Gajey Singh and anr. (In Jail) Vs. State of U.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/487391
SubjectCriminal
CourtAllahabad High Court
Decided OnFeb-16-2001
Case NumberCriminal Appeal No. 2786 of 1980
JudgeJ.C. Gupta and ;Lakshmi Bihari, JJ.
Reported in2001CriLJ2838
ActsIndian Penal Code (IPC), 1860 - Sections 34, 96, 97, 99, 100 and 302; Code of Criminal Procedure (CrPC) - Sections 161 and 313
AppellantGajey Singh and anr. (In Jail)
RespondentState of U.P.
Appellant AdvocateP.N. Misra, Adv.
Respondent AdvocateA.G.A., ;Ram Niwas Sharma and ;D.S. Tewari, Advs.
DispositionAppeal allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 1 jai singh clearly admitted that at the time of incident no one on their side was armed with any weapon. the resultant effect of this discussion is that the prosecution has failed to explain injuries suffered by both the appellants in the same course of incident. 22. the next question that arises for consideration is how far the prosecution case is effected on account of its failure to explain injuries of appellants sustained by them in the same incident? it is well settled that before an adverse inference is drawn against the prosecution for its suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of same transaction in which the victim on the side of prosecution was injured. how far the prosecution case will be effected for its failure to explain injuries on the accused, the question will have to be answered on the basis of facts and circumstances of each case. as per the defence version there were four assailants who had come well prepared to assault appellants at the door of their own house.1. this appeal is directed against the judgment and order dated 4-12-1980 passed 'by the then 1st additional sessions judge, meerut, in sessions trial no. 276 of 1979, convicting the appellants under section 302 read with section 34, indian penal code and sentencing each of them to life imprisonment.2. briefly stated, the facts of the prosecution case are that in the morning of 27-1-1979 at about 8 a.m. lakhi ram, deceased of this case and his brother p.w. 1 jai singh were sitting at the gher of sahid akhtar, p.w. 3. accused gajey singh and his father mehar singh came there. some quarrel took place between lakhi ram and mehar singh, father of the accused persons. on the intervention of sahid akhtar and virendra, the matter was got settled and the parties went back.3. it is alleged that at about 9.30 a.m. on the same day, lakhi ram followed by jai singh and his father godha singh were going towards their field for the 'chhol' (harvesting of sugarcane crop) and when they reached in front of the house of mehar singh, the appellant gajey singh came there and caught hold of lakhi ram. jai singh and godha singh reached there and separated lakhi ram and gajey singh. in the meantime, appellant raj pal singh came there with the licensed gun of his father and on the asking of gajey singh, he fired upon lakhi ram as a result of which he sustained injury on his neck and died on the spot.4. godha singh, p.w. 2 lodged written report ex ka 1 at police station incholi on the same day at 11.35 a.m. head moharrir shyam lal, p.w. 6, prepared chick f.i.r. and made entry in the general diary. s.i. prabhat kumar, p.w. 8 was entrusted with the investigation. he immediately rushed to the scene of occurrence and found that a.s.i. ilma singh was already present there and had completed inquest on the dead body of deceased lakhi ram. the dead body was sent for post mortem examination through constable parmanand p.w. 7.5. the investigating officer collected sample of blood and prepared site plan ex ka-10 and arrested both the appellants from their house on the same day and also took in his custody the gun which was kept in their room. the investigating officer then recorded statements of the witnesses and on completion of investigation challaned both the appellants through charge sheet ex ka-12.6. dr. k. d. sharma, p.w. 5 conducted the postmortem on the dead body of lakhi ram on 28-1-1979 at 2.30 p.m. and found following ante-mortem injuries :1. gun-shot wound of entry 6 cm x 4 cm x oral cavity on the right side front of neck upper part, lower jaw and lips. blackening and scorching present, margin inverted.2. gun-shot wound of exit 10 cm x 8 cm on left side face lips and upper part neck. margin everted.3. lacerated wound 4 cm x 2 cm x bone right side forehead 2 cm above the right eye brow.bone of lower jaw broken into many pieces.7. on internal examination, dr. sharma found that 3th and 4th cervical vertebrae were fractured. large vessels of neck on right side were found lacerated and there was also extensive laceration of oral cavity. in the opinion of the medical officer, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. it may also be mentioned here that in his statement before the trial court, dr. k. d. sharma further opined that death of lakhi ram was possible at about 9.30 p.m. on 27-1-1979.8. in order to substantiate its case, the prosecution produced eight witnesses, of whom p.w. 1 jai singh, p.w. 2 godha singh and p.w. 4 sagira were the witnesses of fact. p.w. 3 sahid akhtar was examined to state about the incident which occurred some time before the present occurrence.9. the appellants in their statements recorded under section 313 cr.p.c. denied the prosecution allegations. a counter version was put forward from their side. the case of the accused appellants was that on 27-1-1979 in the morning godha singh, lakhi ram, jai singh and om prakash came to their house armed with lathi and 'balkati'. they started assaulting raj pal singh with lathi and godha singh with balkati. seeing this, their father, mehar singh, fired a shot from his gun towards the appellants. accused gajey singh further stated that police had also arrested his father mehar singh and he was detained for three days at the police station. in defence, the accused persons produced four witnesses. d.w. 1 dr. s.c. goel who proved injury reports of accused gajey singh and rajpal singh ex kha 2 and ex. kha 3 respectively. dr. s.c. goel was posted as medical officer, p.l.s. hospital, meerut, he stated that he medically examined accused gajey singh on 27-1 -1979 at 9.10 p.m. who was produced before him in police custody by constable jatan swarup of police station incholi and found following injury on his person :incised wound 7 cm x 2 cm x bone deep on the right side head, 3 1/2 cm above eyebrow. placed vertically. margins clear. fresh blood was coming out. x-ray advised.10. in the opinion of dr. goel, the above injury was caused by sharp-edged weapon and its duration was about half day old.11. on the same day at 9.30 p.m. dr. s.c. goel medically examined accused rajpal singh, who was also brought in police custody by constable jatan swarup. following injury was found on the person of accused rajpal singh :lacerated wound 1 cm x 1/2 cm x muscle deep on the tip of the left thumb outer side margins lacerated. blood coming out on cleaning.12. in the opinion of the doctor, injury was simple and caused by blunt object and its duration was about half day.13. before the court below, dr. goel d.w. 1 further stated that injuries of both gajey singh and rajpal singh could be caused at about 9.30 a.m. on 27-1-1979. he further opined that injury of gajey singh could be the result of balkati blow while the injury of rajpal singh was of blunt object. it is not necessary to refer to the evidence of other witnesses as they have no bearing on the incident in question.14. learned sessions judge, placing reliance on the evidence of the prosecution witnesses, has found the appellants guilty of the offence of murder and accordingly convicted and sentenced them to imprisonment for life under section 302 read with section 34 ipc.15. we have heard sri p.n. mishra, learned senior advocate appearing for the appellants and sri k. c. saxena, learned a.g.a. for the state. the learned counsel for the parties have also taken us through the entire evidence.16. the factum of death of lakhi ram by fire-arm injury has neither been disputed nor assailed before us by the learned counsel for the appellants. lakhi ram died homicidal death on account of gun-shot injury is also otherwise established from the statements of the eye witnesses and dr. sharma, p.w. 5, who conducted autopsy.17. the learned counsel for the appellants, however, submitted before us that even as per the prosecution case, the incident occurred in front of the house of the appellants and from the evidence on record, it is fully established that the appellants also sustained injuries including a bone deep 'in-jury on skull in the same course of incident and since these injuries have not been explained in the prosecution evidence by the prosecution witnesses, it must be held that the prosecution suppressed the genesis and origin of occurrence and the witnesses examined by the prosecution have given a distorted version. it was also submitted that in law, the defence was simply to show that his defence plea was probable and it was not incumbent upon the accused persons to prove their case to the hilt. merely because the defence case was also not true, that by itself cannot absolve the prosecution from discharging its burden of proving its case, which burden heavily laid upon its shoulders.18. after examining the record, we find sufficient weight in the above submissions of the learnd counsel for the appellants.19. p.w. 3 sahid akhatar was produced to state about the earlier incident which occurred as about 8 a.m. on the day of occurrence. he stated that at that time he was inside his gher and on hearing noise he came out and saw that lakhi ram and mehar singh father of appellants were grappling with each other. he separated them. in that incident none of them sustained any injury. this prior incident is said to be the only motive of the present occurrence. p.w. 1 jai singh also stated likewise. it was submitted by appellants' counsel that this alleged motive cuts both ways and even as per the prosecution case the present incident occurred in front of the house of appellants, this factor supports the defence case that the prosecution party was the aggressor as deceased and his companions had come to take revenge of the morning incident fully armed with lathi and 'balkati' and death of deceased lakhi ram was caused in exercise of right of private defence. a perusal of the site plan ex. ka. 10 reveals that dead body of lakhi ram was found lying just in front of the house of mehar singh, father of appellants, where even as per the prosecution case incident had occurred. according to p.w. 1 jai singh and p.w. 2 godha singh they alongwith lakhi ram were proceeding to the gher of akhatar at about 9.30 in the morning and when they reached in front of the gher of mehar singh, gajey singh appellant struck a lathi blow on the forehead of lakhi ram and thereafter lakhi ram caught hold of gajey singh and fell him down on the ground. rajpal singh appellant in the meantime arrived there and fired upon lakhi ram as a result of which the latter died. in cross examination p.w. 1 jai singh admitted that gher of mehar singh would not fall in the way if one goes directly from his house to his field. neither in the report nor in his statement under section 161 cr. p.c. this witness had stated that at the time of incident he was going to the gher of sahid akhatar for 'chhol' (scrapping of sugarcane stalks), rather at the initial stage the case was that they were going from their home for 'chhol'. realizing the difficulty that if they were going to their field from their house, gher of mehar singh would not fall in the way, the witnesses, made a development at the trial that they were going to the gher of akhatar so that their presence in front of the house of mehar singh could be justified. the fact that gher of mehar singh would not fall in the way, gives support to the defence version that the deceased and their companions purposely had assembled in front of the house of mehar singh with some ulterior designs.20. from the side of accused persons dr. s. c. goyal was examined as d.w. 1. he has stated that on 27-1-79 he was medical officer on emergency duty at p.l.s. hospital, meerut. at 9.30 p.m., he medically examined accused rajpal who was brought before him by constable jatan swarup of p.s. incholi, meerut. he found one lacerated wound 1 cm x 1/2 cm, muscle deep on the tip of the left thumb, blood was coming out on cleaning. injury report has been proved as ex. kha. 2. on the same night at 9.10 p.m. he examined injuries of gajey singh appellant and found one incised wound 7 cm x 2 cm x bone deep on the right side of head. injury was kept under observation. dr. goyal further stated that injuries of both the accused persons could be caused at about 9-9.30 a.m. in the same morning. injury of rajpal was caused by blunt object while of gajey singh by sharp edged object. according to the defence version both the accused persons were first assaulted and then in exercise of right of private defence one single fire-arm injury on the deceased was caused. in the first information report ex. ka. 3 no explanation whatsoever has been given with regard to the injuries of accused persons. similarly during investigation also the injuries of accused persons remained unexplained as neither p.w. 1 nor p.w. 2 gave any sort of explanation regarding those injuries. for the first time at the trial p.w. 1 came with the case that when gajey singh had struck a lathi blow on the forehead of lakhi ram deceased, the latter threw him on the ground. p.w. 1 jai singh clearly admitted that at the time of incident no one on their side was armed with any weapon. he further admitted that no one assaulted any accused person. according to him gajey singh sustained injury on account of his falling on pieces of stone or glass. in his deposition before the court below he stated that he had told the investigating officer that gajey singh was holding a lathi and had struck the same on the forehead of deceased but he could not give any reason as to why this fact was not mentioned in his statement recorded under section 161 cr. p.c. he further could not assign any reason why the investigating officer did not record in his statement under section 161 cr. p.c. that his brother lakhi ram had thrown gajey singh on the kharanja. he also could not explain why the i.o. has not recorded in his statement that gajey singh sustained injury on his person on account of his falling on the ground. p.w. 1 jai singh is real brother of deceased while p.w. 2 godha singh is his father. p.w. 2 godha repeated the same story as was stated by p.w. 1 jai singh. he is the scribe of f.i.r. he also admitted that he did not mention in his report that gajey singh was having a lathi and that he had assaulted his son lakhi ram with lathi. he further admitted that he did not mention in his report that lakhi ram had caught hold of gajey singh and threw him on the ground. he however stated that he had told all these facts to the investigating officer but could not explain why those facts were absent in his statement recorded under section 161 cr. p.c. he also admitted that he did not see any injury on the person of accused rajpal. neither he nor his son or any other witness had any weapon with them nor any one of them had assaulted gajey accused from any sharp edged object. it has also been stated by him that at the time when the investigating officer inspected the scene of occurrence he had shown him glass pieces which were lying at the scene of occurrence. the investigating officer who was examined as p.w. 8 in the trial court stated that the above mentioned facts were not disclosed to him by both p.w. 1 jai singh and p.w. 2 godha singh. he further admitted that he had found no pieces of glass or stones at the place of occurrence. it is further admitted by him that he had arrested both the accused persons on the same day and got them medically examined in police custody as they were having injuries on their person.21. sagira p.w. 4 is yet another witness of fact. he stated that at the time of occurrence he was inside his house. he came out on hearing cries and saw that lakhi ram deceased and gajey singh were grappling with each other. gajey singh struck a lathi on lakhi ram whereupon lakhi ram fell him on the ground and then rajpal fired from his gun upon lakhi ram. he admitted that gajey singh had sustained an injury on his head when he was thrown on the ground by lakhi raj deceased. he also had not stated before the investigating officer the fact that gajey singh had suffered injury as he was thrown on the ground by lakhi raj deceased. though he claimed that he had disclosed this fact to the investigating officer but could not explain why such an important fact was not mentioned in his statement recorded during investigation. the investigating officer admitted that this witness also did not state the above fact rather he had stated that lakhi ram had assaulted gajey singh with a brickbat. on being confronted he denied to have stated so to the i.o. and further stated that he cannot assign any reason as to why it has been so recorded. the i.o. however has testified that the witness had made such a statement to him. it would thus appear that upto the investigation stage no explanation of injuries of accused persons had been put forward by the witnesses excepting sagira who had stated that gajey singh had sustained injury on his head as he was assaulted by a brick-bat by deceased lakhi ram. faced with the difficulty that gajey singh had sustained an incised wound of sharp edged object in the same incident, the witnesses did not hesitate to develop upon the version placed at the initial stage and perhaps under some legal advise they were made to state for the first time at the trial that when appellant gajey singh had struck a lathi blow on the forehead of deceased lakhi ram the later caught hold of him and threw him on the ground. neither in the first information report nor at the stage of investigation appellant gajey singh was alleged to be armed with lathi, nor it was the case of prosecution that appellant gajey singh made any assault by lathi on the person of lakhi ram deceased. this part of the prosecution case appears to have been developed at the trial so as to bring evidence of witnesses in consonance with the medical evidence because in the post-mortem examination of deceased lakhi ram one lacerated wound on right side of forehead was also found. the witnesses were also made to state for the first time at the trial that after receiving lathi injury on his forehead at the hands of appellant gajey singh, he threw appellant gajey singh on the ground. this development appears to have been made to explain the bone deep incised injury sustained by appellant gajey singh in the same incident. it may not be out of place to mention here that according to the statement of investigating officer he had arrested both the appellants on the same day and had found injuries on their person and for that reason they were got medically examined in police custody. by no stretch of imagination, injury of gajey singh could be said to be superficial or self inflicted. dr. s. c. goyal who had medically examined appellant gajey singh has denied the prosecution suggestion that the incised injury of gajey singh might have been caused by a fall on a piece of a glass. he was recalled and further cross-examined by d.g.c. but the doctor stuck to his opinion in a firm manner. in support of his opinion he referred to modi's medical jurisprudence wherein it is observed that some times a punctured wound may come by a fall on a sharp pointed piece of an earthen pot or broken glass. in that case the edges of the wound are irregular and more or less bruised. in the present case the margins of incised injury of gajey singh were clear and clean cut which in the opinion of dr. goyal could not be found in an injury caused due to a fall on a piece of glass. we fully agree with the opinion expressed by dr. goyal. thus, we find that apart from the fact that the explanation which the prosecution witnesses have tried to offer for the first time at the trial with regard to injuries of appellants, is a belated and developed one the same is not at all convincing and does not fit in with the nature of injuries found on the person of both the appellants. the resultant effect of this discussion is that the prosecution has failed to explain injuries suffered by both the appellants in the same course of incident. 22. the next question that arises for consideration is how far the prosecution case is effected on account of its failure to explain injuries of appellants sustained by them in the same incident? it is well settled that before an adverse inference is drawn against the prosecution for its suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of same transaction in which the victim on the side of prosecution was injured. it is not the law that prosecution is obliged to explain injuries of accused in all cases and in all circumstances. how far the prosecution case will be effected for its failure to explain injuries on the accused, the question will have to be answered on the basis of facts and circumstances of each case. non-explanation of injuries of accused is certainly a factor which is to be taken into account in judging the veracity of the prosecution case and in such a situation the court is under a duty to scrutinize the evidence of witnesses with great care and caution.23. in the present case admittedly the incident occurred in front of the house of appellants. we have already doubted the claim of the prosecution witnesses that they and deceased were going to the gher of akhatar for doing 'chhol'. the house of appellants was not situated in the way leading from their house to their field. though the witnesses claimed that none of them or the deceased was armed with any weapon but the injuries sustained on defence side belie them as gajey singh appellant sustained a bone deep incised injury from a sharp cutting object and rajpal appellant had sustained a blunt object injury. we have already discarded the explanation given by the witnesses for the first time at the trial with regard to injury of gajey singh appellant that the same might have been caused on account of his being thrown on the ground. the witnesses produced at the trial were all interested. they made several vital and important developments at the trial from the version as was put in the first information report and during investigation.24. in the facts and circumstances of the case, it can therefore, safely be inferred that the prosecution has suppressed the genesis and the origin of the occurrence and is thus guilty of not presenting the true version. the defence version which explains the injuries on the person of accused is rendered more probable so as to throw doubt on the prosecution case. thus non-explanation of injuries of accused persons has rendered the prosecution version doubtful and makes-the defence version more probable that injuries on the deceased lakhi ram were inflicted in exercise of right of private defence.25. it has now to be examined whether the right of self-defence was exceeded?we have already found above that the incident occurred in front of the house of appellants and the defence version that the deceased alongwith his associates had assembled at appellants' house arrmed with blunt object and sharp edged weapon and were the aggressors, is more probable. therefore right of private defence of body was certainly available to accused persons. the question now arises whether that right extended to the voluntary causing of death of deceased lakhi ram. section 96 of the penal code declares that an act done in the exercise of the right of private defence is not an offence. section 97 specifies the extent of the; right of private defence whereas section 99 prescribes the limitations on the exercise of this right. section 100 of the indian penal code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. 1st clause of section 100 applies to cases where there is reasonable apprehension of death while clause secondly is attracted where a person has a genuine apprehension that his adversary is going to attack him and reasonably believes that the attack will result in a grievous hurt. in that event he can go to the length of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow on him. in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. the question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait jacket formula can be framed in this regard. the weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while judging the said question. an accused acting under an apprehension of death or of grievous hurt either of himself or his family members is not expected to judge too nicely the force of his own blow. in the present case, the circumstances indicate that appellant gajey singh was assaulted by a sharp edged weapon which according to the defence version was 'balkati'. the assault by that weapon was made on the head of appellant gajey singh causing a bone deep injury. as per the defence version there were four assailants who had come well prepared to assault appellants at the door of their own house. in such a situation accused persons could have a reasonable apprehension of death or at least of grievous hurt. it was a case of single shot which was not repeated. therefore, it cannot be said that even if accused persons had a right of self-defence that right was exceeded.26. for the reasons assigned above, we find ourselves unable to sustain the conviction of appellants for the offence of murder and in our opinion, they deserve to get the benefit of doubt. accordingly, the appeal is allowed. the conviction and sentence of the appellants, as recorded by the trial court, are set aside. they are acquitted of the offence charged for. they are on bail, they need not surrender. their bail bonds are cancelled and sureties discharged.
Judgment:

1. This appeal is directed against the judgment and order dated 4-12-1980 passed 'by the then 1st Additional Sessions Judge, Meerut, in Sessions Trial No. 276 of 1979, convicting the appellants under Section 302 read with Section 34, Indian Penal Code and sentencing each of them to life imprisonment.

2. Briefly stated, the facts of the prosecution case are that in the morning of 27-1-1979 at about 8 A.M. Lakhi Ram, deceased of this case and his brother P.W. 1 Jai Singh were sitting at the Gher of Sahid Akhtar, P.W. 3. Accused Gajey Singh and his father Mehar Singh came there. Some quarrel took place between Lakhi Ram and Mehar Singh, father of the accused persons. On the intervention of Sahid Akhtar and Virendra, the matter was got settled and the parties went back.

3. It is alleged that at about 9.30 A.M. on the same day, Lakhi Ram followed by Jai Singh and his father Godha Singh were going towards their field for the 'chhol' (harvesting of sugarcane crop) and when they reached in front of the house of Mehar Singh, the appellant Gajey Singh came there and caught hold of Lakhi Ram. Jai Singh and Godha Singh reached there and separated Lakhi Ram and Gajey Singh. In the meantime, appellant Raj Pal Singh came there with the licensed gun of his father and on the asking of Gajey Singh, he fired upon Lakhi Ram as a result of which he sustained injury on his neck and died on the spot.

4. Godha Singh, P.W. 2 lodged written report Ex Ka 1 at police station Incholi on the same day at 11.35 A.M. Head Moharrir Shyam Lal, P.W. 6, prepared chick F.I.R. and made entry in the General Diary. S.I. Prabhat Kumar, P.W. 8 was entrusted with the investigation. He immediately rushed to the scene of occurrence and found that A.S.I. Ilma Singh was already present there and had completed inquest on the dead body of deceased Lakhi Ram. The dead body was sent for post mortem examination through constable Parmanand P.W. 7.

5. The Investigating Officer collected sample of blood and prepared site plan Ex Ka-10 and arrested both the appellants from their house on the same day and also took in his custody the gun which was kept in their room. The Investigating Officer then recorded statements of the witnesses and on completion of investigation challaned both the appellants through charge sheet Ex Ka-12.

6. Dr. K. D. Sharma, P.W. 5 conducted the postmortem on the dead body of Lakhi Ram on 28-1-1979 at 2.30 P.M. and found following ante-mortem injuries :

1. Gun-shot wound of entry 6 cm x 4 cm x oral cavity on the right side front of neck upper part, lower jaw and lips. Blackening and scorching present, Margin inverted.

2. Gun-shot wound of exit 10 cm x 8 cm on left side face lips and upper part neck. Margin everted.

3. Lacerated wound 4 cm x 2 cm x bone right side forehead 2 cm above the right eye brow.

Bone of lower jaw broken into many pieces.

7. On internal examination, Dr. Sharma found that 3th and 4th cervical vertebrae were fractured. Large vessels of neck on right side were found lacerated and there was also extensive laceration of oral cavity. In the opinion of the Medical Officer, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. It may also be mentioned here that in his statement before the trial Court, Dr. K. D. Sharma further opined that death of Lakhi Ram was possible at about 9.30 P.M. on 27-1-1979.

8. In order to substantiate its case, the prosecution produced eight witnesses, of whom P.W. 1 Jai Singh, P.W. 2 Godha Singh and P.W. 4 Sagira were the witnesses of fact. P.W. 3 Sahid Akhtar was examined to state about the incident which occurred some time before the present occurrence.

9. The appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution allegations. A counter version was put forward from their side. The case of the accused appellants was that on 27-1-1979 in the morning Godha Singh, Lakhi Ram, Jai Singh and Om Prakash came to their house armed with lathi and 'balkati'. They started assaulting Raj Pal Singh with lathi and Godha Singh with balkati. Seeing this, their father, Mehar Singh, fired a shot from his gun towards the appellants. Accused Gajey Singh further stated that police had also arrested his father Mehar Singh and he was detained for three days at the police station. In defence, the accused persons produced four witnesses. D.W. 1 Dr. S.C. Goel who proved injury reports of accused Gajey Singh and Rajpal Singh Ex Kha 2 and Ex. Kha 3 respectively. Dr. S.C. Goel was posted as Medical Officer, P.L.S. Hospital, Meerut, He stated that he medically examined accused Gajey Singh on 27-1 -1979 at 9.10 P.M. who was produced before him in police custody by constable Jatan Swarup of police station Incholi and found following injury on his person :

Incised wound 7 cm x 2 cm x bone deep on the right side head, 3 1/2 cm above eyebrow. Placed vertically. Margins clear. Fresh blood was coming out. X-ray advised.

10. In the opinion of Dr. Goel, the above injury was caused by sharp-edged weapon and its duration was about half day old.

11. On the same day at 9.30 P.M. Dr. S.C. Goel medically examined accused Rajpal Singh, who was also brought in police custody by constable Jatan Swarup. Following injury was found on the person of accused Rajpal Singh :

Lacerated wound 1 cm x 1/2 cm x muscle deep on the tip of the left thumb outer side margins lacerated. Blood coming out on cleaning.

12. In the opinion of the Doctor, injury was simple and caused by blunt object and its duration was about half day.

13. Before the Court below, Dr. Goel D.W. 1 further stated that injuries of both Gajey Singh and Rajpal Singh could be caused at about 9.30 A.M. on 27-1-1979. He further opined that injury of Gajey Singh could be the result of balkati blow while the injury of Rajpal Singh was of blunt object. It is not necessary to refer to the evidence of other witnesses as they have no bearing on the incident in question.

14. Learned Sessions Judge, placing reliance on the evidence of the prosecution witnesses, has found the appellants guilty of the offence of murder and accordingly convicted and sentenced them to imprisonment for life under Section 302 read with Section 34 IPC.

15. We have heard Sri P.N. Mishra, learned Senior Advocate appearing for the appellants and Sri K. C. Saxena, learned A.G.A. for the state. The learned counsel for the parties have also taken us through the entire evidence.

16. The factum of death of Lakhi Ram by fire-arm injury has neither been disputed nor assailed before us by the learned counsel for the appellants. Lakhi Ram died homicidal death on account of gun-shot injury is also otherwise established from the statements of the eye witnesses and Dr. Sharma, P.W. 5, who conducted autopsy.

17. The learned counsel for the appellants, however, submitted before us that even as per the prosecution case, the incident occurred in front of the house of the appellants and from the evidence on record, it is fully established that the appellants also sustained injuries including a bone deep 'in-jury on skull in the same course of incident and since these injuries have not been explained in the prosecution evidence by the prosecution witnesses, it must be held that the prosecution suppressed the genesis and origin of occurrence and the witnesses examined by the prosecution have given a distorted version. It was also submitted that in law, the defence was simply to show that his defence plea was probable and it was not incumbent upon the accused persons to prove their case to the hilt. Merely because the defence case was also not true, that by itself cannot absolve the prosecution from discharging its burden of proving its case, which burden heavily laid upon its shoulders.

18. After examining the record, we find sufficient weight in the above submissions of the learnd counsel for the appellants.

19. P.W. 3 Sahid Akhatar was produced to state about the earlier incident which occurred as about 8 a.m. on the day of occurrence. He stated that at that time he was inside his Gher and on hearing noise he came out and saw that Lakhi Ram and Mehar Singh father of appellants were grappling with each other. He separated them. In that incident none of them sustained any injury. This prior incident is said to be the only motive of the present occurrence. P.W. 1 Jai Singh also stated likewise. It was submitted by appellants' counsel that this alleged motive cuts both ways and even as per the prosecution case the present incident occurred in front of the house of appellants, this factor supports the defence case that the prosecution party was the aggressor as deceased and his companions had come to take revenge of the morning incident fully armed with lathi and 'balkati' and death of deceased Lakhi Ram was caused in exercise of right of private defence. A perusal of the site plan Ex. Ka. 10 reveals that dead body of Lakhi Ram was found lying just in front of the house of Mehar Singh, father of appellants, where even as per the prosecution case incident had occurred. According to P.W. 1 Jai Singh and P.W. 2 Godha Singh they alongwith Lakhi Ram were proceeding to the Gher of Akhatar at about 9.30 in the morning and when they reached in front of the Gher of Mehar Singh, Gajey Singh appellant struck a lathi blow on the forehead of Lakhi Ram and thereafter Lakhi Ram caught hold of Gajey Singh and fell him down on the ground. Rajpal Singh appellant in the meantime arrived there and fired upon Lakhi Ram as a result of which the latter died. In cross examination P.W. 1 Jai Singh admitted that Gher of Mehar Singh would not fall in the way if one goes directly from his house to his field. Neither in the report nor in his statement under Section 161 Cr. P.C. this witness had stated that at the time of incident he was going to the Gher of Sahid Akhatar for 'chhol' (scrapping of sugarcane stalks), rather at the initial stage the case was that they were going from their home for 'chhol'. Realizing the difficulty that if they were going to their field from their house, Gher of Mehar Singh would not fall in the way, the witnesses, made a development at the trial that they were going to the Gher of Akhatar so that their presence in front of the house of Mehar Singh could be justified. The fact that Gher of Mehar Singh would not fall in the way, gives support to the defence version that the deceased and their companions purposely had assembled in front of the house of Mehar Singh with some ulterior designs.

20. From the side of accused persons Dr. S. C. Goyal was examined as D.W. 1. He has stated that on 27-1-79 he was Medical Officer on emergency duty at P.L.S. Hospital, Meerut. At 9.30 p.m., he medically examined accused Rajpal who was brought before him by Constable Jatan Swarup of P.S. Incholi, Meerut. He found one lacerated wound 1 cm x 1/2 cm, muscle deep on the tip of the left thumb, blood was coming out on cleaning. Injury Report has been proved as Ex. Kha. 2. On the same night at 9.10 p.m. he examined injuries of Gajey Singh appellant and found one incised wound 7 cm x 2 cm x bone deep on the right side of head. Injury was kept under observation. Dr. Goyal further stated that injuries of both the accused persons could be caused at about 9-9.30 a.m. in the same morning. Injury of Rajpal was caused by blunt object while of Gajey Singh by sharp edged object. According to the defence version both the accused persons were first assaulted and then in exercise of right of private defence one single fire-arm injury on the deceased was caused. In the First Information Report Ex. Ka. 3 no explanation whatsoever has been given with regard to the injuries of accused persons. Similarly during investigation also the injuries of accused persons remained unexplained as neither P.W. 1 nor P.W. 2 gave any sort of explanation regarding those injuries. For the first time at the trial P.W. 1 came with the case that when Gajey Singh had struck a lathi blow on the forehead of Lakhi Ram deceased, the latter threw him on the ground. P.W. 1 Jai Singh clearly admitted that at the time of incident no one on their side was armed with any weapon. He further admitted that no one assaulted any accused person. According to him Gajey Singh sustained injury on account of his falling on pieces of stone or glass. In his deposition before the Court below he stated that he had told the investigating officer that Gajey Singh was holding a lathi and had struck the same on the forehead of deceased but he could not give any reason as to why this fact was not mentioned in his statement recorded under Section 161 Cr. P.C. He further could not assign any reason why the investigating officer did not record in his statement under Section 161 Cr. P.C. that his brother Lakhi Ram had thrown Gajey Singh on the Kharanja. He also could not explain why the I.O. has not recorded in his statement that Gajey Singh sustained injury on his person on account of his falling on the ground. P.W. 1 Jai Singh is real brother of deceased while P.W. 2 Godha Singh is his father. P.W. 2 Godha repeated the same story as was stated by P.W. 1 Jai Singh. He is the scribe of F.I.R. He also admitted that he did not mention in his report that Gajey Singh was having a lathi and that he had assaulted his son Lakhi Ram with lathi. He further admitted that he did not mention in his report that Lakhi Ram had caught hold of Gajey Singh and threw him on the ground. He however stated that he had told all these facts to the investigating officer but could not explain why those facts were absent in his statement recorded under Section 161 Cr. P.C. He also admitted that he did not see any injury on the person of accused Rajpal. Neither he nor his son or any other witness had any weapon with them nor any one of them had assaulted Gajey accused from any sharp edged object. It has also been stated by him that at the time when the investigating officer inspected the scene of occurrence he had shown him glass pieces which were lying at the scene of occurrence. The investigating officer who was examined as P.W. 8 in the trial Court stated that the above mentioned facts were not disclosed to him by both P.W. 1 Jai Singh and P.W. 2 Godha Singh. He further admitted that he had found no pieces of glass or stones at the place of occurrence. It is further admitted by him that he had arrested both the accused persons on the same day and got them medically examined in police custody as they were having injuries on their person.

21. Sagira P.W. 4 is yet another witness of fact. He stated that at the time of occurrence he was inside his house. He came out on hearing cries and saw that Lakhi Ram deceased and Gajey Singh were grappling with each other. Gajey Singh struck a lathi on Lakhi Ram whereupon Lakhi Ram fell him on the ground and then Rajpal fired from his gun upon Lakhi Ram. He admitted that Gajey Singh had sustained an injury on his head when he was thrown on the ground by Lakhi Raj deceased. He also had not stated before the investigating officer the fact that Gajey Singh had suffered injury as he was thrown on the ground by Lakhi Raj deceased. Though he claimed that he had disclosed this fact to the investigating officer but could not explain why such an important fact was not mentioned in his statement recorded during investigation. The investigating officer admitted that this witness also did not state the above fact rather he had stated that Lakhi Ram had assaulted Gajey Singh with a brickbat. On being confronted he denied to have stated so to the I.O. and further stated that he cannot assign any reason as to why it has been so recorded. The I.O. however has testified that the witness had made such a statement to him. It would thus appear that upto the investigation stage no explanation of injuries of accused persons had been put forward by the witnesses excepting Sagira who had stated that Gajey Singh had sustained injury on his head as he was assaulted by a brick-bat by deceased Lakhi Ram. Faced with the difficulty that Gajey Singh had sustained an Incised wound of sharp edged object in the same incident, the witnesses did not hesitate to develop upon the version placed at the initial stage and perhaps under some legal advise they were made to state for the first time at the trial that when appellant Gajey Singh had struck a lathi blow on the forehead of deceased Lakhi Ram the later caught hold of him and threw him on the ground. Neither in the First Information Report nor at the stage of investigation appellant Gajey Singh was alleged to be armed with lathi, nor it was the case of prosecution that appellant Gajey Singh made any assault by lathi on the person of Lakhi Ram deceased. This part of the prosecution case appears to have been developed at the trial so as to bring evidence of witnesses in consonance with the medical evidence because in the post-mortem examination of deceased Lakhi Ram one lacerated wound on right side of forehead was also found. The witnesses were also made to state for the first time at the trial that after receiving lathi injury on his forehead at the hands of appellant Gajey Singh, he threw appellant Gajey Singh on the ground. This development appears to have been made to explain the bone deep incised injury sustained by appellant Gajey Singh in the same incident. It may not be out of place to mention here that according to the statement of investigating officer he had arrested both the appellants on the same day and had found injuries on their person and for that reason they were got medically examined in police custody. By no stretch of imagination, injury of Gajey Singh could be said to be superficial or self inflicted. Dr. S. C. Goyal who had medically examined appellant Gajey Singh has denied the prosecution suggestion that the incised injury of Gajey Singh might have been caused by a fall on a piece of a glass. He was recalled and further cross-examined by D.G.C. but the doctor stuck to his opinion in a firm manner. In support of his opinion he referred to Modi's Medical Jurisprudence wherein it is observed that some times a punctured wound may come by a fall on a sharp pointed piece of an earthen pot or broken glass. In that case the edges of the wound are irregular and more or less bruised. In the present case the margins of incised injury of Gajey Singh were clear and clean cut which in the opinion of Dr. Goyal could not be found in an injury caused due to a fall on a piece of glass. We fully agree with the opinion expressed by Dr. Goyal. Thus, we find that apart from the fact that the explanation which the prosecution witnesses have tried to offer for the first time at the trial with regard to injuries of appellants, is a belated and developed one the same is not at all convincing and does not fit in with the nature of injuries found on the person of both the appellants. The resultant effect of this discussion is that the prosecution has failed to explain injuries suffered by both the appellants in the same course of incident.

