Rajendra vs State of U.P.

Vipin Sinha, J.—Heard Ms. Satya Srivastava, learned counsel appearing on behalf of the accused-appellant and learned A.G.A. for the State. The present appeal has been filed by the appellant Rajendra being aggrieved against the judgment and order dated 26.11.1982 passed by Sri S.R. Sagar, the IVth Additional Sessions Judge, Mirzapur in Session Trial No. 121 of 1981 convicting and sentencing the appellant Rajendra Prasad under Section 302, I.P.C. and to undergo imprisonment for life.

The case of the prosecution as set up in the F.I.R. in short is that on 26.11.1979 the complainant had let out his mare for grazing with its forefeet tied in the fields of the accused-appellants. At about 10:00 a.m. the accused persons armed with tangi arrived at the door step of the complainant raising a complaint that his mare has caused loss to the appellants by grazing the pea crop and the complainant should take necessary steps in this regard.

It has further been contended that the complainant Rajkeshwar Ram and his son Sita Ram accompanied the accused while they were going to see the damaged crop and when they reached near the house of the accused, the accused persons complained that the complainant''s mare was always grazing in the fields of the appellants and damaging the crops. The complainant said that he would compensate the loss if the damage is shown to him. A scuffle took place in which injuries were inflicted by accused Bhagwandas to the complainant with his tangi and accused Rajendra inflicted injury to Sita Ram. On hearing the cry, Rampati, Fajihat and Ram Gulam who had reached the place of occurrence, saw the occurrence and intervened. After receiving injuries Sita Ram fell down unconscious. The complainant Rajkeshwar Ram submitted a written report (Ext. Ka-1) at police station Duddhi. The F.I.R. (Ext. Ka-19) was registered by P.W. 7 H.C. Ram Awadh Singh and he made entry in G.D. Accordingly G.D. being Ext. Ka-20.

The injured persons were taken to P.H.C. Duddhi and were examined by Dr. Mahendra Kumar Singh (P.W. 3). The examination of Rajkeshwar Ram who was examined on 26.11.1979 at about 8:15 p.m. shows the following injuries on his body:

Incised wound 5 c.m. x 15 c.m. x 1 c.m. depth margin clear on the back part of the right parietal bone.

Incised wound 6 c.m. x 15 c.m. x 1 c.m. depth on the back part of the head on the occipital bone, margin clear, 15 c.m. posterior to injury No. 1.

Abraded contusion 10 c.m. x 3 c.m. on the back part of right forearm middle part.

Abrasion 2 c.m. x 5 c.m. x 05 c.m. on the outer part of the middle of right upper arm.

Abrasion 1 c.m. x .5 c.m. x .5 c.m. on the outer part of the middle of left upper arm.

Contusion 6 c.m. x 4 c.m. on the left shoulder joint pinkish blue in colour.

The doctor had also examined Sita Ram son of the complainant on the said date at about 8:45 p.m. and found the following injuries on his body:

Contusion 14 c.m. x 10 c.m. on the left temporal bone and upper part of left occipital bone, extending down up to left upper eye lid bluish in colour, eyes closed. Suspected hemorrhage inside the brain in the temporal region. Blood oozing out of the left ear from the inside and left nose.

Subsequently, Sita Ram died and his postmortem was conducted by P.W. 5 Dr. G.D. Baranwal and the following injuries were found on his person:

Contusion 3 c.m. x 4 c.m. on and around left eye.

Contusion 3 c.m. x 3 c.m. on and around right eye.

Contusion 10 c.m. x 10 c.m. on back and left side of head and behind left ear.

Abrasion 3 c.m. x 1 c.m. on right shoulder.

Abrasion 2 c.m. x 1 c.m. on back of left elbow.

The accused Rajendra has also filed his injury report Ext. Kha-1 which shows the following injuries on his body:

Abrasion 1 c.m. x .5 cm on the left ear pinna upper part.

Complains of pain in his left side of head. No apparent.

Abrasion .5 c.m. x .5 c.m. x .5 c.m. on the dorsum of left thumb root.

After appreciating the entire evidence, the learned Additional Sessions Judge had convicted and sentenced the appellant. Hence, the present appeal is being filed.

