R.C. Gandhi, J.
1. This Criminal Appeal is directed against the judgment and order dated 16.07.2003 and 19.07.2003 passed by the learned Addl. Sessions Judge, Jammu in File No. 29/Session, whereby the appellant-Kewal Krishan has been convicted and sentenced to undergo imprisonment for life for commission of offence under Section 302 RPC and to pay a fine of Rs. 5000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for one year. He is also sentenced to undergo simple imprisonment of one year for commission of offence under Section 323 RPC. He is further sentenced to undergo rigorous imprisonment for three years for commission of offence under Section 4/25 Arms Act and to pay Rs. 2000/- as fine and in default of payment of fine, to undergo rigorous imprisonment for six months. Whereas appellants-Ashawni Kumar and Mst. Parmila Devi have been sentenced to undergo imprisonment for life under Section 302 RPC and shall pay a fine of Rs. 5000/- each and in default of payment of fine both the accused to undergo rigorous imprisonment for one year. They have been further sentenced to undergo simple imprisonment for six months each under Section 323 R.P.C. However, all the sentences have been ordered to run concurrently.
2. The Prosecution story, in brief, is that complainant Ram Krishan S/O Des Raj R/O Chorli lodged a verbal report with the Police Station, R.S Pura that on 18.06.1996 at about 6.30 p.m. accused persons, namely, Kewal Krishan, Ashwani Kumar sons of Om Parkash and Mst. Parmila Devi wife of Om Parkash, all residents of W. No. l, Tehsil Bishnah, Distt. Jammu had developed enmity with the complainant on account of the land dispute. He and his father had gone to their land and saw that Mst. Parmila Devi, Kewal Krishan and Ashwani Kumar were irrigating their land. His father Des Raj deceased prevented them from doing so, upon this, Mst. Parmila Devi directed his sons that what were they looking for, finish Des Raj today. On this, all the accused with criminal intention to kill him attacked his father. Accused-Kewal Krishan inflicted injuries on his chest with Kirch, Ashwani Kumar hit him with Mungali (a danda of bigger size in width and small size in length), Mst. Parmila with sharp 'Kai' (a farming instrument used for digging earth) inflicted injuries on the head of the deceased. His father succumbed to the injuries on the spot and dead body, with oozing blood, is lying on the spot. All the accused after occurrence have fled away from the spot. On this report, Police Station, Bishnah registered FIR No. 48/96 against the accused for alleged commission of offences under Sections 302/34 RPC and 4/25 Indian Arms Act and started investigation.
3. During investigation, Police prepared the site plan, recorded the statements of the prosecution witnesses, took into custody the dead body of Des Raj and sent it to Hospital for post-mortem, obtained the report of the post-mortem and seized the weapons of offence and wearing apparels of the dead body. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Accused Kewal Krishan made disclosure statement with regard to 'Kirch' and, at his instance, it was recovered from beneath a stone lying under Puli (culvert) near village Kothey Chowala. Weapon of offence was sent to FSL and report obtained. Challan was presented. The accused were charged sheeted, they pleaded not guilty and were put to trial.
4. The prosecution examined 13 witnesses, including PWs-Kamlo Devi, Ram Krishan, Sohan Singh and Rakesh Singh as eye witnesses to prove the charges against the accused.
5. On appreciation of evidence and hearing learned Counsel for the parties, trial court recorded the finding of conviction and awarded sentence to the accused as stated earlier, which has been challenged by means of present appeal on the grounds that the trial court has not appreciated the evidence led by the prosecution properly and has recorded erroneous findings of conviction and sentence. There are grave discrepancies in the statements of the witnesses and prosecution story being suffering from probabilities, the impugned judgment is not sustainable in law.
6. We have heard the learned Counsel for the parties and perused the record. Learned Counsel for the appellant has drawn attention of the Court to point out the discrepancies in the statements of the prosecution witnesses for re-appreciation. To appreciate the evidence, we would like to discuss the statements of the eye witnesses.
