IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Nathu Ram & Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.697/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 11-6-2004 in Sessions Case No.115/2002 passed by Shri Ajay Kumar Meena, RHJS, Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur. Date of Judgment: July 14, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Rajendra Singh Tanwar, for the appellants. Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Three different stories appear in this case. The first story according to FIR declares accused Mohan Lal as the author of fatal injury received by the deceased on his head, whereas second story based on the evidence adduced at the trial, indicates that it was accused Pratap, who inflicted the fatal blow. On the other hand accused Nathu Ram has come forward with the third story by admitting that he himself gave a fatal blow when the deceased stripped Phooli naked. Let us find out the truth. 2. The above named three accused are the appellants before us. They were put to trial before learned Additional Sessions Judge (Fast Track), No.1, Jaipur District, Jaipur, who vide judgment dated June 11, 2004, while acquitting co-accused persons, convicted and sentenced them as under:- Mohan Lal U/s.302 and Pratap Chaudhary and Nathu Ram: U/s.302/34 IPC: Each to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. U/s.323 IPC: Each to suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently. 3. It is the prosecution case that on May 6, 2002 informant Mahadev (Pw.3) submitted a written report (Ex.P-3) at police Station Samod stating therein that on the preceding day around 5 PM while his nephew Kailash was tilling his field, Mohan Lal and Ram Pratap armed with lathi and Pharsa came over there and started beating Kailash. On hearing hue and cry Mali Devi, Sugan Chand and Mali Ram rushed to the spot. In the meantime Nathu Ram, Phooli Devi, Manju Devi and Mukesh Devi also reached there armed with lathis, Axe and Dantli. Mohan Lal then inflicted Pharsa-blow on the head of Sugan Chand. Ram Pratap and Nathu Ram gave beating to Kailash and Mali Ram, whereas Phooli Devi, Mukesh Devi and Manju Devi caused injuries to Bhagoti Devi. On that report case under sections 147, 148, 149, 447, 341, 323 and 307 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. During the course of investigation Sugan Chand succumbed to his injuries and section 302 IPC was added. The appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur District. Charges under sections 148, 323, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Three witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 4. We have heard the submissions and weighed the oral and documentary evidence. 5. Prior to breathing last, Sugan Chand was medically examined and as per injury report (Ex.P- 37) following injuries were found on his person:- 1. Post operative bandage on scalp & forehead with blacking and swelling. 2. Diffuse swelling with distortion seen on Rt. side face. Dr. H.L. Bairwa (Pw.25) after performing autopsy on the dead body drew post mortem report (Ex.P-36), according to which the cause of death was coma as a result of injuries to skull and brain. 6. Coming to the injuries received by other persons in the incident we find that Kailash Chand (Pw.7) vide injury report (Ex.P-38) received following injuries:- 1. Stitched wound 4cm on Rt.frontal region obliquely placed with clotted blood. 2. Abrasion 1 x 1cm red in colour on Rt. ankle region dorsally. 3. Abrasion 1 x ½ cm on red in colour on Lt. elbow medially. 7. Mali Ram (Pw.6) vide injury report (Ex.P- 35) also received following injuries:- 1. Abrasion 1.8cm x 0.2cm over lateral malledy of left foot. 2. Abrasion 0.8cm x 0.7cm over left knee joint antero lateral aspect. 3. Abrasion 1cm x 0.2cm over lower end of left radius posterior lateral aspect of left wrist joint. 4. Abrasion 1.5cm x 1cm over left knee joint anteriorly. 8. At this juncture it may be noticed that members of the accused party also received injuries in the same incident. Appellant Nathu Ram vide injury report (Ex.D-11) received in addition to bruises and abrasions, lacerated and incised wounds thus:- Lacerated wound 3cm x 0.3cm deep to bone over left leg. Incised wound 1.3cm x 0.18cm through & through external pinna lower lateral side of left ear. 9. Phooli vide injury report (Ex.D-12) also received following injuries:- 1. Bruise 3cmx 2cm left parietal region of scalp. 2. Bruise 4cm x 1.2cm over blacking. 3. Bruise Rt.thumb on distal of Rt.scapula. 10. The prosecution case is founded on the testimony of injured eye witnesses viz. Kailash (Pw.7) and Mali Ram (Pw.6). Kailash in his deposition stated that while he was tilling the field with the tractor, Pratap and Mohan came over there and stopped the tractor and pushed him down. In the meanwhile Phooli, Manju, Mukesh and Nathu also arrived. Hearing hue and cry Mali Ram, Mali Devi, Kamli, Babudi and Bhagwati also reached there. His brother Sugan Chand when made attempt to save him, Pratap inflicted axe blow on the head of Sugan Chand. Testimony of Kailash (Pw.7) gets corroboration from the evidence of Mali Ram. 11. Appellant Nathu Ram examined himself as Dw.1. According to him Sugan Chand (deceased) and Kailash came to his house and started beating him. When Phooli, wife of his younger brother, intervened, Sugan Chand stripped her naked. Enraged by this act, he inflicted a blow with Seru (stick of cot) on the head of Sugan Chand. 12. Factual aspect appears in this case may be summarized thus:- (i) Single injury received by the deceased on his head has been attributed to three accused persons. (ii) Injuries received by the accused party have not been explained by the prosecution witnesses. (iii) Cross case was registered against the members of the complainant party and this fact has been admitted by Kailash (Pw.7). (iv) Phooli, a member of accused party, also received injuries and according to her, the appellant Nathu Ram, when she was stripped naked by the deceased, he gave blow on the head of the deceased to save her. 13. In Zahira Habibullah Sheikh Vs. State of Gujarat (2006)3 SCC 374, the Apex Court explaining the duties of the criminal court observed that the trial should be a search for the truth and not a bout over technicalities. It was indicated as under:- “A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of, undermining the fair name and standing of the judges as impartial and independent adjudicators.” (Emphasis supplied) 14. Turning to the legal position in regard to appreciation of evidence the Supreme Court in Takhaji Hiraji Vs. Thakore Kubersing Chamansing (2001)6 SCC 145, held that the court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting the prosecution case in its entirety for non explanation of the injuries sustained by the accused is erroneous. The Apex Court observed thus:- (Para 17) “It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non explanation of injuries assumes greater significance when the evidence consists of interest or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution.” 15. In order to appreciate the submissions of learned counsel for the appellants that Nathu Ram acted in exercise of right of private defence to defend the body of Phooli, when we turn to Section 97 IPC, we find that it recognises the right of a person to defend his own or another's body. Their Lordships of the Supreme Court in Mahabir Chaudhary Vs. State of Bihar (1996)5 SCC 107, indicated two measures of right of private defence, one is the first degree which shall not reach up to causing of death of the wrong doer, the other is the full measure which may go upto causing death. Both measures are however subjected to the restriction enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right upto the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure. The emerging position is that unless one has reasonable cause to fear that otherwise death or grievous hurt might ensure, the right of private defence cannot be used to kill the wrong doer. It was held that when the acts are amounted to mischief the accused had a right of private defence to thwart the same. In the course of exercise of such right of private defence, the accused who gunned-down the mischief- makers, has obviously acted far in excess of right of private defence. Nonetheless the first degree of right of private defence cannot be denied to the accused. 16. Having carefully scrutinised the evidence adduced at the trial, we find that origin and genesis of the incident has been withheld by the prosecution. The injuries on the person of accused Nathu Ram and Phooli have not been explained and three views are possible on the evidence adduced. The Hon'ble Supreme Court in Harendra Narain Singh Vs. State of Bihar (AIR 1991 SC 1842) observed that if two views are possible on the evidence adduced one pointing to the guilt of the accused and the other to his innocence, the court should adopt the later view favourable to the accused. 17. In Pawan Kumar v. State of Haryana (2001)3 SCC 628 the Apex Court again reiterated that where two inferences are possible, one that is favourable to accused should be accepted. 18. Upshot of the above discussion is that the prosecution has failed to establish beyond reasonable doubt as to who was the author of the fatal injury sustained by the deceased. The story narrated in the FIR has been completely altered at the trial. The incised and lacerated wounds received by appellant Nathu Ram in the same incident, have not been explained by the prosecution. Thus origin and genesis of the occurrence appears to have been withheld. Under these circumstances, we have no option but to grant the appellants benefit of doubt. The trial court did not properly notice the infirmities of prosecution case and committed illegality in convicting and sentencing the appellants. 19. For these reasons, we allow the appeal and set aside the impugned judgment dated June 11, 2004 of learned Additional Sessions Judge (Fast Track) No.1 Jaipur District. We acquit the appellants Mohan Lal, Pratap Chaudhary and Nathu Ram of the charges under sections 302, 302/34 and 323 IPC. Appellants Mohan Lal and Nathu Ram are on bail, they need not surrender and their bail bonds stand discharged. Appellant Pratap Chaudhary, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/