Daya Ram vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment dated February 26, 1994 and order dated March 2, 1994, passed by the Sessions Judge, Faridabad, whereby the appellant has been convicted under Section 302, Indian Penal Code, and sentenced to undergo life imprisonment and to pay a fine Rs. 2000/, or in default of payment of fine to undergo further rigorous imprisonment for one year.

The prosecution case is that on 5.7.1990, at about 5.00 p.m., while playing a quarrel took place between the daughter (aged about 5 years) of the victim (deceased) and Ashok (aged about 6 years), the son of Dhan Singh (accused), since acquitted. For this reason, there was an exchange of abuses between the wife of the victim and the wife of the said accused. On the same day at about 7.00 p.m. Jai Pal (PW 6), brother of the victim, was going to his fields. When he passed by the side of the gher of his brother, he found him (victim) sitting near his chhappar, while Smt. Jallo wife of the victim was feeding the cattle. Jai Pal saw the appellant alongwith his two coaccused Dhan Singh and Bir Singh, each of them armed with lathis, approached the victim. On reaching the spot, on a lalkara given by Dhan Singh, the accused persons opened an attack upon the victim and inflicted lathi blows on his head. On the receipt of the injuries the victim became unconscious. His brother Partap (PW 7), who happened to arrive there, intervened to rescue him, but he too was inflicted lathi blows by the said accused persons on his head and the back. Jai Pal (PW 6) and one Dhan Singh gadaria intervened and the assailants ran away from the spot.

The injured Kartar Singh was removed to Civil Hospital, Palwal, by Jai Pal in a rickshaw where he was medically examined by Dr. B.S. Sharma (PW 2) on that very night at about 8.45 p.m. The doctor found the following injuries, as detailed in Exhibit PB, carbon copy of the medicolegal report of Kartar Singh :

(1) Lacerated wound of the size of 1" x " over the left pariental region of skull.

(2) Diffused swelling in the area of 2" x 2" over the left parietal region of skull.

(3) Diffused swelling in an area of 3" x " over the right parietal region of skull.

During radiological examination of the victim conducted by the said doctor on the same night, he found a fracture of the skull in the left parietal region.

On receipt of a communication (Exhibit PD), addressed by Dr. Sharma (PW 2), ASI Ravi Dutt (PW 11) of Police Station City Palwal reached the hospital. He moved an application (Exhibit PE) for recording the statement of the injured but the latter was declared to be unfit to make a statement. Consequently, ASI Ravi Dutt recorded statement (Exhibit PM) made by Jai Pal (PW 6), brother of the injured, made his endorsement thereunder and sent the same to the Police Station for the registration of a case, on the basis of which formal F.I.R., copy of which is Exhibit PJ/1, was recorded.

The condition of the injured Kartar Singh was serious and consequently he was shifted to Safdarjang Hospital, where he had succumbed to his injuries on 6.7.1990 at about 7.25 p.m. Necessary inquest proceedings were conducted by ASI Ved Parkash of Vinay Nagar Police Station, New Delhi. The dead body was sent for post mortem and autopsy was conducted on 8.7.1990 at 12.00 noon by Dr. G.K. Chhaubey (PW 3) of Safdarjung Hospital, New Delhi, which revealed the external injury in the shape of a lacerated wound in the left parietal region 3 cms. in length. The said doctor had also, in the course of internal examination, recorded the following observations, as detailed in his report Exhibit PG :

(1) Haematoma on frontal right parietal and left parietal region;

(2) Communitted fracture of skull vault with depressed fracture of left parietal bone; fracture of anterior cranial fossa both sides and fracture of right middle cranial fossa.

It was opined by the doctor that the cause of death was coma resulting from head injury, caused by a blunt weapon, which was ante mortem and sufficient to cause death in the ordinary course of nature.

On 6.7.1990 ASI Ravi Dutt (PW 11) inspected the place of occurrence, lifted blood stained earth therefrom and after prepared the rough site plan (Exhibit PQ) thereof. On 11.7.1990, Partap (PW 7) was examined during investigation and he was got medically examined from Dr. S.S. Singhla (PW 1) of General Hospital, Palwal. A crusted abrasion on the left pinna of Partap, which was fully healed, was noticed vide report Exhibit PA.

