witnesses as convincing and
trustworthy, the court overruled the contention of the
accused that as the prosecution had failed to explain the
injuries sustained by the accused in the same occurrence,
the prosecution case should be disbelieved and the accused
should be acquitted. Thus, it is not the law or invariable
rule that whenever the accused sustains an injury in the
same occurrence, the prosecution has to explain the injuries
failure of which will mean that the prosecution has
suppressed the truth and also the origin and genesis of the
occurrence.
The learned Additional Sessions Judge has not believed
the case of Hare Krishna Singh that he had sustained a
bullet injury in the same occurrence and he has given
reasons therefor. The High Court has, however, come to the
finding that Hare Krishna Singh was admitted in the hospital
in an injured condition immediately after the occurrence. We
do not propose to reassess evidence on the question as to
whether Hare Krishna Singh had sustained any injury or not.
We may assume that he had sustained a bullet injury in the
same occurrence. But, even then, in the facts and
circumstances of the case the prosecution, in our opinion,
is not obliged to account for the injury and that the
failure of the prosecution to give a reasonable explanation
of the injury would not go against or throw any doubt on the
prosecution case.
The injury that was sustained by Hare Krishna Singh was
on the back. The P.Ws. 1 and 2, the two sisters of the
deceased Jitendra Choudhary, denied the suggestion put to
them on behalf of Hare Krishna Singh that their brother
Jitendra Choudhary had been shoot-
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ing from his rifle. P.W. 3, who is an independent witness
and was present on the scene of occurrence, also denied the
suggestion of the defence that there was firing on Hare
Krishna Singh. P.W. 8 Lallan Rai also denied such suggestion
of the defence. Hare Krishna Singh made a statement under
section 313 Cr. P.C. It is not his case that in self-defence
he had fired at the deceased Jitendra Choudhary. He denied
that he had any fire-arms with him or that he had fired at
Jitendra Choudhary. He also denied that none of the accused
had any weapon with him. All the eye-witnesses have stated
that the appellant Hare Krishna Singh had fired on Jitendra
Choudhary as a result of which he died. The prosecution
witnesses have been believed by the learned Additional
Sessions Judge and the High Court. In the circumstances, we
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do not think that the materials on record including the
statement of Hare Krishna Singh under section 313 Cr. P.C.,
probabilise any case of self-defence or that the deceased
had inflicted on him the injury by firing at him from his
rifle.
It may be that two empties were found by the side of
the dead-body of the deceased, but the High Court has
rightly observed that the presence of the empties does not
necessarily mean that the deceased had fired. The High Court
points out that three live cartridges were also recovered
from the pocket of the deceased at the time of inquest and
observes that keeping of empty cartridges by the side of the
body of the deceased cannot be ruled out. We do not find any
infirmity in the view expressed by the High Court. It is not
at all amenable to reason that the deceased had started from
his house along with his two sisters with a view to fighting
with the accused. In the circumstances, we are of the view
that the appellant Hare Krishna Singh has been rightly
convicted and sentenced as above.
Now we may deal with the case of Paras Singh of
Dhobaha, one of the appellants in Criminal Appeal No. 690 of
1982. He was found with the accused persons including Hare
Krishna Singh. It is not disputed that he is the brother-in-
law of Hare Krishna Singh, as he has been described in the
FIR. It is the categorical evidence of P.Ws. 1, 2, 3 and 8
that Paras Singh of Dhobaha had fired at the deceased
Jitendra Choudhary. He has been identified by P.W. 1 in the
T.I. Parade. In the circumstances, we do not find any reason
to interfere with the order of conviction and sentence
passed by the courts below.
So far as Paras Singh of Birampur, the nephew of
Jagdish Singh and the sole appellant in Criminal Appeal No.
616 of 1982, is concerned, his case stands on a different
footing. Indeed, Mr. Rajender
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Singh, the learned Counsel appearing on behalf of the
appellant, has challenged the very presence of the
appellant, Paras Singh of Birampur, at the time of
occurrence.
In the FIR, his name has not been mentioned, it has
only been stated "Jagdish Singh’s nephew who is in military
job of Birampur". Jagdish Singh may have more than one
nephew. The I.O. (P.W. 9) in his evidence has stated that
before the arrest of Paras Singh of Birampur, he did not
know his name and he cannot say how many nephews Jagdish
Singh has. The only distinctive particular for
identification, as given in the FIR, is that the nephew is
in military service. The prosecution has not adduced any
evidence to show that the appellant is in military service,
and that no other nephew of Jagdish Singh is in such
service. Thus, the prosecution has not been able to identify
the appellant Paras Singh of Birampur with the description
of Jagdish Singh’s nephew as given in the FIR. The most
significant fact is that P.W. 3 failed to identify the
appellant in the T.I. Parade. P.W. 8 did not attend the T.I.
Parade. His case is that he was not called to attend the
T.I. Parade. On the other hand, it is the defence case that
P.W. 8 was called but he did not attend the T.I. Parade.
Whatever might have been the reason, the fact remains that
no attempt was made by the prosecution to have Paras Singh
of Birampur identified by P.W. 8. In such circumstances, the
High Court was not justified and committed an error of law
in relying upon the statement of P.Ws. 3 and 8 made before
the police mentioning the name of Paras Singh of Birampur.
It is true that P.Ws. 3 and 8 identified Paras Singh of
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Birampur in court, but such identification is useless,
particularly in the face of the fact that P.W. 3 had failed
to identify him in the T.I. Parade. In the circumstances,
the prosecution has failed to prove the complicity of Paras
Singh of Birampur in the crime. Indeed, the prosecution has
failed to prove that Paras Singh of Birampur was present at
the time of occurrence. His conviction and sentence cannot,
therefore, be sustained.
Now we may consider the cases of the remaining two
accused, namely, Sheo Narain Sharma, the remaining appellant
in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya,
the sole appellant in Criminal Appeal No. 615 of 1982. These
two appellants have been convicted as a consequence of their
sharing the common intention to murder the deceased Jitendra
Choudhary. Both of them have been named in the FIR. It is
submitted by the learned Counsel appearing on behalf of
these two appellants that no specific overt act has been
attributed to either of them. It may be that they were found
in the company of Hare Krishna Singh and Paras Singh of
Dhobaha but, the
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learned Counsel submits, that fact will not be sufficient to
impute common intention to them.
So far as the appellant Ram Kumar Upadhaya is
concerned, there is evidence that he went with Hare Krishna
Singh, but there is no evidence that he had also left the
place of occurrence with him. It is the evidence of all the
eye-witnesses, namely, P.Ws. 1, 2, 3 and 8 that Hare Krishna
Singh had fired a shot at the deceased Jitendra Choudhary,
hitting him in the face and he rolled and fell down from the
Rickshaw in front of the gate. Thereafter, Paras Singh of
Dhobaha also fired at the deceased. After specifically
mentioning the names of Hare Krishna Singh and Paras Singh
of Dhobaha as persons who had fired at the deceased, P.W. 3
stated that thereafter two/three firings took place and all
the accused went to the shop of Sita Ram in front of the
gate on the road from where they also fired upon Jitendra
Choudhary. P.W. 8 in his evidence has also made a general
statement that all the accused started firing upon Jitendra
Choudhary. It is not readily understandable why the
witnesses did not specifically mention the names of Sheo
Narain Sharma and Ram Kumar Upadhaya, if they had also fired
at the deceased. Except mentioning that these two appellants
were present, no overt act was attributed to either of them.
The question is whether the crime was committed by Hare
Krishna Singh and Paras Singh of Dhobaha in furtherance of
the common intention of these two appellants also. Common
intention under section 34 IPC is not by itself an offence.
But, it creates a joint and constructive liability for the
crime committed in furtherance of such common intention. As
no overt act whatsoever has been attributed to the
appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is
difficult to hold, in the facts and circumstances of the
case, that they had shared the common intention with Hare
Krishna Singh and Paras Singh of Dhobaha. When these two
appellants were very much known to the eye witnesses, non-
mention of their names in the evidence as to their
participation in firing upon the deceased, throws a great
doubt as to their sharing of the common intention. The
convictions and sentences of these two appellants also
cannot, therefore, be sustained.
For the reasons aforesaid, the convictions and
sentences of Hare Krishna Singh and Paras Singh of Dhobaha
are affirmed. Criminal Appeal No. 690 of 1982, in so far as
it relates to Hare Krishna Singh and Paras Singh of Dhobaha,
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is dismissed.
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The conviction and sentence of Sheo Narain Sharma are
set aside A and he is acquitted of all the charges. Criminal
Appeal No. 690 of 1982, in so far as it relates to Sheo
Narain Sharma, is allowed.
Criminal Appeal No. 615 of 1982 is allowed. The
conviction and sentence of Ram Kumar Upadhaya are set aside
and he is acquitted of all the charges.
Criminal Appeal No. 616 of 1982 is allowed. The
conviction and sentence of Paras Singh of Birampur are set
aside and he is acquitted of all the charges.
N.V.K.
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