7. PW-Ram Krishan has stated that on 18.06.1996, in the evening at about 6 p.m. the accused had gone to their field for irrigating the land. The deceased prevented them. The accused started beating his deceased father. The accused Kewal Krishan inflicted injuries with Kirch on chest of his father, Ashwani Kumar with Mungali and Mst. Parmila Devi with Kai. PW-Rakesh also came on the spot. Witness has also received injuries on his chest and back. His father died on spot. When he intervened, the accused Kewal Krishan inflicted injuries with Kirch and Ashwani Kumar with Mungali on his head. He became unconscious and when he gained conscious he found that his father had expired. He went to Police Station to lodge the report. Police came on the spot, seized dead body which is proved as EXPW-RK Police seized weapons of offence, i.e. Kirch, Mungali and Kai from the spot. Seizure memo was prepared which is exhibited as EXPW-RK/2. He further stated that a day before the occurrence, his father was called by the Police at Police Station. During this period, the accused forcibly cultivated their land in dispute. PW- Rakesh went to his house to inform about the occurrence. Thereafter, his mother PW-Kamlo came on the spot. When she reached on the spot, he had already proceeded to Police Station. He remained on spot for about half an hour after the occurrence and thereafter went to the Police Station. He has not recorded in the FIR that he and his father had gone together on spot. He went to the Police Station alone. He raised alarm on spot. Many people assembled including PW-Rakesh and PW-Sohan Singh. The distance of Police Station from the place of occurrence is 2 kms. He does not know the name of the Police person who had recorded the FIR. Police got his signatures at two places in the Police Station. One on the application and another on the FIR. Police had got his signatures on the application which was written in the Police Station and that application has not been shown to him in the Court. He had got written in the FIR that Sohan Singh and Rakesh came on the spot but it has not been recorded by the Police. It is wrong to suggest that the land in question has been mutated in the name of the accused and they are in cultivating possession. It is further stated that when he reached on the spot, the deceased had already fallen on the ground. When he heard the noise he was about 100 feet away from the place of occurrence and the land was yet not irrigated. Rakesh was present in his own field. PW - Sohan Singh was also present there because he had gone there to bring fodder and he was 150 feet away from the place of occurrence. Both these witnesses are from his village but they are not his friends. The scuffle between his father and accused lasted about 10 minutes. It is denied that Mst. Parmila-accused was irrigating the field alone and the deceased hit on her head with Kai. It is also denied that the accused Mst. Parmila was admitted and remained in the Hospital for 15 days.
8. PW-Kamlo Devi wife of the deceased has stated that her husband Des Raj had gone to the field alone for irrigating the land. She was at home. She has narrated the incident though she was not present on the spot. She and Ram Krishan when reached on the spot, then accused also inflicted injuries to her. Ram Krishan fled away and the accused left the weapons of offence on spot. Her husband succumbed to the injuries on the spot. In cross-examination, she has stated that when she reached on the spot, accused were not present only her husband was there. She is not an eyewitness. She has contradicted the statement of PW-Ram Krishan that she and her son Ram Krishan went to the spot together.
9. PW-Rakesh Singh had stated that on 18.06.1996 at about 6.30 in the evening, he was about 200 feet away from the place of occurrence, in his own field, when there was a fight between deceased Des Raj and the accused. Occurrence took place in the field of Des Raj. Accused-Mst. Parmila was having a Kai in her hands, Kewal Krishan accused was having a Kirch in his hand whereas Ashwani Kumar accused was having a Danda in his hand. Accused attacked deceased with these weapons. As soon as he reached the spot all alone, he found Des Raj dead on the spot. PW-Sohan Singh also reached there in the meantime. He and Sohan Singh proceeded to the house of Des Raj to inform about the occurrence. In the way Ram Krishan complainant son of the deceased met them and they narrated the occurrence to him. They came on the spot, people by that time had assembled there. From the spot he and Sohan Singh went to the Police Station to lodge the report. This witness contradicts the statement of complainant-Ram Krishan who has stated that he went to the Police Station to lodge report. Witness also contradicts Ram Krishan who has stated that he reached on the spot whereas this witness has stated that he is the first who reached on the spot.
10. PW-Rakesh has stated that the land is situated about 200 feet away from the land in dispute. There is dispute between the accused and the deceased. Quarrel has taken place in between the accused and deceased in the land of the deceased. Mst. Parmila Devi with Kai, accused Kewal Krishan with Kirch and Ashwani Kumar with Danda have inflicted injuries on the deceased. He was alone on the spot at that time. PW-Sohan Singh also reached on the spot. They both went to the house of Des Raj to in form them about the occurrence. He and Sohan Singh went to the house of Numberdar and alongwith Numberdar, they went to Police Station and filed report and Police came on the spot. The weapons of offence including Kirch were seized from the spot. This witness contradicts PW-Ram Krishan that he has lodged the FIR with the Police. He also contradicts Sohan Singh who has stated that Rakesh and Sohan went to Police Station for lodging report. Whereas this witness has stated that Numberdar was also alongwith them.
11. These are the four eyewitnesses on which prosecution had relied upon to prove the charges. There are discrepancies in the statements of prosecution witnesses. Police has prepared the site plan. In the site plan Kirch has not been shown lying on the spot. PW-Rakesh Singh, Sohan Singh and complainant Ram Krishan have stated that Kirch was seized by the Police from the place of occurrence. On appreciation of evidence, we find that there are discrepancies, which do not permit us to believe the story of the prosecution. Complainant, Ram Krishan has not supported his version as stated in the FIR. Kamlo Devi has stated that she is the first to reach on the spot. PW-Rakesh Singh claims to have reached on the spot first.
