Sudhir Kumar and Others vs State of U.P.

Om Prakash-VII, J.—This criminal appeal has been preferred by the accused-appellants against the judgment and order dated 14.2.1983 passed by the Vth Additional District and Sessions Judge, Mainpuri in Session Trial No. 480 of 1981, State v. Sudhir Kumar and another, convicting and sentencing the appellants for the offences punishable under Section 302 /34 , I.P.C. to undergo life imprisonment. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 2-Virendra Singh has died. Accordingly, vide order dated 25.5.2015 this Court has abated the appeal in respect of the appellant No. 2 - Virendra Singh.

Now, we are proceeding to consider the present appeal in respect of sole surviving appellant, i.e., Sudhir Kumar.

The facts of the case, as unfolded by the informant Udal Singh son of Jodha Singh Yadav in the first information report (in short ''F.I.R.''), are that about two years ago Lakhan Singh son of Jugari Kachhi had mortgaged the agricultural land for a consideration of Rupees seven thousand with the informant''s son Shyam Singh. On 14.4.1980, Lakhan Singh again mortgaged his field with Sone Lal son of Bangli Yadav resident of Lapkasa. When this fact came in the knowledge of Shyam Singh, at about 6.30 p.m. on the day of incident deceased Shyam Singh went to the house of Lakhan Singh to take back his money. Thereupon, Sone Lal armed with revolver and his son Sudhir armed with gun and Virendra son of Sagar Singh Yadav armed with country made pistol with a view to support Lakhan Singh started abusing Shyam Singh and Sone Lal uttered that "he would see as to how Shyam Singh will realize the money". Thereupon, hot talks took place between them and Sone Lal uttered as follows "Abhi Goli Nikal Doonga". On this, Shyam Singh retorted by saying "Dekhay Kaise Goli Nikalta Hai". Suddenly, Sone Lal, Sudhir and Virendra took out their weapons and aimed towards Shyam Singh and when he (Shyam Singh) tried to run away, Sone Lal fired a shot with his revolver, which hit his son on his eye. Sudhir and Virendra also shot fires causing death of his son (Shyam Singh) in front of the door of Lakhan Singh. At that time villagers Vijendra Pratap son of Raj Bahadur, Fauran Singh son of Jodha Singh, Surendra Kumar son of Raj Bahadur, Pramod Kumar son of Raghunath Prasad etc. were present on the spot. Pramod Kumar also received fire arm injury on his back. Since the accused wanted to cause disappearance of the dead-body of the deceased, he has removed the dead body from the place of occurrence to his house.

On the basis of the written report (Ext. Ka-1) scribed by one Shivendra Kumar @ Surendra Kumar, chik first information report (Ext. Ka-5) was registered at Police Station concerned on 14.4.1980 at 8.15 p.m. mentioning all the details as had been disclosed in Ext. Ka-1. G.D. entry Ext. Ka-6 was also made at the same time.

Investigation was entrusted to Puran Lal Kashyap, who was posted as Sub-Inspector at the concerned police station. After recording the statement of injured Pramod Kumar, he alongwith other police personnel proceeded to the place of incident on the same day. He found the dead-body of the deceased Shyam Singh inside the house of the informant. Inquest report could not be prepared on the same day because of night and lack of sufficient light. On the next morning, the Investigating Officer prepared the inquest report (Ext. Ka-7). The Investigating Officer also prepared photo lash, challan lash, letter to Chief Medical Officer and letter for post-mortem examination (Ext. Ka-8 to Ka-11) respectively. The dead body was kept in sealed cover preparing the sample seal material Exhibit-1 and was dispatched through constable Ahibaran Singh and Om Prakash alongwith the police papers for postmortem. Site plan (Ext. Ka-12) was also prepared. The Investigating Officer also took the sample of plain and bloodstained earth from the place of occurrence and also prepared the memo (Ext. Ka-14) in this regard. He found two empty cartridges on the spot, which was sealed and a memo (Ext. Ka-13) was prepared in this respect. From 21.4.1980 onwards, investigation in the matter was carried out by Banshi Mohan Sharma, Station Officer of Police Station, Ghiror.

Autopsy report (Ext. Ka-3) was prepared after conducting the postmortem on 15.4.1980 at 4.30 p.m.

As per the post-mortem report, the deceased was about 32 years old. On external examination, the Doctor found the deceased of average built and the rigor mortis had passed off from the upper extremity but was present on the lower extremity. He further opined that death might have occurred on 14.4.1980 at about 6.30 p.m.

