The Commissioner of Income-Tax - VI, vs. Shri Mekala Bal Reddy

1 RESERVED ON:-16.07.2022 DELIVERED ON:-16.12.2022 Court no.39 Case :- CRIMINAL APPEAL No. - 28 of 2013 Appellant :- Devendra Respondent :- State of U.P. Counsel for Appellant :- Atul Kulshrestha,Vinay Singh Khokhar,Vivek Kumar Singh Counsel for Respondent :- Govt. Advocate, And Case :- CRIMINAL APPEAL No. - 133 of 2013 Appellant :- Pramod And Others Respondent :- State of U.P. Counsel for Appellant :- Atul Kulshrestha,Sudhir Kumar Singh Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 21 of 2013 Applicant :- Ummed Opposite Party :- State of U.P. and Others Counsel for Applicant :- Vivek Kumar Singh,Ajay Kumar Singh Counsel for Opposite Party :- Govt. Advocate,Birendra Singh Khokher Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Subhash Chandra Sharma,J. 1. These two connected appeals have been filed by the appellants (5 in number) against the judgment and order dated 18.12.2012 passed by the Sessions Judge/Baghpat in Sessions Trial no.145 of 2009 arising out of Case Crime no.588 of 2008 under Sections 147, 148, 302/149, 307/149 120B/302/149, 307/149, 120B/302 IPC, Police Station- Baghpat, District Baghpat. 2. Heard Sri V.P. Srivastava learned Senior Advocate

2 assisted by Sri Atul Tej Kulsheshtra and Sri Anshul Tiwari learned counsels for the appellants, Km. Meena learned A.G.A for the State respondent. Sri Brijesh Sahai learned Senior Counsel assisted by Sri Vivek Kumar Singh learned Advocate appeared for the informant. 3. Out of 11 accused chargesheeted for the aforesaid offences, five persons namely Devendra, Pramod s/o Harpal, Pramod s/o Harpal @ Lehri Galoor, Ashok and Tejpal have been convicted under Sections 148, 302 read with Sections 149, 307 read with Section 149 I.P.C. For the offence under Section 148 IPC, each of the appellants herein have been convicted for one year rigorous imprisonment; under Section 302 read with 149 I.P.C they have been convicted for life imprisonment with fine of Rs.10,000/-; the default punishment for which is six months additional imprisonment. Under Section 307 read with 149 I.P.C, the appellants have been convicted for seven years rigorous imprisonment with fine of Rs.5,000/-; the default is three months additional imprisonment for each appellant. All the punishments are to run concurrently. 4. The criminal law was set into motion with the lodging of the first information report on 16.8.2008 at 01.10 a.m. by Sunil Kumar s/o Pritam Singh entered in the witness box as P.W-1. The time of the incident as narrated in the written report is 16.8.2008 at 00.30 hours (12.30 a.m). The place of the incident is narrated as Gram Faizpur Ninana, towards North 10 km from the Police Station. FIR and the investigation 5. As per the narration in the written report, the informant is stated to be the resident of Village Badhu, Tehsil and District

3 Baghpat. He got permit for excavation of miner minerals (sand) in Village Faizpur Ninana for a period of three months. On 16.8.2008, at about 00.30 hours, (12.30 a.m) when trucks of the informant loaded with sand were coming via village Ninana, the accused Devendra s/o Harpal, Pramod s/o Harpal, Bablu s/o Jagpal, Ashok s/o Bhram Singh (Lehli), Tejpal s/o Ilam Singh, Pramod s/o Harpal @ Lehri Galoor, all residents of Village Ninana had intercepted the trucks by saying that they would not allow them to move. The partners of the informant namely Umeed s/o Rajveer and Jagroshan s/o Rajveer, Rajveer s/o Mula and Yogendra s/o Rajveer had tried to persuade the accused persons, they then started beating all named persons in the FIR, the partners of the informant, by Farsa, Lathi and Ballam with the intention to kill them. In the meantime, Mahipal s/o Bhullan, Dharmpal s/o Lakhi, Pattu s/o Shaukeen, residents of Ninana had also reached the spot. They saved the injured Umeed and others. Umeed had suffered grievous injuries. The accused persons went away threatening them. 6. The Check FIR and G.D entry of the case registered by the informant was proved by P.W-7 Constable Clerk posted at P.S-Baghpat on 16.8.2008. He submitted that the Check report was prepared in his hand writing and signature marked as Exhibit Ka-11. The G.D entry of the report was made at Rapat no.5 at 01.10 a.m which was proved by bringing the original G.D in the Court. The carbon copy of the same was proved to be true to the original and having been prepared in the same process by P.W-7, marked as Exhibit-Ka-'12'. In cross, P.W-7 was confronted about the report sent to the Chief Judicial Magistrate under Section 157 Cr.P.C. He stated that the check report of the case was received in the Court of the Chief

4 Judicial Magistrate on 18.8.2008. The Check report exhibited as Exhibit Ka-'11' did not contain the signature of the informant. In the G.D, there was no entry with regard to recording statements of any of the witnesses. In cross, it was stated by P.W-7 that he had prepared another Check report of Case crime no.588A/2008 (State vs Rajveer Singh) on 16.8.2008 at 4.30 a.m, on the written report of Devendra s/o Harpal resident of Gram Faizpur Ninana. The Check report and the G.D entry no.15 of the aforesaid criminal case was proved as Exhibits Kha-'6' and Kha-'7' being in the handwriting and signature of P.W-7. 7. It has, thus, come on record that a Cross Case no.588A/2008 was registered on 16.8.2008 at 4.30 a.m by appellant Devendra herein as informant, with respect to the incident in question. It may be reiterated that these appeals are arising out of Case Crime no.588 of 2008. 8. The first Investigating Officer had entered in the witness box as P.W-8 who stated that he was posted as Sub-Inspector in the Police Station-Baghpat on the date of the incident, i.e 16.8.2008 and the Case crime no.588 of 2008 was registered in his presence. He received investigation and recorded statements of the informant Sunil Kumar, injured Rajveer after making entries of the Check report, injury reports and the statement of the Check writer in the case diary. The copy of the statement of injured Rajveer recorded in the case diary was filed in the Court, certifying the same as true to the original, being in the handwriting and signature of P.W-8 as Exhibit Ka-'13'. The appellants Pramod s/o Harpal and Tejpal were arrested on 16.8.2008 itself and their statements were recorded. On 18.8.2008 and 19.8.2008, the statements of other witnesses

5 were recorded. 9. The information of the death of injured Rajveer s/o Mula in Guru Tegh Bahadur Hospital, Delhi was received on 19.8.2008 and the case was converted into the offence under Section 302 IPC and further the investigation was handed over to S.I Munshilal (entered in the witness box as P.W-9). 10. It was stated by P.W-8, in cross, that Subhas, Jogendra, Ummed, Jagroshan, Rajveer and Yogendra s/o Rajveer came to the police station along with the informant (P.W-1). They remained in the police station for about 25-30 minutes. The above noted injured persons were sent by the Police for medical examination along with Chitthi Majrubi. Their injury reports were received by him around 1.45 a.m. The hospital was barely 1 furlong from the Police Station. About 40-50 minutes were taken to record the statement of injured Rajveer in the case diary. P.W-8 stated that he did not go to the District hospital Baghpat on that night. He did not remember who had brought the injury reports from the hospital and the time when it was received by him. P.W-8 further stated that the statements of injured Rajveer was recorded after recording the statement of informant Sunil. The informant Sunil Kumar (P.W-1) was neither injured nor eye witness of the incident. Lots of blood was oozing out from the wounds of deceased Rajveer and his statement was recorded in the police station. P.W-8 was further confronted about the blood falling down on the furniture in the police station. He stated that the family members of Rajveer were present when his statement was recorded and it was about 2.00 a.m. (in the night). The statement of Rajveer was recorded after his medical examination. P.W-8 was further confronted about the entries in the case diary and the statement of injured

6 Rajveer (later deceased) recorded by him without any medical certificate of his condition. The statement of Rajveer recorded by P.W-8 was put to him during the course of cross examination and P.W-8 stated that around 5-7 minutes were taken to record the statement of Rajveer and he was immediately sent to G.T.B Hospital, Delhi after recording his statement. On confrontation, P.W-8 refuted that Rajveer was not in position to make the statement or his statement was recorded by him on his own and no such statement was given by injured Rajveer. P.W-8 further stated that he did not obtain the signature of Rajveer nor the said statement was separately recorded rather it was directly entered in the case diary. 11. P.W-8 was further confronted about the counter signature of the Circle officer in the case diary, about the arrest of appellants Pramod and Tejpal and other entries in the case diary. He admitted that the cross case lodged by the appellant Devendra was registered on the same night. He admitted that appellants Pramod s/o Harpal and Tejpal s/o Illam Singh were sent to the Government Hospital Baghpat from the Police Station. He, however, stated that after arrest of accused Tejpal, it was transpired that his X-ray was conducted on 16.8.2008 in the Community Health Centre (CHC) but the copy of the X-ray report was not taken from the said hospital, as it could not be available to him on that day. He further stated that as soon as the case was registered, he came to know that Tejpal and Pramod were named accused and refuted that accused Pramod and Tejpal were arrested prior to 12.30 hours on 16.8.2008. P.W-8 was further confronted whether Pramod and Tejpal were sent for the X-ray along with the police personnel of his police station and stated that he was not aware of the same. The

7 suggestion that appellants Pramod and Tejpal were arrested by him from the bus stand Saruhurkala at about 12.30 hours and their arrest was shown in a forged manner was refuted by P.W- 8. He admitted that he did not enquire the truck number, address of its owner in the investigation, he did not record the statement of the truck driver or conductor. P.W-8 further stated that he had recorded the statements of injured Hariya @ Yogendra on 18.8.2008 and the said injured did not disclose the date and time of the incident and names of the accused persons in his statement, rather stated that he would give his defence in the Court. The suggestion to P.W-8 that he did not record the statement of informant Sunil Kumar and that the said statement was written by him on his own, was refuted by him. The suggestion that the investigation was conducted in connivance with the informant was further refuted. On further confrontation, P.W-8 stated that he received the investigation after registration of the case and after receipt of the investigation on 16.8.2008, he went to the place of the incident ie Gram Faizpur Ninana many a times till 19.8.2008. The witnesses Pattu, Dharmpal and Mahipal were never met during that time and they met him for the first time on 19.8.2008 and then their statements were recorded. 12. The second Investigating Officer, P.W-9, stated that while he was posted as Incharge at the Police Station-Baghpat he received investigation on 20.8.2008 after death of injured Rajveer in G.T.B Nagar hospital treatment. He inspected the place of the incident at the instance of the informant on 20.08.2008, the site plan was proved as Exhibit Ka-'14' being in his handwriting and signature. He stated that he added Section 120B I.P.C after collecting evidence of accused Satvir,

8 Suresh, Dhirendra, Satendra, Indra and Surendra. The appellants Devendra, Pramod s/o Harpal and accused Suresh s/o Bhram Singh were arrested on 21.8.2008 and their statements were recorded and, thereafter, he was transferred from the Police Station. 13. P.W-9 was confronted on the site plan and arrest of the appellants Devendra and Pramod. He stated that he did not find any truck standing on the spot at the time of preparation of the site plan and the numbers of vehicles intercepted was not disclosed by the informant at that time. No evidence of blood was collected from the spot nor the place where blood was fallen, was shown to him. The place wherefrom the witnesses had seen the incident was not shown in the site plan. He stated that he came to know that appellants Devendra and Pramod went to the Police Station on the date of the incident for lodging of the report but could not state the reason as to why they were not arrested prior to 21.8.2008 as he had received investigation only on 20.8.2008. P.W-9 asserted that appellants Devendra and Pramod were arrested at the Sururpur bus stand but he did not remember as to whether arrest memo was prepared. The suggestion that he made investigation in a false manner was refuted by P.W-9. 14. P.W-10 is the third Investigating Officer, who had submitted the chargesheet. He stated on oath that he received investigation on 30.9.2008 and recorded statement of appellant Ashok on that day. On 03.10.2008, he recorded statements of witnesses namely Jagroshan, and Ummed, Check writer Deepak, accused persons namely Satveer, Dhirendra, Satendra, Indra and Surendra. He stated that after death of Rajveer during treatment, a perusal of the previous case diary was made and

9 naming of accused Bablu was found false and chargesheet was submitted against all other accused persons as the evidence proved their involvement in the commission of offence under Sections 147, 148, 149, 324, 307, 302, 506 and 120B I.P.C., the chargesheet submitted on 03.10.2008 was proved by P.W-10 as Exhibit Ka-'15', being under his signature. In cross, P.W-10 stated that he did not know as to how many persons were injured in the cross case and as to who was the accused person injured in the present case. He was further confronted about the statement of injured Ummed. P.W-10 was also confronted about the 161 statement of the injured Ummed and Jagroshan. The suggestion that he had submitted chargesheet in a forged manner in connivance with the informant was refuted by P.W- 10. 15. P.W-11 is the witness of inquest of deceased Rajveer who stated on oath that after getting information of death of Rajveer at G.T.B hospital, he had prepared the inquest on 20.8.2008, which was proved as Exhibit Ka-'16' being in his handwriting and signature. He stated that the signatures of Ummed and Devendra were taken as witnesses in the inquest report and their identification statements were recorded. P.W-11 had identified his signatures on the statements of Ummed, marked as Exhibit Ka-11. The statement of another inquest witness was also proved by him. The letter for request of post mortem, was marked as Exhibit Ka-19, on identification of writing and signature of P.W-11, who stated that the body was sent for the post mortem by him and it was handed over to the Ummed and family members of the deceased after the post mortem. In cross, P.W-11 was confronted about the entries in the inquest and the reason of death of deceased Rajveer as narrated therein

10 by his son Ummed Singh. He further, on confrontation, stated that when the inquest was prepared by him, no paper related to the registration of the case at P.S Baghpat was with him. He did not seal the dead body as it was done by the hospital people. P.W-11 further stated that he did not record the statements of Ummed and Devendra about the occurrence at the time of taking their statement for identification in the inquest. The Post Mortem and the Injuries: 16. P.W-6 is the post mortem doctor, who had proved the post mortem as Exhibit Ka-'8', being in his handwriting and signature. It was stated by P.W-6 that he was posted at the mortuary of G.T.B hospital on 20.8.2008, the dead body of Rajveer was identified by his sons and one Devendra s/o Srichand. The police papers were brought by S.S.I Humkum Chand P.S-Dilshad Garden. The post mortem was commenced on 20.8.2006 at about 12.00 p.m and was completed at 1.30 p.m. The external injuries found on the persons of the deceased as noted in the post mortem report correlate to the injuries of the deceased in the injury report prepared by the doctor examined as P.W-4. On internal examination:- “The bone below injury no.1 was cut fractured in an area of 9.5 cm x 0.5 cm. There was linear fracture surrounding the injury which was shown in vault of skull in the diagram. There was inflation in the brain, extra dural, sub-dural and sub-arachenoid, hemorrhage were present in the brain. There was contusion

11 on both frontal, temporal and right parietal lobe. The lungs were swollen and the stomach was empty. The estimated time of death was 12.00 hours prior to the post-mortem, the cause of death was shock due to damage in brain and its bones. It was stated by the doctor P.W-6 that these injuries had been caused by “moderately, heavy cutting weapon” by force. The injury nos.1 and 2 were sufficient to cause death. The injury no.3 was caused by blunt object. Rigour mortis was present over the body.” 17. In cross, P.W-6 stated that he did not mention the name of the accused in the post mortem report. He reiterated the nature of injuries described at injury no.1 and stated that inflation was present in the entire brain. 18. P.W-6 was confronted about the condition of the deceased after sustaining such serious injuries and as to whether he could remain conscious. On this, he stated that he could not state anything about that as he did not treat the injured at the first instance. P.W-6 was confronted about injury no.3 that it may be that it could be an old injury of 4-5 days or 5 to 7 days. P.W-6 was confronted about certain entries in the post-mortem and clarified that the dead body of which the post mortem was conducted was of male and not a female and the mistake of gender of the deceased was inadvertent. The sample seal was tallied by him, the paper of which was proved as Exhibit Ka-9 wherein the names of the deceased as Rajveer s/o

12 Mula aged 60 years was entered by him. 19. P.W-4 is the doctor posted at the Community Health Centre, Baghpat who had proved the injury reports of accused persons, the deceased Rajveer, injured Umeed, Yogendra s/o Rajveer, Jagroshan s/o Rajveer as Exhibit Ka-'2', Ka-'3', Ka-'4' and Ka-'5'; respectively and their supplementary reports as Exhibit Ka-6 & Ka-7 of Jagroshan and Yogendra. In cross, he had also proved the injury reports of the accused appellants Pramod s/o Harpal, another Pramod s/o Harpal @ Lehri Galoor, Devendra, Tejpal and Dhirendra as Exhibit Kha-'1', to Kha-'5'. The injuries of the informant side are noted hereinunder:- Injuries of Rajveer:- “A black mole on right side face 5cm from right angle of mouth. 1. Incised wound 11.5 cm x 1 cm x bone deep on right side head 4.5 cm above from right eyebrow margins clean cut, fresh bleeding present, kept under observation 2. Inscised wound 3cm x 0.5cm bone deep perpendicular to injury no.2. 8 cm above from right ear. Opinion: Injuries caused by sharp object. Injury kept under observation. Advised X-ray.” 20. It is stated by P.W-4 in his examination in chief that injured Rajveer was brought to him at C.H.C Baghpat at about 1.25 a.m by Constable C.P-30-Salauddin. Two injuries found on his person were caused by sharp edged weapon. They were kept under observation and X-ray was advised and looking to the serious condition of the injury he was referred to the G.T.B Hospital. The thumb impression of the injured found on the injury report was certified by P.W-4.

13 Injuries of Umeed:- “A raised black mole right side face 3.5 from right ear. 1. Lacerated wound 4.5 cm x 0.5 cm x sculp deep right side head 8.5 cm from right ear, fresh bleeding present. 2. Multiple abraded contusion in the area of 12 cm x 5cm inner & back of right fore arm 2 cm above wrist average size 3cm x 1 cm 3. Red contusion 5 cm x 1.5 cm front of left fore arm 2 cm below left elbow. Opinion: Caused by hard blunt object, simple in nature, fresh in duration.” 21. It was stated by P.W-4 that above injuries were caused by hard blunt object. They were simple and fresh. The thumb impression of the injured certified by P.W-4 was identified by him on the injury report. Injuries of Yogendra:- “A black mole right side face near 3 cm angle of mouth. 1. Lacerated wound 1.5 cm x 0.3 cm x muscle deep on back of left hand 1 cm below roof of little finger fresh bleeding present, Traumetic swelling 9 cm x 7 cm, advised X-ray left hand. 2. Red contusion 4cm x 3xm top of the left shoulder. 3. Multiple red contusion in the area 30cm x 12cm over right side shoulder & front of chest , average size 5cm x 3cm. 4. Red contusion 6cm x 2cm in front and lateral aspect of right thigh. Opinion:- All caused by hard blunt object, simple in nature except injury no.1 which is advised X-ray.” 22. Yogendra was investigated at 1.50 a.m. P.W-4 opined that all injuries were caused by hard blunt object. They were simple in nature and the injury report was prepared at the time of

14 investigation by him, which was marked as Exhibit Ka-4 and that thumb impressions of the injured was identified by him. Injuries of Jagroshan:- “A black mole back of neck right side. 1. Contused lacerated wound 5cm x 0.5cm bone deep right side head 9cm above right era, fresh bleeding...injury kept under observation. 2. Red contusion 5cm x2cm right side ...11cm below right inferior angle of scapula. Opinion:- 1.Caused by hard blunt object fresh in a....Injury kept under observation. X-ray advised. 3. Caused by hard blunt object, simple in nature fresh in duration. 23. P.W-4 stated that Jagroshan was examined at 1.35 a.m. All injuries were caused by hard blunt object. Injury no.2 was simple and all injuries were fresh. Injury no.1 was kept under observation and X-ray was advised. The thumb impression of the injured on the report was identified by P.W-4. 24. It is stated by P.W-4, in his examination in chief, that Jagroshan was referred for treatment of injury no.1 and his treatment was made by Neurosurgeon at GTB hospital Delhi, whose report and C.T scan report were present on the record and on the basis of said reports he had prepared supplementary report wherein injury no.1 was shown as grievous in nature. 25. P.W-4 further stated that for injury no.1 of injured Yogendra he had prepared the supplementary report on the basis of X-ray report of the doctor concerned and injury no.1 of Yogendra was found serious. He further stated that the injury no.1 of Jagroshan could be life threatening and both of his

15 injuries were in the category of life threatening injuries. 26. In cross, it is stated by P.W-4 that he had mentioned the medico legal report of all injured on the overleaf of Chithhi majrubi sent by the Police Station. He was further confronted about the entry of the case crime number, sections and the names of the accused on Chitthi Majrubi and stated that they were not mentioned therein. P.W-4 was further confronted about the nature of the injuries and the description given by him about gravity of the injuries of the prosecution witnesses. At this stage, before he narrated the injuries of the accused persons, P.W-4 stated that all injured were brought by C.P.-30 Salluddin. 27. In cross, P.W-4 was also confronted about the investigation of the injuries of the accused persons herein. For the accused Pramod s/o Harpal aged about 32 years resident of Ninana, it was mentioned that he was brought by C.P. Salauddin on 16.8.2008 at 5.20 a.m to him. The injuries of the said accused appellant noted in the report are mentioned as follows:- “Round mark of old injury of 4cm inner to the left eyebrow was present. 1. Red contusion mark of 7cm x 2.5cm on straight middle of wrist on which swelling was present. X-ray advised. 2. Red contusion mark of 4 cm x 2 cm on right leg. Opinion:- Both injuries were caused by blunt object. Injuries were fresh. Injury no.2 was simple and kept under observation.” 28. The injury report was proved as Exhibit Kha-'1' by P.W-4 being in his handwriting and signature.

16 29. With regard to other injured, on the accused side, P.W-4 stated that he had examined them as well. The injured Pramod s/o Harpal aged about 30 years was examined at 5.00 a.m., Devendra at 5.10 a.m. The injuries of Tejpal s/o Illam Singh was examined at 5.30 a.m. The injuries of Dhirendra s/o Dharam Singh was examined at 5.40 a.m. W e may note that at this stage though it was stated by P.W-4 that accused appellant Pramod s/o Harpal aged about 32 years resident of Ninana was brought to him by Constable CP Salauddin but with regard to other injured on the accused side no such statement was made. All injuries of the accused side were found to be caused by hard blunt object. They were simple in nature and fresh. Injury nos.1 and 2 of accused Devendra were caused by sharp edged weapon and were kept under observation. P.W.4 stated that those injuries to Devendra could have been caused by weapons like Farsa, Ballam or Bhala (spear). Rest of the injuries of the injured side could have been caused by lathi and danda and could have occurred on 15./16.8.2008 at about 10.00 pm. 30. About the injuries of Pramod s/o Harpal and Devendra on their head and he stated that it was vital organ. Prosecution witnesses of fact:- (i)The informant 31. As noted above, the first informant had appeared in the witness box as P.W-1 and proved the written report given by him at the Police station as Exhibit Ka-'1' being in his handwriting and signature. The statement in the first information report about the interception of the truck loaded with sand by the accused persons, was reiterated by P.W-1 in his examination in chief. He further clarified that the accused

17 persons were asking for money to allow the trucks to pass on that path, and his partner Ummed, Jagroshan, Rajveer and Yogendra went to the spot to convince them. The accused persons assaulted them by farsa, lathi and ballam. The injured on their side were saved by Mahipal, Dharmpal and Pattu residents of Ninana. Umeed Jagroshan, Rajveer and Yogendra got injured in the incident. The scribe of the report was Deepak and he gave it in the police station. He was at his house at the time of the incident. 32. In cross, P.W-1 stated that his sand Mine was at a distance of 2 kms on the west side from the place of the incident but he could not give the plot numbers of the same and stated that way to access the mines was through fields. The trucks loaded with sand, if started from the mine, it would take 20-25 minutes to reach at the place of incident. It was categorically stated by P.W-1 that he was not present at the place of the incident and did not know as to how many trucks or tractors had passed on from the mine till the time of the incident. He also stated that the said statement in that regard about the distance etc was a result of hearsay. 33. On further confrontation, P.W-1 stated that he got information of the incident from the scribe Deepak in the night at about 1.30 a.m when he was in his village, which was at a distance of 5 km from Baghpat, he reached Baghpat at about 1.30-2.00 a.m. The injured Rajveer, Umeed, and Yogendra and Jagroshan were met him outside the police station. Rajveer was in unconscious state. He signed the written report (Exhibit Ka- 1) at about 2.00 -2.30 a.m the report was got scribed by him at the asking of Ummed, Jagroshan and Rajveer and the name of the accused persons were intimated by them.

18 34. He further stated that Devendra and other accused persons met him outside the police station. His statement under Section 161 Cr.P.C was put to P.W-1, he replied that Investigating Officer did not make any inquiry from him about the demand of money by the accused persons and the said statement was made by him for the first time in the Court. He further stated that he had no concern with the licence of the accused persons for sand, and he had a licence in his name. P.W-1 further stated that he got the report scribed on the asking of his Munim and the carbon copy of the FIR was received by him in the morning. In cross by the Court, P.W-1 stated that he did not go to the spot of the incident after lodging the report, and could not tell as to when the police had reached the spot. 35. Now, we are left with the eyewitnesses namely P.W-2 Ummed, P.W-3 Jagroshan and P.W-5 Pattu. Amongst these three witnesses, P.W-2 and P.W-3 are injured witnesses. (ii) Eyewitness 36. P.W-5 Pattu had been produced to prove the conspiracy on the part of the accused persons. In his examination in chief, P.W-5 stated about the conspiracy of the accused persons and then deposed that in furtherance of their conspiracy the accused persons namely Devendra, both Pramod, Tejpal, Ashok and Bablu had assaulted the injured and the deceased. The incident of assault had occurred on the road in front of the house of Devendra, and Rajveer got injured in the incident who later succumbed to the injuries. P.W-5 stated that apart from him, Dharmpal, Mahipal and other people had reached the spot and intervened. The only part of the testimony of P.W-5 relevant for this case is that he had reached on the spot on hearing of the cries and intervened to save the injured. On confrontation with

19 regard to the assault, P.W-5 reiterated that the incident of assault had occurred near the 'gher' of Devendra for about 2-3 minutes. The accused Dhirendra was not present at the time of the incident, he had not seen the injuries on the persons of the accused namely Pramod, Tejpal and Devendra. He further stated that the deceased Rajveer and his two injured sons Ummed and Jagroshan and others had not assaulted the accused persons namely Devendra and others. He had seen injuries of the deceased Rajveer, his sons, Ummed, Jagroshan and Yogendra and blood oozed out from their wounds. Yogendra had suffered injuries on his hand. Umeed got injuries in his head. He had seen the blood on the clothes of injured and on the spot of the incident. He further stated that no injured became unconscious on the spot. Rajveer though fell down once but got up and sat after sustaining injuries. He further stated that all three persons including him and other people had reached on the spot at the time of the incident and the house of Dharmpal was at a distance of 300 meters from the place of the incident. The Police had reached the spot of the incident about 2.30-3.00 a.m and stayed there for about 15-20 minutes. The police then came on the next day at the place of the incident. When the incident of assault had occurred, 10-12 trucks were standing on the spot but he did not see the driver or conductor and when the police reached on the spot, trucks were not there. The suggestion that he has not seen the incident of assault and was making false statement was refuted by PW-5. On further confrontation, P.W-5 stated that the injured were assaulted by the accused persons at the house of accused appellant Devendra. The suggestion that he was making a false statement being close to deceased Rajveer and due to enmity on account election of Gram Pradhan, were refuted by P.W-5 by asserting

20 that in the said election he was on the side of accused Devendra. (iii) Injured prosecution witnesses 37. The injured P.W-2 Ummed s/o Rajveer, narrated the incident in the same manner as has been narrated in the first information report about place of the incident, the reason for confrontation, the manner of assault, the weapons used by the accused persons, the details of the injured and the witnesses who had reached on the spot. He further stated that the accused persons had intercepted the truck by saying that when trucks used to pass the way, lots of dust was rising. They were asking money to allow the trucks to pass the way. 38. P.W-2 stated that he and Sunil (P.W-1) were partners in the Sand mine of Faizpur Ninana. Sunil Kumar (P.W-1) was not the resident of his Village and the injured went to the Police Station, Baghpat and from there they were sent to the district hospital. His father Rajveer and brother Jagroshan were referred to the G.T.B hospital, Delhi and his father had succumbed to the injuries on 19.08.2008 at about 11.00 p.m. P.W-2 stated that before his father was sent to the G.T.B. Hospital from the Government hospital, the statement of his father was recorded in front of the Police Station by the Investigating Officer. 39. In cross, P.W-2 stated that the contract of mine was with them. They had taken permission by depositing royalty for three months, which was taken in July, 2008. The licence was in the name of Sunil (P.W-1) and he (P.W-2) were partner. He further stated that the partnership was oral and no written deed was prepared. He further stated that trucks of many other

21 people were hired for lifting of sand and all the trucks were used after completion of the paper work. P.W-2 was further confronted about the manner in which they were conducting their business and whether they were keeping all books of accounts for running the business and further as to whether he had filed Income Tax Return, paid VAT and sales tax. He replied that all that was the responsibility of Sunil @ Bablu (P.W-1). 40. P.W-2 was also confronted about the cross case lodged by the accused persons and admitted that the case was going on in the Court. FIR was lodged by Devendra at the police station. He categorically stated that the incident had occurred at about 10 meters at the west side away from the 'Gher' of Devendra accused. It was a P.W.D road running East-West about 20 metres in width, where two trucks could pass on together. He was further confronted about the location of the door of the house of accused Devendra. P.W.-2 stated that the road on the West of the house of Devendra must be 20 feet in width where the incident had occurred, 8-10 trucks loaded had reached the spot at the time of incident wherein approximately 15-20 drivers with cleaners were present. He could not tell the names of driver and cleaner, he stated that his house was located at a distance of 300-350 metres from the place of the incident. He was further confronted about surrounding properties to the place of incident. Further, P.W-2 stated that he reached at the place of the incident at about 12.30 a.m. Devendra and other accused were not sitting in their 'Gher' rather they were sitting on the road on Cots having Hukka. They were sitting in front of their 'Gher' on the North side, on the road, on 3-4 Cots and about 8-10 people were sitting there and Hukka was kept in the

22 middle of the Cot. 41. P.W-2 further stated that he, his father Rajveer, brothers Jagroshan and Hariya @ Yogendra had reached the spot of the incident from their house. The suggestion that his sisters Reena and Rita, Bhoora @ Narendra also reached at the spot was refuted by P.W-2. He further stated that they (all four persons) on the informant side had reached the spot empty hand and they did not carry any weapon. 42. About the incident, PW-2 explained that Six people came on the spot and, amongst them, Devendra was at the front whereas other people kept sitting on the cot. His father asked them as to why trucks were intercepted and it took about 2 minutes to talk them with a view to convince them. Those who were inside the truck did not come out and suddenly the accused persons had attacked them. Ballam was used as lathi though it was a pointed sharp edged weapon. His father was attacked by the accused persons from their weapons. He, his brother Jagroshan, Yogendra were also assaulted by the accused persons. The truck driver and cleaner did not come out from the spot. The blood oozed out from their wounds soaked their clothes. P.W-2 stated that the incident of assault had occurred on the road which was running towards South, 2-3 meters from the road running East-West at a distance of 5-7 meters from the place where trucks were standing. The assault had occurred for about 2-3 minutes. His father did not become unconscious and he became unconscious after giving statement to the police. 43. About the injuries of the accused persons, P.W-2 categorically stated that they (informant side) did not have weapon and they did not assault any of the accused persons. He (P.W-2) further denied having seen blood oozed out from the

23 wounds of the accused persons and stated that he had not seen injuries on the person of Tejpal and Dhirendra. P.W-2 stated that they remained on the spot for some time and he got taxi through telephone. He also intimated the police about the incident through his mobile and the said report was given at the Police Chauki Sururjpur, Police Station-Baghpat which was about 3km from his village on the eastern side. P.W-2 further stated that the Police did not reach on the spot and the police personnal who picked up the phone told him that he was all alone in the chauki and, therefore, could not reach the spot. They went to the Police Station Baghpat in car and intimated the incident to the police. They remained at the police station for 5-7 minutes and they were taken to the hospital by the police. When they reached at the police station, Devendra accused was not met. They remained at the hospital for about ½ an hour and, thereafter, he went to Delhi along with his father and brother. They reached Delhi hospital at about 3.30- 4.00 a.m and the bandage(first aid) was given by the doctor at Baghpat. His statement was recorded on 03.10.2008 by the Investigating Officer and he disclosed the names of the accused persons in his statement under Section 161 Cr.P.C. 44. P.W-2 was confronted about his 161 statement, about the motive and the place where the statement of his father (deceased) was recorded by the police. He stated that he reached the village on 20.8.2008 from Delhi along with the dead body of his father and he did not know as to when the intimation of the death of his father was given at the police station. P.W-2 was further confronted about the criminal history of his father and brother Jagroshan. The suggestion that his brother Jagroshan barged in the house of Devendra accused in

24 the night of 15.8.2008 in drunken state and threatened him to attack by tractor was refuted by P.W-2. He further refuted that he along with his father and brother had attacked the accused persons inside the house of Devendra and that the accused persons had assaulted them in private defence. The suggestion that he lodged a false case in order to get away from the cross case lodged by Devendra accused and was giving false statement on account of party bandi of the village was refuted by P.W-2. 45. P.W-3, Jagroshan, another injured witness narrated the incident in the same manner as has been stated by P.W-2, his injured brother. P.W-3 reiterated that the accused persons had intercepted the truck by demanding money. The place of the incident being the road near the 'Gher' of Devendra was reiterated by P.W-3. He stated that his house was about 150 meters from the place of the incident. P.W-3 stated that they (informant side) were empty hand at the place of the incident and he got injured. Three persons namely Dharmpal, Pattu and Mahipal had intervened to save them. His father had died in the GTB hospital during treatment. His statement was recorded by the Investigating Officer on 3.10.2008 at his house. 46. In cross, P.W-3 was confronted about his 161 statement. He had denied having any information about the report lodged by the accused Devendra and his brothers against them in the night of the incident. P.W-3, however, admitted that a report was lodged at the Police Station Baghpat against him, his brother and father by the accused Devendra, where he got bail and the case was going on in the Court. The suggestion that he had assaulted the accused persons was categorically refuted by P.W-3 and he had denied having seen any injury or blood on the

25 person of the accused. 47. P.W-3 reiterated about the death of his father in the G.T.B. hospital on 19.8.2008 and stated that he could not be present in the last rites of his father as he was admitted in the hospital. He was shifted to Meerut hospital from G.T.B hospital on 20.8.2008 and went home on 25.9.2008. He stated that they met the Investigating Officer in front of the police station after medical examination was done. P.W-3 further narrated the oral confrontation of his father with the accused persons and stated that they started assaulting them and it was not possible for him to assign particular weapon to a particular accused. But all of them had assaulted him together. He did not become unconscious on the spot. The suggestion about P.W-3 being the aggressor having reached at the house of Devendra in an inebriated state and threatened him to run over by tractor was refuted by P.W-3. 48. Further suggestion that he, his brother and sisters had attacked the accused persons by Farsa, Ballam, Bhala and lathi and injured them was also refuted by P.W-3. The suggestion that they, (informant side) were injured by the accused in private defence was refuted by P.W-3. The suggestion that they had lodged a false case in order to get away from the report lodged by accused Devendra and he was making a false statement for that reason was refuted by P.W-3. Lastly, P.W-3 was confronted about the recovery of weapon from him by the police and he refuted the same. The suggestion of conspiracy due to village party bandi was denied. (iv) Section 313 Examination of the accused:- 49. The accused persons in their defence during their

26 examination under Section 313 Cr.P.C had denied all incriminating circumstances against them in almost similar manner. Appellant Devendra in his defence narrated that on 15.8.2008 at about 10.00 p.m, he along with Pramod s/o Harpal, Manoj, Tejpal and another Pramod s/o Harpal @ Lehri Galoor was sitting in their house and talking and then Jagroshan brought tractor and attacked on his house. He was in inebriated state and verbally abused the appellants and threatened to run them over by the tractor. After 10 minutes of the same, Rajveer, Ummed, Hariya, Mula, Rita and Reena came with ballam, farsa and lathi and assaulted them. The appellants then defended themselves. The appellant Tejpal in his defence stated that on 15.8.2008 at 10.00 p.m, the informant side had attacked them by weapons such as Ballam, Farsa and lathi and assaulted them in the house of Devendra and they exercised the right of private defence. Appellant Ashok made the same statement as that of Tejpal. The appellant Pramod in his defence reiterated the statement of appellant Ashok. Another Pramod s/o Harpal also reiterated the statement made by appellant Ashok. No evidence was led by the accused persons in defence. Arguments of the counsel for the appellants:- 50. Placing the above noted evidence on record, it is argued by Sri V.P. Srivastava learned senior counsel for the appellants that there is a serious doubt about the prosecution story of the occurrence. The time and place of the occurrence as indicated in the first information report lodged by P.W-1 on 16.8.2008 is at about 12.30 a.m. (00.30 hours), whereas in the first information report lodged by the defence side i.e Devendra, as proved by P.W-7 Constable Clerk, the date and time of the incident was indicated as 15.8.2008 at 10.00 p.m. The check

27 report and G.D entry of the case lodged by the accused side had been proved by P.W-7 and were exhibited as Exhibit Kha-'6' and Kha-'7'. The place of the incident as suggested to the witnesses was the house of appellannt Devendra, which was located in the Village Faizpur Ninana. P.W-2 and P.W-3 the sons of deceased Rajveer admitted that they came to the spot of the incident from their house and tried to project that they came to talk to the accused persons and when they tried to convince the accused appellants, they attacked them. The reason of the informant side having reached on the spot was interception of trucks coming from the sand mine located at Village Faizpur Ninana. It is argued that though P.W- 1/informant claimed that he got licence for excavation of minor minerals (sand) but the copy of the licence was not produced in the Court. The witnesses could not given the correct number of the trucks which were allegedly intercepted by the appellants. They admitted that neither the driver nor any owner of the truck was present on the spot. The witnesses when confronted could not even give the names of driver and cleanser nor the number of persons present on the spot. The suggestion was given by the defence that the Way to approach the mines was through the agricultural fields. The motive for commission of the crime was demand of Rangdari(gunda tax) but there is no proof of such demand. The motive to commit the crime as stated by the prosecution, thus, could not be proved. There is conflict in the statement of P.W-1 and P.W-2 about the ownership of mines and the licence. It could not be explained by the prosecution as to who was having the licence amongst P.W-1 and P.W-2. 51. It was argued that it was admitted by P.W-2 Ummed that he along with his father Rajveer (deceased), brother Jagroshan,

28 Hariya @ Yogendra went to the spot of the incident from their house. This fact itself is sufficient to accept the defence version that the defence side was attacked by Jagroshan and the accused persons were assaulted by the informant side. The injuries of the defence side were proved by the doctor namely P.W-4 who had proved the injuries of the informant side. It was proved by P.W-4, the Medical Officer posted at Community Health Centre Baghpat that all the injured were brought to him by Constable C.P.-30 Saluddin. The injury reports of appellants Pramod s/o Harpal, another Pramod s/o Harpal @ Lehri, Tejpal and Devendra were proved by P.W-4 having prepared by him in his handwriting and signature. 52. From the statement of P.W-4, the prosecution witnesses as also the nature of injuries mentioned in the report, it is evident that injuries of Pramod s/o Harpal aged about 30 years and the injuries of Devendra were on vital parts. Both the said injured had sustained injuries on their head which cannot be said to be ordinary. It is proved by P.W-4 (prosecution witness) that injury no.1 and 2 of appellant Devendra were caused by sharp edged weapon and they were kept under observation. 53. The injury no.1 of appellant Pramod s/o Harpal aged about 30 years though were caused by hard blunt object but they were on the vital parts. When these injuries were put to the witnesses namely P.W-2 and P.W-3 during their cross- examination, they had simply denied the same. It was incumbent upon the prosecution to explain the injuries of the defence/accused side, which had been caused during the course of the occurrence. Non explanation of the injuries of the accused persons clearly prove that the prosecution has suppressed the genesis of the incident. The prosecution

29 witnesses, namely P.W-2 and P.W-3 who were present on the spot were obliged to explain the injuries caused to the accused side. The denial on their part casts a serious doubt on the reliability of these witnesses. A deep dent has, thus, been caused in the prosecution story. 54. It was further argued that it is an admitted fact of the matter that crosscases were lodged by both the parties, but there is a dispute with regard to time and place of the incident. In the said scenario, it would be necessary to determine as to which side was the aggressor. It is argued that the prosecution has not been able to prove the motives narrated by the prosecution as also the place of incident being the road in front of the house of Devendra. 55. The stand of the prosecution about the place of the incident is contradictory. P.W-2 Ummed by explaining the place of the incident in his cross examination, he firstly stated that the incident of assault had occurred on the road running North- South, 2-3 meter from the road running East West and then stated that as trucks as per P.W-2 and P.W-3 were intercepted on the road running East West, in front of the house of the appellant Devendra. This shaky version of the prosecution side about the place of the incident, firstly stated to be in front of the house of Devendra and then at the road running North South probablise the defence version that the incident had occurred inside the 'Gher' of appellant Devendra. The suggestion has been given to both the prosecution witnesses namely P.W-2 and P.W-3 that P.W-3 Jagroshan had barged in the house of appellant Devendra on a tractor in an inebriated state and threatened to kill Devendra and then all other persons on the prosecution side had attacked the appellants who sustained

30 injuries in the same occurrence. The prosecution witnesses were also suggested that the injuries sustained by them were caused in exercise of private defence by the appellants. It is vehemently argued by the learned senior counsel for the appellants that the denial by the prosecution witnesses about the injuries of the defence side and the suggestion given to the witnesses of the defence theory clearly prove that the prosecution had suppressed the genesis of the incident and the entire case of the prosecution is full of falsity 56. The submission is that P.W-2 though assigned sharp edged weapon like Ballam and heavy cutting weapon like farsa but neither any punctured wound nor any incised wound was found on the person of the injured on the informant side. The injured found on the person of the injured have been stated to be caused by hard blunt object as narrated by the doctor examined as P.W-4. As regards the injuries of deceased Rajveer though two injuries found on his person were stated to have been caused by sharp edged weapon but a heavy cutting weapon like farsa, another sharp edged weapon which was assigned to accused persons was not used to cause any punctured wound as per the statement of P.W-2, when he stated that ballam was used as lathi and it was not used from sharp edged side. 57. The contention, thus, is that in view of the false explanation given by the prosecution witnesses about the occurrence, their testimony is liable to be discarded being unreliable. 58. It was further urged even if it is accepted for a moment that the appellants had caused injuries to the prosecution witnesses, in view of the injuries of the accused proved by P.W-

31 4, it could at worst be the case of exceeding right to private defence by the accused persons. In that situation, the question would be as to what is the offence made out, whether it would be offence under Section 302 or 304 IPC and then whether it would under Section 304 Part 1 and Part-2. The next question then would be as what would be adequate punishment for the offence under Section 304 IPC. 59. With the above submissions, it was further argued by the learned counsel for the appellant that it could also be a case of free fight. In case, the Court is not able to find as to who was the aggressor and in such eventuality it would not be possible for the Court to isolate as no specific weapon has been assigned in the hands of the appellants. There is no description as to who caused injuries to whom and who amongst the appellants was carrying sharp edged weapon which had resulted in the death of deceased Rajveer. In such eventuality, the conviction of the appellants under Section 302 read with 149 IPC cannot be sustained and at the most, the offence could be under Section 325 or 326 and the injuries which are superficial in nature have to be ignored. 60. It is further argued that it could also be the case of sudden fight as the prosecution witnesses came to the spot on hearing the news of interception of truck as per own case of the prosecution witnesses they tried to convince the accused persons and then the fight broke. The submission is that in case of sudden fight, element of common object cannot be found. In that event, individual liability has to be fixed on each of the appellants and in light of the prosecution evidence, in the instant case, it would not be possible to ascertain as to who had committed the crime. Resultantly, all accused appellants herein

32 deserve acquittal. 61. Lastly, it is argued that the source of light had not been mentioned either in the first information report or the deposition of the witnesses though according to the prosecution, the incident had occurred in the dead of night at 00.30 hours, on the road in front of the house of the appellant Devendra. In the first information report, there is no mention of injury to other two persons namely Rajveer (deceased) and Jagroshan. 62. There are material improvements in the statement of prosecution witnesses and their version are shaky about the first information report lodged by the defence side. P.W-3, in one breath, had denied the lodging of the FIR about the incident in question occurred on 15-16.8.2008 and, in the same breath, he admitted that he, his brother, sisters and fathers were named accused in the report lodged by Devendra in the Police Station Baghpat and he got bail in the said case. 63. The Investigating Officer had not collected bloodstained earth from the spot and the witnesses had conveniently stated that they had not seen the blood fallen on the spot, with the sole intention to shift the place of the incident from the house of appellant Devendra to the road outside his house. 64. It is argued that from all angles, the prosecution story is a result of concoction and the prosecution has not been able to prove the appellants as aggressor, in such eventuality, the conviction of the appellants cannot be sustained. The appeals deserve to be allowed. 65. Reliance is placed on the judgments of the Full bench of this Court in Prabhoo and others vs Emperor reported in

33 AIR 1941 Alld 402, which was approved by 9 Judges Bench of this Court in Rishi Kesh Singh and others vs State reported in 1970 Crl LJ 132 to place a proposal that in a case in which any general exception in the I.P.C is pleaded by the accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused had fully established his plea of the claimed exception, he would still be entitled for acquittal if upon consideration of evidence as a whole ( including the evidence given in support of the plea of the said general exception), a reasonable consequential doubt is created in mind of the Court as to whether the accused is really guilty of the offence that which he is charged. The submission is that this proposition laid down by the majority decision in Prabhoo and others vs King Emperor (supra) is still a good law. The contention, thus, is that accused appellants are entitled to be acquitted if upon consideration of the evidence as a whole including the evidence in support of their plea of the general exception, a reasonble doubt is created in the mind of the Court about the guilt of the accused appellants. 66. It is lastly argued that there is no evidence of previous enmity of the prosecution witnesses and the accused side. The occurrence was an offshoot of a trivial dispute. The injuries caused to the prosecution witnesses were mostly simple in nature. Even the injuries caused to the deceased were not such that it can be attributed to the intention of the appellants to cause murder. It is not clear as to which one of the accused appellants give the fatal blow. At the worst, it can be inferred that the intention of the appellants was to given severe beating, grievous hurt and not to cause death. As the prosecution could not establish common intention of the appellants to cause death

34 and it is not clear as to which one of the accused gave the fatal blows, the appellants cannot be held guilty of the offence under Section 302/34 I.P.C and, at the worst, they can be held guilty of the offence under Section 325 read with Section 34. 67. In the end, it is argued that burden on the prosecution to establish guilt of the accused never shifts. Reliance is placed on the decision of the Apex court in Shri Kishan and others vs State of U.P reported in 1972 SCC Crl 875 and in Emperor vs U.Damapal reported in AIR 1937 Rangoon 83 to substantiate the above submission. 68. Submission is that the prompt report of the incident by the accused persons naming the assailants therein, who are prosecution witnesses herein and the injury reports of the accused appellants proved by the doctor examined as P.W-4, in addition to the defence taken by them under Section 313 Cr.P.C is sufficient proof of the plea of the accused persons to fall in general exception. As far as the plea of self defence is concerned if from the facts and circumstances brought on record, the Court can reach at a conclusion of self defence exercised by the accused appellants, benefit has to be given to the accused persons even in absence of any positive evidence. 69. The submission is that the appellants had discharged their burden of adducing the evidence in support of their plea of private defence by giving suggestions to the prosecution witnesses, the defence taken in Section 313 Cr.P.C which has to be seen in light of the evidence in the shape of the injury reports of the accused persons proved by P.W-4 and the first information report of the incident lodged by them. The submission is that with the shifting of the place of the incident by prosecution witnesses, ignorance shown about the injuries of

35 accused appellants and the admitted fact that the prosecution witnesses came on the spot, which was near the house of appellant Devendra from their house in the dead of the night, it became evident that the prosecution side was the aggressor. The accused appellants having been exercised their right of private defence may have exceeded in exercise of their rights, they cannot be held guilty for the offence under Section 302 IPC. For the dent created by the appellants in the prosecution story as the prosecution has suppressed the genesis of the incident, the appellant deserves acquittal. 70. Reliance is placed on the decision of the Apex Court in Mohan Rai vs State of Bihar reported in 1968 CRLJ 1479, Laxmi Singh and others vs State of Bihar reported in 1976 SCC (Crl) 671, Baburam and others vs State of Punjab reported in 2008 CRLJ 1651, Amarjeet Singh vs State of Haryana reported in 2009 (16) SCC 649, to argue that where the prosecution fails to explain the injuries on the accused, two results are to follow:- “(i)that the evidence of the prosecution witnesses is untrue; (ii)that the injuries probabilise the pleas taken by the appellants.” 71. The non-explanation of the injuries sustained by the accused at about time of the occurrence or in the course of altercation is a very important circumstances from which the Court can draw the following inferences:- (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

36 (ii)that the witnesses who have denied presence of the injuries on the person of the accused are lying at a most material point, and therefore, their evidence is unreliable; (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 72. It is argued that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. 73. Reliance is placed on the decision of the Apex Court in Kumar Singh vs State reported in 2018 (7) SCC 536 to assert that the nature of injuries being simple, narrated in the medical legal report, in view of the admitted fact that the appellant accused had suffered injuries in the same occurrence would not relieve the prosecution from its liability to explain the injuries sustained by the accused/appellants. The failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. The submission, thus, is that the prosecution, in the instant case, having shown ignorance about the injuries of the accused persons has suppressed the genesis of the incident and the testimony of the prosecution witnesses is liable to be rejected being unreliable. Arguments of the defence:- 74. Sri Brijesh Sahai learned senior counsel appearing for the

37 informant and Ms.Meena learned A.G.A, in rebuttal, submitted that it was a prompt report of the incident and both the eye witnesses namely P.W-2 and P.W-3 are injured witnesses. Their presence on the spot cannot be disputed. The narration of the incident by the accused persons about beginning of the incident, in their consistent statements clearly prove that the accused appellants were aggressor. Both the witnesses categorically stated that they reached on the spot when the trucks were intercepted by the accused appellants on the road in front of the house of appellant Devendra. They were bare hand, not having any weapons in their hands, the assault on the prosecution witnesses had been admitted by the accused appellants and the plea of private defence could not be proved by bringing any positive evidence. The place of the incident had been established by the prosecution being road in front of the house of appellant Devendra and the defence of the appellant that the prosecution witnesses P.W-3 had attacked the appellants by entering into the house of appellant Devendra in tractor is a false plea of the defence. 75. From the facts and circumstances of the case which was proved by the prosecution, it cannot be inferred that the accused appellants may have exercised the right of private defence. No positive evidence has been led by the accused appellants. As regards the injuries of the accused appellants, it is argued that mere deposition of P.W-4, Medical Officer posted at C.HC Baghpat that he had examined the injuries of the accused persons on 16.8.2008 after 5.20 a.m, it cannot be inferred that all the accused persons were taken to the hospital by the police personnel. P.W-4 though stated in his deposition, in cross, that accused Pramod s/o Harpal aged about 32 years was brought to

38 him by a Constable CP-30 Saluddin on 16.8.2008 at about 5.20 a.m but there is no such assertion with regard to other accused persons, whose injuries were examined by P.W-4 and the injury reports of whom had been proved as Exhibit Kha-1, to Kha-5. The statement of P.W-4, in cross, that all injured were brought to him by Constable Salludddin has to be read in the context in which it was made. It is argued that the said sentence can be read only with regard to the injuries of the injured on the prosecution side and no conclusion can be drawn that even the accused appellants were taken to the community health centre for examination of their injuries by the police. The injuries of the accused appellants may have been examined by P.W-4 who proved their injury reports during deposition in cross, but that itself is not a proof of the said injuries having been caused in the same occurrence i.e the incident which occurred on 16.8.2008 at 12.30 a.m in Village Faizpur Ninana, in front of the house of the appellant Devendra. 76. The submission is that from mere lodging of the first information report of the cross case, it cannot be inferred that the injuries were caused to the accused persons in the same occurrence. None of the police witnesses including the Investigating Officer had stated that they had sent the accused appellants in injured state to the CHC. The statement of Constable Clerk P.W-7 has been placed before us to assert that he only proved the lodging of the first information report by preparing the check report and making entries in the G.D, beyond that nothing can be read into his evidence. The prosecution witnesses categorically stated that they did not carry any weapon when they reached on the spot of the incident on hearing the news of the interception of truck by the

39 appellants and further denied having caused injuries to the accused persons by entering into their house carrying weapons. No adverse inference can be drawn against the prosecution, on the allegation of nonexplanation of injuries of the accused appellants. The prosecution was under no obligation to explain the injuries of the accused, injury reports of whom were proved by P.W-4 without there being any evidence on record that the appellants had sustained injuries in the same occurrence. The defence having failed to adduce any evidence on the plea of self defence cannot claim any immunity. 77. In the totality of the evidence on record, the prosecution has established the guilt of the accused persons beyond reasonable doubt. No infirmity, therefore, can be attached to the judgment of the trial court. The appeals deserve to be dismissed being devoid of merits. Appeal no.21 of 2013- Appeal filed by the prosecution witness Ummed against other accused for the offence under Section 120B read with Section 302 IPC:- 78. Before proceeding further, we have to take note of the appeal filed by the prosecution witness namely P.W-2 Ummed s/o Rajveer against the acquittal of accused persons namely Suresh s/o Bhram Singh, Satvir s/o Satpal, Dhirendra s/o Dharm Singh, Satendra s/o Shyam Singh, Inder s/o Lal Singh and Surendra s/o Mitthey all residents of Village Faizpur Ninana for the offence under Section 120B read with Section 302 IPC. The said appeal under Section 372 Cr.PC has been admitted and connected with this appeal. 79. Sri Brijesh Sahai learned senior Advocate assisted by Sri Vivek Kumar Singh has appeared on behalf of the appellant

