Bipin Singh and Others vs State of Bihar

S.B. Sinha, J.—These two criminal appeals arise out of a judgment of conviction and sentence dated 12th November, 1986 passed by Shri Anirudh Prasad Chaudhary, 1st Additional District and Sessions Judge, Arrah in Sessions Trial No. 334 of 1985.

In Criminal Appeal No. 567 of 1986 there are 14 Appellants whereas in Cr. Appeal No. 582 of 1986, Ram Sakal Singh is the sole Appellant.

By reason of the aforementioned judgment, the learned court below convicted and sentenced the Appellants as follows.

(i) All the Appellants sentenced to rigorous imprisonment for life u/s 302/149 of the Indian Penal Code.

(ii) All the Appellants sentenced to seven years rigorous imprisonment u/s 307/149.

(iii) Appellants Lalan Singh, Nirmal Singh, Hirday Singh were further sentenced to Rigorous imprisonment u/s 148 of the Indian Penal Code. Bipin Singh was also sentenced to three months rigorous imprisonment u/s 324 of the Indian Penal Code.

(iv) Rajendra Singh and Baban Singh were sentenced to one month''s rigorous imprisonment each u/s 323 of the Indian Penal Code and rest of the Appellants (Dwarika Singh, Mithlesh Kumar Singh, Ramashish Singh, Sharda Singh, Surendra Kumar Singh Kailash Singh and Bahadur Singh have further been sentenced to six month''s rigorous imprisonment u/s 147 of the Indian Penal Code.

Ram Sakal Singh, the sole Appellant in Criminal Appeal No. 582/86 has been convicted for commission of an offence u/s 302 of the Indian Penal Code. Section 307 of the Indian Penal Code, Section 27 of the Arms Act as also u/s 148 of the Indian Penal Code and sentenced to undergo imprisonment of life, rigorous imprisonment seven years and rigorous imprisonment one year respectively.

The Appellants aforementioned were tried along with one Navlakh Singh, Appellant in Criminal Appeal No. 21/87 who died during pendency of this appeal. The said appeal thus stood abated. Some other persons viz. Birendra Singh, Nawal, Pramod Singh, Indrakumar Singh, Subhash Singh and Ramdhani Singh also stood their alongwith the Appellants, but they have been acquitted by the learned court below.

The prosecution case, in short, is as follows:

On 19.10.1984 at about 11.30 a.m. the informant Brahamdeo Singh (P.W. 11) gave a fardbeyan before the Officer-incharge Arrah Sadar Police Station alleging inter alia therein that at 8 a.m. on the same day Ram Chandra Singh (deceased) was irrigating his field by canal water. Allegedlyas the land of the deceased was on a higher level from the Karha, the water of Karha was not flowing down to the field of the deceased. A Don was therefore, fixed at the mouth of the Karha for lifting water therefrom in order to make its flow in the fields of the deceased. One Jitram Singh was working on the Don and was lifting water from the Karha while Ram Chandra Singh was in his field and Jatiram Singh who was working at the don was at a distance of about 40 yards from the field of Ram Chandra Singh. In the meantime the accused persons named by him alongwith few others came there variously armed viz. lathis, Farasas, Bhalas, Garasa and guns and asked Ramchandra Singh to stop irrigating the field from the karha. On his refusal Kailash Singh exhorted the other accused persons to assault Ram Chandra Singh as a result of which Navlakh Singh (since deceased) allegadly fired a shot upon Ramchandra Singh who on receiving the injury fell down in the adjacent field belonging to Mahipal Singh. Thereafter, Appellant Bahadur Singh exhorted the accused persons to kill Ram Chandra Singh as he was not dead. It is further alleged that on the basis of his instigation, the Appellant Ramsakal Singh fired upon Ram Chandra Singh, who again was hit by the shot fired by Ramsakal. Allegedly Jatiram Singh, Surendra Singh, Tribhuvan Singh, Dinanath Singh and few others went near Ramchandra Singh in order to save him, but they were also fired upon by Navlakh Singh and Ramsakal Singh as a result of which Surendra Singh received gun shot injuries by the shots fired by Navlakh Singh while others namely Jatiram Singh, Tribhuwan Singh and Dinanath Singh injured by gun shots fired by Ramsakal Singh.

It is further the case of the prosecution that Barhamdeo Singh (the informant) came at the end of the occurrence and it is alleged that one of the accused Bipin Singh gave him a Farsa blow by which he received cut injury between his right thumb and index finger. Rajendra Singh and Baban Singh allegedly assaulted Vijoy Kumar Singh by means of Lathi. Thereafter all the accused persons are said to have fled away. Subsequently Ram Chandra Singh and other injured persons were moved to Sahar State Dispensary, where Sahar Police recorded the fardbeyan of Brahmdeo Singh. The condition of Ram Chanda Singh became serious and so he was referred to Arrah Sadar Hospital from Sahar State Dispensary and from there, he was further referred to P.M.C.H. where he succumbed to his injuries on the following day i.e. on 20.10.1984

It appears from the records that on the same day another first information report was lodged by Navlakh Singh (since deceased) which was registered as Sahar P.S. Case No. 152/1984. The said fard beyan was marked as Exhibit ''C''. The fard beyan in respect of the said case was made at 10:45 on 19.10.1984 on the basis whereof a case against Gopal Saran Singh, Surendra Singh, Dilip Singh, Jaineshwar Singh, Bisundeo Singh, Surendra Singh, Gayan Chand Singh, Bisuncleo Singh, Ekh Nath Singh, Jagdamba Singh, Birendra Singh, Vogendra Singh, Jatiram Singh, Chakeshwar Singh Awadesh Singh, Ramnath Singh, Ram Sahary Singh, Lal Bhadur Singh, Jagidsh Singh, Tribhuvan Singh, Sachidanand Singh, Mahipal Singh, Nasiba Singh, Triloki Singh, Harihar Singh, Ramtapkiya Singh, Baijanath Singh, Kedar Singh, Jairam Singh, Kamsakal Singh, Barahmdeo Singh (P.W. 11) was recorded. It was inter alia alleged therein that an incident took place with regard to irrigation of land and in course whereof Barhmadeo Singh fired a shot which has hit Birendra Kumar Singh whereafter he also in his self defence fired shots. According to the said first information report whereas Brahmdeo Singh and his parties fired 20-25 shots only 3-4 gun shots were fired from his side. In the said fardbeyan the name of the persons who had received injuries had also been mentioned.

The prosecution in support of its case examined 18 witnesses.

P.W. 1. Uma Shankar Singh is a formal withness P.W. 2 Jagdamba Singh has been tendered P.W. 12 Dr. R.B. Choudhary, conducted autopsy on the deceased Ram Chandra Singh P.W. 13 is Doctor Upendra Prasad Himanshu who examined the injured persons on 19.10.1984 both from the sides of the prosecution as also from the side of the accused persons. P.W. 6 A.J. Kamal is the Investigating Officer P.W. 14 Alakhdeo Singh is also a Police Officer who had referred the injured prosecution witnesses to the Hospital. P.W. 17 Achhuta Nand Singh is an A.S.I. who held inquest P.W. 15 is S.Z. Akhtar who conducted a part of the investigation. P.W. 18 Sakaldeo Narain is Pleader''s clerk who proved an application which was marked as ext. 18.

The eye witnesses examined on behalf of the prosecution are P.W. 3, P.W. 4, P.W. 5, P.W. 6 (not named in the first information report) P.W. 7 (not named in the first information report) P.W. 9, P.W. 10 and P.W. 11 who is the informant.

Amongst the aformentioned witnesses R W. 9 has been disbelived by the Court below.

The learned court below has also disbelieved the statements of the informant with regard to a part of the story whereby he sought to implicate the accused persons who have been acquitted by him.

The learned court below by reason of his impugned judgment inter alia held-

(i) The prosecution has been able to prove the genesis of the occurrence.

(ii) The occurrence in question has already been admitted by the defence.

(iii) The informant had been irrigating his field first.

(iv) It was not necessary for the prosecution to explain the injuries sustained by 11 persons on the accused sides.

(v) The evidence of prosecution witness are reliable.

Mr. K.P. Singh, the learned Counsel appearing on behalf of the Appellants raised a number of contentions in support of this application.

According to the learned Counsel, in view of the fact that 11 persons from the side of the Appellants amongst whom three persons had been acquitted by the court below having sustained injuries including gun shot injuries and grievous injury caused by sharp cutting weapons, the genesis of the prosecution witnesses explained the injuries on the persons of the accused persons. He further submitted that all material prosecution witnesses are accused in the counter case and as they bear animosity against the Appellants, in that view of the matter as also in view of the fact that no independent witnesses whatsoever has been examined, the prosecution should not be believed.

The learned Counsel further submitted that from a persual of the post mortem report it would appear that the deceased Ram Chandra Singh received only one gun shot injury and that too Muscle deep injuries on his buttock which according to the doctor (P.W.12) were not sufficient in the ordinary course to the death of Ramchandra Singh. It was furhter submitted that from a persual of the deposition of the prosecution witness it would appear that all of them named only a few accused persons, although as many as 22 persons stood their trial. It was further submitted that from statements made by P.W. 4 (Tribhuwan Singh) in paragraph 6 of his deposition, it would appear that Ram Chandra Singh had made statements before the police which having not been produced, an adverse inference should be drawn against the prosecution.

Mr. B.N.P. Gupta, the learned Additional Public Prosecutor as also Mr. S.K. Verma, the learned Counsel appearing on behalf of the informant, on the other hand submitted that in this case the prosecution has explained the injuries on the persons of the accused persons as would be evident from Ext. 13 which is an affidavit of the informant. It was further submitted that no case has been made out by the defence that death of Ram Chandra Singh and the injuries on the persons of other prosecution witnesses including the informant were caused by the Appellants in exercise of their right of private defence.

It was submitted that the prosecution is not bound to explain the injuries on the persons of the accused persons.

The learned Counsel in this connection has relied upon a decision of the Supreme Court in Onkarnath Singh and Others Vs. The State of U.P., .

It was further submitted that in any event it is not necessary for the prosecution to explain the injuries on the persons of the accused persons as the occurrence itself is admitted.

The learned Counsel further submitted that the Appellants were the agressors and thus even if some injuries had been caused on their persons, they must be held to be guilty of the offences for which they have been convicted. It was further submitted that it is not correct to say that the first information report lodged by Navlakh Singh was earlier in point of time.

According to the learned Counsel the Appellants manipulated to get their fardbeyan recorded earlier in collusion with the Investigating Officer in order to save their own skin.

In this case there are certain broad aspects of the matter which in our opinion are necessary to notice.

Admittedly the fardbeyan in the counter case was recorded earlier in point of time. The said fardbeyan of Navlakh Singh (since deceased) was recorded in Hospital.

P.W.13 Doctor Upendra Prasad Himanshu in his evidence found the following injuries sustained by the accused persons. The relevent portion of his evidence is as follows:

On the same date at 10 a.m. I examined Birendra Singh S/o Navlakh Singh of same place and found as follows:

(i) Multiple circular punched injury about 1/6" in dimension the left sides of front of the chest and axilla.

(ii) Multiple lacerated wound about 1/6" in diameter on the acne and forearm.

Injuries were all caused by bullets. Injuries Nos. 1 and 2 were grievous and 3 were simple. The injuries were within 6 hrs. The patient was referred to Arrah Sadar Hospital.

On the same date at about 10:20 a.m. I examined Bahadur Singh S/o Shri Gyan Singh of the same place and found as follows

(i) Two lecerated wounds about the size of a pea on the right side of chest with cough out of blood.

(ii) two separate lacerated injuries about 1/6" in diameter on the back of right elbow.

Both injuries were caused by bullets. Injury No. 1 was grievous and Nos. 2 was simple of the injuries within six hours. (Identified injuries Mahasay Singh)

On the same date at about 10 A.M. I examined Bipin Singh S/o Kailash Singh of the same place and found as follows,

(i) Incised wound 3" x 1/2" x muscle deep on the lateral side of the shoulder and arm.

(ii) Abrasion on upper part of chest.

(iii) Ecchymosis on the back of right wrist.

(iv) Ecchymosis on the back of right wrist 2" X 2"

Injuries were simple, but No. I was caused by sharp cutting weapons and the rest by hard blunt object within 6 hours of exam.

On the same date at about 10.45 A.M. I examined Mithilesh Kumar Singh S/o Shri Bhagalu Singh of the same place and found as follows:

(i) Multiple pillet injuries (circular and punched) about 1/6" in diameter on the leteral side of right thigh and right knee.

