Criminal Appeal No.245 of 1997

20th June, 2002

Petitioner Counsel: S/Shri M.R., RAJENDRA DAGA , J.B. KASAT
Respondent Counsel: Mrs. KHADE

Cases Cited:
Lakshmi Singh Vs. State of Bihar, (1976) 4 SCC 394 : AIR 1976 SC 2263 [Para 13,16]
Ram Sunder Yadav Vs. State of Bihar, AIR 1998 SC 3117 [Para 16]
Baba Nanda Sarma Vs. State of Assam, AIR 1977 SC 2252 [Para 16]
Vijayee Singh Vs. State of U.P., AIR 1990 SC 1459 [Para 16]
Mohar Rai, (1968) 3 SCR 525 : AIR 1968 SC 1281 [Para 16]

JUDGMENT

V. M. KANDE, J. :- The appellant was charged under section 302 of the IPC for having committed the murder of Ramkishan on 29/1/1996. The Additional Sessions Judge Akola, vide its judgment and order dated 31/3/1999, convicted the accused no.1/appellant herein under section 302 of the IPC and sentenced him to suffer Rigorous imprisonment for life and further directed to pay fine of Rs. 3,000/-, and in default of payment of fine, to suffer further R.I. for three months. The appellant is challenging the said judgment and order in this appeal.

2. The case of the prosecution in brief is that the appellant who is the original accused no.1 is the husband of the original accused no.2 and they were residing with their children at Vijaynagar, Akola The appellant and deceased Ramkishan and the original complainant-Sharda, are neighbours. The case of the prosecution is that complainant Sharda and her husband Ramkishan were working as sweepers in Municipal Council, Akola.

3. On 29/1/1996, the complainant and her husband had called some guests for dinner. These guests had arrived in the evening in the house of the complainant and they left the house at about 9.00 p.m. At that time, when these guests were departing from the premises of the complainant, accused no.1/appellant herein came out of his house and started abusing loudly. The deceased Ramkishan took objection to the manner in which the accused no.1 was standing on the road and abusing and, therefore,he told the accused no.1 not to abuse in such a manner and he remarked that what impression would be created in the mind of the guests. It is the case of the prosecution that the accused was annoyed by the advice given by the deceased Ramkishan and he asked his wife to bring a gupti from his house. It is the case of the prosecution that accused no.2 - wife of accused no.1 had brought a gupti from the house and gave it to accused no.1. It is the case of the prosecution that immediately, the accused took the gupti from his wife's hand and gave blows to the deceased Ramkishan, on his chest and stomach in the presence of the complainant - Sharda. As a result of the assault, the victim Ramkishan sustained bleeding injuries and he stepped inside his house and fell down. It is the case of the prosecution that the complainant, raised hue and cry and number of people arrived there and rickshaw was brought and the said deceased - Ramkishan was taken to the hospital for treatment. However, the Doctor on examining the deceased, declared that he is already dead. The complainant lodged a report to the Police and narrated the entire episode to the Police Authorities, and the said report was recorded as F.I.R. and a crime came to be registered being crime no. 26/96.

4. It is the case of the prosecution, that accused no.1 in the meantime on the very same night at about 9.30 p.m. was found lying in the gutter, near Sham Baba Ota and he had also sustained injuries on his person. The gupti was also found is his hand and some of the witnesses took out gupti from the hands of the accused no.1 and thereafter brought him to the Police Station. The Investigating officer, prepared the panchanama through an independent pancha and seized gupti and also prepared spot panchanama, and the accused no.2 was arrested on the next day i.e. on 30/1/1996 in the evening. The clothes of the deceased and other articles were sent to Chemical Analyser, Nagpur for analysing the viscera as well as blood samples of accused and deceased accused was sent for the analysis. After the investigation was completed, the charge-sheet was filed against the appellant and his wife. The charge was framed by the Sessions Court of both the accused. Both the accused pleaded not guilty of the said charge. The prosecution examined two eye witnesses - P.W. 2 Sharda and P.W. 7 Tarachand , who had witnessed the said incident. The prosecution in all examined about 9 witnesses. The defence also examined two witnesses. The trial Court after perusing the evidence on record, acquitted the accused no.2 Godabai, wife of accused no.1. The trial Court, however, convicted the appellant/accused no.1 under section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 3,000/- and in default of payment of fine to suffer further rigorous imprisonment for three months. The appellant has challenged the same judgment and order in this appeal.