40 therein and Sri Birendra Singh Khokhar learned counsel appeared for the accused persons namely respondents. The State, however, has not filed any appeal against the acquittal of the aforesaid accused. 80. It may further be noted that the accused appellants herein namely Devendra, Pramod s/o Harpal, Ashok, Tejpal and Pramod s/o Harpal @ Lehri Galoor the named accused in the first information report though were chargesheeted under Section 120B read with Section 302 IPC and acquitted but no appeal has been filed against their acquittal either by the State or the informant side. Conspiracy 81. The prosecution has brought P.W-5 as witness of conspiracy of all accused persons (including the acquitted accused noted above). It was stated by P.W-5 in his examination in chief that he saw the accused Devendra, Pramod, another Pramod, Ashok, Tejpal, Bablu sitting in the 'Gher' of Devendra when he was passing through the house of Devendra on 15.8.2008 at about 10.00 hours. The acquitted accused persons (in criminal appeal no.21 of 2013 as noted above) were also sitting therein. While Devendra was saying that their fields were being damaged by the sand trucks of Rajveer and he was not giving money, he had 4-5 sons on whose strength he was doing leadership, it was high time that Rajveer should be killed. The acquitted accused namely Dhirendra, Satvir, Suresh and Indra were assuring him that they would assist him in whatever way and let Rajveer be killed. The same statement was made by other accused Devendra, Pramod, second Pramod Tejpal, Ashok and Bablu. P.W-5 stated that the said conversation was also overheard by Dharmpal, Mahipal,

41 Inder, Raj Singh, Raj Karan, Udaiveer and 2-3 other persons. On the same day, the appellants Devendra, Pramod, Tejpal, Ashok, Bablu had assaulted deceased Rajveer and his son Ummed, Jagroshan and Hariya. On this statement of P.W-5, when he was confronted, he admitted, in cross, that the witness Mahipal was distantly related to him though he had initially denied his relationship with him. P.W-5 further admitted that the fact with regard to the conspiracy for assault (maarpeet) was stated by him for the first time to the police on 19.8.2008. This witness was further confronted about the location of the house of Devendra (accused appellant) and stated that all these persons were sitting in the 'Gher' of Devendra which was constructed in 4 biswa and he stated that he used to go to the house of Devendra and on seeing many persons collected over there, he also joined them. He further stated that when he reached there, they were discussing about killing of Rajveer and they continued to discuss it for about 10-15 minutes in his presence, and people over there were having Hukka. The main gate of the 'gher' was open and after 15-20 minutes, he (P.W-5) went back to his house. He did not mention anyone about the discussion he heard in the 'Gher' of Devendra nor the said fact was intimated to deceased Rajveer or his family members. 82. From the statement of this witness, it is evident that the fact of conspiracy of the acquitted accused was brought into the picture for the first time by this in his statement under Section 161 Cr.P.C recorded on 19.8.2008. P.W-2 namely Ummed s/o Rajveer though stated that the accused appellant had committed the crime at the behest of acquitted accused Satvir, Suresh, Dhirendra, Satendra, Inder and Surendra but this fact had not been mentioned in the first information report lodged by P.W-1

42 Sunil on the narration of P.W-2 Ummed. The names of the acquitted accused in conspiracy to commit murder of Rajveer had not been indicated in the first information report nor in the statement of prosecution witnesses, P.W-1 and P.W-3. The Investigating Officer, P.W-8 was confronted about the statement of P.W-5 Pattu and he stated that he had received investigation on 16.8.2008 and went to the Village Faizpur Ninana, the spot of the incident many times till 19.8.2008 thereafter, but the witnesses Pattu, Dharmpal and Mahipal had never met him in between and they met him only on 19.8.2008 when their statements were recorded. 83. From a perusal of the testimony of P.W-5, who is the sole witness of the offence of conspiracy of the acquitted accused persons along with the appellants herein, it is evident that this witness had concocted the story of conspiracy to add the name of acquitted accused in the commission of the crime. The statement of this witness that about 17 persons were sitting in the 'Gher' of appellant Devendra which was open, to conspire for the murder of the deceased is unbelievable. It is unbelievable that the conspiracy to commit the crime was made in an open place that too in the presence of a large assembly of 17 persons. Moreover, it is unacceptable that this witness could conveniently go on listening the conspirator, came out from the said place and did not inform even the deceased Rajveer or his family members. He gave statement to the police after three days of the incident. All the above shows that the story of conspiracy is a result of his concoction. 84. For the aforesaid, we do not find any merit in the contention of the prosecution witness P.W-2 that the offence was committed by the appellants herein at the behest of the

43 acquitted accused. The Appeal no.21 of 2013 filed by Ummed against the acquittal of the above noted accused persons for the offence under Section 120B read with Section 302 IPC is thus, liable to be dismissed being devoid of merits. 85. It is, thus, evident that the prosecution has failed to prove the conspiracy of the accused persons to kill Rajveer on account of the dispute relating to crossing of the sand loaded trucks, allegedly from the fields of appellants herein. 86. At the cost of repetition, it is noted that there is no appeal against the acquittal of five appellants herein for the offence under Section 147, 120B read with Section 302 IPC. Analysis:- 87. Coming back to the case of the conviction of the appellants for the offences under Section 302/149 and 307/149 IPC, we are required to deal with the arguments of the learned Counsels for the parties on the following points of arguments:- (a) Aggressor:- 88. In the instant case, to contradict the prosecution story, the appellants had projected another story as to how and when the incident had occurred. The first information report were lodged by both sides namely the prosecution side and the accused side. The lodging of the first information report by the informant side had been proved by PW-7, the check writer with the proof of the registration of the case as Case Crime No.588 of 2008 on 16.08.2008 at 01.10 AM. The first information report of the accused side namely Case Crime No.588-A of 2008 was registered at 04.30 AM and proved by the Check writer PW-7 by bringing the check report and the original G.D.

44 of the same in the Court. The injuries reports of both sides namely the informant and the accused appellants herein had also been proved by the doctor PW-4 who had conducted medical examination of all of them. PW-8 the Investigating Officer who commenced the investigation on 16.08.2008 after lodging of the information report of the informant side namely Case Crime No.588 of 2008 stated that the said case was registered in his presence. He received the investigation and recorded statement and enclosed the injury reports of injured on the prosecution side in the case diary after copying the first information report on 16.08.2008. Two accused persons namely Pramod son of Harpal and Tejpal were arrested on the same day and their statements were recorded. PW-8 stated that the injured persons namely Ummed, Jagroshan, Rajbeer, Yogendra who came alongwith the informant Sunil (PW-1) were sent to the hospital alongwith the police personnel with 'Chhithi Majrubi' and their injuries reports were received by him at about 01.45 PM as the hospital was barely at a distance of one furlong from the police station. PW-8 further stated, in cross, that he knew that the cross case was registered by appellant Devendra and had admitted that accused of the case namely Pramod son of Harpal, Tejpal son of Ilam Singh were sent to the government hospital at Baghpat through the police station for their medical examination. He further stated that injured of both sides were sent to the government hospital Baghpat alongwith the police personnel. He also stated that he came to know that on 16.08.2008, X-ray of accused Tejpal was conducted at CHC Baraut but he did not receive the X-ray report. 89. The defence theory is that PW-3 Jagroshan son of Rajbeer (deceased) had entered in the house of appellant

45 Devendra on a tractor in an inebriated state, on 15.08.2008 at 10.00 PM and started abusing the appellants verbally and threatened them to trample by the tractor. At that point of time, appellants Devendra, Pramod, Manoj, Tejpal and another Pramod son of Lehri Galoor were talking while sitting in the Gher of the house of Devendra. Within 10 minutes, the deceased Rajbeer, PW-2 Ummed and other children of Rajbeer, namely Hariya, Bhoora, Reeta and Reena came with Ballam, Farsa and Lathi and started assaulting them and they (accused side) defended themselves. This defence was taken by the accused appellants in their examination under Section 313 Cr.P.C. and suggestion was given to the witnesses namely PW-2 Ummed and PW-3 Jagroshan. 90. With the above material on record, it was argued by Sri V.P. Srivastava learned Senior Counsel for the appellant that the first question before the Court would be to determine as to who was the aggressor of the crime. The appreciation of evidence in a cross case, would depend upon the answer to this question. It was submitted that in case, the Court is not in a position to reach at a definite conclusion and does find the aggressor, it would be a case of free fight. As there are two different versions of the beginning of the incident, the Court can proceed further once it finds as to who had initiated the occurrence. It is argued that the prosecution had suppressed the genesis of the incident as the prosecution witnesses had denied the injuries of the appellants/accused side. For suppression on the most material aspect on the part of the prosecution, the witnesses are proved to be liers and their testimonies is to be discredited. 91. Considering the above submissions to find out the genesis of the incident, allegedly suppressed by the

46 prosecution, as also who is the aggressor, we may note that though the date and time of the incident narrated by the appellants in the first information report lodged by the appellant Devendra was 15.08.2008 at about 10.00 PM but the report was lodged on 16.08.2008 at 04.30 AM, after all the injured from the prosecution side had been examined in the hospital and referred to the higher centers. The injuries of the prosecution witnesses were examined between 1.25 to 1.50 AM. The Investigating Officer PW-8 stated that he had received the injuries reports of prosecution witnesses around 1.45 AM and they all came to the police station alongwith informant Sunil. PW-8 also stated that he had sent two accused Pramod son of Harpal and Tejpal son of Ilam Singh who was arrested on 16.08.2008 to the government hospital Baghpat from the police station but no such statement was given with regard to other accused persons. 92. Be that as it may, the record makes it evident that the injuries report of all the accused persons were noted on the overleaf of 'Chitthi Majrubi' of the police station Baghpat and they were shown to be brought to the hospital by Constable CP- 30 and Salaudin. But that fact by itself is not sufficient to draw any inference that the appellants got injured in the same occurrence, i.e. the incident which occurred at Village Faizpur, Ninana at a distance of 10.00 KM from the police station. Both the check first information reports contain the description of the place of the incident as village Faizpur, Ninana, towards the North at a distance of 10 KM from the police station, Halka outpost Saroorpur. From the statement of appellants under Section 313 Cr.P.C. as also the suggestion given to the prosecution witnesses, the appellant side had admitted the

47 assault on the informant side namely the prosecution witnesses PW-2 and PW-3 as also the deceased Rajbeer. 93. The defence side, however, disputed the place and time of the occurrence. As per the defence theory, the incident had occurred inside the house of appellant Devendra when PW-3 Jagroshan son of Rajbeer attacked them by entering in the house of Devendra on tractor and all other accused had reached the spot, thereafter, with weapon Farsa, Ballam and Lathi and attacked them. Whereas, the prosecution witnesses are consistent about the date and time of the incident being occurred after midnight on 15-16.08.2008 at about 12.30 PM on the road in front of the house of the appellant Devendra. The reason of the occurrence as narrated by the prosecution witnesses in a consistent manner was that the appellants had intercepted the truck loaded with sand coming from the sand mines at village Faizpur, Ninana. The informant PW-1 deposed that the sand mines from which the trucks were coming was his as he got permit of mining about three months prior to the incident. PW-1 categorically stated that he was not present at the place of the incident and he was sleeping in his house at his village Baadhu which was about 05.00 KM from P.S. Baghpat. He got intimation from one Deepak, scribe and his Munshi who reached to him at his village in Bolero car at about 12.00 midnight. PW-1, thus, came to know about the incident of assault and reached at the police station where he met the injured Ummed and Rajbeer, Yogendra and Jagroshan. The report was then scribed and lodged in the police station. PW-2 and PW-3 are injured witnesses who stated that they reached at the place of the incident, i.e. the road in front of the house of Devendra where trucks were intercepted. PW-2 Ummed sated