(ii) Multiple circular punched injuries about 1/6" in diameter on the left thigh, left knee and left by side on the abdomen.

(iii) Multiple lacerated wound about 1/6" diameter on the back of left hand, left forearm and left arm.

(iv) Two lacerated wounds about 1/6" in Diameter on the front forearm below elbow.

(v) Two lacerated wound of 1/6" in Diameter on the front of the chest (left side)

All the above injuries were simple caused by pellets within 6 hours at the time of exam.

Two pellets were taken out from one of the injuries and made over to police.

On the same date at about 11 a.m. I examined Subash Chandra Singh S/o. Dwarka Singh of the same place and found as follows:

(i) Multiple lecerated wounds about 1/6" in diameter on medial side of upper part of right thigh including two such injuries on scrotum.

(ii) Six such separate injuries on the medial side of the upper part of left thigh.

All the injuries were simple caused by pillets within 6 hours at the time of exam.

Three pillets were taken out from the injuries and they were sealed and handed over to P.S.

On the same day at about 3 p.m. I examined Shri Budharan Singh S/o. Khiradhar Singh of the same place and found as follows:

(i) Ecchymosis on the back of left leg.

(ii) Ecchymosis on the back of left side of chest.

Both the injuries are simple caused by hard blunt substance within 12 hours at the time of exam.

On the same date at about 11.45 A.M. I examined Kailash Singh S/o. Siv Mrhau Singh of the same place and found as follows.

(i) Ecchymosis with marked tenderness and crapitation on the right side of the chest fracture of ribs found.

(ii) Abrasion on the back of right arm (3" x 1/2")

(iii) Lacerated injury 1/2" x 1/6" on the lower lip.

(iv) Abrasion on the punched 1/2" x 1/6" and 1" x 1/6"

The above injuries were caused by hard blunt substance. Injury No. 1 was grievous X-ray plate R-10 of...X-ray Arrah shows fracture of 7th-8th and 9th ribs. The injuries were within 6 hours on the time of exam.

On the same date at about 10.20 A.M. I examined Surender Kumar Singh S/o Dwarika Singh of the same place and found as follows.

(i) Multiple circular punches openings on the medial and front of both the thighs 1/6" in diameter.

(ii) Lacerated injury 1/2" x 1/6" on the back of left ring finger.

Injury No. 1 was grievous and caused by pillet and Injury No. 2 was caused by hard blunt substance. Pillets were fired from 10 to 20 yards front side. Injuries were within 6 hours at the time of exam. At about 9 RM. the patient was referred to Arrah Sadar Hospital for further treatment.

On the same date at about 10.20 A.M. I examined Lalan Singh S/o. Kailash Singh of the same place and found as follows.

(i) Multiple central appertures each about of the size of (sic) on the right side of the chest about 2" Lateral to the sternum, one on the right side of abdomen, one of the front of left thigh, one on the medial side of left arm. One on the front of left forearm.

All the injuries were simple (sic) by pillets within six hours. Pillets were fired from 20 yards from the front side.

On the same date at about 11.35 a.m. I examined Ramashish Singh S/o. Bhagalu Singh of the same place and found as follows.

(i) Multiple circular punched out openings about the size of pea on the medial side of both left and right thighs.

The injuries were simple caused by pillets fired from a distance of 20 yards from the front side. The injuries were within 6 hours.

The pillets were fired from the back and one from the front of right thigh and they were sealed and handed over to police on 24.10.84.

On the same date at 11.30 a.m. I examined Rajesh singly S/o. Bhagalu Singh of the same place with following injuries.

(i) Bleeding injury on the medial side of lower part of right leg with black urine of the size of pea.

Injury was simple caused by pellet within 6 hours on the time of exam.

(underlining is mine)

The said witness also proved 11 injury reports in relation to the aforementioned injured persons-which were marked as Ext. A to A/10.

From a perusal of the statements made by P.W. 13 it thus, appear that Appellant No. 1 Bipin Singh, Appellant No. 2, Rajendra Singh, Appellant No. 5 Lallan Singh, Appellant No. 9 Mithlesh Kumar Singh, Appellant No. 10 Ramashish Kumar Singh, Appellant No. 12 Surendra Kumar Singh alias Surendra Singh, Appellant No. 13 Kailash. Singh and Appellant No. 14 Bahadur Singh as also three other persons who had been acquitted by the learned court below received injuries. Out of the 11 persons at least 10 sustained gun shot injuries whereas another sustained a grievous injuries caused by a sharp cutting weapon. As noticed hereinbefore, some of the accused persons have received grievous injuries on vital parts of their bodies.