On 11.7.1990, the appellant and his two coaccused (since acquitted) were arrested and in pursuance of their disclosure statements, one lathi each was recovered. During investigation, case property was sent to the Forensic Science Laboratory and the reports (Exhibits PS and PS/1) were received.

On 5.7.1990 at 9.50 p.m. the present appellant had lodged Daily Diary entry No. 46 with Police Station City Palwal, giving the counter version of the occurrence. After preparing his injurystatement he was got medically examined on the same night at 11.55 p.m. from Dr. B.S. Sharma (PW 2) of General Hospital, Palwal, who noticed the following injuries detailed in report (Exhibit DA) on his person :

(1) Lacerated wound in the size of 1" x " over the left parieto occipital region of skull; it was muscle deep. Fresh and clotted blood was present.

(2) Lacerated wound in the size of 1" x " in the occipital region of skull. It was muscle deep and there was fresh and clotted blood.

(3) Reddish diffused swelling over the infrascapular region on right side of back of chest in an area covering 2" x 1".

After completing the investigation, a chargesheet was submitted to the Court. A charge under Section 302, Indian Penal Code, was framed against the appellant, and a separate charge under Sections 302/34 and 323/34, Indian Penal Code, was framed against the appellant and his two coaccused to which all three pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 11 witnesses. Jai Pal (PW 6) and Partap (PW 7) are real brothers of the deceasedvictim and eye witnesses of the occurrence. Dr. B.S. Sharma (PW 2) had medically examined Kartar Singh deceased, as well as Daya Ramthe appellant on the same night. According to his opinion, the injuries found on the person of the deceased and the appellant could be sustained at around the same very time. Dr. G.K. Chaubey (PW 3) had performed autopsy over the dead body of Kartar Singh on 8.7.1990 at 12.00 noon and had prepared the post mortem report (Exhibit PG). Dr. S.S. Singhal (PW 1) had medically examined Partap Singh (PW 7) on 11.7.1990 and prepared a medicolegal report (Exhibit PA) Sumer Singh (PW 4) is a Draftsman. He had prepared the scaled site plan (Exhibit PH) in respect of the spot of occurrence on the pointing out of Jai Pal and Dhan Singh. Constable Raghbir Singh (PW 5) had delivered the special report to the Ilaqa Judicial Magistrate at his residence at Palwal on 7.7.1990 at 6.30 p.m. which is Exhibit PJ. According to his testimony, copy of the formal F.I.R. (Exhibit PJ/1) was put up before the said Magistrate on 10.7.1990 at 8.00 a.m. Pohap Singh (PW 8) is the witness of recovery of 3 lathis from the accused persons. S.I. Bansi Lal (PW 9) had prepared final report under Section 173 of the Code of Criminal Procedure and had forwarded the challan to the Court. He had admitted that he did not verify the facts or the allegations disclosed in the Daily Diary entry No. 46 which is Exhibit DD. ASI Sat Narain (PW 10) had recorded the formal FIR of this case, carbon copy of which is Exhibit PJ/1. He had also recorded Daily Diary entry No. 46 i.e. Exhibit DD, prepared the injury statement of the appellant and sent him to the Civil Hospital, Palwal, for medical examination. ASI Ravi Dutt (PW 11) is the Investigating Officer.

In their examination, recorded under Section 313 of the Code of Criminal Procedure, Bir Singh and Dhan Singh who are real brothers, denied the allegations of the prosecution and pleaded false implication. Both of them denied their presence or involvement in the occurrence in question. The appellant while denying the allegations of the prosecution stated that the entire version had been concocted to implicate his father and uncle; that the matter was immediately reported to the police vide report Exhibit DD and that he was got medically examined by the police. They examined Jeetan (DW 1) in their defence who fully supported the version given by the appellant in the Daily Diary entry (Exhibit DD).

On an appraisal of the evidence produced on the record, disbelieving the plea of defence raised by the appellant, the Sessions Judge acquitted Bir Singh and Dhan Singh of the charge under Section 302/34, Indian Penal Code and Section 323/34, Indian Penal Code. However, he convicted the appellant for an offence under Section 302, Indian Penal Code, and sentenced him, as stated above. Hence this appeal.

We have heard the leaned counsel for the parties and perused the record of the trial Court with their active help.

Shri T.S. Sangha, Advocate, learned counsel for the appellant, while assailing the conviction of the appellant, has strenuously argued that the prosecution story has been fabricated after due deliberation and consultation with the complainant party and the approach of the trial Court in appreciating the evidence produced on the record and disbelieving the plea of defence raised by the appellant is contrary to law. The learned counsel has pointed out that the record reveals sufficient evidence not only to probabilise the defence plea but even to establish the same positively. While attacking the testimony of ASI Ravi Dutt (PW 11), the learned counsel has argued that the entire investigation is a tainted one and fraught with serious infirmities.

On the other hand Shri N.K. Sanghi, learned Deputy Advocate General, Haryana, has argued that the plea of selfdefence raised by the appellant is an afterthought and a concocted version and the trial Court has rightly disbelieved the same on the basis of the material available on the record. It has been further argued by the learned Deputy Advocate General that the presence of Jai Pal (PW 6), the complainant and an eyewitness, and Partap Singh (PW 7) an injured eyewitness, has been admitted by the appellant himself in his statement recorded under Section 313 of the Code of Criminal Procedure read with Exhibit DD, a D.D. entry No. 46 dated 5.7.1990. It has been further argued that the mere fact that two coaccused have been acquitted giving them the benefit of doubt has no effect on the findings of the trial Court against the appellant.

We have considered carefully the respective arguments advanced at the Bar. The sole plea raised and survives for our consideration in this appeal is the plea of selfdefence raised by the appellant. The said plea is contained in Exhibit DD, a copy of D.D. Entry No. 46 recorded on 5.7.1990 at 9.50 p.m. at Police Station City, Palwal, English translation of which reads as :

"Daya Ram s/o Bir Singh shown in column No. 2 after coming to police station got recorded his statement to the effect that I am doing cultivation and our Gher and the Gher of Kartar Singh s/o Chunni, Rajput, adjoin to each other. Today, at about 5.00 p.m. a quarrel took place in between Kartar Singh''s daughter and my maternal uncle Dhan Singh''s son named Satish aged 5 years. Upon which Kartar Singh came to our house and abused and made a protest. May aunt Nemwati had given beating to her son on this. Thereafter at about 7.00 p.m., when I was giving fodder to the cattle, Kartar came there and said that "you were also abusing". In the meanwhile, Kartar, his brothers Partap and Rattan ss/o Chunni Lal came there armed with lathis. Partap gave a lathi blow on my head and Rattan also gave a lathi blow on my back. I also brought my lathi and gave blow to Kartar Singh. In the meantime, Jai Pal s/o Chunni Laltheir brother and Hari Chand, caste Rajput, r/o of the same village, along with some other persons of the village came there, who intervened and rescued us. Statement has been heard which is correct.

Sd/ Daya Ram

Attested Sd/ Sat Narain."

To appreciate this plea of selfdefence, it is necessary and material to keep in mind the injuries found on the person of deceased Kartar Singh at the time of his medical examination by Dr. B.S. Sharma, reproduced on page 3 ante and those found on the person of the appellant by the said doctor on the same night, as reproduced on pages 5 and 6 ante. It is also important to note that according to the testimony of Dr. B.S. Sharma, the injuries found on the person of the deceased as well as the appellant could be sustained at about the same very time.

Before entering upon a discussion of the various facts and circumstances proved on the record, we remind ourselves regarding the nature of the onus of proof in criminal trial although this question has been the subject matter of various decisions of the apex Court from time to time.

It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.

But under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception lies on the accused and the Court shall presume the absence of such circumstances. There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. This, however, is the test prescribed while deciding the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an exception; law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.

Thus, the accused need not prove the general exception by adducing positive evidence. If from the entire evidence on the record, it is possible that the defence version may be true, the accused is entitled to a verdict in his favour even though the true version might not have been proved beyond reasonable doubt. Therefore, even in regard to general or special exception pleaded by the accused, he is entitled to acquittal if the Court be in doubt, at the end of the trial, whether the exception pleaded is proved or not. These views find affirmation in the decisions of the apex Court rendered in K.M. Nanavati v. State of Maharashtra, A.I.R. 1962 S.C. 605; State of U.P. v. Ram Swarup, A.I.R. 1974 S.C. 1570; State of Maharashtra v. Wasudeo Ramchandra, A.I.R. 1981 S.C. 1186; Dev Raj and another v. State of H.P., 1994 Supp. (2) Supreme Court Cases 552 and Periasami and another v. State of Tamil Nadhu, JT 1996(8) S.C. 449. It has not been disputed by the learned Deputy Advocate General that we have to consider the defence plea raised by the appellant on the touchstone of the aforementioned principles.