48 that he and Sunil Kumar (PW-1) were partner in the sand mines of Faizpur Ninana and Sunil (PW-1) was resident of another village. PW-3 Jagrohsan in his examination-in-chief stated that he, his father Rajbeer brother Ummed and Yogendra went to the spot and asked the accused appellants as to why they had intercepted the truck. On the same, the appellants replied that they wanted money on monthly basis to allow the trucks to pass the way. On oral confrontation, the accused persons assaulted them. It was categorically stated by PW-3 Jagroshan that they all went to the spot of the incident bare hands. It was stated by PW-3, in cross, that when they reached at the spot of the incident, the appellants were there stopping the trucks. His father asked the accused appellants as to why they had intercepted the way but they refused to let it open. The incident of assault had occurred for about 2 to 3 minutes and no-one become unconscious. The suggestion that he (PW-3 Jagroshan) had attacked Devendra by entering in his house by tractor in an inebriated state was categorically denied by PW-3. PW-2 Ummed another injured witness denied the suggestion that he had no partnership with informant Sunil and that they were not doing business of sand in partnership. PW-2 stated that he had reached the place of the incident at about 12.30 hrs appellant Devendra and other accused persons were not sitting in their Gher rather they were sitting on a cot on the road taking Hukka. He further clarified that accused appellants were sitting on the road on the North side in front of their Gher and there were 3-4 cots on which 8-10 people were sitting, Hukka was kept on the cot. 94. He (PW-2), his father Rajbeer (deceased) and his brother Jagroshan, Hariya @ Yogendra reached on the spot from their

49 house. The suggestion that Bhoora @ Narendra and his two sisters Reena and Geeta was also reached at the spot was refuted by PW-2. PW-2 categorically stated that they all four persons had reached the spot empty handed and they have no weapon in their hands. He then stated that six persons from the accused side went to the spot which was on the road running South to the road running East-West in front of the house of the appellant Devendra. Apart from six persons, all other remained sitting on the cot and Devendra was leading them. PW-2 further stated that his father asked them as to why trucks were intercepted and about 1-2 minutes were taken in oral confrontation. The place of the incident as per narration of PW- 2 is shown in the site plan prepared by the Investigating Officer by (X) which is the road going South to the road in front of the house of Devendra running East-West. The accused persons have been shown sitting on the cot by “X” on the road which was running East-West. The categorical statement of both the prosecution witnesses namely PW-1 and PW-2 was that they went to the spot of the incident empty hands and there was no weapon in their hands. It was reiterated by PW-2 on confrontation that they did not assault the accused appellants and there was no weapon in their hands. 95. An alternative theory has been given by the defence about the occurrence in the Court during the deposition of the prosecution witnesses and their defence under Section 313 Cr.P.C. but their theory that PW-3 Jagroshan had attacked them in the house of Devendra on a tractor in an inebriated state is without anything more. No motive could be assigned to the prosecution witnesses by the defence in the suggestion given to them as to why the prosecution side would attack the

50 appellants. No enmity of the prosecution witnesses with the appellants had been suggested in the defence theory. Even the female members of the family of deceased daughter of Rajbeer were sought to be implicated by giving suggestion to the prosecution witnesses that they had also reached the house of Devendra with weapons in their hands. 96. The Investigating Officer received investigation after death of Rajbeer on receipt of the information from Satish son of Rajbeer on 20.08.2008 had prepared the site plan at the instance of the informant and proved the same as Exhibit Ka-'14'. He was not confronted about the entries in the site plan, mentioning of the place of the incident, by (X), on the road going South of the road running East-West in front of the house of the appellant Devendra, except place (B) which was shown as house and Gher of Devendra. He (PW-9) was also confronted that he had not shown the place wherefrom the witness had seen the occurrence and that he had not mentioned the number of vehicles intercepted in the site plan. 97. The defence theory about the date, time and the place of occurrence being 15.08.2008 at 10.00 PM in the house of the appellant Devendra is an alternative theory of the occurrence, which was not proved by any positive evidence brought on record. The defence theory is based on the suggestion given to the prosecution witnesses who were injured witnesses as well as their (accused appellants) examination under Section 313 Cr.P.C. However, in the suggestion given to PW-2 Ummed, the date and time of the incident as per the defence theory, i.e. attacked by Jagroshan in the house of Devendra in the presence of other accused persons had not been mentioned so as to cull out the truth of the story. In the suggestion given to PW-3

51 Jagroshan, the defence had itself shifted the time as narrated in their first information report when it was suggested to PW-3 as under:- “

येकहनागलतहैिकिद0 15/16-8-08

कीरातमेशराबिपकरटरैकटरलेकर

” देवेदकेऊपरचढानेकीधममकीदेकरउसपरहमलाबोलिदया 98. From the above suggestion given to PW-3, the defence had infact admitted the date and time of the incident being intervening night of 15/16.08.2008, which substantiates the prosecution version of the date and time of the incident in the FIR lodged by them. 99. The prosecution has given a categorical version as to why the incident had occurred, the genesis of the incident. On the statement of PW-2 Ummed that they all reached at the place of the incident empty hands and there was no weapon in their hands (informant side), no contrary suggestion could be given to this witness so as to demolish this part of his testimony. PW- 2 and PW-3 had categorically stated that they all went to the place of the incident where the appellants had intercepted their trucks and after oral confrontation which was for about 1-2 minutes the appellants had assaulted them and the incident of assault occurred for 2-3 minutes. PW-2 had categorically stated that accused persons were sitting on the middle of the road by keeping their cot which were 3-4 in number wherein 8-10 people were sitting carrying Hukka could not be confronted by the defence. The statement of PW-2 that those people on the accused side came on the other side and other remained sitting on the cot is further substantiated from the place of the incident (in the site plan) as narrated by him being the road running South to the road in front of the house of Devendra. The

52 aggression on the part of the accused persons, thus, is proved from the appreciation of the above evidence. 100. Lastly the submission of the learned Senior counsel for the appellants to confront the place of the incident narrated by the prosecution on the plea that no blood was found on the spot, suffice it to note that the first information report was initially registered under Section 147, 148, 149, 324, 307 and 506 IPC for the incident of assault on the informant side. The investigation was, therefore, received by the Sub Inspector posted in the police station Baghpat namely PW-8 who was present in the police station. However, on receipt of the intimation of death of one of the injured namely Rajbeer, the investigation was received by the Station House, In-charge of P.S. Baghpat on 20.08.2007 as was proved by PW-9. The site plan was prepared at the instance of informant as per the statement of PW-9, and on confrontation, he stated that no blood was found on the spot nor he was intimated of the place where blood had fallen on the spot. In this scenario when inspection of the place of the incident was made after four days, the fact that no-one could establish about the blood found on the spot to fix the place of the incident being the road is of no relevance. From the oral testimony of witnesses PW-2 and PW- 3 who proved having sustained injuries in the occurrence, the defence theory of the informant side / witnesses being the aggressor is found to be unreliable. The submission of the learned Senior Counsel appearing for the appellant that the prosecution has suppressed the genesis of the incident is, thus, unfounded. 101. It was, thus, proved by the prosecution that the appellants were aggressors who had intercepted the sand loaded

53 trucks of the prosecution side which were coming from the mines at Village Faizpur Ninana, license of which was with the informant PW-1, on the road in front of the house of appellant Devendra in the intervening night of 15-16.08.2008. The date, place and time of the incident, thus, was categorically proved by the prosecution. (b) Self Defence:- 102. To explain the injuries of the prosecution side, it is argued by the learned Senior Counsel for the appellants that the appellants had exercised the right of private defence, i.e. the attack by them in retaliation to save themselves. 103. While placing the judgement noted above, it was argued that the injuries found on the persons of the appellants, which were proved by the prosecution witnesses PW-4 namely the doctor, who had examined the injuries of the appellants, had been denied by the prosecution witnesses namely PW-2 & PW- 3. Both (PW-2 and PW-3) stated that they had not seen the injuries nor the blood coming out of the wounds of the accused persons. The non-explanation or failure to explain the injuries on the accused by the prosecution has resulted in drawing conclusion that the evidence of the prosecution witnesses is untrue; the injuries probabilise the plea taken by the appellant. It is argued that the injuries found on the person of accused appellants show that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. The appellants are protected by the right of private defence and since the prosecution does not explain the injuries on the persons of the accused/denied the injuries or shown ignorance, the entire prosecution case becomes doubtful as the genesis of the occurrence is shrouded in deep mystery which is

54 sufficient to demolish the entire prosecution case. 104. Testing this submission of the learned Senior Counsel for the appellant, we are required to note the law relating to right of private defence under Section 105 of the Indian Evidence Act' 1872. Section 105 of the Act' 1872 provides that the burden of proving the existence of circumstances which would bring the act of the accused, alleged to be an offence, within exercise of right of private defence, is on him and the Court shall presume the absence of said circumstance. However, it is held in Kashi Ram Vs. State of M.P. 2002 (1) SCC 71 that it must be borne in mind that the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If on the material available on record a preponderance of probabilities is raised which renders the plea taken by the accused plausible then the same should be accepted and in any case a benefit of doubt should deserves to be extended to the accused. (Reference may be made to Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR (1964) SC 1563; State of Punjab v. Gurbux Singh and Ors., 1995 Suppl. 3 SCC 734, Vijayee Singh v. State of U.P, AIR 1990 SC 1459. 105. The settled law is that Section 105 of the Evidence Act though enacts a rule regarding burden of proof but it does not follow there from that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken; (i) by introducing said plea in the cross examination of prosecution witness or (ii) in

55 the statement of accused persons recorded under Section 313 Cr.P.C. or (iii) by adducing defence witness. 106. Further more, even if the plea is not introduced in any of the above three modes, it can be raised during the course of submissions by relying on the probabilities and circumstance, obtaining in the case. (Reference Vijayee Singh (supra). 107. It is the basic rule of criminal jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn against the accused merely because an accused persons has chosen to abstain from the witness box. Reference (Kashi Ram (supra). 108. Similar view has been taken in Laxman Singh Vs. Poonam Singh 2004 10 SCC 94 wherein it was held that whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. The Court must consider all the surrounding circumstances to assess the true effect of the prosecution evidence, and not a question of the accused discharging any burden. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. (Reference may also be made to James Martin vs State Of Kerala 2004 (2) SCC 203. 109. Reverting to the case at hands, we have already noted above that the accused persons had shifted the time and

56 place of the occurrence wherein they had sustained injuries, on the attack made by prosecution witness PW-3 Jagroshan inside the house of the appellant Devendra wherein other prosecution witnesses and the deceased had followed him. From the appreciation of evidence before us, though it can be seen that the injuries of accused persons were examined by PW-4 after the lodging of the report by appellant Devendra at 04.30 PM of the incident occurred on 15.08.2008 at 10.00 PM. But it could not shown in all probability with the standard of prudent mind of a reasonable man that the injuries shown on the person of the accused persons as shown in the injury reports had been caused in the same occurrence, wherein the prosecution witnesses had sustained injuries and one injured on the prosecution side namely Rajbeer died. 110. We may further record from the contents of the case diary of Case Crime no.588A/2008, proved as Exhibit-'Kha-7' by P.W-7 that entry no. 15 at 4:30 AM of the Case Diary (Exhibit ‘Kha-7’) indicates that the informant along with other companion were sent to the Community Health Centre, Baghpat for investigation along with 'Chitthi Majroobi' is not substantiated from the statements of the prosecution witnesses namely PW-7, Check writer who had proved the said GD and stated that it was written by him. PW-7 had merely proved that he had disclosed the factum of the Check report in the GD No. 15 at 4:30 AM and proved the same as Exhibit ‘Kha-7’. However, the overleaf of the GD entry no. 15, i.e. the second page of the GD wherein the entries with regard to the injuries on the person of injured and his companion and preparation of 'Chitthi Majroobi' and sending the injured to Community Health Centre, Baghpat for medical examination,

57 was not proved by PW-7. The perusal of the said page of the GD where these facts have been recorded further shows that it was noted therein that the investigation was handed over to S.I. Ompal Singh Pawar (PW-8) and he had already left to the place of the incident, i.e. Gram Faizpur Ninana. 111. From the careful reading of the said entry in the Case Diary, it is more than evident that the entries with regard to the injuries on the person of injured and other companions sent to the C.H.C. Baghpat along with Constable Salauddin for medical examination was made subsequently without any intimation to PW-8, the investigating officer after he had received investigation on 16.8.2008 and left for the place of the incident and because of the said entry P.W-8 stated that all injured were sent for medical examination from the Police Station. The injuries of the accused persons proved by PW-4 are not believable as there was no mention of any injury in the written report Exhibit ‘Kha-6’ or entry in the GD Exhibit ‘Kha- 7’ appears to be a result of fabrication. 112. In the situation like this, where defence by introducing the plea of self defence in the cross examination of prosecution witnesses and the statement of accused persons recorded under Section 313 Cr.P.C. though sought to probabilise its theory of acting in self defence causing injuries to the witnesses while acted in self defence, but could not probabilise that:- (i) the prosecution side was the aggressor; (ii) the injuries were sustained by the appellants accused side in the same occurrence; (iii) the accused had inflicted injuries on the members of the prosecution party in exercise of the right of self defence. 113. It cannot be inferred from the facts and

58 circumstances of the instant case that:- (i) the prosecution has suppressed the genesis and the origin of the occurrence and has, thus not presented the true version; (ii) the witnesses who have denied the presence of the injuries on the persons of the accused appellants are lying and their evidence as such, therefore, is unreliable. 114. The defence version explaining the injuries on the persons of the accused appellants cannot be rendered probable so as to throw doubt on the prosecution case. Non-explanation of the injuries of the accused appellants proved by PW-4, thus, does not affect the prosecution case at all. (c) Burden on the prosecution-discharged:- 115. The injuries on the side of the prosecution party is a circumstance revealing the real story to some extent. Both the injured witnesses of the prosecution party had proved that they had reached the spot of the incident which was the road in front of the house of the appellant Devendra in village Faizpur Ninana on getting information that the sand loaded trucks coming from the mines in Village Faizpur Ninana were intercepted by appellant/accused persons herein. The injured witness PW-2 Ummed son of Rajbeer stated that he was a partner in the business of sand mines, the license for excavation of which was with informant PW-1. The incident had occurred around midnight and the prosecution party comprising of deceased Rajbeer, PW-2 Ummed, PW-3 Jagroshan, and Hariya @ Yogendra all sons of Rajbeer reached at the spot and tried to convince the appellants/accused side to let the trucks to pass on. The consistent statement of both the injured witnesses PW-2 and PW-3 was that they did carry any weapon and they were empty hands. No enmity had been assigned to the prosecution

59 witnesses for false implication of the appellants accused. There is no suggestion of previous enmity of both sides. The dispute occurred on account of interception of trucks loaded with sand by appellant accused when they were passing on the road in front of the house of the appellant Devendra. In a situation like this, when the first information report by the prosecution party was lodged promptly within 40 minutes of the occurrence and it was proved that the injured straightway went to the police station from the place of the occurrence, there was no scope of deliberations between the members of the prosecution party to present a false story about the origin of the occurrence. The burden on the prosecution to establish the guilt of the appellants, in inflicting grievous injuries to deceased Rajbeer which had resulted in his death and grave and serious injuries caused to other three persons namely the witnesses PW-2 and PW-3 has, thus, been discharged. 116. The prosecution has proved the incriminating circumstances to establish the guilt of the accused persons leaving no room of doubt to discard the testimony of the prosecution witnesses who were injured witnesses and whose testimony has to be tested at a higher pedestal as their presence on the spot cannot be dispelled. There is no suggestion of enmity so they cannot be said to be inimical or interested witnesses. Whether free fight or case of alteration of offence of Section 304 IPC:- 117. The next issue which is pressed for consideration for the Court is the submission of the learned Senior Counsel for the appellants that from the circumstances brought on record, at the most, it could be said to be a case of free fight

60 where both sides had inflicted injuries on each other in furtherance of a oral altercation between them and as it cannot be discerned from the material on record to find out as to which one of the accused gave the fatal blows, each one of the five accused appellants can only be held guilty of the offence under Section 325 read with Section 34 IPC and the conviction of each of the accused appellants is, thus, to be altered from Section 302 read Section 149 IPC and as also 307 read with Section 149 IPC. This submission is based on the contention that the accused appellants had not inflicted injuries with an intention to kill the deceased. The said fact is reflected from the statement of PW-2 when he stated that Ballam was used as Lathi and it was not stabbed. There is no injury of Farsa, a weapon assigned to the accused appellants on any member of the prosecution party. Two injuries found on the person of the deceased were on the right side of his head and the doctor PW- 4 though opined that these injuries were caused by a sharp edged weapon but the postmortem doctor PW-6 had categorically stated that those injuries had been caused by “moderably heavy cutting weapon force”. The death had occurred on account of damage in the bones of the scalp/brain. As per own statement of the prosecution witnesses and the first Investigating Officer, PW-8 who was present in the police station at the time of lodging of the first information report, the deceased did not become unconscious. PW-8, the Investigating Officer, even recorded the statement of deceased Rajbeer after and his injuries were examined by PW-4 at Community Health Centre, Baghpat and he was referred to GTB Hospital, Delhi. 118. PW-4 only stated that looking to the conditions of the injured Rajbeer, he was referred to GTB Hospital but did

61 not state that his conditions was serious. The injured Rajbeer had succumbed to his injuries on 19.08.2008, after 3 days of the occurrence. All this according to the learned counsel for the appellants show that the intention of the appellants was to cause grievous injuries to the members of the prosecution party and not to commit murder of any of them. Injuries found on the person of other members/witnesses namely Ummed, Yogendra and Jagroshan were of simple in nature, caused by hard blunt object which show that Lathi was used to assault the members of the prosecution party. Injury No.1 of PW-3 Jagroshan stated to be grievous but it could not be said to be fatal. 119. It is argued that in this scenario, it was a case of free fight beginning from oral altercation between both sides, the appellants accused cannot be convicted for the offence of murder under Section 302 /read with Section 149 IPC and attempt to murder under Section 307/149 IPC. 120. Dealing with the above, it is to be noted that it is a case where the prosecution witnesses had proved that the accused persons were sitting on the road on 3-4 cots alongwith 8-10 persons intercepting the movement of sand filled trucks coming from the mines of PW-1 and when the prosecution witnesses alongwith the deceased (four in numbers) had reached the spot and the deceased tried to talk to the accused persons, the accused persons who were six in number moved from the cot where they were sitting and came at place (X) on the Cot and after two minutes of oral altercation they attacked the prosecution witnesses with the weapons in their hands. Other persons kept on sitting on the Cot. The formation of common unlawful assembly of the accused persons, more than five in number, carrying weapons was, thus, proved by the

62 prosecution. It is proved that the accused persons had committed the offence in furtherance of the common object of the unlawful assembly. They had knowledge and intention in mind that they were going to kill the deceased, who was attacked by sharp edged weapon in his head which is evident from the evidence on record which injuries proved to be fatal ultimately resulted in the death of the injured. The prosecution party, on the other hand, was not carrying any weapon. The defence could not prove its injuries having been occurred in the same occurrence. 121. Further it is not excepted from the prosecution to assign particular or independent roles played by each accused. Once they are members of unlawful assembly and have assaulted the prosecution side, which had resulted in the death of one of them, every person of such an assembly can be held liable for the offence of murder. (Reference Sheo Prasad Bhor @ Sri Prasad vs State Of Assam 2007 (3) SCC 120). 122. Section 149 creates a constructive liability, i.e. a person who is a member of unlawful activity is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and share the common object of that assembly. 123. The ingredients of Section 149 IPC; (i) there has been a commission of an offence by any member of an unlawful assembly; (ii) such offence had been committed in prosecution of the common object of that assembly; (iii) must

63 be such that the member of that assembly knew it to be likely that the offence would be committed; are proved from the facts and circumstances of the case. 124. The conviction of the appellants for the offence under Section 302 with the aid of Section 149 IPC cannot be said to suffer from any error of law. No infirmity can be found in the judgement of the trial court so as to set aside the conviction of appellants under Section 302 IPC with the aid of Section 149 IPC. 125. The conviction of the appellants for other offence under Section 307/149 and Section 149 IPC also does not suffer from any error of law. The sentence awarded for the offence under Section 302/149 is minimum and the sentence for the other offence cannot be said to be excessive. 126. The judgment and order dated 18.12.2012 passed by the Sessions Judge/Baghpat in Sessions Trial no.145 of 2009 arising out of Case Crime no.588 of 2008 under Sections 147, 148, 302/149, 307/149 120B/302/149, 307/149, 120B/302 IPC, Police Station- Baghpat, District Baghpat is hereby affirmed. 126. All the accused appellants namely Devendra, Pramod, Ashok, Tejpal and Pramod son of Harpal @ Lahri Galoor are in jail.

64 127. Both the appeals are, accordingly, dismissed. 128. Certify this judgement to the Court below immediately for compliance. The Lower Court record be sent back. 129. The compliance report be submitted through the Registrar General, High Court, Allahabad. (Subhash Chandra Sharma, J.) (Sunita Agarwal, J.) Order Date:-16.12.2022 HARSHITA/HIMANSHU Digitally signed by HARSHITA Date: 2022.12.19 13:21:33 IST Reason: Location: High Court of Judicature at Allahabad