minal Appeal No 645 of 1989
From the Judgment and Order dated 17389 of the Delhi High Court in Criminal Appeal No 27085
AND Criminal Appeal No 534 of 1989
AP Mohanty and SK Sabharwal for the Appellants
K Lahri VC Mahajan Mrs Indra Sawhney and BK Prasad for the Respondent
The Judgment of the Court was delivered by KULDIP SINGH J
Sardar Singh his wife Saraswati and his brother s wife Savitri were charged under Sections 30234 and 20134 Indian Penal Code IPC for the murder of one Charanjit
The trial Court convicted Sardar Singh and his wife Saraswati on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count
Accused Savitri was however acquitted by the trial Court
The High Court dismissed the appeal filed by Sardar Singh
Saraswati was acquitted of the charge under Sections 30234 IPC but her conviction and sentence Under Section 20134 IPC was maintained by the High Court
These two appeals are by Sardar Singh and Saraswati against the judgment of the High Court
67 Sardar Singh appellant and one Tara Chand are real brothers
Both the them were residing in village Jhatikara
They were living in adjoining houses
Deceased Charanjit was living in a house adjacent to their houses
Charanjit s wife had died about ten years ago and he was living in the house by himself
Deceased Charanjit had developed illicit relation with Savitri wife of Tara Chand and also with appellant Saraswati
The prosecution case in a nut shell is that deceased Charanjit was having illicit relations with both Saraswati and Savitri and used to visit them during night for the last so many years
On March 31 1983 the deceased had gone to sleep in his house in the evening and did not appear thereafter
On April 4 1983 Lakhmi Chand brother of the deceased lodged report with the police expressing suspicion against the appellants and Savitri
It is alleged that during the course of interrogation Sardar Singh appellant made a disclosure statement and consequently led the policy party to his sitting room where he pointed out a spot covered by a cot
Sardar Singh thereafter dug the floor and the dead body of the deceased was recovered from a five feet deep grave
Thereafter at the pointing out of the appellant Sardar Singh the police also seized doe wood cutter and knife contained in a canvas bag hanging in the adjacent room
The dead body was tied with a rope and was wrapped in three gunny bags
The recovered knife had no blood stained while the doe was found stained with blood
On examination by the Serologist the blood stains on the doe were found to be human and of the same group as that of the deceased
The entire case of the prosecution is based on circumstantial evidence
The circumstances relied upon by the prosecution are as under 1 The deceased had illicit relations with Saraswati and Savitri wife and brother s wife of appellant Sardar Singh
2 The deceased was last seen on the night of March 31 1983 when he went to sleep in his house and thereafter his dead body was found buried in the appellants  house
3 Sardar Singh appellant on interrogation made a disclosure statement leading to the recovery of the dead body from a five feet deep pit in the sitting room of the appellants
4 Recovery of doe from the possession of the appellant which was 68 found to bear the same human blood group as that of the deceased
Relying upon the above mentioned circumstances the trial Court and the High Court have convicted the appellants
So far as appellant Sardar Singh is concerned the chain of circumstances relied upon by the prosecution and accepted by the courts below leaves no manner of doubt that it was he who committed the murder of Charanjit
We have been taken through the judgments of the trial Court and that of the High Court
We agree with the reasoning and the conclusions reached therein
We therefore uphold the conviction and sentenced of appellant Sardar Singh and dismiss his appeal
So far as appellant Saraswati is concerned the High Court dealt with her case in the following manner Before we part with this order there is one more fact which needs our consideration
In this case the disclosure that led to the recovery of the dead body has been made by Sardar Singh appellant
There is no evidence direct or indirect to connect the appellant Saraswati with the commission of murder though it can safely be said that she being the inmate of the house was in know of the fact that the dead body was buried in the house with a view to cause the disappearance of evidence
In our view the process of digging a grave of 5 feet deep and of the size of the deceased in length the filling of the grave and then erasing the traces of the same is a long process and she must have been necessarily involved in the same
since in our view there is no evidence to connect her with the commission of murder we acquit the appellant Saraswati of the charge under Section 30234 IPC but maintain her conviction and sentence under Section 20134 IPC
 We are of the view that the reasoning adopted by the High Court in acquitting Saraswati of the charge under Section 30234 IPC is equally applicable to the charge against her under Section 20134 IPC
It may be correct that the process of digging a grave of five feet deep the filling of the grave and then erasing the traces etc
may not have been done by Sardar Singh alone but there is not an iota of evidence on the record not even a whisper to the effect that it was Saraswati who helped him in 69 concealing or causing the evidence of the commission of the offence to disappear
Simply because she is the wife of appellant Sardar Singh and as such is supposed to be living in the same house it cannot be assumed that she was guilty of the offence under Section 20134 of the Indian Penal Code
According to the Prosecution Saraswati was having illicit relation with the deceased for several years
Sardar Singh may or may not have taken her help in concealing the dead body
Her being wife of Sardar Singh by itself is not sufficient to prove the charge under Section 20134 IPC against her
We therefore give benefit of doubt to Saraswati allow her appeal and acquit her of the charge under Section 20134 Indian Penal Code
She is already on bail
Her bail bonds are cancelled
TNA Crl
A No64589 dismissed
Criminal Appeal No 53489 allowed


Summary:
The prosecution s case was that on the date of occurrence the pw2 and the deceased were returning after answering the call of nature at about 6 PM
At that time the appellant along with co accused came there
Seeing the pw2 and the deceased the accused came rushed towards them with knives
Appellant chased the deceased and gave a knife blow on his chest
The PW2 received a knife blow from the co accused
Thereafter the accused fled away
The victim died on the way while he was being taken to Debai
The PW 2 lodged the first information report on the same night at about 1130 PM
The motive for the occurrence was that about 10 or 12 days before the date of occurrence the appellant abused the PW2 and the deceased
They gave twothree slaps to the appellant The appellant accused s case was that for last two days prior to the date of occurrence the crop of his grand father was being damaged
Therefore he was keeping a watch on the field
During night the PW2 and the deceased came to the field
Seeing them the appellant raised an alarm Chor Chor
They started running
The appellant chased them to catch 71 them
But they turned back and started assaulting the appellant with lathies
The appellant attacked them with a ballam  to save his life
The injuries on the person of the appellant were examined in the next morning
He filed an application before the Superintendent of Police and a case was registered at about 1025 AM on the next day of the date of occurrence on the basis of appellant s petition
The trial Court acquitted the appellant of the charges under sections 302 and 307 read with section 34 of the penal Code
The State s appeal was allowed by the High Court and the present appellant was convicted under section 302 of the Penal Code and was sentenced to undergo rigorous imprisonment for life
Present appeal was filed by the accused against the High Court s judgment
The State contended that if the version of appellant was accepted it would amount to a case of free fight between the prosecution party and the accused both being armed and that in a case of free right no party could claim right of private defence
Partly allowing the appeal this court HELD 101
A free right is that when both sides mean to right a pitched battle
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party
In such cases of mutual rights both sides can be convicted for their individual acts 76E 102
So far the facts of the present case are concerned if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight
76G 103
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution
In other case the injuries being superficial by themselves may not affect the prosecution case the version disclosed by the prosecution having been proved by witnesses who are independent reliable and trustworthy supported by the circumstances of that particular case including the promptness with 72 which the first information report was lodged on behalf of the prosecution
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay  the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation then in that situation injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted
80B D 104
So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries the appellant is not entitled to the acquittal
But those injuries can certainly be taken into consideration while judging whether the defence version of the accused is probable
80H 105
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable
Even if it is assumed that because of some altercation 1012 days before the date of occurrence the appellant had decided to cause the murder of the deceased then more injuries would have been caused on the person of the victim by the appellant
81B 106
The delay in lodging the first information report by PW 2 has not at all been explained
The occurrence according to prosecution took place at 600 PM in the evening
The victim while being taken to Debai which is at a distance of five kilometers expired on the way
Then why first information report was lodged at 1130 PM there is no explanation
On the other hand the appellant s case is that the occurrence did not take place at 600 PM in the evening but at later part in the night
That appears to be more probable
81C 107
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife
But it is consistent with the defence version that soon the deceased and PW2 returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased
If the appellant had given the ballam blow while chasing the deceased in that event it would have caused injury on the back of the deceased
81F 73 108
Taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable
82G Gajanandv
State of Uttar Pradesh AIR1954SC 695Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219 Puran vs State of Rajasthan AIR 1976 SC 912 Vishvas Aba Kurane vs State of Maharashtra AIR 1978 SC 414 The State of Gujarat vs Bai Fatima   Lakshman Singh vs State of Bihar AIR 1976 SC 2263 Bhaba Nanda Sarma vs The State of Assam   Hare Krishna Singh vs State of Bihar  and State of Rajasthan vs Madho AIR 1991 SC 1065 referred to
76F 201
Once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts
76G 202
Accused pleading the right of private defence need not prove it beyond reasonable doubt
It is enough if on the basis of the circumstances of a particular case applying the test of preponderance or probabilities the version becomes acceptable
80E 203
There are no two parallel versions before the Court one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable
80E F 204
If the right of private defence is available
While judging the question whether the accused has exceeded such right should not be weighed in a golden scale
But the right of private defence does not extend to the infliction of more harm than is necessary for the purpose of defence
When the appellant caused the injury with a ballani spear in the chest of the victim which resulted in his death certainly he exceeded his right of private defence
82H 83A Partap vs le State of UP  Mohan Singh vs State of Punjab AIR 1975 SC 2161 Seniyal Udayar vs State of Tamil Nadu AIR 1987 SC 1289 Vijayee Singh vs State of UP  and Buta 74 Singh vs State of Punjab  referred to
80G 3
An admission has to be taken as a whole
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow and to accept only the later part of the statement that appellant gave a ballam blow for the purpose of convicting the appellant 82D
Hanumant Govind Nargundkar vs State of Madhya Pradesh AIR 1952 SC 343 referred to