http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

CASE NO.:

Appeal (crl.) 320 of 2000

PETITIONER:

KASHI RAM AND ORS.

RESPONDENT:

STATE OF M.P.

DATE OF JUDGMENT: 17/10/2001

BENCH:

DR. A.S. ANAND C.J. & R.C. LAHOTI & ASHOK BHAN

JUDGMENT:

JUDGMENT

2001 Supp(4) SCR 263

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Eight accused persons were tried by First Additional

Sessions Judge, Morena, Madhya Pradesh on charges under Sections 148, 302,

302 read with 149, 324 read with 149, IPC and Sections 25 and 27 of Arms

Act, 1959. On trial, the Sessions Court acquitted all the accused of the

offences charged against them. The State of Madhya Pradesh, feeling

aggrieved by the judgment of acquittal, preferred an appeal before the High

Court. It appears that Inderlal alias Indera son of Kashiram (accused-

respondent No.2 before the High Court) expired during the pendency of

appeal. A Division Bench of the High Court has allowed the appeal and set

aside the acquittal of the accused persons and instead convicted accused-

respondent Ramesh under Section 302/ 149 IPC, 148 IPC and Section 27 of the

Arms Act; accused Nanakram under Section 148 IPC and Section 27 of the Arms

Act; accused Kashiram and Teekaram, each under Section 148 and Section

324/149 IPC; accused Suresh and Ratna, each under Section 147 and Section

323/149 IPC and sentenced each of them to various terms of imprisonment.

Accused Ramesh, of course, has been sentenced to life imprisonment with a

fine Rs. 5,000 for offence under Section 302/149 IPC, in default of payment

of fine to rigorous imprisonment for six months, to one year R.I. under

Section 148 IPC, and to one year RI under Section 27 of the Arms Act, all

the sentences made to run concurrently. As to accused Prabhu, the High

Court has held, that he inflicted a farsa injury on the head of Mahendra,

but as the prosecution has not properly explained the injuries of Prabhu,

he can be held to have acted in self-defence and therefore he deserves to

be acquitted. His acquittal has not been challenged by State by filing an

appeal.

The complainant and the accused persons are all residents of Village

Jaitpur, P.S. Bagchini, District Morena, Madhya Pradesh. Sundera, PW7 and

Siya Ram, PW9 are real brothers. Lakhan and Bindawan who died in the

incident were the sons of their another brother Jagannath. Mahendra, PW8 is

also son of late Jagannath i.e. he is real brother of the two deceased.

Thus the two person who died in the incident and all the injured on the

prosecution side and appearing as eye witnesses are related with each

other.

Accused Ramesh, Tika Ram, Prabhu and Bhabhuti were real brothers and

resided jointly. Accused Ratna is the son of Bhabhuti. Nanak Ram and Suresh

Accused are the sons of Prabhu. Kashi Ram and Inder Lal were also related

to each other though separated by a few degree of relationship. Thus all

the accused persons are related with each other.

According to the prosecution, on 2.10.1984, at about 11 a.m., accused

Ramesh brought in the Village a trolley, attached to a tractor, loaded

with' mustard straw. Accused, Teekaram, Nanakram, Prabhu, Suresh and Ratna

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

started unloading the mustard straw and spreading the same on common

pathway of the village. Sundera, PW-7 and deceased Brindawan protested

against this act of the accused persons saying that filth and dirt would be

caused in the village by the mustard straw. This enraged accused Ramesh who

asked the boys to come out with lathis, farsa and gun. Accused Ramesh

himself brought a 12 bore gun. Accused Inderlal and Nanakram brought

rifles. Accused Kashiram, Prabhu and Teekaram brought farsas. Accused

Suresh and Ratna came out armed with lathi. Accused Suresh and Ratna

assaulted deceased Brindawan with lathis. Sundera, PW-7 and Siyaram, PW-9

tried to intervene and save Brindawan. At the same time Mahendra Singh,

PW-8 also came at the scene of occurrence. Accused Kashiram dealt a farsa

blow on the head of Sundera, PW-7. Accused Suresh and Ratna also assaulted

Sundera, PW-7 with lathis. Siyaram, PW-9 was dealt a farsa blow on his head

by accused Teekaram. Prabhu inflicted a farsa injury on the head of

Mahendra Singh, PW-8. Sundera, Siyaram, Mahendra Singh, Brindawan, Lakhan -

all ran towards their houses. At that point of time, accused Inderlal fired

from his rifle which caused injuries to Lakhan who fell down and died.

Accused Ramesh fired with his gun causing injuries to Brindawan who also

fell down. A woman named Jamuni Dhoban (washerwoman), who had nothing to do

with the incident, happened to be at the scene of occurrence. A gunshot by

Ramesh, though aimed at Sundera, PW-7, accidentally hit Jamuni Bai causing

injury in her stomach. She fell down and died. The village people started

assembling on hearing the hue and cry whereupon the accused persons took to

their heels and escaped away.

At 3. p.m., a wireless message was received at Police Station Bagchini

according to which a clash between two rival parties, resulting in murder,

had taken place at Village Jaitpur. The official present at the police

station flashed a message to the Station Officer, who had gone to Morena,

the district head-quarters, requiring him to reach Village Jaitpur. The

police force was kept ready to move to Jaitpur. ASI, S.M.Sharma left the

police station for Village Jaitpur at 3.30 p.m. accompanied by police force

and requisite arms and ammunition. Parallel to these movements, Ram Gopal,

the village Sarpanch, who did not have any knowledge of the details of the

incident had reached the scene of occurrence and found accused Prabhu lying

injured near his house. Prabhu was unable to speak and to give any

information about the incident. Sarpanch Ram Gopal took injured Prabhu to

the police station wherefrom Prabhu was sent to a hospital at Bagchini so

as to have him treated for the injuries as also for medico-legal

examination. Though, this factum was recorded in general diary of the

police station, an FIR of the incident could not be recorded as no

information as to any happening amounting to a cognizable crime could be

given either by Prabhu, who was unable to speak or by Sarpanch Ram Gopal,

who was ignorant of what had really happened.

ASI, S.M. Sharma, reached the scene of occurrence at about 6 p.m. There,

Sundera, PW-7 narrated the incident to him which was taken down by ASI,

S.M. Sharma as first information report of the incident. The same was sent

to the police station and based thereon an offence under Sections 302, 307,

147, 148, 149, 452, IPC was registered and investigation commenced.

Postmortem on the dead bodies of three persons, who had died in the

incident, and medico-legal examination of other injured persons were

conducted by Dr. R.S. Sikarwar, PW-1. It is necessary to notice the details

of injuries as stated by Dr. R.S. Sikarwar and his opinion as it would have

a material bearing on the result of the case.

Postmortem on the dead body of Jamuni Bai was conducted at 8.30 a.m. on

4.10.1984. On external examination, Jamuni Bai was found to have sus-tained

a punctured wound with inverted margins, circular in shape, size 4 x 4.5

c.m. situated on left side of abdomen, 20 c.m. below the left nipple. In

the mid of the intestine four pellets were found embedded. On internal

examination, right and left lungs were found to have been injured and

reddish blood fluid was coming out from the cut surfaces thereof. There was

fluid of reddish colour in the abdnominal cavity. Small intestine was

ruptured. Four pellets were removed from inside the small intestine which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

were sealed and handed over to the police. The cause of death was excessive

bleeding and shock due to gunshot injury. The injury was homicidal and

sufficient in the ordinary course of nature to cause death.

On the same day, at 9.45 a.m., postmortem was conducted on the dead body of

Lakhan. There was two external injuries: (i) a gunshot lacerated wound,

size 1 c.m. x 1 c.m. on the posterior part of the right thigh; the margins

were rounded and inverted; this was the wound of entry of the bullet; and

(ii) a gunshot lacerated wound - the wound of exit, on inner side of right

thigh, size 20 x 10 c.m. The track of the wound, from the point of entry to

the point of exit, passed through injuring the skin, muscle, blood veins,

nerves and bones of thigh. The internal damage was confirmed on internal

examination. The injuries were sufficient in the ordinary course of nature

to cause death. The death was homicidal and had occurred due to excessive

bleeding as a result of gunshot.

At 11.20 a.m. on the same day, postmortem on the dead body of Brindawan was

conducted. On external examination the following injuries were found :-

1. Wound of entry of pellets 37 in number on right thigh as a result of

gunshot. The size of the wounds varied from 5 cm. to 5 inches. The shape of

the injuries was rounded and margins were inverted. Some of the injuries

superficial while some of the injuries were deep upto the mus-cles;

2. One lacerated wound, size 4 x 3.5 x 12.5 cms. on right thigh,

margins inverted, 28 pellets and one foreign body were found in the rear

side of the thigh, deep in the muscles;

3. An abrasion, 3 x 1 c.m., on ante medial aspect of right knee;

4. An abrasion, 2 x 1 c.m., on anterior aspect of patella;

5. An abrasion, 5 x 1.5 c.m., on the patella bone of the left knee.

The first two injuries were gunshot wounds. The track of the wounds had

damaged the muscles, blood veins and soft tissues. The direction of the

injury was from left to right obliquely upwards. Abrasions were caused by

hard and blunt weapons. All the injuries were ante mortem. Twenty-eight

pellets were taken out from the wounds, sealed in a packet and sent to the

police station. The cause of death was haemorrhage which had occurred due

to wounds of entry of the pellets. The injuries were ante mortem.

Sundera, PW-7 was examined on 3.10.1984 and was found to have sustained the

following injuries :-

(1) An incised wound size 2" x 1/2" x 1/2" present at lower part of the

head caused by sharp cutting object. Such injury could be caused by farsa

or sword. In case the knife is straightened, then also such injury can be

caused.

(2) A contusion size 2" x 1" present on medial aspect of right arm.

(3) A contusion size 2" x 1" present on left arm at lateral aspect.

(4) An abrasion 1/4" x 1/4" x 1/4" present on superior aspect of left

shoulder joint.

(5) A swelling size 1" x 1/2" present on left thumb.

(6) A contusion size 3" x 1" present on left gluteus region. Injuries no.

2 to 6 could be caused by hard on blunt object like lathi.

On 3.10.1984, Mahendra Singh, PW-8 was also examined and found to have

sustained the following injuries:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

(1) An incised wound 4" x 1/2" x 1/2" present transversally on the

superior aspect of middle of the scalp. Injury caused by sharp and cutting

object.

(2) A swelling size 1/2" x 1/2" present on dorsal aspect of right thumb.

(3) A swelling size 2" x 2" present on inner side of left wrist.

Injuries no. 2 and 3 could have been caused by hard and blunt object while

injury no. 1 was caused by some sharp edge weapon. On x-ray being taken,

Mahendra Singh was found to have sustained fracture of lower portion of

ulna bone of left hand. The injury on the left wrist of Mahendra Singh was

found to be grievous in nature while other injuries were simple in nature.

On 3.10.1984, Siyaram (PW-9) was also examined and found to have sustained

the following injuries :-

(1) An incised wound size 1" x 1/2" x 1/2" x 1/2" present on occipital

region (back part) of the head.

(2) An abrasion size 1" x 1/2" x 1/4" present on ante surface of the left

leg.

(3) An abrasion size 1-1/2" x 1/2" x 1/4" present on ante surface of the

left leg along with swelling.

Injury no. 1 was caused by sharp cutting weapon while injuries no. 2 and 3

was caused by hard and blunt object.

In the opinion of Dr. R.S. Sikarwar, all the injuries sustained by the

three deceased and other three injured persons could have been caused at

the time of the incident.

Accused Prabhu was examined by Dr. N.K. Bhardwaj, Assistant Sur-geon,

District Hospital, Morena (DW-2), on 2.10.1984, on being referred by P.S.

Bagchini, accompanied by Constable Ram Dayal. He was found to have

sustained the following injuries :-

(1) Incised wound, size 3" x 1" x 1/2", on the left side of head, caused by

sharp edged weapon.

(2) Contusion on left forearm size 3" x 3-1/2", caused by hard and blunt

weapon.

(3) Contusion on left chest size 2" x 1-1/2", caused by hard and blunt

weapon.

(4) Contusion on the right side of the chest 2" x 1", caused by hard and

blunt weapon.

(5) Injury below the chin on the right side size 1/2" x 1/4" x 4".

Dr. Bhardwaj opined that injuries no. 3, 4 and 5 were simple in nature

while injuries no. 1 and 2 were referred for x-ray examination. Dr.