On examination of the dead body of the deceased, following ante-mortem injuries were found :

"1. Lacerated wound 1 cm. x 1 cm. x muscle deep over the right side of face, starting from outer corder of right eye transversely.

Gun shot wound of exit 1 cm. x 1 cm. x cavity deep over the chest, in mid line, 7 cm. below supresternal notch, margins everted.

Gun shot wound of entry 4 c.m. x 3 cm. x cavity deep (opposite side) over the right side of upper part back 3 c.m. below and lateral to cervical spine, margins inverted. Blackening and tattooing was present around the wound.

Gun shot wound of entry 2 c.m. x 2 c.m. x cavity deep, over the left side of back, 9 c.m. medial to inferior angle of scapula. Margins inverted and irregular, blackening, tattooing and scorching was present around the wound.

Gun shot wound of entry 2 c.m. x 2 c.m. x cavity deep over the right side of back, 9 c.m. below to inferior angle of right scapula. Margins inverted. Blackening and tattooing present around the wound.

Gun shot wound of entry 4 c.m. x 4 c.m. over the posterior surface of waist 6 cm. lateral to mid-line.

Contusion 2 c.m. x 3 c.m. over lateral surface of chest left side 20 c.m. below the right axilla."

According to the doctor, 4th and 5th ribs of the left side were fractured. There was blood in thorax cavity. Left and right lungs were lacerated. 2 oz. blood was present in peritoneal cavity. Stomach contained about 5 oz. of semi-digested food. Large and small intestines contained faecal matter and half digested food. Peritoneum was lacerated.

In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries.

Pramod Kumar, was also medically examined on the same day at 8.45 p.m. and the following injuries were found on his body :

"Fire arm wound 0.2 cm. x 0.2 cm. on the back slight right to mid line 20 cm. above the right iliac. No blackening, tattooing and scorching around the wound. Margins were lacerated."

According to the doctor, injuries were caused by some fire arm and was fresh at the time of medical examination. X-ray was advised.

After completing the investigation, charge-sheet (Ext. Ka-4) against all the accused-appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by Sessions Court, was committed to the Court of Sessions.

Accused/appellants appeared and charge under Section 302 /34 , I.P.C. was framed in the trial court against them. All the accused have pleaded not guilty and claimed their trial.

Trial proceeded, and on behalf of the prosecution, eight witnesses were examined., wherein P.W. 1 Udal Singh, informant, as eye account witness, P.W. 2 Shivendra Kumar, as eye account witness, P.W. 3 Dr. J.P. Chauhan, who examined the injured Pramod Kumar. P.W. 4 Dr. J.P. Gupta, who has conducted the post-mortem on the body of the deceased Shyam Singh and prepared autopsy report. P.W. 5 constable Ahibaran Singh, P.W. 6 Pramod Kumar, injured witness. P.W. 7 Banshi Mohan Sharma, second Investigating Officer who has proved the chargesheet (Ext. Ka-4). P.W. 8 Puran Pal Kashyap who has proved the photo lash, challan lash, letter to Chief Medical Officer and letter for post-mortem examination (Exts. Ka-8 to Ka-11), site plan (Ext. Ka-12).

After closure of prosecution evidence, statement of accused-appellants under Section 313 , Cr.P.C. was recorded.

Accused persons in their statements under Section 313 , Cr.P.C. denied the allegations and stated that they have been falsely implicated due to enmity. Accused had also stated that when they were sitting and having talks with each other at the door of Smt. Prema Devi, Shyam Singh. Aneg Singh and Udal Singh armed with country made pistol came there, hurled abuses and fired, on account of which he and one Murari Lal had sustained injuries. In self-defence, Sone Lal had also fired. The present case was instituted by the culprits with a view to save their own skin.

The defence examined Murari Lal as D.W. 1 the informant of the cross F.I.R. relating to crime No. 74A of 1980 (Ext. kha-1), Dr. M.L. Agrawal as D.W. 2, who examined the injured Murari Lal and accused-appellant Virendra Singh (since died) and prepared the injury reports (Exts. Kha-2 and Kha-3), X-ray report Ext. Kha-4 regarding injuries of accused-appellant Virendra Singh (since died), Shiv Haridas as D.W. 3. a clerk of Sub-Registrar Office, Mainpuri, who had proved the sale-deed dated 5.5.1982 said to have been executed by the informant Udal Singh in favour of one Siya Ram and Sudhir Kumar Yadav advocate as D.W. 4, who has prepared the application and affidavit of Pramod Kumar (Exts. Kha-5 and 6).

In documentary evidence, beside the above papers the appellants have also filed the certified copy of the Vakalatnama (Ext. Kha-7) filed in the lower court.

The trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused-appellants beyond reasonable doubt and convicted and sentenced the accused-appellants as above. Hence, this appeal.

We have heard Shri Ravindra Sharma and Shri Vikram Singh, learned counsel for the appellants and S/Shri Rajeev Sharma and Rahul Asthana, learned A.G.A. for the State at length.

Castigating the impugned judgment and order, learned counsel for the appellants has submitted that there was a cross version and informant''s side were also facing trial. The said cross case resulted in acquittal and no appeal has been filed against the said judgment and order. It was further submitted that the informant''s side armed with illegal fire arms had opened fires upon the appellants. Two persons, namely, Virendra Singh (since died) and Murari Lal belonging to appellants'' side had also received injuries in the same incident but their injuries were not explained by the prosecution. Therefore, presumption would be drawn against the informant side that they had suppressed the origin and genesis of the incident. Referring to the plea taken through the cross F.I.R. (crime No. 74A of 1980), it was also submitted that the motive attributed to the accused-appellants was not established by the prosecution. The prosecution witnesses have changed their version regarding mortgage of the disputed land at subsequent stage. P.W. 6 Pramod Kumar had filed application and affidavit (Exts. Kha-5 and 6) mentioning therein that the informant side were aggressor and the appellants had acted in exercise of their right to self-defence. Date, time and place of the incident are admitted to both the parties. Prosecution witnesses are relative of the deceased and inimical. P.W. 6 Pramod Kumar supported the prosecution case before the court only when a sale deed was executed by the informant in favour of a relative of Pramod Kumar. The facts and circumstances of the case also indicates that the appellant side were not aggressor, accused Sone Lal (since died) had fired upon the informant side from his licency revolver in self-defence. Referring to the injuries found on the body of accused-appellant Virendra Singh (since died) and Murari Lal, it was also submitted that the same are not superficial but are grievous in nature. Doctor examining the injured also supported the defence case that injuries found on the body of Murari Lal and Virendra could be caused at 6.30 p.m. on 14.4.1980. It was next submitted that prosecution failed to establish its case beyond reasonable doubt. From the evidence adduced by the accused-appellants, it is established that the appellants'' case was more probable than the prosecution case.

In reply, learned A.G.A. appearing for the State has submitted that date, time and place of the incident have been admitted by both the parties. Motive attributed to commit the present offence is also admitted to the parties. Deceased Shyam Singh had gone to the house of Lakhan Singh to take back his money given to Lakhan Singh. Accused-appellants armed with deadly weapons had also reached at the same time at the door of Lakhan Singh and an altercation took place between both the parties, accused-appellants had opened fires upon Shyam Singh, which also hit one Pramod Kumar, who was standing near the place of incident. Witnesses examined by the prosecution were eye-account witnesses. There was no occasion to explain the injuries said to have been sustained by the appellants side as the prosecution denied any injuries said to have been caused by them upon the appellants side. Injuries found on the body of accused-appellant Virendra (since died) and Murari Lal are superficial and manufactured. Referring to the statement of D.W. 2 Dr. M.L. Agrawal and the medical evidence adduced by '' the prosecution, it was submitted that the injuries said to have been found on the body of accused-appellant Virendra (since died) and Murari Lal could not be caused in the same incident. Referring to the statement of doctor conducting the post-mortem on the body of deceased Shyam Singh, it was also submitted that injuries upon the deceased Shyam Singh were caused by the appellants when he was trying to escape from the place of occurrence as most of the injuries are found on the back side of his body. It was next submitted that the accused-appellants were aggressor and they cannot take benefit of right of self-defence.

We have considered the submissions made by the learned counsel for the parties and have carefully perused the entire record.

Before proceeding to deal with the submissions made by the learned counsel for the parties, we would like to out-line the findings of the trial court on material points, which are as under :

"(i) The prosecution was able to establish the date, time and place of the incident.

(ii) Accused-appellants and other co-accused, namely, Sone Lal were aggressor and had caused injuries to the deceased Shyam Singh and Pramod Kumar.

(iii) Motive attributed to the accused-appellants was also established by the prosecution.

(iv) Accused-appellants have not acted in exercise of their right to self-defence.

(v) Medical evidence is not in conflict with the oral testimony of the prosecution witnesses.

(vi) Injuries said to have been found on the body of accused-appellant Virendra (since died) and Murari Lal were superficial and manufactured."

Since, both the parties have come up before the court with cross versions, therefore, we would like to refer the legal position regarding appreciation of the pleading and evidence in cross cases by citing the following case laws :

"(i) Dr. Mohammad Khalil Chisti Vs. State of Rajasthan and Others, .

(ii) Waman and Others Vs. State of Maharashtra, .

(iii) Raghubir Singh Vs. State of Rajasthan and Others, .

(iv) Jayabalan Vs. U.T. of Pondicherry,

(v) Darshan Singh Vs. State of Punjab and Another, .

(vi) Dharnidhar Vs. State of U.P. and Others, .

(vii) Krishnan Vs. State of Tamil Nadu, .

(viii) Rajpal and others v. State of Haryana, (2006) Suppl. SCC 566 : 2006 (2) ACR 1740 (SC).

(ix) Babulal Bhagwan Khandare and Another Vs. State of Maharashtra, .

(x) State of Rajasthan Vs. Bhanwar Singh,

(xi) Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, .

(xii) Sekar @ Raja Sekharan Vs. State rep. by Inspector of Police, T. Nadu, .

(xiii) Mohinder Pal Jolly Vs. State of Punjab, .

(xiv) Salim Zia Vs. State of Uttar Pradesh, .

(xv) Lakshmi Singh and Others Vs. State of Bihar, .

(xvi) Partap Vs. The State of Uttar Pradesh, .

(xvii) Abdul Sayeed Vs. State of Madhya Pradesh, .

(xviii) Rishi Kesh Singh and Others Vs. The State, .

(xix) Dalip Singh and Others Vs. State of Punjab, ."

In a full Bench decision, this Court in the case of Rishi Kesh Singh (supra), dealing with the issue of availability of right of self-defence, held in paragraph 79 that :

"The dictum of the majority of learned Judges of this Court in Parbhoo and Others Vs. Emperor, , is still good law. But, it may be elucidated that in a case in which any general exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the court affirmatively that the accused has fully established his plea of the claimed exception, he will still be entitled to an acquittal, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception), a reasonable consequential doubt is created in the mind of the court as to whether the accused is really guilty of the offence with which he is charged.

In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows :

The majority decision in Parbhoo and Others Vs. Emperor, , is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the court about the guilt of the accused."

In Mohd. Khalil Chisti''s case (supra), Hon''ble Supreme Court on the issue of availability of right of self-defence, discussing the earlier decisions, has held as under. Relevant paragraphs of the said decision are quoted below :

"30. In Lakshmi Singh v. State of Bihar, this Court held that : (SCC p. 400, para 12)

"12.... It is well-settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence."

It is clear that:

"12.... where the prosecution fails to explain the injuries on the accused, two results follow : (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.... 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.''" (Lakshmi Singh case, SCC p. 401, para 12)

It is further clear that : Lakshmi Singh case, SCC pp. 401-02, para 12)

"12.... 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.... [However,] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent,... that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."

In Waman v. State of Maharashtra, wherein one of us (P. Sathasivam, J.) reiterated the very same principles and held that : (SCC p. 306, para 36)

"36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.

In Raghubir Singh v. State of Rajasthan, the following conclusion in para 16 has been pressed into service : (SCC p. 241)

"16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act."

In Krishnan v. State of T.N. the following principles have been relied on : (SCC pp. 311-13, paras 15-17)

"15. It is now well-settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability. (Vide Partap v. State of U.P., Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab).

In Sekar v. State this Court observed : (SCC p. 355b-d)

"A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.''

The above legal position was reiterated in Rizan v. State of Chhattisgarh. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus : (SCC pp. 670-71, para 13)

"13.... Under Section 105 of the Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.... The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

In Darshari Singh case (supra), the Apex Court has held in paragraph 58 as under :

"58. The following principles emerge on scrutiny...............

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

Hon''ble Supreme Court in the matter of Abdul Sayeed (supra), discussing the earlier decision on the issue of contradiction between medical and ocular evidence, has held as under.

"30. In Ram Narain Singh Vs. State of Punjab, , this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution''s case and unless reasonably explained it is sufficient to discredit the entire case.

In State of Haryana Vs. Bhagirath and Others, , it was held as follows : "The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."

(Emphasis added)

Drawing on Bhagirath''s case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses'' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eye-witnesses'' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses'' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar Vs. State of Union Territory of Chandigarh, and Krishnan and Another Vs. State Rep. by Inspector of Police, ).

In Solanki Chimanbhai Ukabhai Vs. State of Gujarat, , this Court observed, "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

(Emphasis added)

A similar view has been taken in Mani Ram and Others Vs. State of U.P., ; Khambam Raja Reddy and Another Vs. Public Prosecutor, High Court of Andhra Pradesh, and State of U.P. Vs. Dinesh, .

In State of U.P. Vs. Hari Chand, , this Court re-iterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-�-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

Hon''ble Supreme Court in Bhanwar Singh''s case (supra), has held that "though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbablises the ocular version that can be taken to be a factor to effect credibility of the prosecution version."

The sum and substance of the legal position propounded in the case laws discussed above are as follows :

"(I) If the general exception under the I.P.C. is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the court affirmatively, he will still be entitled to an acquittal, if, upon consideration of the evidence as a whole, a reasonable consequential doubt is created in the mind of the court. Cases in which accused did not plead but the circumstance shows that right of private defence was legitimately exercised, it is open to the court to consider such a plea.

(II) Where the prosecution fails to explain the injuries on the accused, which are grievous in nature and have been sustained in the course of same occurrence, it follows that prosecution witnesses are lying on a most material point and their statement is untrue and the injuries probablise the plea of appellants and the prosecution has suppressed the origin and genesis of the occurrence.

(III) The omission on the part of the prosecution to explain the injuries, grievous in nature, on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses. In such a situation, the court looks at the prosecution case with a little suspicion.

(IV) Plea of right of private defence cannot be based on surmises and speculations.

(V) The opinion given by a medical witness need not be the last word on the subject and shall be tested by the court.

(VI) Where the eye-witness account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive.

(VII) Unless the oral (ocular) evidence is totally irreconcilable with the medical evidence, it has primacy.

(VIII) Where the medical evidence totally improbablise the ocular version, that can be taken to be a factor to effect credibility of the prosecution version."

In the present case, defence version, as per the chik F.I.R. (Ext. Kha-1) is that on 15.4.1980 one. Murari Lal, who is said to be injured in the incident dated 14.4.1980 itself, moved written report scribed by Virendra Singh to the concerned police station mentioning that on 14.4.1980 at about 7.00 p.m., he alongwith Sone Lal and others were sitting at the residence of Prema Devi and were talking about purchase of agricultural land. Accused-appellant Virendra Singh (since died), Rakesh Chandra, Bachchan and Sunahri were also present there. In the meantime, Shyam Singh, a military-man, Aneg Singh and Udal armed with country made pistol came there and hurled abuses to Sone Lal and uttered that how Sone Lal will purchase the land of Prema Devi, the said land will be purchased by them. Sone Lal said that it was the discretion of Prema Devi to whom she wants to sell her property. On this, quarrel started and Shyam Singh gave threat. Shyam Singh, Aneg Singh and Udal Singh, with an intention to kill, fired from country made pistols, which hit Murari and Virendra. Firing took place in defence also. On hue and cry, Tej Singh, Ram Dulare, Diwari Lal and Promod reached there who intervened. They could not go to concerned police station for lodging F.I.R. on the same day as they (accused) had blocked the way. Informant and Virendra Singh were medically examined.

Now, we proceed to deal with the submissions raised by the learned counsel for the parties.

As is evident from the evidence adduced by both the parties, place of occurrence is the house of Lakhan Singh, a family member of the Prema Devi. Date and time of the incident are also admitted to both the parties. It is also admitted that before the incident having taken place, an altercation took place between the parties regarding purchase of the land belonging to Prema Devi. It is also admitted case of the accused-appellants that they had gone to the place of occurrence with licency revolver. House of the accused Sone Lal (since died) is adjacent to the house of Lakhan Singh, where the incident took place. Similarly, house of the deceased Shyam Singh is also situated within few paces away from the place of occurrence separated from a lane. Alarm raised from the place of occurrence could easily be heard from the house of the deceased. P.W. 1 Udal Singh was initially not present on the spot but when he heard the noise, he reached the spot. P.W. 2 Shivendra Kumar is a chance witness. He has explained the reason satisfactorily for his presence on the spot. Similarly, P.W. 6 Pramod Kumar, who is also a chance witness, has satisfactorily explained the reason of his presence on the spot at the time of the incident. Statement under Section 161 , Cr.P.C. of P.W. 6 was recorded by the Investigating Officer on 14.4.1980 itself at concerned police station. In the said statement, he has supported the prosecution case. Application and affidavit (Exts. Kha- 5 and Kha-6) said to have been filed, are of 8.5.1980, in which he has not supported the prosecution case, yet he has admitted that he received injuries in the same incident when he was escaping from the place of occurrence. Again on 5.5.1982, this witness has supported the prosecution case during the course of examination before the court. Informant Udal Singh has executed a sale deed of agricultural land in favour of one Siya Ram, said to be relative of Pramod Kumar (P.W. 6) on 5.5.1982 itself. As per the prosecution case, the dead-body of the deceased Shyam Singh was brought from the place of occurrence to his house where the inquest report was prepared on 15.4.1980 at the same place. F.I.R. at Crime No. 74 of 1980 in the present case was registered on the day of the incident at 8.15 p.m. against Sone Lal, Sudhir and Virendra. Cross F.I.R. relating to Crime No. 74A of 1980 was registered on the next day of the incident.

Prosecution case is also that the deceased was not armed with any weapon. He had gone to make request to return his money given in advance to Lakhan Singh in respect of the mortgaged property. Thus, from the facts mentioned above, following questions arise before the court for consideration :

"(a) As to whether fires were made by the informant side upon the accused-appellants on the date, time and place of occurrence.

(b) As to whether accused-appellants had fired upon the deceased in exercise of right of self-defence.

(c) Who was aggressor in the present matter?

(d) As to whether in the facts and circumstances of the case, exercise of right of self-defence by the appellants emerged.

(e) As to whether the injuries on the body of Murari Lal and accused-appellant Virendra (since died) are superficial/manufactured or the same have been actually caused in the same incident."

Now, the court proceeds to take-up the medical evidence.

Prosecution case is that initially accused Sone Lal (since died) opened fire from his revolver upon the deceased, which hit him on his eyes, another fire said to have been made by the revolver, hit P.W. 6 Pramod Kumar. P.W. 4 Dr. J.P. Gupta had found one lacerated wound on the outer side of the right eye, one exit wound on the chest of the deceased. Injury Nos. 3, 4 and 5 found on the body of the deceased are entry wounds, which are caused on the back of the deceased. Injury No. 6 is also on the back of the deceased. On close scrutiny of the injuries found on the body of the deceased, it is evident that except injury No. 1, 2 and 7, all other injuries were caused upon the deceased on his back. Injury No. 2 is exit wound, which is the result of entry wound caused at the back of the deceased. In what manner P.W. 6 Pramod Kumar received injuries in the present incident is not material, as both the parties have admitted that P.W. 6 Pramod Kumar received injuries in the same incident. Prosecution case is also that having received threat from Sone Lal when deceased Shyam Singh was trying to escape from the place of occurrence, accused-appellants opened fires upon him. In our considered opinion, this fact finds support from the statement of P.W. 4 Dr. J.P. Gupta as most of the injuries found on the body of the deceased were caused on his back and this is possible only when he was attacked from behind.

As far as the injuries found on the body of injured Murari and accused-appellant Virendra Singh (since died) in cross version are concerned, they were examined on 15.4.1980 at 12.00 O''clock and 12.10 p.m., respectively. As per the statement of D.W. 2 Dr. M.L. Agrawal, accused-appellant Virendra Singh (since died) and Murari Lal were medically examined by him as a private case. Two gun shot wounds were found on the body of Virendra Singh. One was on his left index finger and another was at the root of left thumb. On the body of injured Murari Lal, three gun shot wounds were found by D.W. 2, one on the right side of trunk and second on right part back 2 cm. right from middle 2 cm. below the injury No. 1. Third injury was on his inner side of right arm, 2 cm. above elbow joint. In both the injury sheets, it was mentioned by the D.W. 2 Dr. M.L. Agrawal that injuries would have been inflicted by pellets discharged from fire arms from the close range and duration about half day old. This witness has also stated that there was fracture in the left hand index finger. He had also found that injuries found on the body of accused-appellant Virendra Singh (since died) and Murari Lal might be caused on 14.4.1980 at about 6.30 to 7.00 p.m. In the cross-examination, this witness has admitted that there may be variation of six hours in the timing of the injuries on either side, if the injuries are one day old but if the injuries are of six hours old, there may be variation of time only 1-2 hours on either side. He has also stated that if the injuries are only half day old, the margin will be of only 2-3 hours.

Since plea has been taken on behalf of the State that injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) are superficial and manufactured, therefore, in our view, it is necessary to ascertain the duration of the injuries caused upon their bodies.

As is clear from the injury reports as well as from the statement of D.W. 2 Dr. M.L. Agrawal that both the injured had voluntarily gone to the Doctor for medical examination on 15.4.1980. No information was sent to the concerned police station by the doctor conducting the medical examination regarding the injuries said to have been sustained by Murari Lal and accused-appellant Virendra Singh (since died) who were examined at 12.10 p.m. and 12.00 O''clock on 15.4.1980. If the statement of Dr. M.L. Agrawal regarding duration of the injuries is taken into consideration, it is admitted fact that the injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) were only half day old. If maximum two to three hours margin is taken in to consideration in the present matter regarding duration of the injuries, as has been stated by the D.W. 2 Dr. M.L. Agrawal, the time of injuries caused on the body of Murari Lal and Virendra Singh would be about 9:00 p.m. to 10.00 p.m. on 14.4.1980. The trial court while discussing this point, has observed that injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) were not caused in the same incident and they are manufactured and superficial. The trial court had also taken into consideration the statement of D.W. 2 Dr. M.L. Agrawal that edges with lymph and blood join within 12 hours. In the light of the submission made by the learned counsel for the appellants and respondent State and also the finding given by the trial court, we have minutely analysed the statement of D.W. 2 Dr. M.L. Agrawal. It is found that D.W. 2 himself has admitted that edges of wound of Virendra Singh and Murari Lal had not joined with lymph and blood. This fact stated by D.W. 2 also creates doubt about the duration of the injuries found on the body of Murari Lal and Virendra Singh. When edges had not joined, it means, injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) were not caused on 14.4.1980 at 6.30 p.m. If the injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) had not been caused on 14.4.1980 between 6.30 p.m. to 7.00 p.m., we are in full agreement with the view of the trial court that there was no occasion to explain the injuries found on the body of Murari Lal and accused-appellant Virendra Singh (since died) by the prosecution. Whether the injuries said to have been sustained by the accused-appellant Virendra Singh (since died) and Murari Lal are minor and superficial or grievous in nature is not material as they have not been caused in the course of same occurrence. Non-explaining the injuries of accused-appellant Virendra Singh (since died) and Murari Lal are not fatal to the prosecution case, as the prosecution was not obliged to explain the same. Hence, the plea taken by the learned counsel for the appellants is not acceptable.

The settled legal position is that if the appellant failed to establish the plea of self-defence, then also if from the evidence adduced by the prosecution itself circumstances of exercise of right of self-defence is emerged, the benefit can be extended to the appellant. Similarly, the prosecution has to stand on its own leg and has to prove its case to the hilt beyond reasonable doubt. Deficiencies in the plea taken by the accused-appellant would not help to the prosecution.

In the present matter, as we have discussed above, the injuries found on the body of deceased Shyam Singh were caused while he was trying to escape from the place of occurrence. On close scrutiny of statement of prosecution witnesses, i.e., P.W. 1, P.W. 2 and P.W. 6, it is clear that at the time of incident deceased Shyam Singh was not armed with any weapon. P.W. 1 Udal Singh, who reached the spot after hearing hue and cry, was also empty handed. The statements of prosecution witnesses also find support from the medical evidence. Conduct of P.W. 6 Pramod Kumar though appears suspicious but he was interrogated by the Investigating Officer on the very same day of the incident itself and he had supported the prosecution case. When he was examined before the court on oath, he also supported the prosecution case.

It is true that a sale deed was executed by P.W. 1 Udal Singh in favour of one relative of P.W. 6 Pramod Kumar on the date of deposition before the court. This fact creates doubt about the credibility of this witness. At one point of time, he supported the prosecution case and at another point of time, he filed affidavit in support of the defence, and again before the court he supported the prosecution case. Execution of sale deed in favour of one relative of this witness, places him in the category of "neither wholly reliable nor wholly unreliable" witness. It may be noted here that both the sides have admitted that this witness had received injuries in the same incident, therefore, presence of this witness on the spot at the time of occurrence is not disputed. It is possible that after recording the statement under Section 161 , Cr.P.C. by the Investigating Officer, he was won over by the appellant side and for this reason, he had filed affidavit in support of the appellant side. Since P.W. 6 Pramod Kumar has been placed in the category of "neither wholly reliable nor wholly unreliable witness", therefore, statement of other eye account witnesses has to be scrutinized more carefully.

In the fact and circumstances, we have carefully and cautiously scrutinized the statement of P.W. 1 Udal Singh, the father of the deceased Shyam Singh. The present incident took place in the evening. House of PW 1 is situated few paces away from the place of occurrence separated only by a lane. Presence of this witness at his door at the time of incident is not improbable or unnatural. A perusal of site plan and the statement of this witness make it clear that noise or sound made from the place of occurrence could easily be heard from the door of P.W. 1, who was said to be present at his door at the time of altercation. It was the normal human conduct of P.W. 1 that when he heard the altercation from the place of occurrence, he rushed to the spot immediately. Looking to the distance of his house from the place of occurrence, it is natural and probable that he would have reached the spot immediately during course of altercation itself and had seen the incident. The fact stated by this witness on material points also finds support from the medical evidence. Therefore, merely on the ground that P.W. 1 is the father of the deceased Shyam Singh, his testimony cannot be thrown out. The testimony of an eyewitness merely because he happens to be a relative of the deceased cannot be discarded as close relatives would be the last one to screen out the real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh (supra). This aspect of the matter has further been clarified by the Apex Court in the case of Dharnidhar (supra), as follows :

"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan Vs. U.T. of Pondicherry, , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."

As far as the presence of P.W. 2 Shivendra Kumar on the spot at the time of occurrence is concerned, he has admitted in cross-examination that he was one of the contestants in the election of Gram Panchayat against Sone Lal (since died). This fact itself is not sufficient to hold that this witness told lie before the court, particularly when the testimony of this witness is supported from the medical evidence. This witness has explained the reason for his presence on the spot at the time of occurrence. He had been cited as eye-witness in the F.I.R. itself. The trial court has rightly placed reliance on the statement of this witness treating him an eyewitness of the incident. It is necessary to mention here that some of the witnesses cited in the written report have not been examined by the prosecution but non-examination of those witnesses is not fatal to the prosecution as the prosecution case is supported from the testimony of P.W. 1 and P.W. 2, who are eye account witnesses.

Thus, on close scrutiny of the statements of witnesses as well as the evidence available on record, we are of the view that fires were not made by the informant side upon the accused-appellants on the date, time and place of occurrence; accused-appellants had fired upon the deceased and were aggressor and they have not acted in exercise of right of self-defence in the present matter. Accused-appellants Sudhir Kumar and Virendra Singh (since died) and other co-accused Sone Lal (since died) opened fire upon the deceased Shyam Singh, which also hit one Pramod Kumar. Deceased Shyam Singh died due to injuries caused by the accused-appellants in the present incident. Exercise of right of self-defence by the appellants does not arise. The injuries on the body of injured Murari Lal and accused-appellant Virendra Singh (since died) are superficial and manufactured. Motive, though not specifically challenged, attributed to the accused-appellants is fully established from the prosecution evidence.

Now, we come to the role assigned to the accused persons said to be involved in the present matter.

We have closely examined the prosecution evidence. Co-accused Sone Lal (since died) had opened fire from his revolver, which hit the deceased Shyam Singh on his eyes. This fact finds support from the medical evidence. Another fire made by Sone Lal hit P.W. 6 Pramod Kumar, which is also supported from medical evidence. Other accused-appellants, namely, Sudhir Kumar and Virendra Singh (since died) have also opened fires from the weapons assigned to them on the exhortation of Sone Lal. The injuries found on the body of the deceased Shyam Singh also find support from the statement of doctor conducting the post-mortem. When the deceased Shyam Singh was trying to escape from the place of occurrence, accused-appellants opened fires upon him. The deceased was unarmed. He died on the spot due to injuries caused by accused-appellants and other co-accused. Charge under Section 302 , I.P.C. was framed against the accused-appellant Sudhir Kumar. Specific role of appellant Sudhir Kumar for causing fire arm injuries upon the deceased is also established from the prosecution evidence. Attending circumstances as emerged in this case as discussed above establish the common intention of the accused persons to cause death of the deceased Shyam Singh. There is no illegality or infirmity in the findings recorded by the trial court in the impugned judgment and order. The trial court has rightly held the accused-appellant Sudhir Kumar guilty under Section 302 /34 , I.P.C. and sentenced him for life imprisonment.

Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, we are of the view that the impugned judgment and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused-appellants beyond reasonable doubt. As such, the impugned judgment and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed.

Accordingly the present criminal appeal is dismissed.

The conviction and sentence imposed upon the accused-appellant Sudhir Kumar vide impugned judgment and order dated 14.2.1983 is hereby confirmed.

The accused-appellant Sudhir Kumar is on bail. His personal and surety bonds are cancelled and he is directed to surrender before the Chief Judicial Magistrate concerned forthwith, who shall take him into custody and send him in jail for serving out the remaining sentence imposed upon him by the trial court. In case he fails to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against him in this regard. Copy of this judgment alongwith lower court record be sent forthwith to the Sessions Judge, Mainpuri for compliance. Compliance report be also submitted to this Court.