Tuesday, 11 October 2016

Whether accused is entitled to get benefit of doubt if prosecution suppresses genesis and origin of occurrence?

 The High Court has also noted that both the sides had taken a
plea that the land in question where the occurrence had taken place
is in their possession. One of the injured Malli Devi-PW6 also

deposed, as noted by the High Court, that the parties were having
dispute with the accused over land. The High Court has also noted
the Judgment of this Court in the case of Lakshmi Singh and others
v. State of Bihar  1976 (4) SCC 394
 which was relied upon by the counsel for the
accused persons in support of private defence and for acquittal on the
ground of non-explanation of death and injuries on the side of the
accused. The High Court drew correct inferences from the aforesaid
judgment but proceeded to convict the appellants on the misconceived
ground that since both the parties had withheld the origin and genesis
of the occurrence and since it cannot be determined as to which party
was the aggressor, the case had to be decided against the accused
persons treating it as a case of free fight between the parties.
The aforesaid view of the High Court is devoid of legal merits.
Once the Court came to a finding that the prosecution has suppressed
the genesis and origin of the occurrence and also failed to explain the
injuries on the person of the accused including death of father of the
appellants, the only possible and probable course left open was to
grant benefit of doubt to the appellants. The appellants can
legitimately claim right to use force once they saw their parents being
assaulted and when actually it has been shown that due to such
assault and injury their father subsequently died. In the given facts,


adverse inference must be drawn against the prosecution for not
offering any explanation much less a plausible one. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2016
(Arising out of SLP(Crl.) No. 2301 of 2016)
Bhagwan Sahai and Anr.
Versus
State of Rajasthan 
Dated:June 03, 2016.

Citation: 2016 CRLJ3154 SC


1. Both the appellants have assailed the impugned judgment of the
High Court of Judicature for Rajasthan at Jaipur Bench whereby
Criminal Appeal No. 1235 of 2011 was disposed of by the impugned
judgment and order dated 14.1.2016. The High Court set aside the
conviction of the appellants under Sections 307 and 307/34 of the
IPC respectively but found them guilty under section 308/34 of the
IPC. The High Court also set aside appellant’s conviction under
Section 326 and 326/34 IPC respectively in view of their being found
guilty under Section 308/34 of the IPC but maintained the conviction
under Sections 323 and 324 of the IPC. For the offences under
Section 308/34 IPC the appellants were inflicted with punishment of
two years rigorous imprisonment alongwith a fine of Rs.500/- with a

default clause. For offences under Sections 323 and 324 of the IPC,
the lesser sentence awarded by the trial court were maintained.
2. In order to appreciate the submissions advanced on behalf of
the appellants that even if the allegations against them were to be
accepted as true, they are entitled to acquittal on the plea of right of
private defence of person, it is necessary to notice the prosecution
case, the injuries on appellant No.1 and his parents, including his
father who received serious injuries that proved fatal and whether the
prosecution have been able to offer any explanation for the injuries on
the side of the accused.
3. According to the prosecution case, two appellants who are
brothers alongwith female family members, Guddi Devi, Seema and
Gulab Devi formed an unlawful assembly in their village on 4.5.2008
at 10.00 a.m. Armed with lethal weapons they went near the “Bada” of
Jagram and caused injuries to Sajana Devi with blunt weapon, simple
injury to Jagram and his wife Malli Devi with blunt as well as incised
weapon and also caused simple as well as grievous injuries to Kailash
Chand with blunt and incised weapon. According to prosecution the
offences under Sections 147, 148, 323, 324, 326 and 327 read with
Section 149 of the IPC were committed by the accused persons on
account of old enmity between the parties.

4. The defence of the accused persons is denial of the occurrence
in the manner alleged. According to the accused persons, the
prosecution case is false. They examined Dr. Suresh Chand Meena
and Bhagwan Sahai Meena as PW1 and PW2 and also proved
documentary evidence-exhibits D1 to D11. The defence witnesses
were examined to support the contention that the members of the
prosecution party had beaten one Kanchan, father of the appellants
and as a result he subsequently died. These injuries were proved by
Dr. Suresh Chand Meena who also proved injuries of Gulab Devi and
others.
5. The Trial Court noticed the defence case but failed to discuss
the same. The defence witnesses were neither commented upon nor
there was any comment upon the defence exhibits and injuries
sustained on their side.
6. The High Court in the impugned judgment has taken a
mechanical note of the defence witnesses 1 and 2 and thereafter has
given the following observations while noticing the injuries of
Kanchan, and of the appellant Bhagwan Sahai Meena and his mother
Gulab Devi:-
“Appellants were tried in case arising out of cross
version. It is to be noted that in the occurrence,
Kanchan father of both the appellants had died.
Appellant Bhagwan Sahai, his mother Gulab Devi
acquitted accused, Seema acquitted accused and
3Crl.A. No.416 of 2016 @ SLP(Crl.)2301/2016
appellant Satish had suffered injuries alongwith Jalli
Devi. In respect of cross case, a separate appeal has
been filed bearing D.B. Criminal Appeal No.1255/2011.
The trial court had given a finding that there was a free
fight between both the parties and therefore, had
convicted the accused for their individual liability.
In the occurrence, Kanchan Lal father of the
appellants had received following injuries:-
“1. Lacerated wound with bleeding 6 cm x 1 cm
bone deep on left parietal region of scalp.
2. Lacerated wound with bleeding 2 cm x ½ cm on
occipital region of scalp.”
Bhagwan Sahai appellant also received two
injuries and the same were noted in the injury report as
under:-
“1. Lacerated wound 3 cm x ½ cm x ½ cm on
palmar aspect of base of left thumb.
2. Lacerated wound 1½ cm x ½ cm x ½ cm on
right parietal region of scalp.”
Gulab Devi mother of both the appellants had also
received two injuries and same are noted as under:-
“1. Lacerated wound with bleeding 1 cm x ½ cm x
½ cm on forehead.
2. Bruise (reddish) 10 cm x 2 cm over right
shoulder.”
7. The High Court has also noted that both the sides had taken a
plea that the land in question where the occurrence had taken place
is in their possession. One of the injured Malli Devi-PW6 also

deposed, as noted by the High Court, that the parties were having
dispute with the accused over land. The High Court has also noted
the Judgment of this Court in the case of Lakshmi Singh and others
v. State of Bihar  1976 (4) SCC 394
 which was relied upon by the counsel for the
accused persons in support of private defence and for acquittal on the
ground of non-explanation of death and injuries on the side of the
accused. The High Court drew correct inferences from the aforesaid
judgment but proceeded to convict the appellants on the misconceived
ground that since both the parties had withheld the origin and genesis
of the occurrence and since it cannot be determined as to which party
was the aggressor, the case had to be decided against the accused
persons treating it as a case of free fight between the parties.
8. The aforesaid view of the High Court is devoid of legal merits.
Once the Court came to a finding that the prosecution has suppressed
the genesis and origin of the occurrence and also failed to explain the
injuries on the person of the accused including death of father of the
appellants, the only possible and probable course left open was to
grant benefit of doubt to the appellants. The appellants can
legitimately claim right to use force once they saw their parents being
assaulted and when actually it has been shown that due to such
assault and injury their father subsequently died. In the given facts,


adverse inference must be drawn against the prosecution for not
offering any explanation much less a plausible one. Drawing of such
adverse inference is given a go-bye in the case of free fight mainly
because the occurrence in that case may take place at different spots
and in such a manner that a witness may not reasonably be expected
to see and therefore explain the injuries sustained by the defence
party. This is not the factual situation in the present case.
9. Therefore, we have no hesitation in allowing the appeal and
acquitting the appellants of all the charges. We order accordingly.
They shall be released from jail custody forthwith, if not required in
any other case. The appeal is allowed.
.…………………………………….J.
 [DIPAK MISRA]
 ……………………………………..J.
 [SHIVA KIRTI SINGH]
New Delhi.
June 03, 2016.

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