CRIMINAL APPEAL NO. 643/2005

26th May 2020

Petitioner Counsel: Shri S.A. Brahme
Respondent Counsel: Ms. S.V. Kolhe
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Section :
Section 34 Indian Penal Code, 1860 Section 147 Indian Penal Code, 1860 Section 148 Indian Penal Code, 1860 Section 149 Indian Penal Code, 1860 Section 302 Indian Penal Code, 1860 Section 304-I Indian Penal Code, 1860 Section 307 Indian Penal Code, 1860 Section 3(1) (iv) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 164 Code of Criminal Procedure, 1973 Section 313 Code of Criminal Procedure, 1973 Section 437-A Code of Criminal Procedure, 1973

Cases Cited :
Paras 24, 32: Lakshmi Singh and others Vs. State of Bihar., reported in (1976) 4 SCC 394
Para 24: Shivaji Ganu Naik Vs. State of Maharashtra and another., reported in 1999 CRI. L.J. 471
Paras 25, 29: Bhagwan Singh Vs. State of Haryana., reported in AIR 1976 SC 202
Paras 25, 29: Gurbachan Singh Vs. State of Haryana., (1974) 3 SCC 667
Paras 31, 33: Sharad Birdhichand Sarda Vs. State of Maharashtra., reported in AIR 1984 SC 1622

JUDGEMENT

N.B. SURYAWANSHI, J.

1. Criminal Appeal No. 643/2005 is filed by the appellants – original accused Nos. 2 and 3 challenging their conviction under Section 304-I read with Section 34 of the Indian Penal Code and imposition of sentence of 7 years rigorous imprisonment and fine of Rs. 2,000/- each, recorded by the learned Sessions Judge, Gondia in Special Criminal Case No. 11/2001.

2. Criminal Appeal No. 240/2006 is filed by the State seeking enhancement of sentence awarded to the accused.

3. The prosecution case, in short, is that :-
Radhelal Inwate was Gond by caste. The accused nos. 1 to 5 were Lodi. The accused no. 1 Gautam and accused no. 2 Bhagtam are real brothers and accused no. 3 Mukesh is the son of accused no. 1 Gautam. The accused no. 4 Ramvati and accused no. 5 Devanbai are the wives of accused nos. 1 and 2 respectively. Block No. 276/6 area 40 R. situated at Gangazari was purchased by Yashodabai, widow of Radhelal, who was cultivating the said land. Motiram Lilhare, father of accused no. 1 Gautam claims to be the owner of the said land and some civil litigation was going on since 1978 in which accused succeeded and got possession in the execution proceedings from Radhelal, Gangaram Bawankar and Dhimar Lilhare in the year 1996. Radhelal appears to be possessing the other land adjacent to the land of the accused nos. 1 to 3. There was dispute between the parties over drawing of canal water.

4. The incident occurred on 08/10/1997 at about 3 to 4 p.m. Radhelal had called Amin, Surveyor of Minor Irrigation Department for resolving the controversy of supply of irrigation water. The accused no. 1 Gautam, Radhelal, Manilal Ambulal PW- 13, Parasram Ambule PW - 1, Homeshwar Bawankar PW - 2, Babu Agashe and adjoining land owners were waiting for arrival of Amin near the bridge. This bridge was near the field of Radhelal. At about 3 to 3:30 p.m., Surveyor Patiram Gadhwe PW - 6 with his peon Dindayal Sakhare PW – 12, arrived at the spot. Radhelal made enquiry from Patiram, whether the accused no. 1 Gautam had obtained agreement to take canal water. Patiram answered in the affirmative, which annoyed Radhelal and he started blaming Patiram that he has obtained agreement on monetary consideration. Due to this, the accused no. 1 Gautam got annoyed and hot exchange of words took place between Radhelal and accused no. 1 Gautam. They started pushing each other. Accused no. 1 Gautam gave call to the accused no. 2 Bhagtam and accused no. 3 Mukesh who were working in the adjoining field. On hearing the call, they rushed to the spot armed with sticks and suddenly started thrashing Radhelal. All the three accused belaboured him mercilessly. The assault continued even after Radhelal had fallen down. PW - 1 Parasram tried to intervene and requested the accused not to beat Radhelal, but they did not listen. On the contrary, they insulted and asked him to go away. During the assault, the accused no. 4 Ramvati and accused no. 5 Dewanbai arrived at the spot. They also beat Radhelal by chappal. After the assault, all the accused fled away from the spot. PW - 7 Sunita @ Champabai arrived at the spot during the assault and she administered water to Radhelal. She went to the house of Radhelal and informed about the incident. PW - 2 Raju Inwate, son of Radhelal, immediately rushed to the spot. Radhelal was found in an injured condition on the road. PW - 2 Raju took Radhelal to Police Station Gangazari. On their way to the Police Station, police jeep arrived near the railway gate and Radhelal was taken to PHC, Ekodi. PW - 10 Dr. Kesar Nikhade, Medical Officer examined Radhelal and found fracture injuries on wrist, leg and head, as such, he advised to shift Radhelal to KTS Hospital, Gondia. PW - 2 Raju lodged report at 5:40 p.m. at Gangazari Police Station. On the basis of the same, offence under Section 307 of the Indian Penal Code was registered at Crime No. 83/1987. Radhelal was declared dead on arrival to KTS Hospital. On intimation from Medical Officer, the Investigating Officer added Section 302 read with Section 34 of the Indian Penal Code in Crime No. 83/1987. On the same day at about 22 hours, accused nos. 1 to 3 were arrested. The accused no. 1 Gautam was found to have suffered injury to his left ear. The Investigating Officer, after conducting the necessary investigation, submitted charge-sheet in the Court of learned Judicial Magistrate, First Class, Gondia who committed the case to the Sessions Court.

5. The learned Sessions Court framed charge under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and Section 3 (1) (iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against 5 accused persons, they pleaded not guilty. The defence of the accused is that Radhelal lodged complaint to Amin about unequal distribution of water, alleging that one Ganesh Nagpure was unauthorizedly taking canal water. On the date of incident, deceased Radhelal, Manilal Ambule and accused no. 1 Gautam were present on the spot. Amin, on arrival, found substance in the complaint. He cleared water course. Radhelal raised controversy as to ownership of his land. Amin told him that the accused no. 1 Gautam was the owner of the land, which annoyed Radhelal and he picked up a quarrel. Amin and others left the spot. The accused no. 1 Gautam went to the field. When the accused no. 1 Gautam was busy in carrying the agricultural operations, Radhelal came there holding sickle and caught hold of collar of the accused no. 1 Gautam and assaulted him by sickle which caused injury to his left ear. The accused no. 1 Gautam rescued himself from Radhelal and fled away towards Hanumantola and sat besides the road as he was feeling giddy. The accused nos. 2 and 3 arrived there, he narrated the incident to them. At that time, they saw that Ganesh Nagpure was proceeding towards the spot. He was annoyed as the deceased Radhelal had lodged report against him. According to the accused no. 1 Gautam, Ganesh Nagpure must have killed Radhelal. Since the accused no. 1 Gautam was badly injured, he went to the Police Station at 4:00 p.m. accompanied by the accused nos. 2 and 3. PI Madheshiwar referred him to PHC, Ekodi. Though the accused no. 1 Gautam lodged report against Radhelal, it was suppressed. On the contrary, the accused nos. 1 to 3 were detained in the Police Station and subsequently their arrest is shown. PI Madheshiwar tried to pressurize them by arresting and beating son of the accused no. 2 Bhagtam and demanded Rs. 50,000/- from them which they refused. Thereafter, the accused nos. 4 and 5 were falsely implicated. The accused no. 1 Gautam, therefore, claims false implication in the case. The accused nos. 2 and 3 so also the accused nos. 4 and 5 claimed that they were innocent and were not present at the time of incident.

6. In support of its case, the prosecution examined 18 witnesses and the defence examined 1 witness. The learned trial Court acquitted the accused no. 1 Gautam, accused no. 4 Ramvati (wife of accused no. 1 Gautam) and accused no. 5 Devanbai (wife of accused no. 2 Bhaktam) of all the charges. However, convicted the appellants – accused nos. 2 and 3 under Section 304 I and imposed sentence of 7 years rigorous imprisonment with fine of Rs. 2000/- each.

7. PW- 1 Parasram claims to be the eye witness whose agricultural land is at a distance of 1 to 1 ½ furlong away from the field of Moti Mahajan. He claims to have witnessed the incident saying that he saw Radhelal lying on the road, sons of Moti Mahajan beat him. Though this witness watched all the accused carefully, he said that none of them were present at the time of incident. He admits that he is unable to identify the persons from distance. Inspite of going close to the accused nos. 1 to 3 during the trial, this witness failed to identify them. Even the learned APP conducting the trial stated that this witness has weak eye sight. Omission is proved in his cross that at the time of incident, he was present in the field and he came near the bullock cart to give fodder to the bullocks. He failed to disclose the name of Bhagtam in his statement recorded under Section 164 of the Code of Criminal Procedure. Two material contradictions i.e. portions ‘A’ and ‘B’ were proved in his cross.

8. PW-2 Raju is son of deceased Radhelal. He claims that PW-7 Sunita @ Champabai came to his house and disclosed that accused no. 1 Gautam, accused no. 2 Bhagtam and accused no. 3 Mukesh and their wives had beaten Radhelal and he was lying in the muddy floor. Immediately, he rushed to the field with maternal uncle Kanhaiyyalal and saw that Radhelal was lying in the mud, he had suffered injuries on his head, his left hand was fractured and his clothes were stained with blood. Radhelal was brought by this witness to Railway Chowky in a bullock cart and then to PHC, Ekodi in a police jeep. Radhelal was referred to KTS Hospital, Gondia and on arrival, Radhelal was declared dead. PW - 2 Raju has lodged report at Gangazari Police Station vide Exh. 14. In his evidence, he states that there was a land dispute pending between his father Radhelal and accused no. 1 Gautam and that disputed 1 acre land was owned by his mother. Radhelal was given the power of attorney to manage the land. The said land was purchased in 1984 from cousin of accused no. 1 Gautam. In 1997, the accused no. 1 Gautam took forcible possession of that 1 acre land. In cross, omission is brought on record to the effect that this witness stated that he did not disclose the name of Sunita @ Champabai in the first information report though Sunita @ Champabai specifically disclosed the names of accused nos. 1 to 5 in the alleged assault.

9. PW - 3 Homeshwar claims to have witnessed the incident. He states that Babu Agashe, Manilal Ambule, accused no. 1 Gautam, deceased Radhelal and he were waiting for Amin near a bridge. Amin, accompanied by his labour, arrived there at about 3:00 p.m. There was a dialogue between Radhelal and Amin about accused no. 1 Gautam entering into an agreement. When Amin replied in the affirmative and showed him the record, Radhelal accused him by saying that Amin must have executed the agreement by accepting money. This was objected by accused no. 1 Gautam and he started giving abuses to Radhelal. Altercation took place between Radhelal and accused no. 1 Gautam and they started pushing each other. Accused no. 1 Gautam caught hold of the collar of Radhelal. Manilal tried to intervene. At that time, accused no. 1 Gautam gave call to his brother Bhagtam. The accused no. 2 Bhagtam and accused no. 3 Mukesh armed with sticks rushed to the spot. Accused no. 2 Bhagtam and accused no. 3 Mukesh belaboured Radhelal with sticks. According to the PW - 3 Homeshwar, all the accused belaboured Radhelal with sticks. Radhelal fell on the ground, still the accused were beating him. He identified the bamboo sticks which were used by the accused, being articles 14, 15 and 16. He states that his father had purchased one acre land and civil dispute in respect of the same was pending between his father and accused.