A bare perusal of the evidence on record shows that as far as the witnesses mentioned in the F.I.R., namely, Rampati, Fajihat and Ram Gulam are concerned they have not supported the case of the prosecution as set up in the F.I.R.

All the three witnesses named in the F.I.R. have filed their affidavits in the court that they had not seen anything, thus, what remains on record is the sole testimony of P.W. 1 Rajkeshwar Ram.

It has been strongly contended by learned counsel for the appellant that there is a cross version available on record that the complainant''s side was the aggressor and it is an admitted fact on record that the occurrence took place near the house of the accused persons while they were on the way to the cattle pond alongwith the mare.

In view of the aforesaid contention taken by the learned counsel for the appellant, it is necessary to go through the evidence on record and in this regard the relevant extract of the statement of P.W. 1 is being quoted herein below. On his examination as P.W. 1 Rajkeshwar Ram has stated that:

It has been admitted by P.W. 1 himself that:

He further stated that:

It has also been admitted in the statement of Rampti that:

The doctor Mahendra Kumar Singh has admitted that accused Rajendra has also received injuries. He stated that:--

S.I. Hari Narain Singh who was examined as P.W. 4 has clearly stated in his evidence that:

He further stated that:

Ram Awad Singh was also examined as P.W. 7 and he has also stated in his examination to the following effect that:

Accused Bhagwandas in his statement recorded under Section 313, Cr.P.C. has clearly stated that:

Accused Bhagwandas in his examination recorded under Section 313, Cr.P.C. has also stated that:

Accused Rajendra in his examination recorded under Section 313, Cr.P.C. has also stated that:

In response to question No. 14, accused Rajendra stated that:

Thus, it is apparent from the evidence on record that there are serious anomalies in the statement of the sole witness Rajkeshwar Ram. Apart from the testimony of the said witness Rajkeshwar Ram, there is no evidence on record to show that the appellant had approached the house of the complainant for the purposes of making a complaint. The incident, as it occurred, makes it crystal clear that the appellants were taking the mare to the cattle pound and while they were on their way moving towards their house, the complainant and his brother made an attempt to secure the release of the mare as a result of which a scuffle took place in which a single injury was caused to the deceased Sita Ram. There is also a dispute with regard to the fact as to whether the appellant Rajendra was carrying a tangi or a lathi

This Court cannot lose sight of the fact that all the three witnesses named in the F.I.R. have not supported the case of the prosecution whereas the appellants have come forward with a clear case of their right of private defence. Subsequently, in view of the fact that it is an admitted position on record that there was no previous enmity between the parties. If we look at the legal position in this regard a reference may also be made to the judgment of the Hon''ble Apex Court rendered in the case of Shyamal Sana and another v. State of West Bengal, 2014 AIR SCW 4984, wherein the court has held that:

"22. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the trial court hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in Chandrappa and Ganpat. Otherwise, the decision of the trial court would be a meaningless exercise and this Court would become a first appellate court from a decision of the High Court in a case of acquittal by the trial court. Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the trial court and then decide whether the error is gross enough to warrant interference. The High Court is not expected to merely substitute its opinion for that of the trial court only because the first two principles in Chandrappa and Ganpat permit it to do so and because it has the power to do so-"it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the trial court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation"

In view of the aforesaid judgment if we look at the findings as recorded by the court below it would become apparent that the court below has in a very casual manner overlooked the plea of right of private defence taken by the appellant. The court below has failed to appreciate the fact that there is a cross version available on record and a specific plea with regard to right of private defence has been taken. The question of right of private defence has been summarily disposed of by the court below by relying solely on the statement of P.W. 1 Rajkeshwar Ram and by recording a finding that "this fact, therefore, stands proved that the forefeet of the mare were tied and that being so, she was not able to walk freely. If the accused had intended or had actually taken the mare to the Sango Bandh cattle pound, it would not have been possible for them without untying the forefeet of the mare. There is nothing on the record to show that the forefeet of the mare had ever been untied by the accused."

