CRIMINAL APPEAL NO. 654 OF 2006
Lokeshwar Singh Panta, J.
1. The appellants have filed this
appeal against the Judgment and Order dated August 03, 2005 passed by a
Division Bench of the Punjab and Haryana High Court at Chandigarh,
confirming the conviction and sentence in respect of the offence
punishable under Section 302 of the Indian Penal Code (for short the 'IPC')
and a fine of Rs.2000/- with a default clause to undergo R.I. for six
months awarded to Suraj Dev and imposing punishment of life imprisonment
upon appellants Babu Ram and Indraj under Section 302 read with Section
34 of IPC and to pay a fine of Rs.2000/- each, in default of payment of
fine to further suffer R.I. for six months each in Sessions Case No. 83
of 1993 / Sessions Trial No.10 of 1997.
2. Briefly put, the facts may be
summarized as follows:
On 03.03.1993 at about 7.30 PM, the complainant Sohan Lal (PW-2) on
hearing some noise coming from the street near the house of Ram Pratap
(PW-3) came out of his house with a torch in his hand. PWs.2 and 3 saw
that Babu Ram (A-1) and Indraj (A-2) had caught hold of Ant Ram while
Suraj Dev (A-3) gave a blow with a 'Rambi' (an instrument for cutting
leather by a cobbler) on the chest of Ant Ram. On receipt of the said
blow, Ant Ram fell down. PWs-2 and 3 raised an alarm which attracted
many other persons on the spot. Ant Ram was taken to the Civil Hospital,
Abohar, by PW-2 and PW-3 where he was declared dead. A ruqqa was sent to
Police Station regarding receipt of the dead body of Ant Ram. A.S.I.
Hardev Singh (PW-5) came to the hospital and recorded statement of PW-2
Sohan Lal. On the basis of the said statement, formal FIR Ex.PH/1 came
to be registered at the Police Station. The Investigating Officer
started investigation and prepared an inquest report. He recorded the
statement of PW-3 Ram Pratap on the following day of the incident. He
went to the place of occurrence and lifted the blood-stained earth and
prepared a site plan.
3. On 08.03.1993, Indraj (A-2) was
discharged from hospital and was arrested by the Investigating Officer
and thereafter investigation of the case was taken over by S.I. Jagdev
Singh. On 10.03.1993, S.I. Jagdev Singh accompanied by A.S.I. Hardev
Singh (PW-5) went to Village Kikker Khera, where Ram Pratap, Ex-Sarpanch,
produced Babu Ram (A-1) and Suraj Dev (A-3) who, later on, were
arrested. It was further case of the prosecution that on 12.03.1993,
pursuant to the disclosure statement Ex.PK made by A-3, the Police
recovered one blood-stained 'Rambi' concealed in an iron box meant for
keeping clothes from his house. 'Rambi' (Ex.P1) was taken into
possession through Memo (Ex.PK/2). On completion of the investigation,
charge sheet was presented against the appellants A-1, A-2 and A-3 in
the Court of Illaqa Magistrate, who committed the same to the Court of
Sessions. The learned Sessions Judge, Ferozpur, charge-sheeted A-3 Suraj
Dev under Section 302 IPC, while A-1 Babu Ram and A-2 Indraj were
charged under Section 302 read with Section 34 of the IPC. The
appellants pleaded not guilty to the offence and claimed to be tried.
4. In support of its case, the
prosecution examined Dr.Lal Chand Thakral as PW-1, Sohan Lal as PW-2,
Ram Pratap as PW-3, Het Ram as PW-4 and A.S.I. Hardev Singh as PW-5. In
their statements recorded under Section 313 of the Code of Criminal
Procedure, the appellants Babu Ram (A-1) pleaded as under:-
"I am innocent. I have love affairs
with Kant daughter of Sohan Lal. I have produced letters Mark D.1 to D.8
which are in her own hand-writing and I have been falsely involved due
to this reason."
Indraj (A-2) pleaded as under:- "I
was preparing shoes by cutting leather with the Rambi. Ant Ram came
there and started abusing me for not supporting Sohan Lal. We exchanged
abuses and a quarrel started. In the meanwhile my wife also came there.
