State Of U.P vs Gajey Singh And Anr

Gajey Singh & Another ..... Respondents

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated

16.02.2001 passed by the Division Bench of the High Court of

judicature at Allahabad in Criminal Appeal No.2786 of 1980. 2

2. Brief facts which are necessary to dispose of this appeal

are recapitulated as under:

3. Lakhi Ram deceased and his brother Jai Singh, PW1

were sitting at the residence of Sahid Akhtar PW3 at 8 a.m. on

27.1.1979. Accused Gajey Singh and his father Mehar Singh

came there at that time and immediately thereafter, some

quarrel took place between Lakhi Ram deceased and Mehar

Singh, father of the accused persons. On the intervention of

Sahid Akhtar and Virendra, the matter was settled at that

time and thereafter all of them proceeded to their respective

houses.

4. 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,

PW2 were going towards their field for the `chhol' (harvesting

of sugarcane crop) and when they reached in front of the

house of Mehar Singh, Gajey Singh came there and caught

hold of Lakhi Ram. Jai Singh and Godha Singh reached there 3

and separated Lakhi Ram and Gajey Singh. In the meantime,

Rajpal Singh came there with the licensed gun of his father

and on the orders of Gajey Singh, he fired upon Lakhi Ram as

a result of which he sustained serious injury on his neck and

died on the spot.

5. Godha Singh PW2 lodged a written report Ex. Ka.1 at

police station Incholi on the same day at 11.35 a.m. Head

Moharrir Shyam Lal, PW6 prepared chick FIR and made entry

in the General Diary. Sub-Inspector Prabhat Kumar, PW8

was entrusted with the investigation. He immediately rushed

to the scene of occurrence and found that ASI Ilma Singh was

already present there and had completed inquest on the dead

body of the deceased Lakhi Ram. The dead body was also

sent for postmortem examination through constable

Parmanand PW7.

6. The Investigating Officer collected sample of blood and

prepared site plan Ex.Ka.10 and arrested both the

respondents (accused) from their house on the same day and 4

also took the gun which was kept in their room in his custody.

The Investigating Officer then recorded statements of the

witnesses and on completion of investigation challaned both

the respondents through charge-sheet Ex.Ka.12. Dr. K.D.

Sharma, PW5 conducted the postmortem on the dead body of

Lakhi Ram on 28.1.1979 at 2.30 pm and found the following

ante mortem injuries:-

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

2. Gunshot wound of exit 10cm x 8cm on left side face lips and upper part neck. Margin averted.

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

4. Bone of lower jaw broken into many pieces.

7. On internal examination, Dr. Sharma found that 3rd 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 5

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. The prosecution in support of its case produced eight

witnesses of whom Jai Singh PW1, Godha Singh PW2 and

Sagira PW4 were the eye witnesses. Sahid Akhtar PW3 was

examined to state about the incident which had taken place

before the alleged incident. Both the accused in their

respective statements recorded under section 313 Cr.P.C.

denied the prosecution version.

9. The accused gave counter version of the right of private

defence. According to them, Godha Singh, Lakhi Ram, Jai

Singh and Om Prakash came to their house armed with `lathi'

and `balkati'. They started assaulting Rajpal Singh with lathi

and Gajey Singh with balkati. Seeing this, their father Mehar

Singh in order to save Rajpal Singh and Gajey Singh fired a

shot from his gun towards the accused persons. Gajey Singh

further stated that the police had arrested his father Mehar 6

Singh and he was detained for three days at the police station.

In defence, the accused persons produced four witnesses. Dr.

S.C. Goel DW1 proved injury report of accused Gajey Singh

and Rajpal Singh Ex.Ka.2 and Ex. Ka.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 pm who was produced before him in police

custody by constable Jatan Swarup of police station Incholi

and found the following injuries on his person:

"Incised wound 7 cm x 2cm bone deep on the right side head, 3 = cm above eye brow. 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 a sharp edged weapon and was about half day old. 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. The following injury was found on

the person of accused Rajpal Singh.

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

11. In the opinion of Dr. Goel, the injury was simple and

caused by blunt object and was about half a day old. Before

the trial court, Dr. Goel DW1 further stated that injuries on

both Gajey Singh and Rajpal Singh could be caused at about

9.30 am 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 caused by a blunt object. It is not necessary

to refer to the evidence of other witnesses as they have no

bearing on the incident in question.

