Judgment:
Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 12.8.1991 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar in Sessions Case No. 30/38 by which he acquitted the accused Najar Singh, Pala Singh, Hakam Singh, veer Singh, Sewa Singh and Gurjant Singh of the charges for the offence under Section 147, 148, 302 alternatively 302 read with 149, 323 alternatively 323/149 1PC and further acquitted the accused appellant of the charges for the offence under Section 147, 148, 302, 323 and 323/149 IPC, but convicted him for the offence Under Section 304 Part-I IPC and sentenced him to undergo five years' rigorous imprisonment and to pay a fine of Rs. 5000/-, in default of payment of fine, to further undergo one year RI.
2. The facts giving rise to this appeal, in short, are as follows:-
On 24.5.1988, PW 1 Daieep Kaur lodged an oral report (Ex.P/1) with the Police Station Kesrisinghpur District Sri Ganganagar before PW 10 Prithvi Singh stating inter-alia that near her house there was a house of the accused Najar Singh and before that incident, the accused Najar Singh had got conducted a raid in her house in respect of illicit distillation of liquor and thus, there was ill will inter-se between the parties. She has further stated that on the preceding night at about 9.00 PM, when her husband Jaga Singh (hereinafter referred to as the deceased), her son Bhura Singh (PW.2) and nephew Kaku Singh after taking meal were going to irrigate the field and reached near the house of accused Najar Singh, she heard 'Rolla' of 'Mar-diya' and on hearing such 'Rolla', she alongwith Mst. Naseeb Kaur, her daughter-in-law and Gudi, her daughter went to the site and found that near the house of accused Najar Singh, the accused appellant was armed with Gandasi, his father accused Sewa Singh was armed with Soti, accused Nazar Singh was armed with Sela, accused Pala Singh was armed with Kasia, Janta Singh and Heera Singh were armed with Lathies and accused Hakam Singh was armed with Gandasi. She has further stated that accused Najar Singh was saying kill the enemy and the accused appellant thereafter gave gandasi blow on the head of deceased and the accused Najar Singh gave a Sela blow which hit on the lower part of the knee of the deceased and as a result of which, deceased fell down on the ground. She has further stated that other accused persons also beat. She has further stated that accused Pala Singh gave Kasia blow on the head of her son Bhura Singh, PW.2 and rest accused persons also beat PW 2 Bhura Singh and Kaku Singh. She has further stated that she also received injury during the course of occurrence and her husband (deceased) died after some time on the spot.
On this report, police registered the case and started investigation.
During investigation, post mortem of the dead body of the deceased was got conducted by PW 3 Dr. Jaswant Singh and the post mortem report is Ex.P/2. PW 2 Bhura Singh, PW 1 Smt. Daleep Kaur, Kaku Singh and PW 4 Billa Singh were got medically examined by PW.3, Dr. Jaswant Singh and their injury reports are Ex.P/3, Ex.P/4, Ex.P/5 and Ex.P/6 respectively. The accused appellant was arrested though arrest memo Ex.P/26 on 2.6.1988 and he gave information for the recovery of Gandasi and that information was reduced into writing by PW7 Prithvi Singh and the same is Ex.P/27 and then, Gandasi was recovered on his instance through fard Ex.P/28.
After usual investigation, police submitted challan against seven accused persons including the present accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session.
On 17.1.1989, the learned Addl. Sessions Judge No. 1, Sri Ganganagar framed charges for the offence under Sections 148, 147, 302 alternatively 302/149, 323 alternatively 323/149 IPC against the accused Najar Singh, Pala Singh, Hakam Singh, Veer Singh, Sewa Singh and Gurjant Singh and for the offence under Section 148, 147, 302, 323 alternatively 323/149 IPC against the accused appellant. The charges were read over and explained to the accused persons. They denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under Section 313 Cr.P.C. were recorded. In defence, no evidence was produced by the accused persons.
3. After conclusion of trial, the learned Addl. Sessions Judge No. 1, Sri Ganganagar through his judgment and order 12.8.1991 acquitted all accused persons except present accused appellant of all the charges framed against them and further acquitted the present accused appellant of the charges for the offence under Section 147, 148, 302, 323, 323/149 IPC, but convicted him for the offence under Section 304 Part-I for the murder of deceased and sentenced in the manner as indicated above holding inter-alia;-
1. That accused appellant caused the injury on the head of deceased by sharp edged weapon, as a result of which, deceased died and that injury was sufficient in the ordinary course of nature to cause death.
2. That learned Addl. Sessions Judge placed reliance on the statements of PW 1 Smt. Dalip Kaur and PW 2 Bhura Singh and he found that their statements are fully supported by the medical evidence.
3. That prosecution has failed to prove that which of the other injuries were caused to deceased by which accused.
4. PW 4 Billa Singh cannot be regarded as eye witness as he reached on the spot just after the occurrence.
5. That incident took place at the residence of accused Najar Singh, therefore, question of formation of unlawful assembly did not arise and the learned Addl. Sessions Judge came to the conclusion that there was no unlawful assembly in the present case.
6. That it was a case of free fight and in the case of free fight, the other injuries except that of head injury might be the result of free fight and they are simply abrasions.
7. That accused appellant had no intention to murder deceased and had he intention to murder deceased, he would have given second blow and, therefore, the learned Addl. Sessions Judge came to the conclusion that the act of the accused appellant would fall under the provisions of Section 304 Part-I in place of 302 IPC.
8. That the prosecution has failed to prove its case against rest accused persons for any offence.
Aggrieved from the said judgment and order dated 12.8.1991 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar, this appeal has been filed by the accused appellant.
4. In this appeal, the learned counsel appearing for the accused appellant has made the following submissions:-
(1) That prosecution has failed to explain the injuries of the accused Najar Singh and thus, right of private defence was available to the accused appellant and in these circumstances, the conviction of the accused appellant for the offence under Section 304 Part-I IPC should be set aside.
(2) That non-examination of Kaku Singh should be treated as fatal and furthermore, other independent witnesses, who were admittedly on the scene, had not been examined and, therefore, adverse inference should be drawn against the prosecution.
(3) That occurrence has not taken place as alleged in the FIR.
Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the offence under Section 304 Part-I IPC.
5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar.
6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
7. Before proceeding further, first medical evidence produced by the prosecution in this case has to be seen.
8. So far as the injury report of PW 2 Bhura Singh is concerned, the same is Ex.P/3 and the same has been proved by PW 3 Dr. Jaswant Singh, which reveals that he received six simple injuries on his person.
9. So far as the injury report of PW 1 Smt. Daleep Kaur is concerned, the same is Ex.P/4 and the same has been proved by PW 3 Dr. Jaswant Singh, which also reveals that the received one simple injury.
10. The injury reports of Kaku Singh and PW 4 Billa Singh are Ex.P/5 and Ex.P/6 respectively.
11. The post mortem report of deceased is ex.P/2 and to prove the same, prosecution has produced PW 3 Dr. Jaswant Singh.
12. PW 3 Dr. Jaswant Singh states in his statement that he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:-
(1) Incised would 5'x1 1/2'x bone cutting, membrance cutting and injury to brain matter, on the left side of skull reaching upto occipital region. On post mortem examination, there was fracture of Lt. parietal bone with fracture of occipital bone with fracture of occipital bone Lt.side. The membrance cut and there was injury to brain tissues. Underneath the cutting membrance, haemotoma present.
(2) Incised wound of 1'x1/2'x 3/4' on the mid of U. Scapula.
(3) Two abrasions of 1/2'x1/2' on the back of chest in the middle.
(4) Two abrasions of 1/2'x1/2' on the coccyx region.
(5) Abrasion of 1/2'x1/4' on the posterior aspect of Lt. elbow. Jt.
(6) Contusion of 3'x1/2' on the posterior aspect of Lt. forearm.
(7) Contusion of 3'x1/1/2' on the Rt. mid auxiliary line.
(8) Contusion of 1 1/2' x 1/2' on the posterior aspect of Rs. elbow Jt.
He opined the cause of death of deceased in the following manner:-
'In my opinion, the cause of death was excessive bleeding and injury to brain tissues, fracture of it parietal with occipital bones leading to shock and death due to injury inflicted on the skull by sharp weapon.'
He has proved the post mortem report ex.P/2.
13. Thus, from the statement of PW 3 Dr. Jaswant. Singh, it appears that death of the deceases was homicidal one.
14. In this case, PW 1 Smt. Daleep Kaur and PW 2 Bhura Singh are injured witnesses and no doubt they are mother and son and also wife and son of deceased respectively, but their presence on the scene cannot be doubted as both are injured witnesses and in this respect, the decision of the Hon'ble Supreme Court in Awdesh v. State of UP (1), may be seen and from their statements, the fact that the injury on the head of the deceased was caused by the present accused appellant, is well established.
15. Thus, the findings of the learned Addl. Sessions Judge that the injury on the head of the deceased was caused by the present accused appellant are liable to be confirmed and further, the findings of the learned Addl. Sessions Judge that the said injury on the head was responsible for the death of deceased are also liable to be confirmed as PW 3 Dr. Jaswant Singh has also stated likewise.