Ant Ram had a Kapa with him. He gave blows to me and my wife with Kapa
from its sharp and blunt side. In order to defend me and my wife, I gave
a Rambi blow to him. Police helped the deceased party as brother of Ant
Ram, i.e. Main Pal is working in the Police Department. Babu Ram and my
son Suraj Dev have been falsely implicated. Eye-witnesses Sohan Lal and
Ram Pratap are made up witnesses."
5. A-3 Suraj Dev pleaded that he is
innocent and has been falsely implicated in the case being the son of
A-2 Indraj. In their defence, the appellants have examined Dr. Prithvi
Raj (DW-1), who medico legally examined A-2 Indraj and also his injured
wife Smt. Maya. Dr. R.K. Arora (DW-2) radiologically examined Smt. Maya
6. The Trial Court, on appreciation
of the evidence, held the appellants guilty of the murder of Ant Ram
and, accordingly, convicted and sentenced them as aforesaid.
7. The appellants preferred an
appeal under Section 374 (2) of the Cr.P.C. before the High Court,
whereas PW-2 Sohan Lal filed Criminal Revision No.306 of 1997 claiming
compensation to the heirs of the deceased. The High court, as stated
above, confirmed the conviction and sentence imposed upon the
appellants, but dismissed the Criminal Revision of the complainant.
8. The appellants are, thus, before
us by Special Leave to Appeal.
9. Mr. K.B. Sinha, learned counsel
for the appellants, assailed the judgment of the High Court inter alia
on two following grounds:-
(a) that the genesis of the occurrence is shrouded in mystery and the
prosecution has failed to explain the injuries on the person of the
appellant-Indraj and his wife DW-3 Smt. Maya, therefore, the conviction
of the appellants suffers from infirmity and perversity;
(b) that the injury, which was found
fatal to the deceased Ant Ram, was caused by the appellant-Indraj in his
self-defence and also to protect the body of his wife Smt. Maya from
further assault by the deceased. Thus, the appellants are entitled to
the benefit of doubt.
10. Learned counsel for the
respondent State, on the other hand, submitted that the reasons given by
the Trial Court as well as by the High Court regarding the order of
conviction of the appellants are based upon proper appreciation of the
evidence led by the prosecution in the case. According to him, the
evidence of PW-2 and PW-3, the eye-witnesses of the incident, is cogent
and satisfactory with the hypothesis of the guilt of the accused and the
accused had no right of private defence to cause the grievous injury on
the vital part of the body of the deceased with sharp edged weapon and,
therefore, the plea of the right of private defence of accused Indraj is
not tenable and acceptable.
11. Before adverting to the
arguments advanced by the learned counsel, we shall, at the threshold,
point out that the incident, which resulted in the death of Ant Ram, is
not in dispute. We have reappraised and scrutinized the evidence of the
eye-witnesses as well as medical evidence of PW-1 Dr. Lal Chand Thakral
who, at the relevant time, was posted as Medical Officer, Civil
Hospital, Abohar. Dr. Lal Chand Thakral conducted the post-mortem on the
dead body of Ant Ram on 04.03.1993 at 11.00 a.m. and found the following
injuries on his body:
1. A stab incised wound 2.5 cm X 1.5
cm present on the front of the chest on left side 4.5 cm below, the
overlying shirt and vest.
2. On probing, the direction of
wound was downwards medically and upwards. On dissection clotted blood
was present in underlying tissues, 5th rib was cut. On further
dissection the pericardium was out and left ventricle arterially was
cut. There was about 700 CC of blood was present on the left side of the
chest cavity. Heart was empty. The injury was ante-mortem in nature.
12. In the opinion of the Doctor,
the cause of death of Ant Ram was hemorrhage, shock and injury to heart
which was sufficient to cause death in due course of events.
13. PW-2 Sohan Lal and PW-3 Ram
Pratap, the alleged eye- witnesses of the occurrence, are interested
witnesses. They are brother and nephew respectively of the deceased. The
prosecution has not examined any other witness in support of its case
though it has come in the evidence of PW-3 Ram Pratap that large number
of persons including Chunni, Banwari and Chhotu were present at the
scene of occurrence, who witnessed the incident. The defence of the
accused Indraj corroborated by the evidence of his wife DW-3 appears to
be more plausible than the rival version of the evidence of PWs-2 and 3.
