Case: State of U.P Vs. Mukunde Singh

other accused persons set up counter version and pleaded that on the day of occurrence at about 9 a.m. when these accused persons were sitting on the Gonda of Shiv Vir Singh, accused in Village Badera, the deceased persons and others came there armed with lathis, ballams and country-made pistols and attacked them and that Mahesh Singh, deceased fired from his country- made pistol and they continued to advance. Shiv Vir Singh, accused fired in self-defence and that they also went to the police station to lodge a complaint. It may be mentioned at this stage that DW 1 Dr Mittal examined the accused Hanumant Singh, Brij Mohan, Ramesh Singh, Vidya Ram and Yadhunath Singh and found some abrasions, contusions and lacerated wounds on them. 4. The High Court observed that the eyewitnesses have not furnished any explanation regarding the injuries found on the accused persons and that they also received the injuries during the same incident in which the deceased persons also received fatal injuries and that the finding of the trial court that the accused might have received injuries elsewhere or the same might have been self-inflicted, is wholly untenable. Then the High Court proceeded to state that as the injuries on the accused have not been explained by the eyewitnesses the version given by them cannot implicitly be believed and that the accused acted only in exercise of self-defence and were entitled to the benefit of the section, cannot be ruled out. 5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right of self-defence, ought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have been self-inflicted. All the injuries on the accused are such which could not have been self-inflicted. But at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right of self-defence, we have to necessarily examine whether they have exceeded the same. 6. According to the eyewitnesses Shiv Vir Singh and Mukunde Singh, accused had firearms and they indiscriminately shot at the prosecution party as a result of which three persons died and PW 1 also received gunshot injuries. Then Hanumant Singh, Badan Singh and Ashok Kumar Singh, accused, who were armed with kantas and spear also inflicted injuries with these deadly weapons on the three deceased persons though they were also shot down by Shiv Vir Singh and Mukunde Singh, accused. The medical evidence clearly shows that the gunshot injuries and the punctured wounds inflicted by the assailants resulted in death. Some of the punctured wounds also were on the vital parts. Under these circumstances, we are clearly of the view that these five accused who attacked the three deceased persons and killed them certainly exceeded the right of self-defence. So far as other accused are concerned, allegation against them is omnibus namely that all of them were armed with lathis and participated in the occurrence. But we do not find any lathi injuries on the three deceased persons as well as on PW 1. Only some simple injuries which could have been caused by blunt weapons were found on PW 2. Therefore there is not sufficient material to come to the conclusion that those 17 accused also participated in the occurrence. Therefore their acquittal has to be confirmed. 7. Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned. 8. For the above-stated reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right ofought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have beenAll the injuries on the accused are such which could not have beenBut at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right ofwe have to necessarily examine whether they have exceeded the same.Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned.ted reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed.