V.K. Agarwal, J.
1. This is an appeal preferred under Section 374(2) of the Criminal Procedure Code by accused/appellant, who has been convicted under Section 302 of the Indian Penal Code and sentenced to R. I. for life by judgment dated 30-10-1985 by Addl. Sessions Judge, Satna in S. T No. 18 of 1986.
2. Undisputably, the deceased Lekhansingh and the accused/appellant Man Bharan Singh are real brothers. The prosecution case stated in brief is that there was a dispute between the accused/appellant Man Bharan Singh and his brother deceased Lekhansingh over the passage from the field. On 30-10-1985 at about 9.00 A.M. in the morning, while the deceased Lekhansingh was going to his field, the accused/appellant came out from hiding and assaulted the deceased Lekhansingh with a stick. The deceased Lekhansingh sustained injuries on his head and other parts of his body and fell down. On the deceased shouting for help, attention of Sadhusingh (P.W.6) and Ayodhya (P.W.7) was drawn and they came on the spot. Seeing them, the accused/appellant ran away. Other persons also came near the deceased and thereafter the deceased was taken to the Police Station.
3. At the Police Station, Lekhansingh himself lodged the report on the same day, which was recorded in 'Rojnamcha-Sanha' (Ex. P/13). The injured Lekhansingh was thereafter sent to the Asstt. Surgeon, Dr. A. V Mishra, who on examination, as per his report (Ex. P/15) found the following injuries on deceased Lekhansingh :-
(i) Lacerated wound in scalp frontal part near post suture of skull 2' x 1/2' x 1/2' vertical in position;
(ii) Lacerated wound in scalp right parietal anteriorly 1' x1/4' x1/6' oblique in position. Irregular, not clear cut, adjacent part swollen, bleeding fresh on cleaning the wound, blood clotting in and around the wound:
(iii) Visible swelling in face left side 1/2' lateral to lateral border of left eyebrow l'x1' oblique in position, contusion, abrasion, etc. absent;
(iv) Lacerated wound in Ant. side of Rt. leg in Lower Part l'x1/2' x1/2' vertical;
(v) Lacerated wound in Dorsum of left thumb middle Phalanx 1/2'xl/4'x1/4' horizontal;
(vi) Lacerated wound in Palmar side of Lt. Hand in the web between Lt. Thumb index finger 1' x1/2' x1/2' vertical;
(vii) Lacerated wound in Palmar side of Lt. Thumb Proximal Phalanx 1/2'x1/4'x1/6' vertical;
(viii) Lacerated wound in Dorsum of Rt. Thumb middle Phalanx 1/2' xl/4' xl/6' oblique;
(ix) Visible swelling in Dorsum of Lt. Hand from base of Lt. Ringh and Little finger upto wrist joint 2l/2'xl 1/2'; vertical;
(x) 3 contusions on the back;
(xi) Contusion in Chest Lt. Side lower part 2' x 1/2' Horizontal;
(xii) Contusion in lateral side of Lt. Thigh Middle part 21/2' x1/2' oblique;
(xiii) Abrasion in post side of Lt. forearm near elbow joint 1 1/4' x1/4' vertical;
As per the report (Ex. P/15), Injuries No. (i), No. (ii), No. (iv) and No. (ix) were grievous and rest of the injuries were simple in nature. The duration of injury was reported to be within 24 hours of the examination.
4. Thereafter F.I.R. (Ex. P/16) was recorded. Lekhansingh died of the said injuries on 31-10-1985 and after inquest report (Ex. P/7), the body was sent for post mortem examination. Dr. K. K. Shukla (P.W.12) conducted the post mortem examination and as per post mortem report (Ex. P/18) found that all the bones on the left-side of the skull were fractured and there was also tearing of the brain membrane. Clotted blood on the left side between skull bones and membrane was found. Membranes and brain were congested. The doctor opined that the cause of death was 'coma' following fracture of multiple skull bones.
5. The spot map (Ex.P/19) was prepared. The blood-stained as also ordinary earth was seized from the spot, as per seizure memo (Ex. P/8). The cloths of the deceased were also seized, as per seizure memo (Ex. P/3) and bed-head ticket was seized as per seizure memo (Ex. P/4). Memorandum (Ex.P/5) of the accused/appellant under Section 27 of the Evidence Act was recorded and on the basis of which, a 'lathi', as per seizure memo (Ex. P/6) was also seized. The seized 'lathi', 'Soil' cloths of the deceased, etc. were sent for chemical examination to F.S.L., Sagar and the report of F.S.L., Sagar is Ex. P/27. After completion of investigation, the challan was filed.