16. The argument that PWI Smt. Daleep Kaur and PW 2 Bhura Singh are interested witnesses, therefore, their statements should not be believed, is not to be appreciated in this case, as both are injured witnesses and their presence on the spot cannot be doubted and their testimony cannot be rejected merely on the ground that they are relative and interested witnesses, especially when nothing was found in their cross examination, from which it would be suggested that they are not truthful witnesses. Their testimony could be rejected only when the Court comes to the conclusion that their statements are tainted with some infirmity, but- nothing sort of like that is found in the present case, as their statements are fully supported by the medical evidence. Hence, the argument that since they are interested witnesses, therefore, their statements should not be believed, stands rejected.
17. So far as non-examination of Kaku Singh is concerned, it would not affect the case of the prosecution, as the prosecution case is very well proved from the statements of PW 1 Smt. Daleep Kaur and PW 2 Bhura Singh and also from medical evidence, so far as the case against accused appellant is concerned.
On point of right of private defence
18. From the statement of PW 10 Prithvi Singh, it simply appears that FIR D/4 was lodged by accused Najar Singh and this shows that he received some simple injuries.
19. It may be stated here that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a con-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence given a version which completes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth form falsehood, the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case.
20. In the present case, since the evidence led by the prosecution so far as the case of the prosecution, which has been held to be proved by the learned Addl. Sessions Judge against the present accused appellant and to that extent, there injuries of accused Najar Singh which are of minor and trivial nature, would not affect the case of the prosecution even if they are not explained by the witnesses of the prosecution, as the evidence led by the prosecution is clear, cogent and credit worthy on the point that the accused appellant gave a Gandasi blow on the head to the deceased, which resulted in the fracture and damaged the brain of the deceased and ultimately led to the death of deceased.
21. So far as the argument that right or private defence was available to the accused appellant as the incident took place in the house of accused Najar Singh, is concerned, in my considered opinion, the same is not tenable.
22. It may be stated here that where a plea of self-defence is raised in a murder case, the proper way of looking at the right is not the triviality of the injuries inflicted on the accused, nor is it a question whether the accused had any injuries at all on him. The consideration will be whether the accused and any reasonable apprehension that grievous hurt or death would be caused to him. It is his apprehension that is the important point an not the injuries suffered by him.
23. It may further be stated here that the mere apprehension is not enough, It should be reasonable apprehension and to attract the general exception there should be material to show that death or grievous hurt could otherwise have been the result. The right of private defence is available to one who is suddenly confronted with immediate necessity to averting an impending danger not of his creation. The necessity must be present, real or apparent. In the present case, such things are missing. There is no evidence in the present case to hold that there was any danger to the body of the accused appellant at the hands of the complainant party. Hence, no right of private defence was available to the accused appellant and the argument that right of private defence was available to the accused appellant stands rejected. Besides this, no right of private defence is available to either party in case of free right and each individual is responsible for his own acts and for that the decision of the Hon'ble Supreme Court in Munir Ahmed and Ors. v. State of Rajasthan (2), may be seen.
24. Apart from this, the learned Addl. Sessions Judge has found the present case to be a case of free fight, all the benefits of the free fight have been given to other accused persons and that is why, only present accused appellant was convicted by the learned Addl. Sessions Judge. Therefore, leniency has already been shown by the learned Addl. Sessions Judge and he has given cogent findings after evaluating the evidence on record and has come to the conclusion that present accused appellant gave a severe blow on the head of deceased, which resulted in his death. Therefore, the findings of the learned Addl. Sessions Judge are liable to be confirmed.
25. There is one more aspect of the case and the same is that when the learned Addl. Sessions Judge has come to the conclusion that there was no intention on the part of the accused appellant to cause death of deceased, whether the findings of conviction of the accused appellant for the offence under Section 304 Part-1 IPC are correct one or not.
26. It my considered opinion, when the learned Addl. Sessions Judge has come to the conclusion that accused appellant had no intention to murder deceased and he has not covered the act of the accused appellant with any of the exceptions mentioned in Section 300 IPC, therefore, knowledge can be inferred on the part of the accused appellant and thus, his act would be covered by Clause (4) of Section 300 IPC and it would amount to culpable homicide not amounting to murder punishable under Section 304 Part- 11 IPC and in these circumstances, the accused appellant should have been convicted under Section 304 Part II IPC instead of 304 Part-1 IPC, and to that extent, the findings of the learned Addl. Sessions Judge are liable to be altered.
27. So far as the sentence is concerned, even for the offence under Section 304 Part II IPC, the sentence of five years is reasonable one and no further leniency is required.
For the reasons stated above, the appeal filed by the accused appellant Poppy Singh is liable to be dismissed and the same is hereby dismissed, after confirming the judgment and order dated 12.8.1991 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar with slight modification that conviction of the accused appellant is altered to 304 Part-II IPC from 304 Part-I IPC. The accused appellant must now surrender before the trial court to undergo balance period of sentence.