14. DW-1 Dr. Prithvi Raj was BMO
posted at Civil Hospital, Abohar, at the relevant time. He
medico-legally examined the
accused-Indraj on 03.03.1993 at 10.45 p.m. in the hospital and found the
following injuries on his person:
"1. There was an incised wound 2 x 0.5 cm bone deep sent on arteries
lateral aspect of left forearm, just above the wrist joint. Fresh
bleeding was present. X-ray was advised.
2. There was an incised wound 2 x
0.5 cm bone deep present on back right forearm 5 cm below electron on
process. Fresh bleeding was present. X-ray was advised.
3. There was an unscabbed abrasion 1
x 1 cm over bridge of nose. X-ray was advised.
4. There was an abrasion 1.5 x 1 cm
on right side of face below right eye adjacent to nose.
5. There was an abrasion 3 x 1cm on
back of right forearm on its upper part, 3 cm below injury no.2.
6. There was an abrasion 1.5 x 1 cm
on lateral side of right forearm on its lower part.
7. There was an abrasion 4 x 3 cm on
front of left knee. Injuries No.1, 2 and 3 were kept under observation
and the remaining injuries were declared as simple. The probable
duration of the injuries was within six hours. Injuries No.1 and 2 were
caused by sharp edged weapon while the remaining was caused by blunt
weapon. I have brought the original MLR today in the court. Exh.D is the
certified copy of the MLR of Indraj and Exh.DA/1 is the pictorial
diagram showing the seat of injuries."
As per the opinion of Dr. Prithvi
Raj, the above said injuries on the person of accused Indraj were found
simple in nature after X-ray examination.
15. On the same day, Dr. Prithvi Raj
medico-legally examined DW-3 Smt. Maya, wife of the accused Indraj, and
he found following injuries on her person:-
1. There was a reddish contusion 2 x 1.5 cm with underlying swelling 5 x
3 cm on dorsum of right hand on medical side. X-ray was advised.
2. There was a reddish contusion 6 x
1.5 cm on lateral side of right arm on its middle.
3. There was an abrasion 3 x 2 cm on
medical side of the left forearm on its upper part.
In the opinion of the Doctor, Injury Nos. 2 and 3 were found simple in
nature, whereas Injury No.1 was declared grievous in nature caused by
blunt weapon within the duration of six hours.
16. DW-2 Mr. R.K. Arora was S.M.O.,
Civil Hospital, Abohar, at the relevant time. Dr. Arora conducted X-ray
examination of Smt. Maya on 04.03.1993 and found fracture of the base of
proximal phalyn of right little finger.
17. DW-3 Smt. Maya stated in her
deposition that on the day of occurrence her husband Indraj was cutting
leather for making shoes with a 'Rambi' when Ant Ram came in front of
their house and without any cause he started abusing her husband. Ant
Ram was armed with 'Kapa' with which he gave 6-7 blows to her husband
from sharp and blunt side of the weapon. She tried to save her husband
from further assault, but Ant Ram inflicted grievous injuries on her
arms with 'Kapa'. She stated that her husband Indraj was carrying a 'Rambi'
in his hand with which he inflicted injury to Ant Ram to save himself as
well as her body. She further stated that she went to the hospital along
with her injured husband where Doctor medically examined them. She
narrated the entire incident to the police, but the police did not
listen to her version as the nephew of the deceased is posted as a
Constable in the Police Department. Despite searching engthy
cross-examination, the prosecution has failed to elicit any material to
shatter and discredit her testimony. She categorically denied the
suggestion of the prosecution that the occurrence had taken place in the
street in front of the house of PW-3 Ram Pratap. Further suggestion that
all the three accused persons committed murder of Ant Ram was
categorically denied by her. The plea of the prosecution that she and
her husband Indraj were given slaps and fist blows by the general
public, who collected at the scene of the occurrence, has been
specifically denied by her. Dr. Prithvi Raj has categorically opined
that the injuries on the person of accused Indraj and his wife Smt. Maya
could be caused by sharp and blunt weapon and not by slaps and fist
18. It is a well-settled law 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
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. [See
Lakshmi Singh v. State of Bihar; AIR 1976 SC 2263]
19. Further, it is important to
point out that 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.
