REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.77 OF 2007

Mano Dutt & Anr. … Appellants

Versus

State of U.P. … Respondent

J U D G M E N T

Swatanter Kumar, J.

1.The present appeal is directed against the judgment and order

dated 21

st

March, 2006 of the High Court of Judicature at

Allahabad, Lucknow Bench, which had partially accepted the

appeal by acquitting the accused persons of the offence under

Section 323 read with Section 34 of the Indian Penal Code, 1860

(hereafter, ‘IPC’), but affirmed the imposition of life imprisonment

for the offence under Section 302 read with Section 34, IPC as

awarded by the learned trial court vide its judgment dated 6

th

January, 1982. The trial court had found the four accused Ram

Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain guilty

of an offence under Section 302, read with Section 34, IPC and also

offence under Section 323, read with Section 34, IPC and had

awarded them life imprisonment for the first offence and a fine of

Rs.1,000/- for the second, in default of which, to undergo rigorous

imprisonment for three months.

2.This is a case where the incident, on 22

nd

October, 1977,

which resulted in the death of Siya Ram, is admitted between the

parties. The primary question that falls for determination is, as to

which of the parties was the aggressor, besides determining the

merits of the contentions raised on behalf of the appellant. Before

noticing the prosecution version, we may notice that in the present

case, six accused were charged and tried for an offence under

Sections 302 and 323, both read with Section 34 IPC. Learned trial

court, vide its judgment dated 6

th

January, 1982 had acquitted

accused Sher Bahadur and Jagdish, while it convicted Ram Dutt,

Thakur Prasad, Mano Dutt and Ram Narain for both the afore-

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stated offences. During the pendency of the appeal before the High

Court, Ram Dutt died and the Court convicted the other accused

vide its judgment under appeal.

3.Thakur Prasad had filed a separate appeal challenging the

said judgment of the High Court, being SLP (Crl.) No.3929 of 2006

titled Thakur Prasad v. State of U.P. which came to be dismissed by

order of this Court dated 18

th

August, 2006. In other words, the

conviction of the accused Thakur Prasad under Section 302 read

with Section 34 IPC attained finality. However, vide the same order,

this Court granted leave to appeal in the case of Mano Dutt and

Ram Narain. This is how the present appeal has come up for final

hearing before us.

4.The case of the prosecution is that Mano Dutt, Ram Narain

and Jagdish are real brothers while Ram Dutt and Thakur Prasad

are their cousins. On 22

nd

October, 1977 during day time, Siya

Ram was doing earth filling in front of his sariya (a place of

tethering cattle). The four accused, namely, Ram Dutt, Thakur

Prasad, Ram Narain and Mano Dutt out of the six named accused

had come there and asked Siya Ram not to do earth filling. Siya

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Ram told them that it was his land and he would not stop the work

of land filling. Thereupon, Siya Ram called certain villagers. The

matter was discussed with the villagers, all of whom said that the

land was that of Siya Ram and he could carry on with land filling on

his own land. After deciding this, the villagers went away and Siya

Ram resumed the filling of the earth. Accused Ram Dutt, Thakur

Prasad, Mano Dutt, Ram Narain, Jagdish and Sher Bahadur, armed

with lathis, came there and chased Siya Ram. They said that they

would finish Siya Ram. Siya Ram was able to run for a short

distance away, whereafter all the accused surrounded him in front

of the house of one Fateh Mohmad. Accused Ram Dutt, Thakur

Prasad, Mano Dutt and Ram Narain started beating Siya Ram with

their lathis. The father of Siya Ram, Nankoo and brother Salik Ram

rushed towards Siya Ram to rescue him. Accused Sher Bahadur

and Jagdish intercepted them in front of one Chiddan’s door and

beat them with their lathis. Siya Ram fell down after getting the

lathi blows. Siya Ram raised alarm, but still these accused persons

continued to beat him and in the meanwhile, Smt. Sangam Devi,

Bhurey and Pradhan came there. The Pradhan snatched the lathis

of the four accused, who then fled away from the scene. Siya Ram

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sustained serious injuries. Nankoo and Salik Ram also sustained

injuries. Pradhan and the other villagers took the injured to the

Police Station.

5.The incident was narrated in the form of a report of

occurrence, by the deceased Siya Ram, who was in an injured state

at that time. The same was transcribed by Panna Lal Pandey, PW3

and submitted to the Police Station, where a First Information

Report (hereafter, ‘FIR’) Exhibit Ka7 was prepared.

6.On this statement, the officer present at the police station had

registered a case under Section 308, IPC and the investigation was

taken over by C.R. Malviya. During investigation, C.R. Malviya

recorded the statements of a number of witnesses as well as sent

Siya Ram to the hospital. Siya Ram succumbed to his injuries on

24

th

October, 1977 at about 8.00 a.m. in the District Hospital,

Faizabad. Upon his death, the offence was converted to one under

Section 302, IPC. The Investigating Officer visited the spot,

recovered blood-stained earth, Ex. Ka-8 and prepared the site plan,

Ext. Ka-9 and examined various witnesses. After completion of the

investigation, the charge sheet was filed before the court of

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competent jurisdiction. The trial Court vide its order dated 30

th

July, 1980 charged the accused with offences under Sections 147,

304/149 and 323/149. However, subsequently, the charge was

amended and all the accused were charged with offences under

Sections 302/149-147 and 323/149, IPC. The accused pleaded

not guilty and faced trial before the Court of Sessions. As already

noticed, out of the six accused, four were convicted by the trial

court. One accused, namely Ram Dutt, died during pendency of the

appeal before the High Court and all the other accused were

acquitted of the offences under Section 323/34 IPC, but convicted

for offences under Section 302/34 IPC. For the reasons afore-

recorded in the present appeal, we are only concerned with the two

accused, namely Mano Dutt, and Ram Narain.

7.The prosecution had examined Smt. Sangam Devi, PW-1 (wife

of the deceased), Salik Ram, PW-2 (injured witness). Panna Lal

Pandey, PW-3 (scribe of Siya Ram’s statement) and two doctors, Dr.

S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh (P.W. 5), besides

examining the formal witnesses.

6

8.Dr. Surya Bhan Singh, PW-5 had examined Salik Ram when

he was brought to the hospital on the evening of 22

nd

October, 1977

at about 4.30 p.m. He had noticed lacerated bone-deep wound, 3

cm x 0.5 cm, on the frontal region of the scalp, from which blood

was oozing. The doctor described the injuries on the body of the

deceased as follows:-

“(1)Lacerated wound mark 3 cm x 0.5 cm on

the left side of head on the parietal

region.

(2)Bruise 9 cm x 1.5 cm in the left scapula

region.

(3)Bruise 12 cm x 1.5 cm in the right

scapula region of scalp.

(4)Bruise 9 cm x 2 cm in the right scapular

region of scalp.

(5)Bruise 19 cm x 2 cm in the right

scapular region of scalp.”

9.This very doctor had examined Salik Ram, son of Nankoo and

had noticed as many as five injuries on his body. He had also

examined Nankoo and noticed four injuries on his person. The

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injuries on the bodies of Nankoo and Salik Ram both were found to

be simple injuries and were caused with blunt object like lathi,

while Siya Ram was transferred to the specialist for obtaining expert

opinions on his injuries and for his treatment.

10.After the death of Siya Ram on 24

th

October, 1977, the post-

mortem on the body of the deceased was performed by Dr. S.N. Rai,

PW-4, who noticed four ante-mortem injuries as follows:-

“(1)Lacerated wound 2.5 cm x ¾ cm x bone

deep, on Rt. side head, 6.5 cm above the

eyebrow of right eye.

(2)Lacerated wound 2.5 cm x 1 cm x bone

deep injures 1-2 cm on the left side of the

head.

(3)Contusion 6 cm x 4 cm in the right side

of the face involving whole orbital area.

(4)Diffused, swelling on the Rt. Side of head

parietal region.”

11.Upon internal examination of the body of the deceased, he also

found the following internal injuries:-

“1.Comminuted fracture in the area of 11.5

cm x 10 cm on the right Parietal Region

of the skull.

8

2.Comminuted fracture in the area of 6.5

cm x 6.5 cm in the frontal Bone was

found.

3.Comminuted fracture in the area of 10

cm x 4 cm on the left side of temporo

parietal Region was found.

4.Large quantity of blood was accumulated

on the right side of head between skin

and bone.”

12.The doctor stated that, in his opinion, the cause of death was

a shock due to ante-mortem injuries and loss of blood. He

specifically stated that all the injuries are possible by blows of

lathis. In his cross-examination, he clearly stated that these

injuries are ordinarily sufficient to cause death.

13.It needs to be noticed that one of the appellants, namely Ram

Dutt, had also allegedly lodged a report against the deceased Siya

Ram, injured Nankoo, and two other sons of Nankoo, i.e., Salik

Ram and Ram Dhiraj. After registering the FIR, the Investigating

Officer in his report had also stated that the accused Ram Dutt had

sustained some injuries on his person.

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14.The conviction of the accused and the impugned judgment

have been challenged inter alia, but primarily, on the following

grounds:-

i)The prosecution did not examine the material witnesses like

the investigating officer as well as other witnesses who, as

per the case of the prosecution, were actually present at the

time of occurrence of the incident.

ii)According to the prosecution, PW-1 and PW-2 both are eye-

witnesses but they are the widow and brother of the

deceased, and therefore, are interested witnesses and their

statement cannot be relied upon by the Court.

iii)The accused persons themselves had lodged a counter

report against the deceased, PW-2 and other relations of the

deceased, alleging attack/aggression. This was not a

counter blast but a true and correct happening of events as

reported by the accused, against the complainants, in

which the accused Ram Dutt had suffered injuries. For

these reasons, the accused should be entitled to the benefit

of doubt and consequently, to an order of acquittal.

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iv)Even if the entire prosecution story is assumed to be

correct, even then it does not constitute an offence under

Section 302, IPC. In the facts and circumstances of the

case, at the worst, the accused could be held guilty of an

offence punishable under Section 304, Part-I, IPC.

v)The deceased had only three injuries, therefore, on the one

hand, the story that six accused had assaulted him with

lathis even when he was lying on the ground is not

physically possible and on the other hand, the prosecution

has failed to explain the injuries suffered by Ram Dutt,

accused. Thus, it creates a specific doubt in the story of the

prosecution.

vi)Lastly, it is contended that the dismissal of the other

Special Leave Petition filed by Thakur Prasad does not have

any bearing on the fate of the present appeal, inasmuch as

the Court is vested with wide powers in terms of Section 38,

IPC, to deal with the case of the present appellants on

distinct and different footing. Even if Thakur Prasad’s

conviction for an offence under Section 302 read with

11

Section 34 IPC has attained finality, the appellants may still

be acquitted.

15.We have already noticed that the incident in question is

admitted. According to the accused, the fight was started by the

deceased and his relations and they had exercised their right of

private self-defence, to protect themselves. To the contrary,

according to the witnesses of the prosecution as well as according

to the version given by the deceased, the accused were aggressive

and had attacked the deceased and his family members after

deliberately planning to assault and kill them. It is not a case

where the circumstances, even remotely, can be construed to have

satisfied the ingredients of self-defence. We may examine few of the

circumstances in this case. From the record, it appears that Ram

Dutt had lodged a complaint of the incident that took place on 22

nd

October, 1977 at about 12.00 p.m. According to this report the

accused in that complaint (i.e., the deceased and his family

members) had been putting earth on Ram Dutt’s sariya, which he

had forbade. There was verbal altercation between the parties and

then the accused in that complaint (i.e., the deceased herein)

12

started assaulting him with lathis and it was only by raising an

alarm that the people of the village came to the place of occurrence

and his life was saved. According to this complaint, he had suffered

injuries on his head.

16.Firstly, this complaint had not been proved by Ram Dutt

during the trial. Accordingly, the concurrent view taken by the

courts below, that this document cannot be relied in evidence,

cannot be faulted with. Furthermore, Ram Dutt did not examine a

single witness in his defence to prove that he was attacked by the

deceased and his family members or that they were putting earth at

the door of Ram Dutt’s sariya. No doubt, Ram Dutt was subjected

to medical examination by the Medical Officer vide Ex.Kha 1. It

was noticed that he had suffered lacerated wounds on the central

and other regions of skull, and had complained of pain in left leg.

This would show that Ram Dutt had suffered some injuries but

where and how these injuries were suffered, was for him to

establish, particularly when he had taken a specific stand that the

deceased and his family members were at fault and were aggressive.

He claims that they had caused serious injuries to his person and

13

this incident happened in the presence of the villagers. It is a

settled canon of evidence jurisprudence that one who alleges a fact

must prove the same. It is also his case that the prosecution has

not explained the injuries on his person and, therefore, the

argument impressed upon the Court is that the attack with lathis

was in exercise of self-defence and the failure of the prosecution to

explain injuries on the person of Ram Dutt is a circumstance which

creates a serious doubt in the story of the prosecution. We are not

impressed with this contention primarily for the above reasons and

also because of the fact that if the police was not investigating into

the complaint, Ram Dutt was not helpless or remediless in law. He

could have filed an application before the concerned Magistrate in

accordance with the provisions of Code of Criminal Procedure, 1973

(Cr.P.C.) for directing the police to investigate and even to summon

the accused in that complaint. But none of the accused, including

Ram Dutt, took any of the steps available to them in law. When a

person claims exercise of private self-defence, the onus lies on him

to show that there were circumstances and occasions for exercising

such a right. In other words, these basic facts must be established

by the accused. Just because one circumstance exists amongst the

14

various factors, which appears to favour the person claiming right

of self-defence, does not mean that he gets the right to cause the

death of the other person. Even the right of self-defence has to be

exercised directly in proportion to the extent of aggression.

17.As per the medical report, the injuries on the body of Ram

Dutt were found to be ‘simple in nature’. On the other hand, we

have a complete version of the prosecution, duly supported by

witnesses, out of which PW1 and PW2 are eye-witnesses to the

occurrence. The bone of contention between the parties was the

statement of the deceased, that he was filling the earth over some

land, which he claimed to be his land; according to the accused, the

earth-filling was carried out in front of the door of Ram Dutt.

According to both the parties, the villagers came to the spot. Out of

the two versions, the one put forward by the prosecution and the

other in the defence of the accused, the version of the prosecution,

as has been disclosed by the eye-witnesses, is trustworthy, reliable

and entirely plausible in the facts and circumstances of the case.

The mere fact that the Investigating Officer has not been produced,

or that there is no specific explanation on record as to how Ram

15

Dutt suffered these injuries, would not vitiate the trial or the case of

the prosecution in its entirety. These claims of the accused would

have been relevant considerations, provided the accused had been

able to establish the other facts alleged by them. It is not always

mandatory for the prosecution to examine the Investigating Officer,

provided it can establish its case beyond reasonable doubt even in

his absence. The present case certainly falls in the latter class.

Where the accused lead no defence, they cannot take benefit of the

fact that the prosecution did not examine any independent

witnesses. The accused would be deemed to have been aware of the

consequences in law when they gave a statement admitting the

occurrence but attributing aggression and default to the deceased

and his family members.

18.Accused Thakur Prasad is also stated to own a sariya and was

also allegedly using his lathi in self-defence, as according to their

story, four persons with the deceased and his family members had

attacked them. Strangely, Thakur Prasad suffered no injury. These

are the circumstances which, examined cumulatively, would

provide support to the case of prosecution.

16

19.Another contention raised on behalf of the accused/appellants

is that only family members of the deceased were examined as

witnesses and they being interested witnesses cannot be relied

upon. Furthermore, the prosecution did not examine any

independent witnesses and, therefore, the prosecution has failed to

establish its case beyond reasonable doubt. This argument is again

without much substance. Firstly, there is no bar in law in

examining family members, or any other person, as witnesses.

More often than not, in such cases involving family members of

both sides, it is a member of the family or a friend who comes to

rescue the injured. Those alone are the people who take the risk of

sustaining injuries by jumping into such a quarrel and trying to

defuse the crisis. Besides, when the statement of witnesses, who

are relatives, or are parties known to the affected party, is credible,

reliable, trustworthy, admissible in accordance with the law and

corroborated by other witnesses or documentary evidence of the

prosecution, there would hardly be any reason for the Court to

reject such evidence merely on the ground that the witness was

family member or interested witness or person known to the

affected party. There can be cases where it would be but inevitable

17

to examine such witnesses, because, as the events occurred, they

were the natural or the only eye witness available to give the

complete version of the incident. In this regard, we may refer to the

judgments of this Court, in the case of Namdeo v. State of

Maharashtra, [(2007) 14 SCC 150]. This Court drew a clear

distinction between a chance witness and a natural witness. Both

these witnesses have to be relied upon subject to their evidence

being trustworthy and admissible in accordance with the law. This

Court, in the said judgment, held as under:

“28. From the aforesaid discussion, it is

clear that Indian legal system does not insist

on plurality of witnesses. Neither the

legislature (Section 134 of the Evidence Act,

1872) nor the judiciary mandates that there

must be particular number of witnesses to

record an order of conviction against the

accused. Our legal system has always laid

emphasis on value, weight and quality of

evidence rather than on quantity, multiplicity

or plurality of witnesses. It is, therefore, open

to a competent court to fully and completely

rely on a solitary witness and record

conviction. Conversely, it may acquit the

accused in spite of testimony of several

witnesses if it is not satisfied about the quality

of evidence. The bald contention that no

conviction can be recorded in case of a solitary

eyewitness, therefore, has no force and must

be negatived.

18

29. It was then contended that the only

eyewitness, PW 6 Sopan was none other than

the son of the deceased. He was, therefore,

“highly interested” witness and his deposition

should, therefore, be discarded as it has not

been corroborated in material particulars by

other witnesses. We are unable to uphold the

contention. In our judgment, a witness who is

a relative of the deceased or victim of a crime

cannot be characterised as “interested”. The

term “interested” postulates that the witness

has some direct or indirect “interest” in having

the accused somehow or the other convicted

due to animus or for some other oblique

motive.”

20.It will be useful to make a reference of another judgment of

this Court, in the case of Satbir Singh & Ors. v. State of Uttar

Pradesh, [(2009) 13 SCC 790], where this Court held as under:

“26. It is now a well-settled principle of law

that only because the witnesses are not

independent ones may not by itself be a

ground to discard the prosecution case. If the

prosecution case has been supported by the

witnesses and no cogent reason has been

shown to discredit their statements, a

judgment of conviction can certainly be based

thereupon. Furthermore, as noticed

hereinbefore, at least Dhum Singh (PW 7) is an

independent witness. He had no animus

against the accused. False implication of the

accused at his hand had not been suggested,

far less established.”

19

21.Again in a very recent judgment in the case of Balraje @

Trimbak v. State of Maharashtra [(2010) 6 SCC 673], this Court

stated that when the eye-witnesses are stated to be interested and

inimically disposed towards the accused, it has to be noted that it

would not be proper to conclude that they would shield the real

culprit and rope in innocent persons. The truth or otherwise of the

evidence has to be weighed pragmatically. The Court would be

required to analyse the evidence of related witnesses and those

witnesses who are inimically disposed towards the accused. But if

after careful analysis and scrutiny of their evidence, the version

given by the witnesses appears to be clear, cogent and credible,

there is no reason to discard the same.

22.As per PW5, Dr. Surya Bhan Singh, he had examined Salik

Ram Yadav as well as Nankoo on 22

nd

October, 1977 itself and

noticed as many as five injuries on Salik Ram and four injuries

upon the person of Nankoo. He stated that the deceased was the

son of Nankoo, while Salik Ram was his brother. These injuries

were suffered by them from a blunt object. Salik Ram was

20

examined as PW2 and his statement is cogent, coherent, reliable

and fully supports the case of the prosecution. However, the other

injured witness, Nankoo, was not examined.

23.In our view, non-examination of Nankoo, to which the accused

raised the objection, would not materially affect the case of the

prosecution. Normally, an injured witness would enjoy greater

credibility because he is the sufferer himself and thus, there will be

no occasion for such a person to state an incorrect version of the

occurrence, or to involve anybody falsely and in the bargain, protect

the real culprit. We need not discuss more elaborately the

weightage that should be attached by the Court to the testimony of

an injured witness. In fact, this aspect of criminal jurisprudence is

no more res integra, as has been consistently stated by this Court

in uniform language. We may merely refer to the case of Abdul

Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this

Court held as under:

“28. The question of the weight to be

attached to the evidence of a witness that was

himself injured in the course of the occurrence

has been extensively discussed by this Court.

Where a witness to the occurrence has himself

been injured in the incident, the testimony of

21

such a witness is generally considered to be

very reliable, as he is a witness that comes

with a built-in guarantee of his presence at the

scene of the crime and is unlikely to spare his

actual assailant(s) in order to falsely implicate

someone. “Convincing evidence is required to

discredit an injured witness.” [Vide Ramlagan

Singh v. State of Bihar, Malkhan Singh v. State

of U.P., Machhi Singh v. State of Punjab,

Appabhai v. State of Gujarat, Bonkya v. State

of Maharashtra, Bhag Singh, Mohar v. State of

U.P. (SCC p. 606b-c), Dinesh Kumar v. State of

Rajasthan, Vishnu v. State of Rajasthan,

Annareddy Sambasiva Reddy v. State of A.P.

and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar

view was taken in Jarnail Singh v. State of

Punjab, where this Court reiterated the special

evidentiary status accorded to the testimony of

an injured accused and relying on its earlier

judgments held as under: (SCC pp. 726-27,

paras 28-29)

“28. Darshan Singh (PW 4) was an

injured witness. He had been examined

by the doctor. His testimony could not be

brushed aside lightly. He had given full

details of the incident as he was present

at the time when the assailants reached

the tubewell. In Shivalingappa

Kallayanappa v. State of Karnataka this

Court has held that the deposition of the

injured witness should be relied upon

unless there are strong grounds for

rejection of his evidence on the basis of

major contradictions and discrepancies,

for the reason that his presence on the

scene stands established in case it is

22

proved that he suffered the injury during

the said incident.

29. In State of U.P. v. Kishan Chand a

similar view has been reiterated observing

that the testimony of a stamped witness

has its own relevance and efficacy. The

fact that the witness sustained injuries at

the time and place of occurrence, lends

support to his testimony that he was

present during the occurrence. In case

the injured witness is subjected to

lengthy cross-examination and nothing

can be elicited to discard his testimony, it

should be relied upon (vide Krishan v.

State of Haryana). Thus, we are of the

considered opinion that evidence of

Darshan Singh (PW 4) has rightly been

relied upon by the courts below.”

30. The law on the point can be summarised

to the effect that the testimony of the injured

witness is accorded a special status in law.

This is as a consequence of the fact that the

injury to the witness is an inbuilt guarantee of

his presence at the scene of the crime and

because the witness will not want to let his

actual assailant go unpunished merely to

falsely implicate a third party for the

commission of the offence. Thus, the

deposition of the injured witness should be

relied upon unless there are strong grounds

for rejection of his evidence on the basis of

major contradictions and discrepancies

therein.”

24.To the similar effect is the judgment of this Court in the case

of Balraje @ Trimbak (supra).

23

25.Another argument with regard to appreciation of evidence is

that the material witness having not been examined and the entire

prosecution story being based upon the statements of PW1 and

PW2, who are the interested witnesses, the entire prosecution

evidence suffers from a patent infirmity in law.

26.Again, we are not impressed by this contention, primarily for

the reasons afore-recorded. Furthermore, it may also be noticed

that non-examination of any independent witness, in the facts of

the present case, is not fatal to the case of the prosecution. The

Court can convict an accused on the statement of a sole witness,

even if he was a relative of the deceased and thus, an interested

party. The condition precedent to such an order is that the

statement of such witness should satisfy the legal parameters

stated by this Court in a catena of judgments. Once those

parameters are satisfied and the statement of the witness is

trustworthy, cogent and corroborated by other evidence produced

by the prosecution, oral or documentary, then the Court would not

fall in error of law in relying upon the statements of such witness.

It is only when the Courts find that the single eye-witness is a

24

wholly unreliable witness that his testimony is discarded in toto and

no amount of corroboration can cure its defect. Reference in this

regard can be made to the judgment of this Court, in the case of

Anil Phukan v State of Assam [(1993) 3 SCC 282].

27.Now we may examine as to the place and manner in which the

incident occurred. It is a very important aspect of this case that the

FIR itself was lodged by the deceased along with PW3 Panna Lal

Pandey who transcribed the same at the police station itself. The

deceased was seriously injured, but was fully aware of what he was

doing and he had no reason to falsely implicate any person. His

father and brother had also been injured in the occurrence. It is

specifically recorded in the statement of these witnesses that when

the appellant Mano Dutt and other accused came for the second

time, to the place where the deceased was filling the earth at the

sariya, they gave a lalkar ‘Maro sale ko’ and then assaulted him

with lathis. When he tried to run away, he fell to the ground near

the house of one Fateh Mohd. The blood-stained earth was

collected from the front of Fateh Mohd. doors by the Investigating

Officer vide Ext. Ka-8. Thereafter, the villagers had come and taken

25

the lathis away from the accused persons. The deceased was taken

to the police station and then to the hospital, where he died on 24

th

October, 1977. It is evident that all the accused persons had come

prepared, mentally and physically, to assault the deceased and in

furtherance to their common intention, had even given a lalkar to

kill the deceased. This incident was witnessed by natural witnesses

Nankoo and PW2 Salik Ram, as well as PW1 Smt. Sangam Devi.

Nankoo and Yadav even intervened and tried to protect their

son/brother, but in the process, they also received number of

injuries, as is clear from the medical evidence produced on record.

During the course of argument, the learned counsel for the

appellant tried to take advantage of the fact that the deceased ought

to have suffered a number of injuries, if six people had, at the same

time, attacked him with lathis, but he had actually received only

three injuries. Thus, the story of the prosecution was improbable.

28.We have no hesitation in rejecting this argument, primarily for

the reason that, as per the medical report and statement of PW5 Dr.

Surya Bhan Singh, the deceased had suffered a number of injuries

and not only three. The collection of the bloodstained earth itself is

26

a relevant piece of evidence and provides the link in the commission

and the place of crime. In the case of Kartar Singh v. State of

Punjab [AIR 1961 SC 1787] this Court took the following view:

“13. It follows therefore that the finding of

the courts below that the appellant's party

formed an unlawful assembly and that the

appellant is constructively liable of the offences

under ss. 302 and 307 IPC, in view of Section

149, is correct.

14. The second contention that in a free

fight each is liable for an individual act cannot

be accepted in view of the decision of this

Court in Gore Lal v. State of U.P. This Court

said in that case:

“In any event, on the finding of the

court of first instance and of the High

Court that both the parties had

prepared themselves for a free fight and

had armed themselves for that purpose,

the question as to who attacks and who

defends is wholly immaterial,”

and confirmed the conviction under Section

307 read with Section 149 IPC It may,

however, be noted that it does not appear to

have been urged in that case that each

appellant could be convicted for the individual

act committed by him. When it is held that the

appellant's party was prepared for a fight and

to have had no right of private defence, it must

follow that their intention to fight and cause

injuries to the other party amounted to their

27

having a common object to commit an offence

and, therefore, constituted them into an

unlawful assembly. The injuries they caused to

the other party are caused in furtherance of

their common object. There is then no good

reason why they be not held liable,

constructively, for the acts of the other persons

of the unlawful assembly, in circumstances

which makes s. 149 IPC, applicable to them.

15. Even if the finding that there were more

than five persons in the appellant's party be

wrong, we are of opinion that the facts found

that the appellant and his companions who

were convicted had gone from the village

armed and determined to fight, amply justified

the conclusion that they had the common

intention to attack the other party and to

cause such injuries which may result in death.

Darshan had two incised wounds and one

punctured wound. Nand Lal had two incised

wounds and one punctured wound and two

abrasions. The mere fact that Kartar Singh

was not connected with the dispute about the

plot of land is not sufficient to hold that he

could not have formed a common intention

with the others, when he went with them

armed. The conviction under ss. 302 and 307

read with s. 149, can be converted into one

under ss. 302 and 307 read with s. 34 IPC

16. We, therefore, see no force in this

appeal and accordingly dismiss it.”

29.The question, raised before this Court for its consideration, is

with respect to the effect of non-explanation of injuries sustained by

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the accused persons. In this regard, this Court has taken a

consistent view that the normal rule is that whenever the accused

sustains injury in the same occurrence in which the complainant

suffered the injury, the prosecution should explain the injury upon

the accused. But, it is not a rule without exception that if the

prosecution fails to give explanation, the prosecution case must fail.

Before the non-explanation of the injuries on the person of the

accused, by the prosecution witnesses, may be held to 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 also of a

serious nature; and

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

occurrence in question.

30.Where the evidence is clear, cogent and creditworthy; and

where the court can distinguish the truth from falsehood, the mere

fact that the injuries on the person of the accused are not explained

by the prosecution cannot, by itself, be a sole basis to reject the

testimony of the prosecution witnesses and consequently, the whole

case of the prosecution. Reference in this regard can be made to

29

Rajender Singh & Ors. v. State of Bihar, [(2000) 4 SCC 298], Ram

Sunder Yadav & Ors. v. State of Bihar, [(1998) 7 SCC 365, and

Vijayee Singh v. Stateo of U.P. [(1990) 3 SCC 190].

31.PW4 had clearly noticed that injury on the person of the

deceased, Salik Ram Yadav and Nankoo were all caused by a blunt

weapon. He had specifically observed that the injuries were

sufficient, in the ordinary course of time, to cause death and had,

in fact, resulted in the death of the deceased.

32.The High Court and the trial court have recorded reasons for

returning the concurrent finding of guilt. The learned counsel for

the appellant strenuously argued that one of the accused, namely

Ram Dutt, who is now dead, had in his statement under Section

313 Cr.P.C., stated that the land in between the house of the

parties was his and that despite his protest, Salik Ram, Siya Ram,

Ram Dhiraj and Nankoo were putting earth on that land when he

again objected, all of them ran after him, rounded him up at the

door of Fateh Mohd. and started beating him. Thakur Prasad,

cousin of Ram Dutt, came and in response, wielded the lathi in his

defence. To similar effect is the statement of Thakur Prasad. In

30

view of this stand, the other accused cannot be said to have been

involved in the commission of the crime. This argument is a self-

serving submission. All the accused are related to each other.

Once the plea of self-defence is disbelieved, then a statement of a

co-accused under Section 313 CrPC cannot be of any advantage to

the co-accused, as the prosecution has been able to establish its

case beyond any reasonable doubt. In the present case, in the

chain of events, nowhere does the plea of self-defence as sought to

be raised by the appellant-accused or other accused, fit in. The

defence has miserably failed to prove any fact or any need for

resorting to commission of the offence in self-defence. To begin

with, the police had charged this accused for an offence under

Section 302 read with Section 149 and 323 of the IPC. However,

two of the accused were acquitted by the trial court and the

remaining were convicted of an offence under the said Sections

302/34 and 323/34, IPC. The High Court acquitted all the accused

of offence under Section 302/34 IPC and unfortunately, Ram Dutt

died during the pendency of that appeal. Because the alleged

number of accused had become less than five, nature of the

offences were changed from offence under Section 149 to Section

31

34, IPC. In face of the acquittal of the two accused, which was not

assailed by the State, it must be taken that they were not present.

Then remain three accused, Thakur Dass and the present

appellants. Thus, in the circumstances of the case, the possibility

of presence of all other persons in the appellants’ party cannot be

excluded. It is also not quite possible that the accused have

deposed incorrectly before the Court in regard to the number of

persons and their participation. Even where there are less than

five persons who are accused, but the facts and the evidence of the

case is convincing as in the present case, where the accused had

returned to the place of occurrence with complete preparedness and

after giving lalkar had attacked the deceased there, they have to be

held liable for commission of the crime (Refer : Kartar Singh vs.

State of Punjab, AIR 1961 SC 1787). The learned counsel for the

respondent-State also relied upon the judgment in the Yunis @

Kariya v. State of M.P. [(2003) 1 SCC 425] to contend that an overt

act on the part of one of the accused is immaterial when his

presence, as part of the unlawful assembly, is established. This

case was for an offence under Section 302/149 IPC and, therefore,

would not squarely apply to the present case as it has been held by

32

the Court that the accused was not constituting an unlawful

assembly of five or more persons. However, it cannot be ignored

that the extent of participation, even in a case of common intention

covered under Section 34 IPC would not depend on the extent of

overt act. If all the accused have committed the offence with

common intention and inflicted injuries upon the deceased in a

pre-planned manner, the provisions of Section 34 would be

applicable to all.

33.The learned counsel had also relied upon the judgment of this

Court in Marimuthu & Ors. v. State of Tamil Nadu [(2008) 3 SCC

205] to contend that this was a fight at the spur of the moment and

the conviction of the appellants could be converted into that under

Section 304, Part I of the IPC. This judgment is distinguishable on

facts and has no application to the present case. It was not a

dispute which arose at the spur of the moment as the evidence

clearly shows that the accused had gone again to the site in

question with a common intention and with the preparedness to

assault and even kill the deceased. Even the site plan, Ex.Ka9

clearly shows that all these places, i.e. the land on which the

33

deceased was putting the earth, the house of Fateh Mohd., the

house of the accused and that of the deceased were all nearby.

This is even fully corroborated by the oral evidence. Thus, on the

basis of the documentary and ocular evidence, we are fully satisfied

that the prosecution has been able to prove its case beyond

reasonable doubt and has brought home the guilt of the accused

under Section 302 read with Section 34, IPC.

34.Having come to the above finding, we do not consider it

necessary to dwell on the question as to what is the effect in law of

dismissal of Thakur Prasad’s Special Leave Petition by this Court,

vide Order dated 18

th

August, 2006.

35.What shall be the correct interpretation of Section 34 with

reference to Section 38 IPC, in view of the facts of the present case,

or even otherwise, is left undecided.

36.For the reasons afore-recorded, this appeal is dismissed.

……………………………J.

(A.K. Patnaik)

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……………………………J.

(Swatanter Kumar)

New Delhi,

February 29, 2012

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