It may be stated that the trial Court while convicting the appellant, has placed implicit reliance upon the testimony of Jai Pal (PW 6) and his brother Partap (PW 7), described by the prosecution as eyewitnesses and admitted to be present at the scene of occurrence by the appellant in his defence plea, and that of ASI Ravi Dutt (PW 11), the Investigating Officer. After proving the record of the trial Court and scanning the evidence produced by the parties, we find a close nexus between ASI Ravi Dutt (PW 11) on the one hand and Jai Pal (PW 6) and his brother Partap (PW 7) on the other, in embroidering a prosecution story befitting the complainant party, thereby implicating the appellant and his close relations in this case, thereby brushing aside the defence version.

To begin with, it is a big mystery as to how ASI Ravi Dutt (PW 11) came to know about this occurrence and reached the Civil Hospital, Palwal, where the injured Kartar Singh had been got admitted by some public person, although it is being claimed by Jai Pal (PW 6), the real brother of the deceased that he carried the injured Kartar Singh in his rickshaw and got him admitted in the hospital. But the fact as to whether it was Jai Pal who got admitted Kartar Singh in the civil Hospital is not corroborated either by the statement of Dr. B.S. Sharma (PW 2) or Exhibit PBthe M.L.R. prepared by the said doctor after medicolegally examining the said injured. According to the testimony of Dr. B.S. Sharma (PW 2), the patient was brought by some public men whose names and particulars were not known to him, nor the same are contained in the MLRExhibit PB. This fact assumes great importance in this case as would be seen very soon hereinafter.

According to the testimony of ASI Ravi Dutt (PW 11), on 5.7.1990, on receipt of ruqaExhibit PD, after entering his rawangi in the police roznamcha at 8.50 p.m., he went to the hospital to record the statement of injured Kartar Singh, but on his applicationExhibit PE, the doctor declared the patient to be unfit to make statement vide endorsement at point ''A''. Consequently, he recorded the statementExhibit PM made by Jai Pal, the real brother of the injured. He made his endorsementExhibit PM/1 thereunder and sent the same to the Police Station at 10.05 p.m., on the basis of which formal FIR of this case, carbon copy of which is Exhibit PJ/1, was recorded by ASI Sat Narain at 10.15 p.m. vide D.D. report No. 47. This entire version of ASI Ravi Dutt stands shattered by the unchallenged and unimpeachable testimony of Dr. B.S. Sharma (PW 2). According to the said doctor, at 8.40 p.m. he prepared the ruqaExhibit PD for informing the police regarding the admission of the injured Kartar Singh in the hospital. In his cross examination, he has clarified that the ruqa could not be sent to the Police Station because it was collected by the ASI himself, as he had come to the hospital before he (Dr. B.S. Sharma) could send some of his messenger to the Police Station. Dr. Sharma has further stated that he delivered Exhibit PB, copy of the MLR in respect of the injured Kartar Singh to the said ASI at about 9.00 p.m. on the same night along with the xray (Exhibit PC). This statement goes to show that the ruqaExhibit PD had not been sent to the Police Station City Palwal at all, but was collected by ASI Ravi Dutt (PW 11) himself in person. It falsifies the claim of ASI Ravi Dutt that he had received ruqaExhibit PD at the Police Station and had recorded his departure in the police roznamcha at 8.50 p.m. No copy of the roznamcha regarding his departure to corroborate this aspect of his testimony has been produced on the record. Now the fact that who had brought the injured Kartar Singh to the hospital, gains importance. If Jai Pal (PW 6), the real brother of the injured, had brought the injured to the hospital and got him admitted, it was quite natural for Jai Pal (PW 6) to disclose his name and his relationship with the injured and then Dr. Sharma was duty bound to record the same in the hospital record including the MLRExhibit PB. To repeat, instead of Jai Pal, some other public person who did not disclose his identity or particulars, had brought and got admitted Kartar Singh in the hospital.