Since the mare was not found at the spot hence it could not be believed that the incident occurred while the complainant was taking the mare to the cattle pound. The court below has also failed to appreciate the fact that there is a dispute as to whether accused-appellant was armed with a lathi or a tangi and as to whether the sole injury in question was caused by the lathi or by the blunt side of the tangi and thereafter the court below had recorded a finding to the effect that "it would be presumed that the accused had an intention of causing such bodily injury as would be sufficient in the ordinary course of nature to cause death."

Thus, it is apparent that the entire basis of the order of conviction is the sole testimony of Rajkeshwar Ram which has been treated to be the Gospel truth.

It will have to be appreciated that the court below even though has recorded the injuries of the appellant-accused Rajendra but has not dealt with the same. It may be appreciated that the injuries remain unexplained. Moreover, once it has come on record that a cross version is available, it was incumbent upon the Investigating Officer to have investigated the same and to have taken the proceedings to its logical conclusion.

The Apex Court in the case of Kashi Ram and Others Vs. State of M.P., , while considering the said question of injuries on the appellant has observed as follows:

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

Section 105 of Evidence Act, 1872 provides that the burden of proving the existence of circumstances which would bring the act of the accused alleged to be an offence within the exercise of right of private defence is on him and the court shall presume the absence of such circumstances. However, it must be borne in mind that the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If on the material available on record a preponderance of probabilities is raised which renders the plea taken by the accused plausible then the same should be accepted and in any case a benefit of doubt should deserve to be extended to the accused (See: Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, ; State of Punjab v. Gurbux Singh and others, (1995) Suppl 3 SCC 734; Vijayee Singh and others Vs. State of U.P., . In Vijayee Singh''s case this Court emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would therefore, indirectly succeed. "It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence which is reasonable".

We do not deem it necessary to state the law of private defence of person in very many details, as for our purpose, it would suffice to notice a few provisions of the Indian Penal Code and re-state only a few-relevant and settled principles. Section 96 provides that nothing is an offence which is done in exercise of the right of private defence. Under Section 97 every person has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of another person, against any offence affecting the human body."

In another case the Apex Court has observed that when admittedly there was no prior enmity between the two groups and the whole incident developed suddenly and the prosecution having failed to explain the injuries on the accused, the plea that accused inflicted injuries on deceased in self defence is quite probable. Moreover, subsequently in a case where only one injury inflicted by accused on head of deceased who unfortunately succumbed, the Apex Court has held that deceased cannot be said to have exceeded right of private defence.

A reference may also be made to the judgment of the Apex Court rendered in the case of Lakshmi Singh and Others Vs. State of Bihar, , which is follows:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

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

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

and after such observation, the Apex Court has held therein that "in view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt."

After perusing the evidence available on record, the position of the present case crystallises as follows:

A. The story of the prosecution as set up is highly improbable and in fact, the incident occurred in which the deceased was the aggressor.

B. A sudden scuffle took place on account of the efforts of the deceased and complainant to get the mare released which was being taken by the appellants to the cattle pound.

C. There are number of contradictions in the testimony of P.W. 1 Rajkeshwar Ram himself.

D. There is an ample evidence on record to show that injury was caused to the accused-appellant Rajendra as a result of which he was bleeding from the ear.

E. There was only one injury caused by the appellant Rajendra to the deceased and that too while exercising the right of private defence.

F. Injury of the accused-appellant unexplained.

G. Cross version available on record which is an admitted position on record.

H. Injuries of accused-appellant Rajendra were examined much prior in time at about 3:15 p.m.

Thus, in view of the discussion as aforesaid and also in view of the legal position, this Court feels that the prosecution has failed to prove its case beyond reasonable doubt and the accused-appellant had succeeded in establishing by a preponderance of probability that if he had not exercised his right of private defence, he might have been killed and thus, he had a reasonable and immediate apprehension that he might suffer grievous hurt or might even to be killed if he does not retaliate in private defence.

In view of the aforesaid facts and circumstances of the case, the order dated 26.11.1982 convicting and sentencing the appellant Rajendra is hereby set aside. The appeal is allowed. It has been informed that the appellant Rajendra is in jail, he may be released forthwith, in case the appellant Rajendra is not wanted in any other case. Copy of the order be supplied to the court concerned for necessary action and compliance.