5. We have heard, learned Counsel Shri Daga appearing no behalf of the appellant and learned APP, appearing on behalf of the State.

6. Shri Daga, the learned Counsel, appearing on behalf of the appellant has taken us through the evidence on record, through the deposition recorded by the trial court and also the judgment and order passed by the Session Court.

7. Shri Daga, the learned counsel, appearing on behalf of the appellant has submitted that so far as the evidence of eye witness P.W. 2 - Sharda is concerned, the said evidence ought to be discarded, firstly because she is an interested witness, being the wife of the deceased. He submitted that so far as genesis of the crime is concerned, it is not brought on record by the prosecution. In view of the serious injuries which are found on the person of the accused no.1 have not been explained and as a result, the prosecution evidence should be discarded by drawing an adverse inference against it.

8. Shri Daga, the learned Counsel, appearing on behalf of the appellant has relied on number of authorities on this point which we shall refer at a subsequent stage.

9. Learned APP, appearing on behalf of the State has opposed the submissions made by learned Counsel appearing on behalf of the accused/appellant. She submitted that the eye witness account and P.W. 2 is corroborated by a independent witness P.W. 7 - Tarachand, where he has specifically mentioned that he had seen accused no.1 assaulting Ramkishan with a gupti and that the accused gave two blows with the gupti on the person of the deceased Ramkishan, one on the chest and another on the stomach. Learned APP submitted that neither the testimony of P.W. 2 Sharda and P.W. 7 Tarachand has been shaken in cross-examination and there has been no serious challenge on that account.

10. Learned APP, further submitted by relying on number of decisions of the Apex Court, that merely because injuries are found on the person of the accused, the said evidence cannot be discarded on the ground that the prosecution has not explained them. We shall refer to the said rulings at a subsequent stage.

11. We have perused the entire evidence adduced by the prosecution. The prosecution has examined P.W. 2 Sharda, who has specifically stated that when their guests had departed from the house and after seeing them off, when the complainant and her husband Ramkishan were returning back to their house, at that moment, the accused came out of his house, stood on the road and started abusing loudly. Though it is not stated by the complainant that the accused was abusing the complainant or her husband. She has however, asserted that the accused was abusing in a loud manner by standing on the road. It has come on record in the evidence of the Doctor, who had examined the accused that the accused was found smelling of alcohol. Thus, P.W.2 thereafter, stated that when her husband Ramkishan objected to the said behaviour of the accused, he asked his wife to bring gupti and on the gupti being handed over to him, he immediately went near Ramkishan and without any hesitation, gave two blows, one on the chest and another on the stomach of Ramkishan, who as a result of the said injury staggered and fell inside his house. The complainant raised hue and cry, as a result of which number of people gathered there and they took the injured Ramkishan to the hospital. However, the Doctor declared that he was already dead. This evidence of P.W.2 has been corroborated by Tarachand - P.W.7, who is also an eye witness of the said incident, and who has corroborated P.W.2 in almost every respect. From, the evidence of the P.W.7 - Tarachand, another fact which is brought on the record by the prosecution is that he had seen that the accused had carried the gupti in his hand and had ran away from the spot and after about one hour this witness has seen the accused - Naru, appellant herein, lying in "nali" i.e. gutter. He has also stated that other persons snatched the gupti from the accused and took him to the Police Station.

12. From the evidence of P.W. 2 and P.W. 7, two facts which are unmistakably brought on record are that so far as first incident of assault by the accused on Ramkishan is concerned, there was no scuffle, but it was an incident where the accused gave two blows to the deceased Ramkishan, and thereafter ran away from the incident. Thus, at that point of time, neither the deceased Ramkishan nor any other person had assaulted appellant no.1. The injuries, therefore, which were sustained by the accused, obviously were not inflicted by Ramkishan or his associates. The submission of Shri Daga, the learned Counsel, appearing on behalf of the appellant that the accused had sustained these injuries in a scuffle between Ramkishan and the accused cannot be accepted. The defence version that initially Ramkishan had come out with gupti in his hand and there was a scuffle between the accused and Ramkishan and in that scuffling, Ramkishan received those injuries and the accused also received certain injuries, therefore cannot be accepted.