In the defence version contained in the D.D. entry No. 46, copy of which is Exhibit PD, it is mentioned that injuries were caused to the appellant by Kartar, the injureddeceased, and his two brothers Partap and Rattan. It is further mentioned that in the meanwhile Jai Pal (PW 6) and one Hari Chand (Rajput) along with some other persons came there who intervened and rescued him. It is not disputed that Pratap and Rattan were not available either in the hospital or in their village on the night of occurrence or the next day. Nonaccompanying his seriously injured brother to the hospital gives rise to a probable inference that it was Jai Pal (PW 6) who approached ASI Ravi Dutt, struck some kind of deal with him and brought him to the hospital. It is only in this manner that the arrival of ASI Ravi Dutt in the hospital and the presence of Jai Pal (PW 6) therein can be explained.

On his arrival in the hospital, ASI Ravi Dutt, moved an application Exhibit PE, on which Dr. B.S. Sharma declared the injured to be unfit for making statement. However, the contents of this application are very interesting. If a D.D. entry regarding receipt of ruqaExhibit PD had been recorded at the Police Station City, Palwal, and had ASI Ravi Dutt recorded his departure entry at 8.50 p.m. for visiting the hospital in pursuance thereof, he would not have left the number of D.D. entry in Exhibit PE blank. Further, it is mentioned in Exhibit PE that it was enquired from the doctor that if Kartar Singh was fit to make a statement and further if the injury over his head could be dangerous to life. In other words, ASI Ravi Dutt had already met and seen the injured in the hospital before moving the applicationExhibit PE. He had received the MLR, copy of which is Exhibit PB and the xray reportExhibit PC by 9.00 p.m. He claims to have recorded the statement of Jai Pal and completed the same at 10.05 p.m. By that time the appellant Daya Ram had already lodged his reportExhibit DD, a copy of D.D. entry No. 46 recorded at 9.50 p.m. The FIR is stated to have been recorded at 10.15 p.m. In other words the entire material was with ASI Ravi Dutt i.e. the version of both the sides and it was very easy for him to manipulate and fabricate a story to suit the complainant party.

It is further claimed by ASI Ravi Dutt (PW 11) that from the hospital he had reached village Raipur (the place of occurrence) on the same night, that he inspected the place of occurrence on the next morning and lifted some bloodstained earth from there, converted the same into sealed parcel and seized the same vide memoExhibit PN which is attested by Jai Pal (PW6) and his father Chunni Lal. This tall claim of ASI Ravi Dutt is cut to size by the testimony of Jai Pal (PW 6) himself. In his crossexamination, Jai Pal (PW 6) has stated that on the night of occurrence itself at about 9.00 p.m. he had taken his injured brother Kartar in a taxi in Safderjang Hospital and got him admitted there and then returned home on the next morning at about 8.00 a.m. He has further stated that the police came to the village for the first time at about 4.00 p.m. after his return to the village. In other words, the testimony of ASI Ravi Dutt regarding his visit to the spot of occurrence on 6.7.1990 in the morning hours stands falsified.

Still further, ASI Ravi Dutt has claimed that the bloodstained earth from the place of occurrence was lifted by him in the presence of Jai Pal (PW 6) and his father Chunni Lal. But according to the testimony of Partap Singh (PW 7) claimed to be an injured eyewitness, his father Chunni Lal was incapable of walking (P.3 of the statement and p.149 of the paperbook). If it is so, how Chunni Lal was capable of being present at the spot of occurrence which is alleged to be a gher and not the residential house of Kartar Singh. It may be stated here itself that in the special report Exhibit PJ prepared and sent on 7.7.1990 by SI Bansi Lal, the S.H.O. of Police Station City Palwal, it is mentioned that Chunni Lal, father of the deceased Kartar Singh, came to the Police Station and informed that Kartar Singh had succumbed to his injury in Safderjung Hospital on the preceding night and on the receipt of this information, offence under Section 302, IPC, was added, that special report was being sent through Constable Raghbir Singh to higher authorities and that he along with ASI Ravi Dutt and other police officials along with Chunni Lal was proceeding to the spot in a government vehicle. When Chunni Lal was incapable of walking, how it was possible for him to go from the village to the Police Station to give this information. The most important factor in this respect is that Chunni Lal never visited his son Kartar Singh either in the Civil Hospital, Palwal, when he was alive nor he went to Safderjung Hospital, New Delhi, where Kartar Singh was lying in a serious condition and then succumbed to his injuries. The obvious reason is that Chunni Lal was incapable of walking as admitted by Partap Singh (PW 7) in his crossexamination. Therefore, the claim of ASI Ravi Dutt that that the bloodstained earth from the spot was taken in the presence of Chunni Lal or that it was Chunni Lal who had informed the S.H.O. regarding the death of his son Kartar Singh stands falsified. These facts are indicating as to how the story has been concocted. The place of occurrence is being alleged to be the gher of Kartar Singh (deceased) whereas according to the appellant the occurrence took place in his gher while he was serving fodder to the cattle. Admittedly, the ghers of the deceased and that of the appellant are situated nearby at a distance of 10 to 12 paces. This goes to show that ASI Ravi Dutt introduced Chunni Lal, the father of the deceased, to fix the place of occurrence instead of taking some respectable and responsible person of the village.