12. Learned Sessions Judge placed reliance on the evidence

led by the prosecution and found both the accused Gajey

Singh and Rajpal Singh guilty of offence under section 302

read with section 34 IPC and sentenced them to imprisonment

for life. It may be relevant to mention that the factum of death

of Lakhi Ram by firearm injury has neither been disputed nor

assailed by the counsel for the accused. According to the 8

appellant, Lakhi Ram was killed by the accused whereas

according to the accused, Lakhi Ram was killed by their father

Mehar Singh when he saw his son Rajpal Singh being

assaulted by lathi and Gajey Singh with `balkati'. As per the

version of the respondents, the incident occurred in front of

their house and from the evidence on record it is fully

established that the respondents also sustained injuries

including a bone deep injury on skull in the same incident

and since these injuries have not been explained by the

prosecution witnesses, it must be held that the prosecution

suppressed the genesis and origin of occurrence and the

prosecution gave a distorted version.

13. The learned counsel for the respondents submitted that

in law, the defence simply has to show that its defence plea

was probable and it was not incumbent upon the accused

persons to prove their case to the hilt. Merely because the

defence was also not true, that by itself cannot absolve the

prosecution from discharging its bounden duty and obligation

of proving its case.

9

14. The High Court found sufficient weightage in the

submissions of the learned counsel for the respondents.

15. Sagira PW4 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 on the ground and then Rajpal fired

from his gun upon Lakhi Ram. Sagira, PW4 admitted that

Gajey Singh had sustained an injury on his head when he was

thrown on the ground by Lakhi Ram deceased. He had not

stated this fact before the Investigating Officer. Though he

claimed that he had disclosed this fact to the investigating

officer but could not provide any explanation why such an

important fact was not mentioned in his statement recorded

during the investigation. The Investigating Officer admitted

that this witness did not state the above fact but had stated

that Lakhi Ram had assaulted Gajey Singh with a brick bat.

On being confronted, Sagira PW4 denied to have stated so to 10

the investigating officer and further stated that he could not

assign any reason as to why it has been so recorded. The

investigating officer, however, testified that the witness had

made such a statement to him. It would thus appear that up

to the investigation stage no explanation of injuries of accused

persons had been put forward by the witnesses excepting

Sagira, PW4 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, these witnesses did not hesitate to

improve upon the earlier 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 accused Gajey Singh had

struck a lathi blow on the forehead of deceased Lakhi Ram,

the latter caught hold of him and threw him on the ground.

Neither in the first information report nor at the stage of

investigation, Gajey Singh was alleged to be armed with lathi

nor it was the case of the prosecution that Gajey Singh gave

any assault by lathi on the person of Lakhi Ram deceased. 11

This part of the prosecution case appears to have been

improved at the trial so as to bring evidence of witnesses in

consonance with the medical evidence because in the

postmortem examination of deceased Lakhi Ram one lacerated

wound on right side of forehead was also found. The

witnesses also made to state for the first time at the trial that

after receiving lathi injury on his forehead at the hands of

Gajey Singh, he threw Gajey Singh on the ground. This

development appears to have been made to explain the bone

deep incised injury sustained by Gajey Singh in the same

incident.

16. The High Court also observed that according to the

statement of the investigating officer he had arrested both the

respondents on the same day and found injuries on their

person and for that reason they were medically examined in

the police custody. By no stretch of imagination, injury of

Gajey Singh could be said to be superficial or self inflicted.

Dr. S.C. Goel who had medically examined Gajey Singh has

denied the prosecution suggestion that the incised injury of 12

Gajey Singh might have been caused by a fall on a piece of

glass. He was recalled for further cross examination by the

Deputy Government Counsel but the doctor stuck to his

opinion in a firm manner. In the instant case, the margins of

incised injury of Gajey Singh were clear and clean cut which

in the opinion of Dr. Goel could not find any injury caused

due to a fall on a piece of glass. In the impugned judgment,

the High Court came to the conclusion that the prosecution

has failed to explain injuries suffered by both the respondents

in the same incident.

17. The High Court in the impugned judgment observed that

the incident occurred in front of the house of the respondents.

The High Court disbelieved the claim of the prosecution

witnesses that they and deceased were going to the residence

of Akhtar for `chhol' because the house of the respondents was

not situated on the way leading from their house to their field.

The injuries sustained on defence side belie them as Gajey

Singh sustained a bone deep incised injury caused by a sharp

cutting object and Rajpal had sustained the injury by a blunt 13

object. The High Court in the impugned judgment discarded

the explanation given by the witnesses with regard to the

injury of Gajey Singh that the same might have been caused

on account of his being thrown on the ground. The High

Court also observed that the witnesses produced at the trial

were all interested as they made several vital and important

improvements at the trial from the version as was put in the

first information report during investigation.