As indicated hereinbefore, in the fardbeyan of the counter case, Navlakh Singh (since deceased) categorically stated that the first shot was fired by the informant Brahmdeo Singh resulting in injury to Birendra Singh whereupon in exercise of their right of the private defence the Appellants had also fired some shots from their guns. In the said first information report (Ext. C), it has been admitted that prosecution witness might have also received injuries.

From the evidence of P.W. 13 it appears that whereas the Appellants were examined by him from 10 A.M. on the same date but he started examining the injuries on the persons of the prosecution witnesses much thereafter. The deceased Ram Chandra Singh was examined by him at about 1 P.M. It is admitted that Ramchandra Singh first went to the police station alongwith other injured persons and therefore he was referred to the hospital.

P.W. 13 examined Vijay Kumar Singh and found the following injuries:

Vijay Kumar Singh:

(i) Lacerated wound 3" x 1/2" x muscle deep on right side of scale.

(ii) Ecchymosis on the back of right shoulder 3" x 2".

The injuries had been caused, by hard blunt substance likely by lathi within 6 hours at the time of examination.

On the same date he examined Brahamdeo Singh at about 1.35 RM. and found the following injuries:

Brahmdeo Singh:

(i) Incised wound 4" x 1/2" x Bone deep with cutting of 2nd metacarpal on the web of the space between right thumb and right index finger.

(ii) Ecchymosis on the back of upper part of right leg 1/2" x 1/2".

(iii) Abrasion on the front of upper part of right leg 1/2" x 1/2".

Injury No 1 according to doctor, had been caused by sharp cutting weapon likely by farsha and other by hard blunt substance within 6 hours at the time of examination.

On the same date at about 1 a.m. he examined Ram Chandra Singh and found the following injuries:

(i) Two separte circular apertures with profuse bleeding on the back of each of the left and front thighs (upper part) the injuries had been caused by pellets.

(ii) 22 pellet injuries on the back of waist scattered in an area of about 1" x 1". There was profuse bleeding from the wounds. The injuries had been caused by short gun fires from a distance of about 10 yards. The direction of the fire was from the back side.

Injuries were allegedly received within 6 hours at the time of examination.

He further examined Surendra Prasad Singh at about 1 P.M. on the same date and found the following injuries:

(i) Six separate circular apertures on the entro-lateral part of right thigh. They spread in an area of 6" x 6" on and about right knee. The injury had been caused by pellets fired from a distance of about 10 yards. The direction of the fire was from the front side.

Four pellets were removed from the injuries of this person.

He also examined Shri Dinanath Singh and found the following injuries:

(i) Bleeding injury on the back of left leg pea size with black margins.

Injury has been caused by pellet within 6 hours at the time of examination.

He also examined Shri Tribhuwan Singh at about 11.45 a.m. and found the following Injuries:

(i) Pellet injury on the left side of the chest.

(ii) Pea size bleeding injury with black margins on the left side (lateral) side. The doctor has not stated in his evidence as to where this injury was. But it appears from the Injury report (ext. 4/3) that this injury was on the left thigh.

Both the injuries had been caused by pellets within 6 hours at the time of examination.

He also examined Jatiram Singh at about 12 noon and found the following Injuries:

(i) Pea sized bleeding injury with black margin on the medial side of left thigh.

The injury had been caused by pellet within 6 hours at the time of examination.

The injury reports with respect to the above injury are exhibits 4 to 4/6".

P.W. 13 categorically stated that he examined the aforementioned prosecution witnesses only after they were referred to him for his examination by the police.

P.W. 14 is Alakhdeo Singh. According to this witness he sent the aforementioned 7 prosecution witnesses for the examinations in respect whereof he proved the injury slips which were marked as Ext. 5 to 5/6.

From the facts, aforementioned there cannot be any doubt that whereas the Appellants and their associates rushed to hospital at the earliest possible opportunity for getting themselves treated, the informant, the deceased and their associates reached hospital at a much later stage. It also appears that prior to examination of their injuries, they were not treated any where else.