22. The next question that arises for consideration is how far the prosecution case is effected on account of its failure to explain injuries of appellants sustained by them in the same incident? It is well settled that before an adverse inference is drawn against the prosecution for its suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of same transaction in which the victim on the side of prosecution was injured. It is not the law that prosecution is obliged to explain injuries of accused in all cases and in all circumstances. How far the prosecution case will be effected for its failure to explain injuries on the accused, the question will have to be answered on the basis of facts and circumstances of each case. Non-explanation of injuries of accused is certainly a factor which is to be taken into account in judging the veracity of the prosecution case and in such a situation the Court is under a duty to scrutinize the evidence of witnesses with great care and caution.

23. In the present case admittedly the incident occurred in front of the house of appellants. We have already doubted the claim of the prosecution witnesses that they and deceased were going to the Gher of Akhatar for doing 'chhol'. The house of appellants was not situated in the way leading from their house to their field. Though the witnesses claimed that none of them or the deceased was armed with any weapon but the injuries sustained on defence side belie them as Gajey Singh appellant sustained a bone deep incised injury from a sharp cutting object and Rajpal appellant had sustained a blunt object injury. We have already discarded the explanation given by the witnesses for the first time at the trial with regard to injury of Gajey Singh appellant that the same might have been caused on account of his being thrown on the ground. The witnesses produced at the trial were all interested. They made several vital and important developments at the trial from the version as was put in the First Information Report and during investigation.

24. In the facts and circumstances of the case, it can therefore, safely be inferred that the prosecution has suppressed the genesis and the origin of the occurrence and is thus guilty of not presenting the true version. The defence version which explains the injuries on the person of accused is rendered more probable so as to throw doubt on the prosecution case. Thus non-explanation of injuries of accused persons has rendered the prosecution version doubtful and makes-the defence version more probable that injuries on the deceased Lakhi Ram were inflicted in exercise of right of private defence.

25. It has now to be examined whether the right of self-defence was exceeded?

We have already found above that the incident occurred in front of the house of appellants and the defence version that the deceased alongwith his associates had assembled at appellants' house arrmed with blunt object and sharp edged weapon and were the aggressors, is more probable. Therefore right of private defence of body was certainly available to accused persons. The question now arises whether that right extended to the voluntary causing of death of deceased Lakhi Ram. Section 96 of the Penal Code declares that an act done in the exercise of the right of private defence is not an offence. Section 97 specifies the extent of the; right of private defence whereas Section 99 prescribes the limitations on the exercise of this right. Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. 1st clause of Section 100 applies to cases where there is reasonable apprehension of death while clause secondly is attracted where a person has a genuine apprehension that his adversary is going to attack him and reasonably believes that the attack will result in a grievous hurt. In that event he can go to the length of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow on him. In order to justify the act of causing death of the assailant, the accused has simply to satisfy the Court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait jacket formula can be framed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while judging the said question. An accused acting under an apprehension of death or of grievous hurt either of himself or his family members is not expected to judge too nicely the force of his own blow. In the present case, the circumstances indicate that appellant Gajey Singh was assaulted by a sharp edged weapon which according to the defence version was 'balkati'. The assault by that weapon was made on the head of appellant Gajey Singh causing a bone deep injury. As per the defence version there were four assailants who had come well prepared to assault appellants at the door of their own house. In such a situation accused persons could have a reasonable apprehension of death or at least of grievous hurt. It was a case of single shot which was not repeated. Therefore, it cannot be said that even if accused persons had a right of self-defence that right was exceeded.

26. For the reasons assigned above, we find ourselves unable to sustain the conviction of appellants for the offence of murder and in our opinion, they deserve to get the benefit of doubt. Accordingly, the appeal is allowed. The conviction and sentence of the appellants, as recorded by the trial Court, are set aside. They are acquitted of the offence charged for. They are on bail, they need not surrender. Their bail bonds are cancelled and sureties discharged.