According to the prosecution, the first information report was recorded on 5.7.1990 at 10.15 p.m., carbon copy of which is Exhibit PJ/1. It is specifically mentioned in the police action thereunder that copies of the said FIR had been prepared which would be sent to the higher officers. It is interesting to note that the copy of this FIR was received by the concerned Judicial Magistrate on 10.7.1990 at 8.00 a.m. It is not disputed that the said Police Station and the courthouse and residence of the said Judicial Magistrate are located in the same city of Palwal and nowhere else. In other words, this copy of the FIR took 4/5 days to reach the concerned Judicial Magistrate. It is correct that the special report containing a part of this version had already been delivered to the Judicial Magistrate on 7.7.1990. But, we are mentioning this fact to show as to how the Investigating Officer and the Police was acting and proceeding in this case. But the fact remains, as discussed above, that the original FIR, copy of which is Exhibit PJ/1, definitely came into existence after due deliberations and consultations at least with Jai Pal (PW 6).

A serious infirmity which reflects a grave doubt upon the genuineness and correctness of the prosecution case and supports the defence version, is the nonexamination of Partap (PW 7) by the Investigating Officer for a period of at least 5 days, particularly at a time when the prosecution claims him to be an injured eyewitness of this occurrence. Admittedly, Partap (PW 7) did not accompany his injured brother Kartar Singh on the night of 5.7.1990 to the hospital nor he got himself medically examined on the same night. He deposed that from the place of occurrence he had gone to his house to inform his family members, then came to Civil Hospital, Palwal at about 11.00 p.m. and from there he went to Safderjung Hospital, where he remained for 2 days and ultimately got himself medically examined on 11.7.1990. He has further stated that he had participated in the cremation of his brother Kartar Singh in his village on 7.7.1990. He has admitted that he was summoned by the police for the first time on 11.7.1990 at about 10 or 11 a.m. and had recorded his statement. In other words, his statement was recorded after about 6 days of the occurrence. It is well settled that inordinate delay caused in recording the statement of an eyewitness during investigation casts a cloudy suspicion on the credibility of the entire wrap and woof of the prosecution story. It may assume such a character if there are concomitant circumstances to suggest that the Investigator was deliberately marking time with a view to decide about the shape to be given to the case. It was advised by their Lordships of the Supreme Court of India in Ganesh Bhavan Patel and another v. State of Maharashtra, A.I.R. 1979 Supreme Court 135, that :

"Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses."

Thus, unjustified and unexplained long delay on the part of the Investigating Officer in recording the statement of material eyewitness during investigation of a murder case will render at least evidence of such witness unreliable. The explanation being given by ASI Ravi Dutt (PW 11), the Investigating Officer, and Pratap (PW 7), can hardly inspire any confidence. The trial Court committed a grave error in not adverting itself to this important aspect of the case, and placing implicit reliance on the testimony of these two witnesses.