It is also evident that the first information report lodged by Navlakh Singh (since deceased) Appellant of criminal Appeal No. 21 of 1987 was earlier in point of time.

There is nothing on record to show that the investigating officer colluded with the Appellants in order to help them by recording the first information report lodged by RW.11 later in the point of time as has been submitted by Shri Verma, the learned Counsel appearing for the informant.

It is further evident that although Doctor Upendra Prasad Himanshu found two injuries on the person of the deceased Ram Chandra Singh but in the post mortem report P.W. 12 Dr. R.B. Chaudhary found only one injury. His evidence in this regard is as follows:

On 20.10.1984 at 2.45 P.M. when I was posted in P.M.C.H. Patna on the same post I held post-mortem examination on the dead body of Ram Chandra Singh S/o Slik Singh resident of village Kakhuana, P.S. Sahar, District-Bhojpur.

The dead body was identified by constable No. 3604 Jai Gobind Ram of Peer Bahore P.S. The following antemortem injuries were; found.

(i) Scattered pellets injuries covering an area of 10" x 10" on the back of Waist.

On dissection:

Larger quantity of blood clot were found in the muscles of buttock and in the pelvis. One pellet was recovered from the muscle of buttock. The pellet was handed over to constable:

The injury was caused by shot gun fired from a distance of ten yards.

Time elapsed since death was within 24 hours but more than 6 hours.

Death was due to shock and haemorrhage on account of the above injuries.

However in his cross-examination he stated:

Injuries were not sufficient in ordinary course of nature to cause death because they were not inflicted on vital parts of the body and the injuries were only muscle deep.

No obvious sign of treatment were seen on the dead body.

It is true that in a case where occular evidence and the medical evidence are contradictory to each other, the court may some time ignore medical evidence and give preference to the occular evidence. However, in the post mortem report submitted by P.W. 12 ante mortem injuries of the deceased were found to be scattered pellet injuries on the back of the waist and only one pellet was recovered from the muscle of the buttock.

It is interesting to note that in the first information report as also P.Ws. 1 and 2 in their deposition categorically stated that two persons namely Navlakh Singh and Ramlakhan Singh fired upon the deceased from a close distance. Some of the prosecution witnesses have stated that the shot was fired from a close range. It however, appears that P.W. 3 in paragraph 13 of his deposition stated that the firing took place within 10 steps from east to west. His evidence thus does not inspire confidence inasmuch as the statement made therein are wholly contradictory to and inconsistent with the first information report. The said statement was perhaps made in order to cover up a part of the post mortem report to the effect that the shot had been fired from a distance of about 9 yards.

P.W. 4 stated that he received injuries from one shot fired at him but allegedly he received injuries on the left side of the chest as also below knee

P.W. 13 however stated that the first injury was caused from a distance of 3 yards but the second injury was caused from a greater distance. This witness further arrived at the place of occurrence when Ram Chandra Singh had already fallen down.

The Investigating Officer did not seize blood on 19.10.84 when he visited the place of occurrence for the first time but he did so only on 21.10.1984. The prosecution witnesses have clearly stated that the place of occurrence was full of water. The incident itself took place when a dispute arose as to who would irrigate the land first namely P.W. 11 Navlakh Singh. Therefore, there could not have any justification for the Investigating Officer in seizing the blood on the place on 21.10.84. It is further interesting to note that although as many as 21 persons stood trial, none of prosecution witness has identified more than 8 persons. Admittedly the occurrence took place for more than 10-15 minute.

The learned court below in paragraph 27 of its judgment stated thus:

The following witness identified the accused persons during the incident:

(i) Navlakh Singh.-Identified by P.Ws. 3, 4, 5, 6, 7, 9, 10 and 11 = by 8 persons. All of them say that Navlakh Singh was armed with gun.

(ii) Ramshakal Singh. - Identified by P.Ws. 3, 4, 5, 6, 7, 9, 10 and 11 = by 8 persons. All of them say that Ramshakal Singh was armed with gun.

(iii) Bipin Singh. - Identified by P.Ws. 3, 4, 5, 6, 7, 8, 10 and 11 = by 7 persons. All of them say that Bipin Singh was armed with Farsha but Tribuhawan Singh says that he was armed with garasha.