6. The accused/appellant abjured the guilt. His defence was that the deceased had trespassed in his field and assaulted the accused/appellant upon which the accused in exercise of right of defence of his property and person, assaulted the deceased on thigh. The deceased fell down on a stone and sustained injury. After trial, the learned trial Judge found that offence under Section 302 of the Indian Penal Code has been made out against the accused/appellant and the accused/appellant was, therefore, convicted under Section 302 of the Indian Penal Code and sentenced to undergo R. I. for life, as aforesaid.
7. The learned counsel for the accused/appellant in this appeal has challenged the findings of guilt and conviction of the accused/appellant, as above, and has mainly urged that the accused/appellant was in his own field and the deceased had trespassed into his field and that the accused/appellant had right to exercise right of private defence and also that the evidence adduced by the prosecution is not believable. The injuries caused to the accused/appellant have not been explained by the prosecution. Therefore, the accused/appellant is entitled to acquittal and in any case, conviction under Section 302 of the Indian Penal Code cannot be sustained because there was no intention to cause death on the part of the accused/appellant.
8. In this case, 'Sanha' No. 708 dt. 30-10-1985 (Ex. P/13) regarding the incident was lodged by the deceased Lekhansingh himself, which is proved by Head Constable Jagmohan Prasad (P.W.11). In the said report, on the basis of which F.I.R. (Ex. P/16) was recorded, it has been mentioned that there was a dispute between the deceased-complainant Lekhansingh and the accused/appellant regarding the passage and while the deceased was going to his field, the accused/appellant had assaulted him, on account of which he received injuries. In his examination under Section 313 of the Criminal Procedure Code, the accused has stated that the dispute arose on the accused/appellant asking the deceased as to who grazed his crop of Jawar, upon which the deceased assaulted the accused/appellant. Thereafter, the accused/appellant hit the deceased on his legs. The deceased fell down on a stone and sustained injuries. Thus, his presence on the spot is not disputed by the accused/appellant.
9. The prosecution has examined Ayodhya (P.W.7) regarding the incident, who has stated that on hearing cries from the field of accused/appellant Man Bharan Singh, he went to that side and found that the accused/appellant was assaulting the deceased Lekhansingh with 'lathi'. He has further stated that he beseeched the accused not to beat the deceased, whereafter the accused/appellant ran away. When Ayodhya (P.W.7) reached near deceased Lekhansingh, he told Ayodhya (P.W.7) that accused/appellant Man Bharan Singh had assaulted him and that he was finding it difficult to speak. Ayodhya (P.W.7) has further stated that Sadhusingh (P.W.6) also reached the spot along with him and thereafter P.W. 10 Daddu, P.W. 9 Chunnilal and Asaniya (P.W.8) also reached there. They had then taken the deceased Lekhansingh to Sobhapur.
10. It would, therefore, be clear from the above statement of Ayodhya (P.W.7) that he saw the accused/appellant assaulting the deceased Lekhansingh and had reached on the spot immediately after the incident and Lekhansingh told him that it was accused/appellant Man Bharan Singh, who caused him the injuries. Sadhu Singh (P.W.6), who is the cousin of the accused/appellant as well as the deceased, has stated that on hearing noise from the field of the accused/appellant Man Bharan, he went there and found that the deceased was lying in an injured state and the accused was standing there with a 'lathi' in his hand. Ayodhya (P.W.7) had also gone there. Sadhusingh (P.W.6) has further stated that on seeing him and Ayodhya (P.W.7), the accused/appellant ran away from the spot. Sadhu Singh (P.W.6) states that the deceased Lekhan Singh told them that Man Bharan, the accused/appellant, had assaulted him. Thereafter they had taken injured Lekhansingh to Shobhapur.
11. Thus, though Sadhusingh does not state that he saw the accused/appellant assaulting the deceased, he states to have reached the spot immediately after the incident. Both Ayodhya (P.W.7) and Sadhusingh (P.W.6) have also stated that the deceased Lekhansingh had told them that the accused/appellant had assaulted him. Chunnilal (P.W.9), who is the brother of the deceased Lekhansingh and Daddu Singh (P.W.10) who is the son of the deceased, have stated that they reached the spot and found that the deceased was lying in an injured state. Jtsaniya (P.W.8) has also stated that when he reached the spot, he found the deceased lying in an injured state.
12. From the above prosecution evidence on record, it is established that Lekhansingh received severe injuries including injuries on his head and that he informed that the accused/appellant had assaulted him. In fact from the statement under Section 313 of the Criminal Procedure Code of the accused/appellant himself, as has been mentioned earlier also, it would be clear that he was present on the spot and had assaulted the deceased, though he states that he did so in the exercise of right of private defence. It would thus be clear that the deceased had received injuries at the time of incident.
13. The injury report (Ex. P/15) of Lekhansingh and statement of Dr. A. V Mishra would indicate that there were two injuries on the head and one on the face, while rest of the injuries were on the legs, on the back and on the palms or fingers. He has stated that these injuries could be caused by 'lathi'. Dr. P. D. Agrawal (P.W.1) has stated that he had sent Memo (Ex. P/l) to the Police Station reporting that the deceased had died. From Ex. P/l, it would be clear that the deceased died on 31-10-1985 at 10.30 P.M. at the hospital at Satna. The post mortem was conducted by Dr. K. K. Shukla (P.W.12) and his report is Ex. P/l 8. He found that all the bones of the left side of the skull were broken and there was also extensive tearing of membrane - on the left side and there was collection of clotted blood on the left side of his skull. He has also stated that these injuries were sufficient in the ordinary course of nature to cause death.
14. Thus the death of Lekhansingh on account of injuries caused by the accused/appellant during the incident, which were sufficient in the ordinary course of nature to cause death, is established, as has been found by the learned trial Court, for reasons assigned by it in its judgment impugned herein.
15. It has been urged on behalf of the accused/appellant that the injuries were caused on account of fall on a stone. The above proposition, however, does not appear probable. It may be noted that the spot is shown to be the field of the accused/appellant. Therefore, mere falling down would not possibly cause such injuries, as were found on the person of Lekhansingh. Moreover, the statement of Ayodhya Prasad (P.W.7), in our opinion, is natural and inspires confidence and it appears that he saw the accused/appellant assaulting the deceased. Therefore, the plea that the injuries were received , on account of fall does not appear to be probable and in the circumstances of the case, cannot be accepted.
16. Therefore, it can be safely be inferred that the injuries found in the injury report by Dr. A. V Mishra (P.W.15) and in the post mortem report by Dr. K. K. Shukla (P.W.12) were caused by the accused/appellant, resulting in the death of deceased Lekhansingh.
17. It has been urged in this regard on behalf of the accused/appellant that he had exercised the right of person and property. It has also been urged in this connection that the accused/appellant had also sustained injuries, which have not been explained by the prosecution and that the said injuries on the person of the accused/appellant discredit the prosecution case as also support his contention of exercise of right of private defence. In this connection, reliance has been placed by the learned counsel for the accused/appellant on the case reported in Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263. As against this, the learned counsel for the Respondent State has contended that it is not always necessary for the prosecution to explain the injuries on the person of the accused and has supported his contention by the law laid down in Hare Krishna Singh and Ors. v. State of Bihar, AIR 1988 SC 863.
18. The Apex Court, on the aspect of non-explanation of injury on the person of the accused, has laid down in Lakshmi Singh's case (supra) that:-
'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;
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.'
It has been further observed in the same case that:-
'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, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.'
18A. In Hare Krishna's case (supra) the law laid down by Mohan Rai v. State of Bihar, AIR 1968 SC 1281; Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263; Bhaba Nanda Sarma v. State of Assam, AIR 1977 SC 2252; Ramlaghu Singh v. State of Bihar, AIR 1972 SC 2593; Onkarnath Singh and Ors. v. State of U. P., AIR 1974 SC 1550 and Jagdish v. State of Rajasthan, AIR 1979 SC 1010 was considered and discussed in some detail and it has been laid down that :-
'The obligation of prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.'
19. Thus, non-explanation of the injury is a factor which is to be taken into consideration in judging the veracity of the prosecution witnesses and the Court should scrutinise their evidence with care. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core, while in others, it may leave little or no adverse effect on the prosecution case. The entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries, on the person of the accused.
20. Now adverting to the evidence in the case, it may be seen that the Investigating Officer B. D. Tripathi (P.W.16) in para 7 of his statement has deposed that the accused/appellant when arrested on 31-10-1985, had injuries on his left hand, wrist, elbow and near the chest over the ribs and that he was sent for medical examination. It would also appear from the statement of Daddoo Singh (P.W.10) who is the son of the deceased Lekhansingh that Lekhansingh was carrying a 'lathi' with him at the time of incident. Therefore, there is a possibility that the accused had, during the quarrel between him and the accused/appellant, received some injuries. However, the nature of the injuries does not appear to be serious and does not support the statement of the accused given during his examination under Section 313 of the Criminal Procedure Code that seven or eight lathi blows were given by the deceased to him, because in that case, he would have certainly sustained much more serious injuries.
21. As discussed earlier, the evidence of Ayodhya (P.W.7) is unequivocal that the accused was seen by him assaulting the deceased with 'Lathi'. His statement is supported by the evidence of other witnesses. In the facts and circumstances of the case discussed above, it is established beyond any reasonable doubt that the accused/appellant had caused the injuries on the person of the deceased. So far as injuries on the person of the accused are concerned, they are minor in nature and since Ayodhya (P.W.7) had come on the spot, after hearing noise, he could not have possibly witnessed the incident from its inception. Hence, in the circumstances, simply because some minor injuries were sustained by the accused/appellant, the entire prosecution evidence cannot be thrown overboard and cannot be discarded. Moreover, this aspect of the matter shall also be taken into consideration, while determining the culpability of the accused/appellant later.
22. It has been next contended on behalf of the accused/appellant that he had assaulted the deceased Lekhansingh in the exercise of his right of private defence. He has placed reliance on the case reported in Pooran Singh and Ors. v. State of Punjab, AIR 1975 SC 1674 and has urged that right of private defence of property or person is available on apprehension of damage to property or hurt, etc. to be caused by the aggressor. Discussing the right of private defence of person or property, it has been held therein as under :-
'The right of private defence of person or property is to be exercised under the following limitations :
(i) that if there is sufficient time for recourse to the public authorities the right is not available;
(ii) that more harm than necessary should not be caused;
(iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.
It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation.'
23. It has been pointed out in this connection that admittedly, the spot where the incident took place was the field of the accused/appellant, as would be clear from the statement of Ayodhya (P.W.7), Sadhu Singh (P.W.6) and others, who have stated that they heard the noise from the field of Man Bharan Singh, where they had gone and found the deceased lying injured. This is also clear from the spot map (Ex.P/9) proved by Anil Kumar (P.W.5). It may also be pointed out that the complainant in his report (Ex.P/16) had himself reported that there was a dispute over the passage. It has been urged that in the circumstances, the deceased having gone to the field of the accused/appellant was an aggressor. It would also appear from the statement during his examination recorded under Section 313 of the Criminal Procedure Code of the accused/appellant that he raised a dispute as to who grazed his crop and thereupon a fight ensued. It may also be pointed out that though Ayodhya (P.W.7) had seen the incident, it appears that he had seen the incident not from the beginning, but only in its later part from a distance, after hearing the noise and after the quarrel between the deceased and the accused/appellant had already started. Hence, the origin of the incident cannot be ascertained from the statement of Ayodhya (P.W.7).
24. It thus appears that the incident took place in the field of the accused/appellant and that there was dispute of passage between the accused/appellant and the deceased. It also appears that the accused/appellant also sustained some minor injuries in his hand and near the rib during the incident. However, even if there was such a dispute, it is clear that it was not of a very grave proportion and did not justify the action of the accused/appellant in causing serious injuries on the person of the deceased, especially fatal injuries on his head. The right of private defence does not imply that on the slightest provocation, the gravest of injury should be inflicted. The injury caused should be commensurate with the apprehension that could reasonably arise, in the circumstances of the case. We find that the injuries caused to the deceased were disproportionately severe and appear to have been caused by the accused exceeding the right of private defence, resulting in death of Lekhansingh.
25. Therefore, though the accused/appellant cannot be held guilty for offence under Section 302 of the Indian Penal Code, an offence under Section 304, Part-I of the Indian Penal Code is made out against him, in view of exception-II of Section 300 of the Indian Penal Code. Accordingly, we set aside the finding of the learned trial Court that the accused/appellant is guilty of offence punishable under Section 302 of the Indian Penal Code and instead we find him guilty for offence punishable under Section 304, Part-I of the Indian Penal Code, and hold that he accordingly deserves to be convicted and sentenced therefor.
26. Therefore, this appeal partly succeeds and is allowed and setting aside his conviction and sentence under Section 302 of the Indian Penal Code, the accused/appellant is instead convicted under Section 304, Part-I, Indian Penal Code and sentenced to suffer R. I. for 10 years. Since the accused/appellant is in jail, a copy of this Judgment be sent to the concerned Jail Authorities for apprising the accused/appellant with the result of this appeal.