In para 27 of the impugned judgment, the trial Court has proceeded to discuss the case against the two coaccused Bir Singh and Dhan Singh as under :

"However, the case of the prosecution against other two accused Bir Singh and Dhan Singh was symptomatic of deficiencies. The medical evidence on record militated against the plea of prosecution that the injuries to the victim were inflicted by three assailants. Dr. Sharma (PW 2) had noticed only one lacerated wound on the left parietal region of skull. It is true that diffused swelling on the left and right parietal region of the skull was also noticed but there is a definite opinion of the Doctor (PW 2) that injuries Nos. 1 and 2 could be caused by a single lathi blow. During radiological examination also, this Doctor witness had merely noticed a fracture in the skull on the left parietal region. During postmortem examination, the Doctor (PW 3) had noticed only one external injury on the left parietal region having been ascribed to Daya Ramaccused. The Doctor had no doubt found haematoma during internal examination but that could, as opined by him, be also caused due to hard fall on the ground. The evidence of exhortation has to be regarded by its very nature as quite weak. There is also quite often a tendency to implicate some persons in addition to the actual assailant by attributing to him some such role of exhortation. Assuming for the sake of argument that the prosecution evidence, direct as well as medical, could be stretched to show the involvement of two assailants, that could not in any way prove the guilt of Bir Singh and Dhan Singh to the hilt. The evidence adduced by the prosecution against these two accused is inextricably mixed up. The complicity of one of these two assailants must necessarily be doubted. That being so, the benefit thereof would go to both of them."

On the other hand, Dr. B.S. Sharma (PW 2), who had examined the appellant on the same night, found three injuries on his person, out of which two were on his vital part, as reproduced in the earlier part of his judgment. According to Dr. Sharma these injuries and the injuries found on the person of the deceased could be caused at the very same time. In other words, it stands established that the appellant also received these injuries during the course of this occurrence. It was the bounden duty of the prosecution to give an explanation as to how the appellant received these injuries. The FIR, copy of which is Exhibit PJ/1, is absolutely silent regarding the receipt of any injury by the appellant during the course of this occurrence. Nor there is any whisper regarding these injuries in the special reportExhibit PJ sent to the Judicial Magistrate on 7.7.1990. It was for the first time when the statement of Partap Singh was recorded on 11.7.1990 that a version was concocted and introduced that Dhan Singh and Bir Sigh, the two coaccused, gave lathi blows but he bent down and the blows hit the appellant. Similar improvement was made by Jai Pal (PW 6) when he came into the witness box and deposed that one of the lathi blows given by Dhan Singh and Bir Singh, coaccused, landed on the head of Daya Ram appellant, which fact was reiterated by Partap as PW7. It may be repeated that the defence plea had already been recorded on 5.7.1990 in D.D. entry, copy of which is Exhibit DD, and the appellant had already been medically examined and the details of those injuries were there. Even if the improved version given by Jai Pal (PW 6) and Partap (PW 7) is accepted to be correct, that explains only one injury and not the other two found on the person of the appellant. In other words, two serious injuries found on the person of the appellant during the course of the same occurrence have not been explained by the prosecution.

It is settled proposition of law that in a murder case, the non explanation of the injuries sustained by the coaccused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inference :

"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and as 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."

These principles have been recognised by the apex Court in a number of decisions including Lakshmi Singh and others etc. v. State of Bihar, A.I.R. 1976 Supreme Court 2263.

Nonexplanation or false explanation regarding the injuries found on the person of the appellant and proved to have been received by him during the course of the same occurrence gives rise to all the three inferences as laid down by the apex Court, reproduced above. It appears from the facts proved on the record that ASI Ravi Dutt, having been won over by the complainant party, changed the scene of occurrence and introduced false witnesses. He fabricated a story to suit the complainant party and absolutely ignored and did not investigate the cross version contained in the D.D. entry (Exhibit DD) got recorded by the appellant before the first information report of this case was registered. From the above discussion, it is further clear that Jai Pal (PW 6) and Pratap (PW 7) are telling lies on the material aspects of the case. The plea of defence raised by the appellant seems to be highly probable, rather it appears that a grain of truth lies therein. The facts and circumstances established on the record and discussed above go to reveal that after causing injuries to the appellant, Pratap and Rattan absconded. Kartar injured was removed to the hospital by someone else whose identity has been kept as a secret; Jai Pal contacted ASI Ravi Dutt and got the appellant and his two close relations implicated in this case.

In view of the above circumstances, we come to the conclusion that in all probability the appellant had caused injury to the deceased Kartar Singh in the exercise of his right of private defence of person. Since the appellant had given only one injury to the deceased, it cannot be said that the appellant had exceeded in the exercise of his such right. Therefore, the conviction of the appellant is not sustainable.

For the reasons mentioned above, we accept this appeal. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under Section 302, I.P.C. He shall be released forthwith, if not wanted in any other case.