(iv) Kailash Singh. - Identified by P.Ws. 3, 5, 6, 9, 10 and 11 = by 6 persons. The witnesses say that he was armed with lathi.

(v) Bahadur Singh. - Identified by P.Ws. 3, 5, 6, 9, 10 and 11 = by 6 persons. The witnesses say he was armed with lathi.

(vi) Baban Singh. - Identified by P.Ws. 5, 6, 9, 10 and 11 = by 5 persons. The witnesses say that he was armed with lathi.

(vii) Rajendra Singh. - Identified by P.Ws. 5, 7, 9, 10 and 11 = by 5 persons. The witnesses say that he was armed with lathi.

(viii) Hirdaya Singh. - Identified by P.Ws. 4, 5, 7 and 11 = by 4 persons. The witnesses say he was armed with farsha but P.W. 4 Tribhuwan Singh says that he was armed with garasha.

(ix) Lallan Singh. - Identified by P.Ws. 3, 4 and 11 = by 3 persons. The witnesses say that he was armed with farsha.

(x) Sheofanam Singh. - Identified by P.Ws. 4, 7 and 11 = 3 persons. The witnesses say that he was armed with lathi.

(xi) Sardar Singh. - Identified by P.Ws. 4, 7 and 11 = 3 persons. The witnesses say that he was armed with lathi.

(xii) Ramjee Singh. - Identified by P.Ws. 6 and 11 - by two persons. The witnesses say that he was armed with lathi.

(xiii) Nirmal Singh. - Identified by P.Ws. 6 and 11 = by two perons. Both of them say that he was armed with garasha.

(xiv) Dwarika Singh. - Identified by P.Ws. 3 and 11 = by two persons. Both of them say that he was armed with garasha.

(xv) Surendra Singh. - Identified by P.Ws. 7 and 11 = by 2 persons. The witnesses say that he was armed with lathi.

(xvi) Bhim Singh. - Identified by P.Ws. 7 and 11 = by 2 persons. P.W. 11 says that he was armed with lathi.

(xvii) Birendra Kumar Singh. - Identified by informant (P.W. 11). The witness says that he was armed with lathi.

(xviii) Ramasis Singh.-Identified by R Ws. 7 and 11 = 2 persons. The witnesses say that he was armed with lathi.

(xix) Nawalpromod Singh. - Identified by informant (P.W. 11). The witness says, that he was armed with Farsha.

(xx) Indra Kumar Singh. - Identified by informant (P.W. 11). The witness says that he was armed with lathi.

(xxi) Subhas Singh. - Identified by informant (P.Ws. 11) The witness says that he was armed with Bhala.

(xxii) Ramdhani Singh. - Identified by informant P.W. 11. The witness says that he was armed with Bhala.

It is wholly unbelievable that if the occurrence had taken place in the manner as suggested by prosecution, and further in view of the fact that all the accused persons belonged to the same family and are related with the informant, only Ram Sakal Singh and Navlakh Singh could be identified by 8 persons whereas other accused persons could be identified; only by 1, 2 or three persons. This appears, to be wholly improbable particularly in view of the fact that in the first information report the informant as also the prosecution witnesses had attributed one or more overt act or acts on the part of all the accused persons.

As the entire occurrence lasted for about 10-15 minutes, there does not appear to be any plausible explanation as to why all of the prosecution witnesses could notice only a few of Appellants. This assumes importance is as much as even according to the prosecution case the informant was the last person amongst the prosecution witnesses to reach the place of occurrence, but in his fardbeyan he has named all the Appellants.

P.W. 6 in paragraph 5 of his deposition, P.W. 9 in paragraph 5 of his deposition, P.W. 10 in paragraph 7 of his deposition and P.W. 5 in paragraph 20 of his deposition have categorically stated that many villagers assembled at the spot at the time and immediately after the occurrence took place. Despite the same no independent witness have been examined. Admittedly all the prosecution witnesses are closely related to each other.

It is true that non-examination of the independent witnesses by itself may not be fatal for the prosecution case, but in this case we cannot lose sigh of two important facts, viz., (a) the informant was a man of status as he was the mukhiya of the village and (b) according to his own statements in Ext. 13, the villagers who assembled at the place became enraged and took retaliatory measures when the Appellants intended to remove the injured Ram Chandra Singh.

Evidently, therefore, as per the prosecution version the villagers were siding with the informant and his party, and thus there cannot be any reason as to why none of them was examined by the prosecution.

As noticed hereinbefore, the learned Counsel appearing on behalf of the informant has relied upon an affidavit sworn by P.W. 11 which was marked as Ext. 13. In the said affidavit it was further stated that as the Appellants intended to remove the injured Ramchandra Singh, upon cries of the wife, villagers assembled. In the said affidavit P.W. 11 also alleged that none of the accused persons received any injuries whatsoever.

Apart from the fact that the explanation sought to be offered in the aforementioned affidavit is not admissible in evidence inasmuch as the said purported explanation to the effect that the villagers assembled and prevented the Appellants from removing the injured Ramchandra Singh does not find place in his deposition but as indicated hereinbefore, even in the said affidavit he denied that any injury was received by any of the Appellants.

It is, therefore, clear that all the prosecution witnesses tried to conceal the fact that 11 persons out of 21 accused persons received injuries.

In Omkarnath Singh v. State of U.P. reported in AIR 1974 S.C. 550, the Supreme Court held that non-explanation of injury is a question of fact and not of law. It has further held that answer to such a question depends upon circumstances on each case.

The Supreme Court however, laid down the law in the following terms :

Such non-explanation, however, is a factor which Js 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 cases, the failure of the prosecution to account for the injuries 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.

In Mahendra Banrait and Others Vs. State of Bihar, , this Court upon considering various decisions of the Supreme Court namely Mohar Rai and Bharath Rai Vs. The State of Bihar, , Lakshmi Singh and Others Vs. State of Bihar, , Bhaba Nanda Sarma and Others Vs. State of Assam, Jagdish Vs. State of Rajasthan, came to the conclusion that the court should consider as to whether the injuries on the persons of the accused were serious or could be self inflicted one and thereafter the court should consider as to whether non-explanation of the injuries on the person of the accused creates any reasonable doubt as to the genesis of the occurrence, manner of the occurrence or could probabilise the defence plea explaining the injuries upon the victim of the prosecution case.

This Court in the aforementioned decision also considered the decisions of the Supreme Court in Banke Lal and Ors. v. The State of U.P. reported 1971 S.C. 2233 Ramlagan Singh and Others Vs. State of Bihar, as also Omkarnath''s case (supra).

Yet recently the Supreme Court in State of Rajasthan Vs. Madho and another, held that where injuries sustained, by accused persons in the same incident in which offences under Sections 302 and 326 of the Indian Penal Code are alleged to have been committed by them, but the prosecution witnesses failing to explain those injuries and the testimonies of the prosecution witnesses giving impression that they had been supressing some part of the incident, the accused must be held to be entitled to the benefit of doubt.

In this case, the defence has taken a specific plea of self defence. Navlakh Singh in his first information report categorically stated that some members of the prosecution party have also received injuries. In the counter case a large number of persons were stated to be accused persons.

The prosecution witnesses, categorically admitted that on the date in question there had been only one incident. In such a situation, and particularly in view of the fact that the prosecution witnesses made an attempt to suppress the serious injuries suffered by as many as 11 of the accused persons, although they were being treated at the same hospital even prior to the examination of the injuries on the persons of the prosecution witness by P.W. 13 and further in view of the fact that the injuries on the person of the deceased Ramachandra Singh was not so serious, as stated by P.W. 12 in my opinion, the plea of exercise of right, of self defence by the Appellants appears to be reasonable and probable and further the Appellants are also entitled to benefit of doubts.

In Omkarnath Singh''s case (supra) the Supreme Court rejected the plea of right of private defence having found that two incidents were separated by time and distance and there was no continuity of action. It was further found that the assault on the deceased and his brother was exceedingly vindicative and maliciously excessive and the force used out of all proportion to the supposed danger, which no longer existed, from the complainant party.

Having regard to the facts and circumstance of the case, therefore, I am of the view the the judgment of conviction passed against Appellants cannot be sustained.

In the result, this appeal is allowed, the judgment of conviction and sentence passed by the learned court below is set aside.

All the Appellants are on bail. They are discharged from their bail bonds.

S.N. Jha, J.

I agree.