Yogendra Singh, DW-3, did the x-ray of the head and the right forearm of

Prabhu and found that there was fracture of frontal bone with radio opaque

shadow below mandible area. There was also fracture of styloid process of

radium in fore arm in front side. The radio opaque shadow of rounded

metallic density below mandible area could be due to any pellet etc. A

foreign body was found to be present there.

According to the medical opinion, as brought on record by the prosecu-tion

and the defence witnesses, the injuries sustained by those who had died or

were injured on the side of the prosecution as also the injuries sustained

by the accused Prabhu could have been caused at or about the time of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

incident. In fact, during the course of hearing, it was not disputed that

the injuries on both sides were sustained during the course of the same

incident. This has also been the stand of the parties in the Trial Court as

also before the High Court.

On behalf of the prosecution, there were 13 witnesses examined includ-ing

Sundera, PW-7, Mahendra Singh, PW-8 and Siyaram, PW-9. On the side of the

defence, the two doctors referred to hereinabove and Ram Gopal, DW-1 who

had taken Prabhu to the police station, were examined.

A perusal of the judgment of the Trial Court shows that the prosecution

witnesses were confronted with the factum of the accused Prabhu having

sustained injuries in the same incident but none of the prosecution

witnesses offered any explanation or stated circumstances in which accused

Prabhu might have sustained injuries. D.D. Sharma, PW-12, who had

investigated into the incident admitted that during the investigation he

had found that the injuries sustained by accused Prabhu were so sustained

in that very occurrence. How-ever, he made no effort at contacting the

accused Prabhu and recording his statement.

The Trial Court made an effort at finding out the location of the place of

the incident by appreciating evidence in this regard. The site plan, Exbt.

P/23 indicated the place wherefrom accused Ramesh had fired his gun as that

which was just below the neem tree, outside his house. The place at which

Jamuni Bai's blood had fallen was just in front of the house of the accused

Ramesh. The recovery memo, Exbt. P/36 showed the place wherefrom empty

cartridges of mouser and 12 bore gun were recovered was near a neem tree

standing in front of, and just outside, the house of accused Ramesh. A few

pellets of 12 bore were found embedded in the mud wall of Nadira adjacent

to the house of Bhagwan Lal, which is in front of the house of accused

Ramesh. Tika Ram, PW 10 who had reached the scene of occurrence soon after

the incident had found dead body of Jamuni Dhoban lying at the door of

Bhagwan Lal which is in front of the house of Ramesh and Brindawan. Injured

Brindawan and Lakhan were also lying at a distance of 4 to 5 yards away

from Jamuni Dhoban. This indicated that injuries of all the three persons

who died in the incident were caused when they were in front of the house

of the accused Ramesh and in all probability the gun and the mouser were

fired from or near the house of accused Ramesh. The prosecution case that

the place of incident was situated near the houses of prosecution witnesses

Sundera, Siyaram and Mahendra Singh was thus circumstantially belied. The

trial Court held that there was an unsuccessful attempt on the part of the

prosecution witnesses to shift the place of incident from near the house of

accused Ramesh to a distant place near the houses of the prosecution

witnesses. The Trial Court minutely examined the nature of the injuries

especially their location on the parts of the bodies of the injured in the

light of testimony of Dr. R.S. Sikarwar, PW 1 and found that the gun shot

wounds were inflicted by accused Ramesh in a sitting posture and that is

why the track of pellets in gun shot wounds was from lower part of the body

of injured to upwards. Disbelieving in part the statements of three eye-

witnesses, i.e., Sundera, Siya Ram and Mahendra Singh and on a cumulative

effect of four prominent features of the case, i.e., non-examination of any

independent witness, the testimony of the prosecution witnesses having been

found to be unreliable as to genesis of the incident, an unsuccessful

attempt on the part of the prosecution witnesses to shift the place of the

incident and complete non-explanation by the prosecution witnesses of the

injuries sustained by accused Prabhu, the learned Trial Judge drew an

inference that the members of the prosecution party had opened an attack on

the accused Prabhu and accused Ramesh had fired in exercise of right of

private defence of the person of accused Prabhu. Relying on a number of

decisions of this Court and Madhya Pradesh High Court, dealing with the

effect of non-explanation of injuries of accused person by prosecution

witnesses, the learned Trial Judge concluded that none of the accused

persons could be said to have committed any offence and whatever they did

was protected by Section 95 of Indian Penal Code. All the accused persons

were therefore directed to be acquitted of the offences charged.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