10. This witness in the cross has admitted that his father was required to handover the possession of the disputed land to the accused as per the Court’s order. He also admits that Radhelal was well built. He categorically stated that he did not see that accused no. 1 Gautam had sustained injury and his clothes were stained with blood. He also denied the suggestion that due to profuse bleeding, accused no. 1 Gautam fell unconscious. He also did not see any weapon in the hands of accused no. 1 Gautam before arrival of accused no. 2 Bhagtam and accused no. 3 Mukesh on the spot. He has denied the suggestion that he has noticed sickle and Ubhari lying on the spot. In cross, omission is brought on record to the effect that he did not state during the investigation that he saw the accused no. 1 Gautam beating Radhelal by sticks, he also did not disclose that ‘accused no. 1 Gautam caught hold of collar of Radhelal, Manilal requested the accused no. 1 Gautam to forgive him.’ The contradiction to the effect that ‘it did not so happen that Radhelal caught hold of collar of accused no. 1 Gautam' is brought on record.

11. Next eye witness is PW - 4 Sagarbai. She states that she saw Mukesh and Bhagtam beating Radhelal with sticks. Accused no. 1 Gautam was standing aside and he was armless. According to her, except Gautam, Bhagtam and Mukesh, no other person was present on the spot. In cross, she stated that before the Magistrate she accepted that the accused no. 1 Gautam was not beating Radhelal. She further claims that she does not know whether the accused no. 1 Gautam had sustained bleeding injury near his ear and his clothes were stained with blood. Though in inchief, she states that she could not see the assault. She also did not see sickle or ubhari on the spot. She waited on the spot for about ½ an hour. In the next breath, she states that she simply stayed on the spot for about 1 and ½ minute. Because of high blood pressure, she could not stay for longer time and she went away without witnessing the event.

12. The next eye witness PW - 5 Kalabai states that she saw accused no. 1 Gautam, accused no. 2 Bhagtam and accused no. 3 Mukesh beating Radhelal by sticks and both ladies beating Radhelal by chappals. She admitted that accused no. 1 Gautam fell unconscious because he had sustained bleeding injury. Champabai administered water to Radhelal. The accused nos. 1 to 3 went away from the spot.
In cross, she states that, when she along with others arrived at the spot, Radhelal was lying in the middle of road. Accused no. 1 Gautam had sustained bleeding injury. She had not seen any other person on the spot except the accused. She did not have talk with Champabai about the alleged assault. She admits that she already came to know about the assault through Champabai. She did not see sickle or ubhari on the spot. According to her, fields of 7 to 8 persons are adjacent to the spot.

13. The prosecution witnesses PW - 6 Kavita, PW - 7 Sunita alias Champabai, PW - 8 Rajkumar and PW - 13 Manilal Ambule, who are the eye witnesses, have not supported the case of the prosecution. Inspite of cross-examination by the learned APP, nothing material could be elicited from these witnesses. Though PW - 12 Dindayal and PW - 16 Patiram are the government servants from Irrigation Department, they have not supported the case of the prosecution and nothing material is brought on record during their cross-examination by the learned APP.

14. PW - 13 Manilal has turned hostile and in his inchief, he has stated that hot exchange of words took place between Radhelal and accused no. 1 Gautam. Quarrel was going on between them about taking canal water. Though he advised them not to quarrel, they did not listen to him. However, he states that he has not witnessed the incident of beating.

15. PW - 9 Mahendrakumar is pancha to the spot panchanama (Exh. 29). Uhari and sickle were seized from the spot. He is also pancha to the seizure memo of clothes of deceased (Exh. 32) and seizure of blood samples of accused (Exh. 33).

16. PW - 14 Bajanlal is pancha to the recovery of sticks from accused no. 1 Gautam and accused no. 2 Bhagtam, but he has not supported the case of the prosecution and was declared hostile.

17. PW - 15 Ashik, pancha to the seizure of three sticks and clothes, has also not supported the case of the prosecution.

18. PW - 18 Trilokchand is the Special Judicial Magistrate before whom the statements of eye witnesses under Section 164 of the Code of Criminal Procedure were recorded.

19. PW - 10 Dr. Keshar is the Medical Officer from PHC, Ekodi. According to him, Radhelal suffered fracture above left wrist joint, fracture below knee tibia and injury to back side. This witness has admitted that on 08/10/1997, he examined accused no. 1 Gautam for the injuries and issued injury certificate (Exh. 36) to the police.

20. PW - 11 is Dr. Dilip who conducted the post mortem on the dead body of Radhelal and issued post mortem report (Exh. 45). He noticed following injuries on the body of Radhelal :-
“1. Contusion right arm 4 x 2”
2. Contusion left arm 3 x 2” inches
3. Contusion left forearm 2” x 2”
4. Lacerated/wound left parietal site scalp 1” x ½”
5. Lacerated/wound occipital site scalp 1 ½” x 1/3” facia deep
6. Contusion 1” below left knee 3 inches x 2 inches
7. Contusion right chest 3 ½” x 2” below nipple
8. Abro contusion right wrist 2” x ½”
9. Contusion right little finger ½ x ½”
10. Contusion right hand ring finger ½” x ½”
11. Abrasion right knee 1” x 1”.
12. Contusion left thigh back
(1) 2 ½” x 1” (2) 3 ½” x ¾ (3) 4” x 1” (4) 2” x ¾”
13. Contusion on right thigh back (1) 2 ½” x 1” (2) 3 ½” x 1” Fracture left forearm both bone middle 1/3 Fracture right hand little finger and ring finger Fracture both bone left leg, caused by hard and blunt object. Injuries were A.M.
2. Internal Examination.
Col. No. 19 : Head :
Haematoma of size 2 ½” x 2” under scalp. Right parietal site.
2.Haematoma of size 3” x 2” at occipital site under scalp. Cause of death is shock due to head injury and multiple injuries.”

In his cross-examination, he states that the Injury Nos. 4 and 5 were on vital part and other injuries were all over the body. He denied that the other injuries were not on vital part of the body. According to him, even injury to Pinna would be termed as injury to the vital part. He admitted that there was no fracture to the skull and there were no blood stains on the sticks. Three bamboo sticks were forwarded to him and on query, he opined that the injuries could be caused by the said sticks.

21. PW - 17 Venkatswami is the Investigating Officer who has proved the memorandum of statement of accused no. 1 Gautam (Exh. 69), memorandum of statement of accused no. 3 Mukesh (Exh. 71), letter (Exh. 73) sent for recording the statements of 11 eye witnesses under Section 164 of the Code of Criminal Procedure, map of spot drawn by the Tahsildar (Exh. 75) and Chemical Analyzer’s report (Exh. 79).

22. The defence examined DW - 1 Vilas Keshaorao Chimurkar Medical Officer, PHC Ekodi and brought on record the injury certificate of the accused no. 1 Gautam (Exh. 111). This witness stated that he was attached to PHC, Ekodi as Medical Officer. On 05/10/1997, Police Constable B.No. 1427 of Gangazari Police Station brought accused no. 1 Gautam at 4:10 p.m. On examining the accused no. 1 Gautam, he found the following bleeding injuries:-
“1) Cut mark 1 inch long on post auricular region.
2) Cut injury on auricular cartigenous pinna with cut of skin 1 inch in C shape.”

According to him, both the injuries have been caused by pointed sharp object within 1 or 2 hours before examination. Both the injuries were possible by sickle and both the injuries were bleeding. In cross, he admits that he has not mentioned the nature of injuries. The injuries were not deep and were superficial. He denied the suggestion that the injuries were self inflicted.

23. Heard learned advocate for the accused and learned APP. With their assistance, we have gone through the notes of evidence and record.

24. Learned advocate for the accused vehemently argued that the evidence of eye witnesses is unreliable. Except PW - 5 Kalabai, all the other witnesses have specifically denied the injuries suffered by accused no. 1 Gautam and that his clothes were stained with blood. He contends that the prosecution has suppressed the genesis of offence and on that count alone, the prosecution case is liable to be disbelieved. He further submits that though specifically the right of private defence is not urged before the learned trial Court, still the accused can take the said plea, on the basis of circumstances on record and in the present case, it can be very well claimed since the accused no. 1 Gautam had suffered cut injuries on his ear, the accused nos. 2 and 3 were justified in assaulting the deceased Radhelal, who was carrying sickle, for exercising their right of private defence. Defence is entitled to take alternate defence and the same needs to be considered in view of the evidence brought on record. He further urged that the learned trial Court has committed an error in placing reliance on the evidence of eye witnesses i.e. PW - 1, PW - 3, PW - 4 and PW - 5 who are not stating true and correct facts before the Court. According to him, since PW - 12 and PW - 16 who are government servants and independent eye witnesses have not supported the case of the prosecution, the entire prosecution version is doubtful. According to him, since PW - 9, PW - 14 and PW - 15 who are the panch witnesses have not supported the case of the prosecution, no reliance can be placed on the recovery of sticks from the accused persons. He submits that the Investigating Officer has conducted partial investigation and has gone to the extent of denying that accused no. 1 Gautam was referred to PHC, Ekodi. Thus, his evidence is unreliable. He further prays that the conviction of the appellants is unsustainable, the same is liable to be set aside and the appellants are entitled for acquittal. Learned advocate for the appellants placed reliance in Lakshmi Singh and others vs. State of Bihar reported in (1976) 4 SCC 394 in support of his argument that the prosecution has suppressed the genesis of offence and hence submitted that the appellants are entitled for acquittal. He further relied in Shivaji Ganu Naik vs. State of Maharashtra and another reported in 1999 CRI. L.J. 471 in support of his argument that the right of private defence need not be specifically pleaded and its benefit can be given to the accused, if circumstances show that he may have acted in exercise of it.

25. On the other hand, learned APP would urge that the assault on Radhelal is proved by the prosecution and taking into consideration the injuries suffered by Radhelal, a case under Section 302 of the Indian Penal Code is made out against the appellants and the learned trial Court was not justified in convicting the appellants under Section 304-I read with Section 34 of the Indian Penal Code. It is further submitted that the prosecution has proved its case beyond reasonable doubt by leading cogent evidence and the appellants are liable to be convicted under Section 302 of the Indian Penal Code. Learned APP for the State relied upon the ratio in Bhagwan Singh vs. State of Haryana reported in AIR 1976 SC 202 to contend that the conviction can be recorded on the basis of evidence of hostile witnesses. She further relied upon the ratio in Gurbachan Singh vs. State of Haryana (1974) 3 SCC 667 to urge that no right of private defence can exist against an unarmed and unoffending individual.

26. On careful analysis of the evidence of the eye witnesses, we find that PW - 1 is not a reliable witness considering the fact that he is unable to identify the accused persons even on close scrutiny and considering his weak eye sight, his evidence can’t be believed. The evidence of PW - 3, PW - 4 and PW - 5 on the point of actual incident is inconsistent. PW - 3 states that Radhelal and accused no. 1 Gautam were pushing each other and accused no. 1 Gautam caught hold of collar of Radhelal. On call of accused no. 1 Gautam, accused no. 2 Bhaktam and accused no. 3 Mukesh rushed to the spot armed with sticks and they both belaboured Radhelal with sticks. In the next breath, he states that all the three accused Gautam, Bhaktam and Mukesh beat Radhelal, which is proved to be an omission. This witness has admitted that his father was required to handover possession of the land to the accused as per the Court order. Thus, he had grudge against the accused persons. PW - 4 states that only the accused nos. 2 and 3 were beating Radhelal by sticks and accused no. 1 Gautam was standing aside and he was armless. Again, PW - 5 states that accused Gautam, Bhaktam and Mukesh were beating Radhelal by sticks and the lady accused beat Radhelal by chappals. Thus, the eye witnesses are not consistent about the actual assault.

27. All the three eye witnesses PW - 3, PW - 4 and PW - 5 specifically denied that the sickle and ubhari were lying on the spot. These weapons were infact seized during the spot panchanama (Exh. 29). PW - 3 and PW - 4 have specifically denied that the accused no. 1 Gautam had sustained injuries and his clothes were stained with blood. PW - 5 in examination-in-chief states that the accused no. 1 Gautam had sustained injuries near his ear and he became unconscious. In his cross, she further admits that accused no. 1 Gautam fell unconscious because he had sustained bleeding injury. Thus, it appears from the evidence of the eye witnesses that PW - 3 and PW - 4 are denying the injuries suffered by the accused no. 1 Gautam. PW - 3 had a grudge against the accused persons. PW - 4 and PW - 5 are relatives of the deceased and are interested witnesses. Thus, the prosecution witnesses are not telling the truth before the Court and they are suppressing the genesis of the offence.
The Medical Officer PW - 11 in his cross has admitted that even the injury to pinna would be termed as injury to vital part. The two injuries suffered by accused no. 1 Gautam were one inch long cut mark on auricular region and on pinna. Thus, it cannot be said to be minor injuries.

28. The false implication of the accused nos. 4 and 5 is also clear on record so also of accused no. 1 Gautam. The learned trial Court has acquitted them on the basis of same evidence, however, the appellants are convicted. Even the investigation in the present case, appears to be tainted as the accused no. 1 Gautam was sent for medical examination to PHC, Ekodi by Gangazari Police Station, and upon examination and treatment, DW – 1 issued medical certificate (Exh. 111). The Investigating Officer has denied that the accused no. 1 Gautam was sent for medical examination. From the prosecution evidence and injuries suffered by the accused no. 1 Gautam, it appears that there was assault on accused no. 1 Gautam by Radhelal with sickle and on call of accused no. 1 Gautam, accused no. 2 Bhaktam and accused no. 3 Mukesh rushed to the spot as their fields were nearby and they assaulted Radhelal in exercise of right of private defence of accused no. 1 Gautam. Taking into consideration the fact that Radhelal was well built and assaulted Gautam with sickle the appellants must have apprehended the assault on them by Radhelal. The apprehension on the part of the appellants in this fact situation appears to be real and eminent.

29. There cannot be any dispute about the ratio laid down in Bhagwan Singh (supra), relied upon by the learned A.P.P., that conviction can be recorded on the basis of hostile witnesses. But, this ratio is not applicable to the facts of the present case. So far as the ratio in Gurubachan Singh (supra), relied upon by the learned A.P.P., which lays down that no right of private defence can exists against an unarmed and unoffending individual. Considering the facts of the present case, there was assault by Radhelal with sickle on Gautam and a well founded apprehension on the part of the appellants that even they might be assaulted by Radhelal. In this view of the matter, Gurubachan Singh’s case is of no help to the prosecution.

30. It is true that the appellants in their statement under Section 313 of the Code of Criminal Procedure have not taken a plea of private defence, but from the evidence brought on record by the prosecution as well as by the defence, the case of right of private defence is made out. It is settled legal position that the right of private defence need not be specifically pleaded and proved and its benefit can be given to the accused if circumstances show that he may have acted in exercise of private defence. The unexplained injuries of the accused are a strong base for concluding that he might have acted in exercise of such right (1999 Cri. L.J. 471). The falsity of defence is of no help to the prosecution.

31. In view of the ratio in Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, it is well settled that “where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.” It is also well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.

32. In Lakshmi Singh(supra), the relevant observations are as follows:-
“12. This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants.
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 unreliable;
(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.
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.
However there may be cases where the nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply 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 credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
17. This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case.
18. Thus in view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt.”

33. Applying the above ratio to the facts of the present case, we are of the view that the prosecution witnesses have suppressed the genesis of the crime and they are not telling the truth before the Court. From the evidence on record, it can be inferred that the accused nos. 2 and 3 have exercised the right of private defence. In this view of the matter and in view of the ratio in Sharad Birdhichand Sarda (supra), that if two views are possible one favourable to the accused has to be adopted, hence we are inclined to give benefit of doubt to the appellants. We are, therefore, unable to agree with the learned trial Court and the conviction recorded by the learned trial Court, in our opinion, is unsustainable. Hence, the following order:-

ORDER

(a) Criminal Appeal No. 240/2006 is dismissed.
(b) Criminal Appeal No. 643/2005 is partly allowed.
(c) The impugned judgment and order passed by the learned Sessions Judge, Gondia in Special Criminal Case No. 11/2001 thereby convicting the appellants under Section 304-I of the Indian Penal Code is quashed and set aside and the appellants are acquitted.
(d) Fine amount, if any, paid by the appellants be refunded to them.
(e) The appellants shall execute personal bond of Rs. 15,000/- each with one surety in the like amount in terms of Section 437-A of the Code of Criminal Procedure.