13. So far as second submission of Shri Daga is concerned that the genesis of the offence has not been brought on record by the prosecution, as the prosecution had not explained the injuries on the person of the accused and, therefore, benefit of the same should be given to the accused and that he had acted by way of self defence and therefore he is liable to be acquitted also cannot be accepted. Shri Daga has relied on judgment of the Apex Court, reported in Lakshmi Singh Vs. State of Bihar. AIR 1976 SC 2263 wherein the Apex Court has in para 11 has stated that taking into consideration, the effect of non-explanation of 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:-

"(i) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(ii) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(iii) 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.

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."

14. Shri Daga, the learned counsel appearing on behalf of the appellant therefore submitted that in the instant case, it is an admitted position that the accused had sustained serious injuries on his person and these were not explained by the prosecution and in view of this, the said evidence ought to be discarded. He submitted that apart from the non-explanation of injuries, the evidence consisted of interested witness and further that the defence version of self defence had clearly become probable. He submitted that this aspect has been ignored by the Sessions Court.

15. In our view there cannot be any two opinions about the ratio laid down by the Apex Court in the above said ruling, infact, in the above said judgment, the Apex Court has at the same time stated that in para 11 of the said judgment that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case and that it is further observed that the principle would obviously apply to cases where the injuries sustained were minor. In the instant case, the prosecution has laid cogent and clear evidence by examining two witnesses namely, P.W. 2, who is the wife of the deceased and the complainant and also P.W. 7 - Tarachand, who has independently corroborated the said statement. From the evidence of these two witnesses as stated herein above, it is clear that there was no scuffle and it cannot be said by any stretch of imagination from this evidence that there was any possibility of the accused sustaining any injury at that point of time. Infact, it is crystal clear that the accused was the aggressor and had given two blows in quick succession and thereafter ran away along with the gupti. The Doctor who examined the accused has clearly stated that the injury nos. 2 and 3 was possible due to fall on a hard and rough substance. The said D.W. 2 Dr. Vijay has stated in his evidence that he found the following injuries on the person of the accused:-

1. Incised wound - 2" x ½" x bone deep with bleeding present - with compound fracture of both bones - left leg middle.

2. Abrasion contused swelling over the scalp occipita posterior region.

3. Contusion swelling over right eye. Vision was correct.

In his cross-examination. D.W. 2 has stated that so far as injury no.1 is concerned, since the skin on fibula and fibia bones of the leg is quite thin and that the blows where injury no.1 is found to have occurred is a blow where the skin of the body always remained stretched and in view of the said fact, if there is any sort of injury on such portion, it would always seen to be incised wound. It is an admitted position, that the accused was found lying in a 'nali', place at a short distance. It has also been brought on record by P.W.7 Tarachand that accused had ran away with a gupti in all probability, therefore, the injuries which were suffered by the accused must have been as a result of his falling in the 'nali'. The second submission of Shri Daga cannot be accepted.

16. Mrs. Khade, APP appearing on behalf of the State relied on the judgment of Apex Court, reported in Ram Sunder Yadav and others Vs. State of Bihar, AIR 1998 SC 3117. wherein the Apex Court had considered the said question which was referred by two Judges Bench of the Apex Court and they were called upon to consider whether the prosecution was obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain would mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence. The Apex Court in three Judges Bench held that the above question was considered in Lakshmi Singh case AIR 1976 SC 2263 and also in the case of Baba Nanda Sarma Vs. State of Assam. AIR 1977 SC 2252 and also three Judges Bench of the Apex Court in Vijayee Singh Vs. State of U.P. AIR 1990 SC 1459, wherein the Apex Court has observed as follows :-

"In Mohar Rai case (1968) 3 SCR 525 : (AIR 1968 SC 1281), it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh case (1976) 4 SCC 394 : (AIR 1976 SC 2263) also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume great importance where the evidence consists of interested or inimical witnesses or where the defence given a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case".

17. The submission of Mrs. Khade, learned APP, is accepted as in the facts of the present case, it is abundantly clear that the accused did not sustain the injuries which were found on his person, in the first incident, which had transpired on the said day but had subsequently sustained those injuries, which in all probability appears to be as result of his fall in the 'nali'.

18. In the result, the appeal filed by the appellant is dismissed and the judgment and order passed by the Additional Sessions Judge, Akola is confirmed.

Appeal dismissed.