A perusal of the judgment of the High Court shows that the findings arrived

at by the High Court are oscillating to some extent. Vide para 41, the High

Court has held that there was no evidence to suggest the attack having been

opened by the complainant's side and it appeared to be "natural" that the

accused persons "had arrived at the place of the incident armed with deadly

weapons and the complainant's side must have resisted the attack and while

making such resistance, the accused Prabhu had also received some

injuries". Vide para 44, the High Court has criticised the defence for the

plea of self-defence having not been specifically taken by any of the

accused persons in their statements under Section 313 of Cr.P.C. and also

accused 'Prabhu' for having 'not dared to examine himself as a defence

witness'. Vide para 57, the High Court has expressed an opinion that even

taking the worst side of the prosecution case and the probable defence of

the accused-respondents as sug-gested to the prosecution witnesses, if it

is presumed that any of the injured had caused some injuries to accused

Prabhu and accused Ramesh was compelled to fire at deceased Brindawan in

defence of accused Prabhu even then there was no justification to fire

another gun shot by accused Ramesh towards complainant Sundera which

accidentally hit Jamuni Bai and therefore "by no stretch of imagination" it

can be presumed that accused Ramesh had fired in self-defence of his

brother Prabhu. The High Court has concluded by saying "since none of the

accused-respondents had taken a specific plea in their examination under

Section 313 Cr.P.C. that the injured had come to assault them at their

house and they were compelled to fire in self-defence, the theory of self-

defence all the more becomes baseless and false". Strangely enough, vide

para 63, the High Court holds - "further in our opinion although it is

alleged against accused respondent Prabhu that he inflicted a farsa injury

on the head of Mahendra, but since injuries of Prabhu were not properly

explained by the prosecution, his act of causing injury to Mahendra may be

justified in self-defence. In these circumstances, Prabhu alone deserves

benefit of doubt from the charges levelled against him".

At the hearing the learned counsel for the accused-appellants submitted

that the factum of accused Prabhu having sustained serious injuries

including those on vital part of the body was well established and the

trial court as also the High Court have not doubted such injuries having

been received by the accused Prabhu in the same incident in which those on

the side of the pros-ecution suffered the injuries and such injuries of

Prabhu having not been explained by the prosecution witnesses, the

prosecution story should have been discarded and all the accused persons

should have been acquitted. In our opinion such a submission is too tall a

submission and hence cannot be ac-cepted. In State of U.P. v. Mukunde Singh

and Ors., [1994] 2 SCC 191, it has been held that merely on the ground that

the prosecution witnesses have not explained the injuries on the accused,

the evidence of the prosecution witnesses ought not to be rejected

outrightly if the Court finds it probable that the accused might have acted

in exercise of right of self-defence, the Court ought to proceed to

consider whether they have exceeded the same. In Thakhaji Hiraji v. Thakore

Kubersing Chamansing and Ors., [2001] 6 SCC 145, this Court has held that

Court ought to make an effort at searching out the truth on the material

available on record with a view to find out how much of the prosecution

case was proved beyond reasonable doubt and was worthy of being accepted as

truthful and the approach of rejecting prosecution case in its entirety for

non-explanation of the injuries sustained by the accused persons is

erroneous. This Court further held, "It cannot be held as a matter of law

or invariably a rule that whenever the accused sustained an injury in the

same occurrence, the prosecution is obliged to explain the injury and on

the failure of the prosecution to do so the prosecution case should be

disbelieved. Before non-explanation of the injuries on the persons of the

accused persons by the prosecution witnesses may affect the prosecution

case, the court has to be satisfied of the existence of two conditions: (i)

that the injuries on the person of the accused were of a serious nature;

and (ii) that such injuries must have been caused at the time of the

occurrence in question. Non-explanation of injuries assumes greater

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

significance when the evidence consists of interested or partisan wit-

nesses or where the defence gives a version which competes in probability

with that of the prosecution.".

We find the judgment of the High Court suffering from several infirmi-ties.

