BHAGWAN SAHAI AND ANR. versus STATE OF RAJASTHAN
[2016] 3 S.C.R. 533, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2016] 3 S.C.R. 533 
BHAGWAN SAHAI AND ANR. 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No. 416of2016) 
JUNE03,2016 
[DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.) 
Penal Code, 1860: ss. 308134, 323, 324 - Previous enmity -
Prosecution case is that two brothers (appellants) alongwith female 
family members formed an unlai-1ful assembly and armed with lethal 
weapons caused injuries to few persons - In the incident.father of 
the appellants died and one of the appellant received injuries -
Trial court gave a finding that there was a free fight between both 
the parties and therefore convicted the accused for their individual 
liability - High Court held 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 has to be 
decided against the accused persons treating it as a case o/ free 
fight between the parties - On appeal. Held: 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 - Appellants are, therefore, acquitted of 
all the charges. 
Allowing the appeal, the Court 
HELD: 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, 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. [Para 8] [537-A-C) 
533 
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534 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
Lakshmi Singh and others v. State of Bihar 1976 (4) 
sec 394 - referred to. 
Case Law Reference 
1976 (4) sec 394 
referred to 
Para 7 
B 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
c 
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H 
No. 416 of2016. 
From the Judgment and Order dated 14.01.2016 of the High Court 
of Rajasthan at Jaipur in DBCRA No. 1235 of 2011. 
Mani sh Kumar, Ansar Ahmad Chaudhary, Advs. for the Appellant. 
Ms. Ruchi Kohli, Adv. for the Respondent. 
The Judgment of the Court was delivered by 
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. 1235of2011 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 ofRs.500/- with a 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 ifthe 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. I 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 Guiab 
Devi formed an unlawful assembly in their village on 4.5.2008 at 10.00
BHAGWAN SAHA! AND ANR. v. STATE OF RAJASTHAN 
[SHIVA KIRT! SINGH, J.] 
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 
JPC were committed by the accused persons on account of old enmity 
between the parties. 
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 PW 1 and PW2 and also proved documentary evidence-
exhibits DI to DJ 1. 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 Guiab 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 Saliai Meena and his mother Guiab 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 Guiab Devi acquitted accused, Seema 
acquitted accused and 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 follO\\ ing injuries:-
535 
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536 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
"l. Lacerated wound with bleeding 6 cm x 1 cm bone 
B 
deep on left parietal region of scalp. 
2. Lacerated wound with bleeding 2 cm x Yi cm on 
occipital region of scalp." 
Bhagwan Sahai appellant also received two injuries 
and the same were noted in the injury repo11 as under:-
"I. Lacerated wound 3 cm x 'h cm x 'h cm on palmar 
aspect of base of left thumb. 
2. Lacerated wound I Yi cm x Yi cm x Yi cm on right 
c 
parietal region of scalp." 
D 
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Guiab Devi mother of both the appellants had also 
received two injuries and same are noted as under:-
"!. Lacerated wound with bleeding I cm x Y2 cm x 
Yi cm on forehead. 
2. Bruise (reddish) I 0 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 Mall'i Devi-PW6 also 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 Bihar' 
which was relied upon by the counsel for the accused persons in support 
of private defence and for acquittal on the ground ofnon-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 pai1y 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 oflegal 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 
1 1976(4}SCC394
BHAGWAN SAHA! AND ANR. v. STATE OF RAJASTHAN 
[SHIVA KIRT! SINGH, J.) 
benefit of doubt to the appellants. The appel I ants 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, 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. 
Devika Guj!al 
Appeal allowed. 
537 
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