12. There are other glaring improbabilities in the story of the prosecution that accused Mst. Parmila Devi has received injuries and one of the injuries is head injury inflicted on her in the same incident and she remained admitted in the hospital for treatment of head injury for a period of 15 days. The defence had also examined the Patwari who has stated that the land in dispute bearing S. No. 229 measuring 10 kanals has been mutated in 'favour of the accused under Mutation No. 126 dated 18.04.1994 in terms Section 12 of the Agrarian Reforms Act and the accused are in cultivating possession of the land.
13. The prosecution has set up the case to prove that Kirch has been seized on the disclosure statement of the accused Kewal Krishan. PW-Ram Krishan is the witness to the seizure memo and disclosure statement, who has stated that Kirch was seized from the place of occurrence. This falsifies the story of the prosecution that 'kirch', the weapon of offence, was recovered on the disclosure statement of accused Kewal Krishan. Another circumstance, which is fatal to the prosecution, story is that Mst. Parmila Devi has received head injury in the same incident and this injury has been suppressed by the prosecution, which makes out that the genesis of the occurrence has not been projected by the prosecution in its true form. Failure on the part of the prosecution to explain the injuries sustained in the same accident in which complainant party has suffered injuries itself in sufficient to discard the prosecution story. However, under such circumstances it was the duty of the prosecution to find out the cause of the injuries sustained in the occurrence of same incident in which other party, as per prosecution story, has sustained injuries at the hands of the accused. Dealing with such prosecution story, the Apex Court in Kanbi Nanji Virji and Ors. v. State of Gujarat reported in : 1970CriLJ363 held as under:
7. As mentioned earlier both the trial Court and the High Court have completely rejected the testimony of PW.6. Hence the prosecution case entirely rests on the testimony of P. W.5. P. W.5 was not believed by the High Court in several important respects. It came to the conclusion that he was not a truthful witness. It opined that his version as to the incident is a garbled one and that he has suppressed the part played by him and others on his side. But yet the High Court evidently influenced by the fact that two persons had been killed during the incident undertook a salvaging operation in an attempt to fish out truth out of the mass of false evidence given by him. In doing so it went in search of some corroborative evidence. According to P.W.5, after the occurrence he ran to the house of kasalsingh, P.W.10 and informed him about the occurrence. The High Court thought that to the extent the evidence of P.W.5 tallies with the information given by him to kasalsingh the same may be accepted as true. But yet the High Court in many respects disbelieved the testimony of P.5 even when it accorded with the version given by him to P.W.10. It came to the conclusion that P. W.5 did not give a full and correct version to P. W. 10. In particular it opined that while informing Kasalsingh about the incident, P. W.5 deliberately suppressed the part played by the persons on his side. Having come to the conclusion that right from the beginning P.W.5 was giving a distorted version of the incident, the High Court was not right in holding that any portion of P.W.S's evidence can be relied upon merely because that some portion of his testimony in court accords with the version given by him to P.W.1O. It is true that oftentimes the courts have to separate the truth from falsehood. But where the two are so intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety.
14. The Informant, whosoever, he is, whether Ram Krishan or Sohan Singh and Rakesh Kumar, true occurrence has not been disclosed to the police and the incident on the part of the prosecution has been suppressed.
15. Learned Counsel for the appellants, in support of his plea, has relied upon a judgment of the Supreme Court in case titled Kashi Ram and Ors. v. State of M.P. reported in : AIR2001SC2902 . Relevant portion of the judgments is reproduced as under:
A few relevant factual and legal aspects overlooked by the High Court may now 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 sustained 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.
23. Section 105 of the 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 one of the material available on record a preponderance 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...
16. Learned Counsel also relied upon a judgment of the Supreme Court in case titled State of M.P v. Sardar : 2001CriLJ3984 . Paragraphs 26 and 27 are relevant and are reproduced below:.
What is the effect of non-explanation of injuries sustained by the accused at about the time of occurrence? It is settled law that in case of non-explanation of injuries to the accused, 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.
But, non-explanation of injuries may lose its importance where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood without much difficulty. It is also true that the reasonable inference, which could be drawn in such cases, is that the accused persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted such injuries. On that basis again, the question would be whether the accused caused the injuries to the prosecution witnesses and the deceased by exercising right of private defence. If the prosecution establishes that the accused were the aggressors and went at the residence of the deceased or that prosecution witness and inflicted injuries on the deceased and witnesses, there is no question of right of private defence to the accused. On the contrary in such situation, the prosecution party would have the right of private defence.
17. We find, on appreciation of evidence, that the prosecution has suppressed the genesis of the occurrence. Investigating Officer has failed to do justice by not investigating the occurrence in the manner it has occurred to bring truth of the occurrence before the Court.
18. For the aforesaid reasons, we allow this appeal, set aside the Judgment of the trial court and acquit the accused of the charges framed against them. Reference is, accordingly, rejected.