The High Court was dealing with an appeal against acquittal. Though the

High Court while hearing an appeal against an acquittal has powers as wide

and comprehensive as in an appeal against a conviction and while exercising

its appellate jurisdiction the High Court can re-appraise the evidence,

arrive at findings at variance with those recorded by the trial court in

its order of acquittal and arrive at its own findings, yet, the salutary

principle which would guide the High Court is - if two views are reasonably

possible, one supporting the acquittal and the other recording a

conviction, the High Court would not interfere merely because it feels that

sitting as a trial court its view would have been one of recording a

conviction. It follows as a necessary corollary, as has been held by this

Court in Chandu v. State of Maharashtra (2001) 4 Scale 590, it is

obligatory on the High Court while reversing an order of acquittal to

consider and discuss each of the reasons given by the trial court to acquit

the accused and then to dislodge those reasons. Failure to discharge this

obligation constitutes a serious infirmity in the judgment of the High

Court.

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 sus-tained 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 preponder-ance 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 Thakkar v. State of Gujarat, AIR (1964) SC 1563;

State of Punjab v. Gurbux Singh and Ors., [1995] Suppl. 3 SCC 734, Vijayee

Singh v. State of U.P, AIR (1990) SC 1459). 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 threfore 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".

The High Court was also not right in criticising and discarding availabil-

ity of plea of self defence to the accused persons on the ground that the

plea was not specifically taken by the accused in their statements under

Section 313 Cr.P.C. and because the accused Prabhu did not enter in the

witness box. Though Section 105 of the Evidence Act enacts a rule regarding

burden of proof but it does not follow therefrom that the plea of private

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

defence should be specifically taken and if not taken shall not be

available to be considered though made out from the evidence available in

the case. A plea of self defence can be taken by introducing such plea in

the cross-examination of prosecution witnesses or in the statement of the

accused persons recorded under Section 313 Cr.P.C. or by adducing defence

evidence. And, even if the plea is not introduced in any one of these three

modes still it can be raised during the course of submissions by relying on

the probabilities and circumstances obtain-ing in the case as held by this

Court in Vijayee Singh's case (supra). It is basic criminal jurisprudence

that an accused cannot be compelled to be examined as a witness and no

adverse inference can be drawn agsint the defence merely because an accused

person has chosen to abstain from the witness box.

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. Under Section 99 the right of private defence in

no case extends to the inflicting of more harm than it is necessary to

inflict for the purpose of defence. Under Section 100, right of private

defence of the body extends to causing death if the offence which occasions

the exercise of such right is an assault which reasonably causes an

apprehension of death or grievous hurt, amongst others. Under Section 101,

save as provided by Section 99, the right extends to the voluntary causing

to the assailant of any harm other than death. Under Section 102 the right

once available continues as long as an apprehension of danger to the body

continues. When the apprehension of danger has ceased and yet a person

continues his attack, he exceeds the right of private defence.

Reverting to the case at hand, we have already noted the injuries caused to

accused Prabhu. These injuries are not explained by any of the prosecution

witnesses. We have also found, and as was found by the trial Court as well,

that the scene of the incident was near the house of the accused persons

and therefore it is highly probable that the incident which resulted in

injuries to both the sides did not take place either near the houses of

anyone belonging to the prosecution party or on village commonway where the

accused Ramesh had tried to unload from the tractor-trolley and spread the

mustard straw. There was only some verbal exchange at that place. The

accused Ramesh had returned to his house. It is Brindawan, Lakhan, Siya

Ram, Sundera and Mahendra, the members of the prosecution party who had

assembled near the house of the accused persons and were armed with such

weapons as had resulted in injuries on the person of accused Prabhu. At

least one of the persons of the prosecution party was armed with a sharp

weapon with which was caused an incised wound on head, a vital part of the

body, coupled with fracture of frontal bone of accused Prabhu. One of the

injuries caused to accused Prabhu could have been the result of a gun shot

leaving a pellet embedded below mandible area. Other injuries caused to him

could not have been self-inflicted. A grievous hurt was caused and

therefore an apprehension that the prosecution party would persist in

assault which could have resulted in further grievous hurt or death being

caused was reasonably caused in the mind of accused Prabhu. Accused Ramesh,

real brother of Prabhu and other persons present there were justified in

exercising right of private defence and causing reasonable harm to the

members of the prosecution party who were joining in assault wherefrom a

reasonable apprehension could be anticipated. On the principles already

stated hereinabove and in the circumstances in which the accused persons

were placed, their right of private defence extended even to the extent of

causing death so long as the apprehension continued. At the trial the first

six witnesses examined by the prosecution were formal witnesses. Sundera,

PW7 is the first witness examined by the prosecution at the trial deposing

to the incident. In his statement, during cross-examination, the plea that

the accused persons were acting in exercise of right of private defence of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

person was specifically introduced by suggesting that they were the members

of the prosecution party who were the aggressors and the accused were

acting only in defence of their person. They wielded their weapons when

accused Prabhu was being assaulted and was under apprehension of being

killed or suffering grievous hurt. The injuries on the side of the

prosecution party is a circumstance revealing the real story to some

extent. On the person of Siya Ram there are two abrasions and one incised

wound on occipital back part of the head, all simple in nature. Sundera has

sustained one incised wound on lower part of head. Other injuries are

contusions, abrasion and swelling on non-vital parts of the body. Mahendra

has sustained one incised wound and two swellings. The injury casused by

sharp weapon was minor in nature though he had sustained a fracture on left

wrist. Brindawan, the deceased had sustained pellet injuries caused by a

single fire which were on the thigh. So also Lakhan, the deceased had

sustained a single gun shot wound on the thigh. Neither Brindawan nor

Lakhan had sustained gun shot injury on any vital part of the body. Dr.

R.S. Sikarwar admitted during the cross-examination that injury to

Brindawan should have been caused while he was in a standing position and

the person firing the shot was in a sitting position. Similar is the

opinion, expressed by Dr. Sikarwar, as to the injury sustained by deceased

Lakhan.

In Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523 this

Court has held that where the accused received injuries during the same

occurrence in which complainants were injured and when they have taken the

plea that they acted in self-defence, that cannot be lightly ignored

particularly in the absence of any explanation of their injuries by the

prosecution.

The High Court has on appreciation of evidence, so far as the injuries

caused by the accused persons and the specific roles assigned to them are

concerned held that accused Ramesh and Inder Lal resorted to firing towards

the victim who were running for shelter and therefore their offences fell

under Sections 148 and 302/149 IPC and Section 27 of the Arms Act. As to

accused Inder Lal, the High Court has refused to record any specific

finding in view of his having expired during the pendency of the appeal. As

to accused Nanak Ram the High Court held that although he had fired aiming

at injured Mahendra who had a narrow escape but as there was no charge

under Section 307 IPC framed against him he could not be convicted

thereunder though he was liable to be convicted under Section 148 IPC and

Section 27 of the Arms Act. Accused Suresh and Ratna having been found to

have caused some simple injuries by lathi, have been convicted under

Section 147 and 323/149 IPC. Accused Prabhu has been found to have

inflicted a farsa injury on the head of Mahendra and his act of causing

such injury has been held justifiable in self defence and hence he has been

extended 'benefit of doubt' from the charges levelled against him. Could

any of the accused persons have been held guilty of any offence for causing

hurt with the aid of Section 149 IPC? We have already held that the accused

persons had right of private defence of person of accused Prabhu available

to them. The right of private defence need not necessarily be exer-cised

for the defence of one's own person; it can be exercised for the defence of

the person of another one. So long as an assembly of persons is acting in

exercise of the right of private defence it cannot be an unlawful assembly.

An assembly though lawful to begin with may in the course of events become

unlawful. So long as the accused persons were acting in exercise of right

of private defence, there object was not unlawful and so there was no

unlawful assembly but once they exceeded the right, the assembly ceased to

be lawful and became an unlawful assembly. There too only such of the

members of the assembly who shared the object of doing anything in excess

of the exercise of right of private defence, alone would be liable to be

punished for the acts committed in prosecution of the common object or for

their individual unlaw-ful acts. The assemblage of accused persons, five or

more in number, cannot wholly be held liable to conviction with the aid of

Section 149 IPC unless the whole assembly shared the common object of doing

anything in excess of the exercise of the right of private defence. In the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

case at hand, the High Court has not arrived at a finding that any of the

injuries other than the one inflicted by Ramesh were so inflicted after the

members of the complainant party had taken to their heels and yet Ramesh

fired at them. If they had caused any injury before the members of the

prosecution party had turned their back and started running away from the

scene of occurrence, there was no unlawful assembly and 1.one could have

been convicted either under Section 148 or with the aid of Section 149 IPC.