20. In the present case, the
prosecution has not explained the injuries on the person of the accused
Indraj and his wife Smt. Maya Devi. It has come in the evidence of PW-5
S.I. Hardev Singh, the Investigating Officer, that the accused Indraj
was admitted in the hospital and he was arrested on 08.03.1993 after
discharge from the hospital. The Investigating Officer has also
collected the MLRs of the accused Indraj and his wife Maya on the
intervening night of 03rd/04th March 1993 at about 12.30 a.m. The
occurrence had taken place on 03.03.1993 at about 7.30 p.m. as per the
prosecution version itself. The evidence of Dr. Prithvi Raj would show
that the duration of the injuries suffered by the accused Indraj and his
wife Smt. Maya was within duration of six hours. The evidence of DW-Smt.
Maya, corroborated by the medical evidence of Dr. Prithvi Raj, is more
probable, satisfactory and convincing than the evidence of PWs. 2 and 3
who are interested witnesses and who have not given true genesis and
origin of the occurrence in their testimony. Thus, non-explanation of
the injuries on the person of the accused Indraj and his wife Smt. Maya
supports the version of the defence that the accused Indraj inflicted
single blow with 'Rambi' on the person of Ant Ram in private defence of
his body and also the person of his wife who had suffered several
injuries at the hands of Ant Ram with a weapon called 'Kapa', though the
injury received by the deceased Ant Ram was turned out to be fatal in
nature but it was not inflicted by the accused with the intention of
causing death of the deceased or with the intention or knowledge that
the injury would, in all probability, cause his death.
21. We do not agree with the courts
below that the accused Indraj had no right of private defence to his
body or to the person of his wife. It is established on record by DW-3
that Ant Ram came in front of their house and for no cause he started
abusing her husband. Ant Ram gave 6-7 blows to her husband with sharp as
well as blunt side of 'Kapa' which he was holding in his hand. Ant Ram
also inflicted injuries on the arms of DW-Maya and it was at that time
and in that process that 'Rambi' blow was given to Ant Ram by her
husband to save himself and his wife from further blows. A 'Kapa' is
capable of causing simple as well as fatal injuries to the accused
Indraj and his wife Smt. Maya. We are of the view that in such a
situation the accused Indraj could necessarily apprehend danger to his
life and to the life of his wife at the hand of Ant Ram and in that
process if one blow was inflicted by the accused on the person of Ant
Ram which has proved fatal, the accused had the right of private defence
to his body as well as to the person of his wife Smt. Maya. The injuries
on the person of the accused Indraj were simple in nature, whereas one
injury found on the person of his wife Smt. Maya by the Doctor was
grievous in nature. The evidence of DW-3, corroborated by the medical
evidence, is so clear and cogent, so independent and disinterested, so
probable, consistent and credit-worthy that it has to be relied upon and
accepted vis-`-vis the evidence of the prosecution.
22. Having given our careful
consideration to the submissions made by the learned counsel for the
parties and in the light of the evidence and in the background of the
well-settled proposition of law and in view of the improbabilities, the
serious omissions and infirmities, the interested nature of the evidence
and other circumstances, it was clear that the prosecution has failed to
prove the case against the appellants beyond reasonable doubt. The High
Court was in error in brushing aside serious infirmity in the
prosecution case regarding non-explanation of the injuries sustained by
the accused Indraj and his wife DW-Smt. Maya and also not accepting the
plea of the right of defence of the accused on unconvincing premises.
23. For the reasons given above, we
allow the appeal, set aside the conviction of the appellants-Babu Ram
and Indraj under Section 302 read with Section 34 of the IPC and Suraj
Dev under Section 302 of the IPC. The appellants are, accordingly,
24. Appellants-Babu Ram, Indraj and
Suraj Dev, who are presently in jail, shall be set free forthwith if
they are not required in any other case. Fine imposed by the Trial
court, if realized from the appellants, shall be paid back to them.
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