Shiv Lal and Another vs State of U.P.

S.C. Agarwal, J.—This criminal appeal has been filed on behalf of Appellants-accused Shiv Lal and Madan convicted under Sections 307/34 and 323/34, I.P.C. vide judgment and order dated 9.2.1982, passed by IVth Additional Sessions Judge, Aligarh in Sessions Trial No. 506 of 1979. Both the Appellants have been sentenced to undergo R.I. for three months u/s 323/34, I.P.C. Appellant Shiv Lal has been awarded R.I. for two years u/s 307/34, I.P.C. and Appellant Madan has been awarded R.I. for four years u/s 307/34, I.P.C. Both the sentences of each Appellant were directed to run concurrently.

The incident started on a very trivial matter. It took place on 27.6.1978 at about 12:00 noon at the house of Appellants in Manik Chowk, P.S. Kotwali, Aligarh. The F.I.R. was lodged by complainant Vinod Kumar (P.W. 1) on the same day at about 1:40 p.m. at Police Station Kotwali, district Aligarh.

The prosecution case, as contained in the F.I.R., is that Appellants Shiv Lal and Madan are father and son. Mahesh is another son of Shiv Lal. On 27.6.1978, Kusum the daughter of sister of complainant released a rat in the lane. The rat entered the house of accused persons, who got annoyed. Allegedly, Shiv Lal and his sons Madan and Mahesh gave a beating to Kusum. At about 12:00 noon P.W. 3 Subhash (injured - brother of the complainant) went to the house of the accused to complain and to ask the reasons for beating of Kusum. The accused Shiv Lal, Madan and Mahesh (non-Appellant) gave him a beating by dandas. Madan gave knife blows to Subhash. When the complainant went there to rescue his brother, he was also beaten by the accused persons. Lalit and Gyan Chandra, the residents of the same mohalla, rescued the complainant and his brother. Subhash was taken to hospital and the complainant wrote a written report Exh. Ka -1 and gave it at the police station. On the basis of written report Exh. Ka - 1, head moharrir Babu Lal Pandey (P.W.2) recorded F.I.R. (chik report) Exh. Ka-2 and registered the case under Sections 323 and 324, I.P.C. in the G.D. (Exh. Ka-3) at serial number 28. Investigation was handed over to S.I. Om Prakash Sharma (P.W. 5). After receipt of medical report of Subhash (P.W. 3), the case was converted u/s 307, I.P.C. vide copy of G.D. Entry No. 60 dated 23.7.1978 at 23 : 15 hours (copy Exh. Ka-4). He recorded the statements of the witnesses and also recorded the statements of the accused on the same day, as they were present at the police station and lodged N.C.R. in respect of the same incident. The accused were arrested. He also inspected the spot and prepared site plan (Exh. Ka-5). He took the clothes of injured in possession and sealed the same and prepared memo (Exh. Ka-6). After investigation, he submitted charge-sheet (Exh. Ka-7) against the Appellants.

Subhash Chandra (P.W. 3) was medically examined on 27.6.1978 at 2 : 30 p.m. by Dr. K.P. Singh (P.W. 6) of District Hospital, Agra and the following injuries were found on his person:

Injuries:

(i) Punctured wound 1/10" � 1/10" � muscle deep on the back of the left upper part of the forearm. Oozing blood, margin everted and lacerated.

(ii) Punctured wound 2/10" � 1/10" � muscle deep on the left anterior shoulder. Margin everted and lacerated.

(iii) Punctured wound 1 cm. � 1/2 cm. � muscle deep on the left post. Axillary fold margin everted and lacerated.

(iv) Human Teeth bite contusion 3 cm. � 2-1/2 cm. on the outer and upper part of the right forearm, red in colour.

(v) Stab wound 1 cm. � 1/2 cm. � (depth not probed) on the left side abdomen in the mid axillary line, oozing blood.

Patient was conscious. His general condition was poor. Injury No. (v) was kept under observation. Injury No. (iv) was caused by teeth bite. Other injuries were simple in nature and were caused by any stabbing weapon. Injuries were fresh. Injury report is Exh. Ka-8.

Dr. K.P. Singh gave a supplementary report Exh. Ka-10 on the basis of B.H.T. stating therein that injury No. 5 was chest cavity deep and surgical emphysema was present and injury No. 5 was dangerous in nature.

On 27.6.1978 at 3 : 25 p.m.. Dr. K.P. Singh (P.W. 6) examined Vinod (P.W. 1) and found the following injuries on his person:

Injuries:

(i) Abrasion 1 cm. � 3/4 cm. on the left temple. Red in colour. No scab.

(ii) Two abrasions (1/4 cm. � 1/4 cm.) about 1/2 cm. apart on the inner aspect of the left middle of the forearm. Red in colour. No scab.

Complaint of pain in left back.

Both the injuries were simple and caused by friction against any hard blunt object and were fresh.

Injury report is Exh. Ka-7.

Dr. K.P. Singh (P.W. 6) also examined Appellant Madan on the same day, i,e., on 27.6.1978 at 3 : 10 p.m. and found the following injuries on his person:

Injuries:

(i) Lacerated wound 2-1/2 cm. � 1/2 cm. � scalp deep on the middle and back of the head, oozing blood.

(ii) Lacerated wound 2 cm. � 1/4 cm. � scalp deep on the left back of the head. 1 cm. apart, oozing blood.

(iii) Contusion 5 cm. � 1-1/2 cm. on the right outer side in middle of the forearm, red in colour.

(iv) Abrasion 2 cm. � 1-1/2 cm. on the outer aspect of the middle of the forearm.

(v) Linear abrasion 10 cm. on the left upper part of the back of the forearm, no scab.

(vi) Contusion 2 cm. � 1/2 cm. on the right inner aspect of the knee joint.

All injuries were simple and were caused by blunt object and were fresh. Injury report is Ex. Kha-2.

Charge under Sections 323/34 and 307/34 was framed by learned Additional Sessions Judge against the Appellants, who denied the charge and claimed to be tried.

Prosecution examined as many as six witnesses in this case. Vinod Kumar (P.W.1) and Subhash (P.W. 3) were witnesses of fact and were injured witnesses. Lalit Kumar (P.W. 4) is an eye-witness named in the F.I.R., but he has not supported the prosecution case and turned hostile. Head moharrir Babu Lal Pandey (P.W. 2) is a formal witness, who has proved the F.I.R. and copy of G.D. Om Prakash Sharma (P.W.5) is the Investigating Officer and Dr. K.P. Singh (P.W. 6) has proved the injury reports of P.W.1, P.W. 3 and Appellant Madan.

Appellants were examined u/s 313, Code of Criminal Procedure wherein they denied the prosecution allegations. Appellant Shiv Lal stated that both the injured picked a fight with Madan and he was falsely implicated. He also stated before the trial court that on 27.6.1978, he was going to purchase vegetables. Subhash and Vinod surrounded him and had a scuffle with him and both the sides received injuries.

The accused persons did not adduce any oral defence evidence, but had proved the N.C.R. lodged by Appellant Madan against Sudhir, Vinod and his other brothers, which is Exh. Kha-1 as Well as injury report of Madan (Exh. Kha-2). Ex. Kha-1 has been proved by the Investigating Officer whereas injury report Ex. Kha-2 has been proved by Dr. K.P. Singh (P.W. 6).

Learned Additional Sessions Judge, relying on the prosecution evidence and disbelieving the defence theory, convicted and sentenced the Appellants as aforesaid.

I have heard Sri Brijesh Sahai, learned Counsel for the Appellants and learned A.G.A. for the State and have perused the impugned judgment and trial court''s record.

Learned Counsel for the Appellants submitted that incident took place out of a very trivial matter. Kusum, who initiated the whole chain of incident, has not been examined as a witness nor was she medically examined. The independent witness Lalit Kumar (P.W. 4) has turned hostile and another independent witness named in the F.I.R. i.e., Gyan Chand has been withheld by the prosecution.

It was further contended by the learned Counsel for the Appellants that though both the injured witnesses sustained injuries, but the prosecution has failed to explain the injuries sustained by Appellant Madan. The contention is that Appellant Madan received six injuries including two head injuries and his injuries could not be said to be superficial or self-inflicted. Madan was examined on the date of incident itself by Dr. K.P. Singh (P.W. 6). The incident took place at the house of the Appellants. The Appellants had not gone to the house of the complainant. Due to altercation with Kusum, Vinod (P.W.1) and Subhash (P.W. 3) in a fit of anger, came to the house of the accused persons to complain and to ask the reasons for beating of Kusum and assaulted Appellant Madan. In these circumstances, if any injuries were caused to P.W. 1 and P.W. 3 by Appellant Madan or co-accused, in exercise of their right of private defence, they cannot be said to be guilty of any offence. It was further submitted that the prosecution has not offered any explanation for the injuries suffered by Appellant Madan.

Per contra, learned A.G.A. submitted that Vinod (P.W.1) and Subhash (P.W.3) are injured witnesses. Their statements are corroborated by medical evidence and there was no reason to disbelieve their testimony and learned Additional Sessions Judge has rightly convicted the Appellants.

The prosecution case rests on the testimony of Vinod (P.W.1) and Subhash (P.W. 3). As far as injuries of Vinod are concerned, he suffered only minor abrasions and no serious injuries were found on his person.

The injuries of Subhash are however, serious in nature. Both the injured as well as Appellant Madan were medically examined on 23.7.1978 itself, almost at the same time. Injuries of Appellant Madan cannot be said to be superficial or self inflicted. Dr. K.P. Singh (P.W. 6), in his reexamination by learned Public Prosecutor, stated that injuries of Madan could not be self-inflicted. Both the injured witnesses Vinod as well as Subhash have not cared to explain the injuries suffered by Appellant Madan in the incident.

Vinod (P.W.1) has admitted that marpeet was going on between the accused persons and Subhash and at that time, he was at the roof of his house. He went to the spot after hearing the noise. He did not see any person giving blow by icepick. He further admitted that he tried to intervene and at that time he and Subhash were not armed with any weapon. The accused persons hit him with kicks and fists. He cannot say whether there was any weapon with the Appellants or not. He did not cause injuries to Appellant Madan. He cannot say who took away knife from the hand of Appellant Madan.

Similarly, Subhash (P.W. 3) admitted in cross-examination that he was annoyed since his niece (bhanji) Kusum was beaten by the accused. He had a scuffle with Appellant Madan. It is possible that Madan might have received injuries at that time. By this statement, Subhash has tried to create an explanation for the injuries suffered by Appellant Madan but no such explanation was offered by him in examination-in-chief nor this fact was mentioned in the F.I.R. He further admitted in the cross-examination that he went to the house of Shiv Lal in a fit of anger. When he asked Shiv Lal about beating given to Kusum, Shiv Lal abused him and he also retaliated by abusing Shiv Lal. He further admits that after he abused Shiv Lal, Shiv Lal called his sons Mahesh and Madan and all three attacked him, but he had scuffle only with Madan. Radhey, cousin brother of Madan, gave Madan an icepick.