There is no finding arrived at by the High Court, and there is no positive

evidence available on record to hold, that any accused (other than Ramesh,

as to whom we are dealing just hereinafter) caused any injury to anyone

after the right of private defence had ceased to be available.

The only accused whose act needs to be determined for the purpose of

finding out what offence, if any, he has committed, is accused Ramesh. Ex-

ception II to Section 300 IPC provides that culpable homicide is not murder

if the offence, in the exercise in good faith of the right private defence

of person or property, exceeds the power given to him by law and causes the

death of the person against whom he has exercised such right of defence

without pre-meditation, and without any intention of doing more harm than

is necessary for the purpose of such defence. We have found the deceased

Brindawan having sustained injury by gun shot fired by accused Ramesh. Such

injury was caused when the members of the prosecution party were fleeing

away though to begin with the accused Ramesh had available to him the right

of private defence of person. The right was exceeded and therefore the act

of accused Ramesh would be covered by Exception II to Section 300 of IPC.

The injuries caused to Brindawan show the pellets having injured lower part

of the body of Brindawan. It cannot be said that accused Ramesh intended to

cause death or cause such bodily injury as was likely to cause death though

he should be attributed with the knowledge that the injury caused by him

was likely to cause death. His individual act of causing injury to deceased

Brindawan is therefore punishable under Section 304 Part II IPC. So also

his subsequent fire aimed at complainant Sundera but which accidentally hit

Jamuni Bai Dhoban would also be punish-able under Section 304 Part II of

the IPC with the aid of Section 301 IPC. If he had injured the complainant

Sundera, he would have been liable to be convicted under Section 302 Part

II IPC. Inspite of complainant Sunder alias Sundera having escaped unhurt

and yet Jamuni Bai Dhoban having been injured though not aimed at, on the

doctrine of 'transferred malice' as con-tained in Section 301 IPC the

liability of the accused remains the same. In the FIR, the version of

Sundera was that Jamuni Bai had intervened to rescue him when she got

injured. This story was abandoned by Sundera whilst in witness box and he

maintained that though the second shot by accused Ramesh was aimed at him

it hit Jamuni Bai instead of him. No prosecution witness states where the

gun held by accused Ramesh was aimed at. Prosecution version coming through

the three eye witnesses that accused Ramesh was in standing posture, facing

them, when he fired the gun, is not supported by, rather belied by, medical

evidence. The fact remains that Jamuni Bai was neither aimed at nor

intended to be harmed by accused Ramesh. In case of accidental injury

attracting applicability of 'transferred malice' under Section 301 IPC and

having held that the act of the accused was covered by Section 304 IPC, the

Court should lean in favour of convicting the accused under Part-II of

Section 304 if it is in doubt as to which one of the two parts of Section

304 IPC would be attracted. This would be consistent with the basic tenet

of extending benefit of doubt in criminal jurisprudence. Accordingly, we

hold the accused Ramesh guilty under Section 304 Part-II for causing the

death of Jamuni Bai.

In similar circumstances this Court has held in Yogendra Morarji v. State

of Gujart, AIR (1980) SC 660, Dev Raj v. State of Himachal Pradesh (supra)

and Tarn Chand and Anr. v. State of Haryana, AIR (1971) SC 1891 the act of

the accused falling under Exception II to Section 300 IPC and hence

punishable under Section 304 IPC and not under Section 302 IPC. In Yogendra

Morarji's this Court has also observed that this was a circumstances which

could be taken into account in mitigation of the sentence.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

For the foregoing reasons Criminal Appeal No. 320/2000 filed by Kashiram,

Teekaram, Suresh, Ratna @ Ratanlal and Nanakram is allowed. Criminal Appeal

No. 63/2000 filed by accused Ramesh is partly allowed. All the convictions

recorded and sentences passed by the High Court are set aside. Instead

accused Ramesh is held liable to conviction under Section 304 Part II IPC

on two heads. He is convicted accordingly and sentenced to 7 years'

rigorous imprisonment each on the two counts. His conviction and sentence

under Section 27 Arms Act is maintained. All the sentences are directed to

run concurrently. Accused Ramesh shall surrender to serve the sentence if

not already served out. All the other accused-appellants, i.e. other than

Ramesh, are acquitted. Their bail bonds are discharged.