18. The High Court came to the definite conclusion that the

prosecution has suppressed the genesis and the origin of the

occurrence and is thus guilty of not presenting the true

version before the court.

19. The High Court observed that non-explanation of the

injuries on the 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. 14

20. The High Court also considered the question - whether

the right of private defence extended to the voluntary causing

of death of deceased Lakhi Ram in the facts and

circumstances of the case?

21. Sections 96 to 99 of the Indian Penal Code read as

under:

"96. Things done in private defence.__ Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property. __ Every person has a right, subject to the restrictions contained in section 99, to defend__

First. __ His own body, and the body of any other person, against any offence affecting the human body;

Secondly. __ The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

98. Right of private defence against the act of a person of unsound mind, etc. __ When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that 15

act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

99. Acts against which there is no right of private defence. __ There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defence against an act which docs not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised. __ The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence."

22. Section 96 of the Indian Penal Code declares that an act

done in the exercise of the right of private defence is not an

offence. Section 97 specified the extent of the right of private 16

defence whereas Section 99 prescribes the limitations on the

exercise of this right.

23. Section 100 of the Indian Penal Code is extracted as

under:

"100. When the right of private defence of the body extends to causing death. __ The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: __

First. __ Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. __ Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. __ An assault with the intention of committing rape;

Fourthly. __ An assault with the intention of gratifying unnatural lust;

Fifthly. __ An assault with the intention of kidnapping or abducting;

17 Sixthly. __ An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

24. 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.

First clause of section 100 applies to cases where there is

reasonable apprehension of death while second clause is

attracted where a person has a genuine apprehension that his

adversary is going to attack him and he reasonably believes

that the attack will result in a grievous hurt. In that event he

can go to the extent 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 or injury on him.

25. It is settled position of law that 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 18

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 prescribed in this regard. The weapon used, the manner

and nature of assault and other surrounding circumstances

should be taken into account while evaluating whether the

apprehension was justified or not?

26. In the present case, the circumstances indicate that

Gajey Singh was assaulted on head by a sharp edged weapon

`balkati' causing a bone deep injury. As per the defence

version there were four assailants who had come well

prepared to assault 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 gun shot which was not repeated. Therefore, it

cannot be said that the accused persons had exceeded their

right of private defence in any manner.

19

27. In this case, the trial court convicted both the accused

and the High Court allowed the appeal filed by the accused

persons and acquitted them. In the instant case, the injury

caused on Rajpal Singh is neither superficial nor of minor

nature. Non-explanation of the injuries on Rajpal Singh and

Gajey Singh has created serious doubt about the credibility of

the prosecution version.

28. It would be appropriate to recapitulate ratio of some of

the relevant cases decided by this court.

29. In State of Karnataka v. Jinappa Payappa Kudachi

& Others 1994 Supp. (1) SCC 178, this Court observed thus:

"6. The effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case. Normally if there is such non-explanation, it may at the most give scope to argue that the accused had the right of private defence or in general that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence..."

30. In Rizan & Another v. State of Chhattisgarh (2003) 2

SCC 661, this Court observed thus:

20

"Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See: Lakshmi Singh v. State of Bihar (1976) 4 SCC 394]. In this case, as the courts below found there was not even a single injury on the accused persons, while PW 2 sustained a large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation.

While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of the right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of the right of private defence." 21

31. In V. Subramani & Another v. State of T.N. (2005) 10

SCC 358 while dealing with the right of private defence this

court observed as under:-

"11. ... Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression "right of private defence". It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record....."

32. A three-Judge Bench of this Court in Abdul Rashid

Abdul Rahiman Patel & Others v. State of Maharashtra

(2007) 9 SCC 1, observed that it is well settled that if injuries

on the defence are not explained by the prosecution, the same

may be taken to be a ground to discard the prosecution case, 22

in case the truthfulness of prosecution case is otherwise

doubted. But, in cases like the present one, where there is

consistent evidence of the injured eyewitnesses apart from

evidence of independent eyewitnesses, even if it is assumed

that the prosecution has failed to explain the minor and

simple injuries on the defence, the same cannot be taken to be

a ground to reject the testimony of such witnesses. In the

instant case, the injuries were neither superficial nor minor

therefore, non-explanation of serious injuries in the instant

case doubts the very genesis of the prosecution version.

33. We have heard the learned counsel for the parties at

length. The view which has been taken by the High Court is

certainly a possible and plausible view. Therefore, we do not

think it appropriate to interfere with the impugned judgment.

34. The appeal being devoid of any merit is accordingly

dismissed.

23

.................................J. (Dalveer Bhandari)

.................................J. (Harjit Singh Bedi) New Delhi;

February 24, 2009.