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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. …..Appellants   

Versus

State of Rajasthan …..Respondent

J U D G M E N T

SHIVA KIRTI SINGH, J.

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

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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.

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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

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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

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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 Bihar1  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,

1 1976 (4) SCC 394

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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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