The incident started out of a very trivial matter. A rat was caught. The rat was released by Kusum, a child of 10 - 12 years of age, in the lane. If the prosecution story is to be believed, the rat entered the house of accused persons, which annoyed them and they might have scolded or beaten Kusum. Though Kusum was not medically examined, which gives rise to the inference that Kusum did not suffer any serious injury, but due to the incident, which took place with Kusum. Subhash (P.W.3) in a fit of rage, went to the house of the Appellants to take revenge. When he asked for a reason for giving a beating to Kusum, Shiv Lal allegedly abused him. He also abused Shiv Lal. Shiv Lal called his sons and there was a scuffle between them. Madan also sustained six injuries including two head injuries. A perusal of the injury report as well as the statement of Dr. K.P. Singh reveals that these injuries could not be caused by kicks and fists, but must have been caused either by lathi or an iron rod. Subhash and Vinod both have denied having caused any injury to Appellant Madan. In these circumstances, it can safely be inferred that both of these witnesses have not come forward with clean hands and have rather suppressed the genesis of the incident. We cannot lose sight of the fact that Kusum, who was the most important witness and who started the whole chain of events, was neither medically examined nor was she produced in Court as a witness, which is fatal for the prosecution case.

It is established law that if the accused suffers injuries in the incident and those injuries are neither superficial nor self-inflicted but rather on vital parts of the body, the prosecution owes a duty to explain to the Court about those injuries. However, there is no such obligation on the part of the prosecution to explain the injuries found on the person of the accused if such injuries are of a minor nature and are superficial or may be self-inflicted, but the injuries suffered by Appellant Madan were neither superficial nor self-inflicted, but out of six injuries, two injuries were on head a vital part of the body. It was the bounden duty of the prosecution to explain those injuries in a cogent manner.

In the instant case, both the eye-witnesses, who are also injured witnesses, have not cared to offer any explanation of the injuries suffered by Appellant Madan. It is not sufficient to say that during scuffle. Madan might have received injuries, as these injuries could not have been caused by kicks and fists, but appear to be a result of a blunt weapon. The eyewitnesses denied having any blunt weapon with them at the time of incident. This clearly shows that they are not stating true facts before the Court. In these circumstances, it can safely be inferred that Vinod (P.W. 1) and Subhash (P.W. 3) have not come forward with clean hands and have suppressed the material facts and the genesis of the incident has been concealed. We cannot lose sight of the very glaring fact that incident took place just outside the house of the Appellants. It was injured Subhash, who had gone to the house of the Appellants. Later Vinod also reached there. In these circumstances, the contention of learned Counsel for the Appellants that Subhash and Vinod were the aggressors cannot be ruled out. If Subhash and Vinod came to the house of the Appellants and were causing injuries to Appellant Madan, the Appellants were justified in repelling the attack and in this process, if they caused injuries to Subhash and Vinod, their act would come within the purview of their exercise of right of private defence and they cannot be held guilty of causing injuries to Vinod and Subhash. It is also noteworthy that N.C.R. in respect of same incident was lodged by Appellant Madan at the police station on the same day at 1 : 50 a.m.

In view of the aforesaid, this Court is of the view that the N.C.R. lodged by Appellant Madan was also prompt and a counter version has been set up by Appellant Madan in the N.C.R. Injury report of Madan also supports the version given in the N.C.R. The injuries suffered by Madan were neither superficial nor self-inflicted. Two of the injuries were on head. The injuries were caused by a blunt weapon. The prosecution witnesses Vinod and Subhash have not offered any satisfactory explanation for the injuries sustained by Appellant Madan. Kusum, the most important witness, who started the whole chain of events, has been withheld. She was not medically examined by any doctor. It were the injured witnesses, who had gone to the house of the Appellants to take revenge for the beating caused to Kusum. Keeping in mind all the facts and circumstances of the case, the testimony of prosecution witnesses does not inspire confidence. The incident did not take place in the manner alleged by the prosecution. The Appellants might have acted in the exercise of right of private defence. In these circumstances, the judgment of conviction recorded by learned Additional Sessions Judge cannot be sustained and is liable to be set aside and the Appellants are entitled to the benefit of doubt.

Appeal is allowed.

Judgment and order dated 9.2.1982, passed by IVth Additional Sessions Judge, Aligarh in Sessions Trial No. 506 of 1979 as well as the conviction of the Appellants under Sections 323/34 and 307/34 and the sentences imposed upon the Appellants are set aside. The Appellants are acquitted of the charges levelled against them by giving them benefit of doubt. The Appellants are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged.