# KASHI RAM AND ORS v. STATEOFM.P

- **Citation:** [2001] Supp. 4 S.C.R. 263
- **Court:** Supreme Court of India
- **Decided:** 2001-10-17
- **Case number:** Criminal Appeai No. 320 of 2000
- **Bench:** Dr. A.S. Anand, R.C. Lahoti, Ashok Bhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kashi-ram-and-ors-v-stateofm-p-18226
- **Pages:** 21

## Headnote

B
Penal Code, 1860 :
Sections 96, 97, 99, JOO, 101and102:
Accused charged with murder and causing injuries'___One of the accused
also injured in the incident-Trial Court, disbelieved the testimony of the
prosecution witnesses as to genesis of the incident and drawing an inference
that members of prosecution party opened an attack on accused and accused
opened fire in exercise of right of private defence and ordered acquittal of all
the accused-High Court reversing it-On appeal held, all accused except one
exceeding his right of private' defence-The accused who exceeded his right of
private defence convicted-Others acquitted.
Plea of self defence--,-When could be taken-It can be taken at any stage
of the trial including cross examination, recording of statements of the accused
c
D
by adducing defence evidence and during the course of submission, relying on
E
probabilities and circumstances.
Self defence-Extent of-Extends to causing death so long as apprehension continues-Can be exercised for defence of person or property of another
as well.
Ss. I48-149-Unlawful assembly and right of private defence-So long
as accused act in right of private defence their object of assembly is not
considered unlawful-However when they exceed their right of private de.fence
the assembly becomes unlawful-Even in such situations, only such members
who exceeded such right of private defence alone would be liable to be
punished.
Evidence Act, 1872 :
S.105-Burden of proof-Scope and ambit of-The burden on the accused is not so heavy as on the prosecution-If on material available on record
F
G
a preponderance of probabilities is raised which renders the plea of the accused
H
263
264
SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
A
plausible, same should be accepted and benefit of doubt should be extended to
the accused persons.
B
Appeal-lnte~ference by High Court-When High Court deals into an
appeal against acquittal and if two views are reasonably possible, one supporting the acquittal, other recording a conviction, it would not interfere merely
because it.feels that sitting a Trial Court its view would have been.for recording
conviction.
Eight accused persons/appellants were tried by Trial Court on charges
u/s. 148, 302, 302 read with Sections 149, 324 read with Section 149 Indian
C
Penal Code and Sections 25 and 27 of the Arms Act, 1959, allegedly for
assaulting and killing three persons and injuring others .. According to the
prosecution the incident took place when accused started unloading mustard straw and allegedly spreading the same on common pathway of
village. When complainant protested, the accused came out armed with
D
weapons and assaulted complainants resulting in the death of 3. persons
including one stranger and injuring others. Injured includes one of the
accused.
The Trial Court observed that injuries of all the three persons, who
died in the incident were caused when they were in front of· the house of
E
one of the accused 'R' and held that there was an unsuccessful attempt on
the part of prosecution witnesses to shift the place of incident from near
the house of the accused to a distant place near the house of prosecution
witnesses. The Trial Court analysed the prominent features of the case i.e.
non-examination of any independent witness, the testimony of the prosecuF
G
tion witnesses having been found to be unreliable as to genesis of the
incident, complete non-explanation by the prosecution witnesses of the
injuries sustained by one of the accused and other accused 'R' firing in
exercise of right of private defence and concluded that none of the accused
persons could be said to have committed any offence and directed their
acquittal. On appeal, by the complainant, High Court set aside the acquittal of accused persons and convicted them. Hence this appeal.
On behalf of the appellants-accused, it was contended that factum of
accused having sustained serious injuries on the vital parts of the body was
well established and that the inj

## Text

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KASHI RAM AND ORS.
A
v.
STATEOFM.P.
OCTOBER 17, 2001
[DR. A.S. ANAND, C.J., R.C. LAHOTI AND ASHOK BHAN, JJ.]
B
Penal Code, 1860 :
Sections 96, 97, 99, JOO, 101and102:
Accused charged with murder and causing injuries'___One of the accused
also injured in the incident-Trial Court, disbelieved the testimony of the
prosecution witnesses as to genesis of the incident and drawing an inference
that members of prosecution party opened an attack on accused and accused
opened fire in exercise of right of private defence and ordered acquittal of all
the accused-High Court reversing it-On appeal held, all accused except one
exceeding his right of private' defence-The accused who exceeded his right of
private defence convicted-Others acquitted.
Plea of self defence--,-When could be taken-It can be taken at any stage
of the trial including cross examination, recording of statements of the accused
c
D
by adducing defence evidence and during the course of submission, relying on
E
probabilities and circumstances.
Self defence-Extent of-Extends to causing death so long as apprehension continues-Can be exercised for defence of person or property of another
as well.
Ss. I48-149-Unlawful assembly and right of private defence-So long
as accused act in right of private defence their object of assembly is not
considered unlawful-However when they exceed their right of private de.fence
the assembly becomes unlawful-Even in such situations, only such members
who exceeded such right of private defence alone would be liable to be
punished.
Evidence Act, 1872 :
S.105-Burden of proof-Scope and ambit of-The burden on the accused is not so heavy as on the prosecution-If on material available on record
F
G
a preponderance of probabilities is raised which renders the plea of the accused
H
263
264
SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
A
plausible, same should be accepted and benefit of doubt should be extended to
the accused persons.
B
Appeal-lnte~ference by High Court-When High Court deals into an
appeal against acquittal and if two views are reasonably possible, one supporting the acquittal, other recording a conviction, it would not interfere merely
because it.feels that sitting a Trial Court its view would have been.for recording
conviction.
Eight accused persons/appellants were tried by Trial Court on charges
u/s. 148, 302, 302 read with Sections 149, 324 read with Section 149 Indian
C
Penal Code and Sections 25 and 27 of the Arms Act, 1959, allegedly for
assaulting and killing three persons and injuring others .. According to the
prosecution the incident took place when accused started unloading mustard straw and allegedly spreading the same on common pathway of
village. When complainant protested, the accused came out armed with
D
weapons and assaulted complainants resulting in the death of 3. persons
including one stranger and injuring others. Injured includes one of the
accused.
The Trial Court observed that injuries of all the three persons, who
died in the incident were caused when they were in front of· the house of
E
one of the accused 'R' and held that there was an unsuccessful attempt on
the part of prosecution witnesses to shift the place of incident from near
the house of the accused to a distant place near the house of prosecution
witnesses. The Trial Court analysed the prominent features of the case i.e.
non-examination of any independent witness, the testimony of the prosecuF
G
tion witnesses having been found to be unreliable as to genesis of the
incident, complete non-explanation by the prosecution witnesses of the
injuries sustained by one of the accused and other accused 'R' firing in
exercise of right of private defence and concluded that none of the accused
persons could be said to have committed any offence and directed their
acquittal. On appeal, by the complainant, High Court set aside the acquittal of accused persons and convicted them. Hence this appeal.
On behalf of the appellants-accused, it was contended that factum of
accused having sustained serious injuries on the vital parts of the body was
well established and that the injuries had been received in the same inciH
dent in which complainants suffered injuries and such injuries were not
KASH! RAM v. STATE
265
explained by the prosecution witnesses. Therefore, the prosecution story
A
should have been discarded and accused should have been acquitted.
Partly allowing the appeal filed by one of the accused and allowing
the appeals filed by other accused, the Court
HELD : 1. High Court while hearing an appeal against an acquittal
has powers as wide and comprehensive as against a conviction, yet the statutory principle which would guide the High Court is if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, it would not interfere merely because it feels that sitting as Trial Court
its view would have been one of recording a conviction.[276-G-H; 277-A]
Chandu v. State of Maharashtra, (2001) 4 Scale 590, relied on.
2. The High Court overlooked some of the factual and legal aspects of
the case viz that the investigation suffered from serious infirmities, which to
some extent prejudiced the accused in their defence; and that the investigating officer did not make an effort to investigate the cause of and circumstances resulting in injuries on the person of accused and he.did not even
make an attempt at recording the statement of injured accused. If this would
have been done the investigation would not have been one sided. [277-C-D]
3. As per Section 105 of Evidence Act, the burden of proving the
existence of circumstances which would bring the act/alleged offence within
the exercise of right of private defence is on the accused but it is not so
heavy as it is on the prosecution. If on the available 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 benefit of
doubt should be extended to the accused. [277-E-F-G]
Danyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR (1964) SC
1563; State of Punjab v. Gurbux Singh & Ors., [1995] Suppl. 3 SCC 734;
Vijayee Singh v. State of U.P., AIR (1990) SC 1459, relied on.
4.1. The High Court was also not right in discarding availability of
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plea of self defence on the ground that the plea was not taken by accused in
statements u/s. 313 Cr.P.C. and as the accused did not enter into the
witness box. Though Section 105 of the Evidence Act enacts a rule regardH
266
SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
A
ing burden of proof, it does not follow that the plea of private defence
should be specifically taken. A plea of self defence can be taken while
cross-examining the prosecution witness or in the statements of accused
persons or by adducing defence evidence or it can be raised with submissions by relying on probabilities and circumstances~ [278-B-C-D]
B
Vijayee Singh v. State of U.P., AIR (1990) SC 1459, relied on.
4.2. In the instant case, injuries caused to the accused are not explained by prosecution witnesses and one of the injuries could have been
the result of gunsho~ whereas other injuries could not have been self
C
inflicted. A grievous hurt was caused. Therefore, an apprehension that the
prosecution party would persist in assault and could have resulted in
grievous hurt or death was reasonably in the mind of injured accused and
the others present there and they were justified in exer~ising right of
private defence and causing reasonable harm to the complainants/memD
hers of prosecution party. The circumstances in which the accused were
plated; their right of-private defence extended to the extent of causing
death so long as the apprehension continued. [279-B-C-D-E.-FJ
E
F
Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523,
relied on.
5.1. An assembly though lawful to begin with may in the course of
events become unlawful. So long as accused persons were acting in exercise
of right of private defence, their object was not unlawful and so there was no
unlawful assembly but once they exceeded the right, the assembly ceased to
be lawful and become an unlawful assembly. There too only such of the -
members, who shared the doing of anything in exercise of right of private
defence, alone would be liable to be punished for the acts committed in
prosecution of the common object or for their individual acto;. [281-B-C]
5.2. In the instant case, if the accused had caused any injury before
G
the members of the prosecution party had turned their back and started
running away from the scene of occurrence, there was no unlawful assembly and no one could have been_ convicted either u/s.148 or with the aid of
SectiC'n 149 IPC. There is no finding arrived at by the High Court and
there is no positive evidence available on record to hold that any accused
H
except 'R' caused any injury to anyone after the-right of private defence
KASHI RAM v. STATE [LAHOTI, J.]
267
had ceased to be available. One of the deceased sustained injury by gun
A
shot fired by accused 'R' when the members of prosecution party were
fleeing away. Though to begin with right of private defence was available
to the accused 'R' yet the right was exceeded. Therefore, his act would be
covered by Exception II to Section 300 IPC. All the conviction recorded .
and sentences passed by High Court are set aside. Instead accused 'R' is
B
held liable to conviction under Section 304 Part II IPC. All the other
accused-appellants are acquitted. [281-E-F; H; 282-A; 283-B; 283-C]
Yogendra Morw:ji v. State of G1~jarat, AIR (1980) SC 660 and Dev Rl1j
v. State of Himachal Pradesh, AIR (1994) SC 523, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeai No. 320
of 2000.
From the Judgment and Order dated 26.10.99 of the Madhya Pradesh
High Court in Cr!. A. No. 244 of 1988.
WITH
Cr!. A. No. 63 of 2000.
J.C. Batra, G.C. Tyagi, Bhanu Pratap Tyagi and L.N. Gupta for the
Appellants.
Ms. Vibha Dutta Makhija, Uma Nath Singh and Ms. Bharati for the
Respondent.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. Eight accused persons were .tried by First Additional
Sessions Judge, Morena, Madhya Pradesh on charges under Sections 148, 302,
302 read with 149, 324 read with 149, IPC and Sections 25 and 27 of Arms
Act, 1959. On trial, the Sessions Court acquitted all the accused of the offences
charged against them. The State of Madhya Pradesh, feeling aggrieved by the
judgment of acquittal, preferred an appeal before the High Court. It appears
that Inderlal alias Indera son of Kashiram (accused-respondent No.2 before the
High Court) expired during the pendency of appeal. A Division Bench of the
High Court has allowed the appeal and set aside the acquittal of the accused
persons and instead convicted accused-respondent Ramesh under Section 302/
c
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149 IPC, 148 IPC and Section 27 of the Arms Act; accused Nanakram under
Section 148 IPC and Section 27 of the Arms Act; accused Kashiram and
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
A
Teekaram, each under Section 148 and Section 324/149 IPC; accused Surcsh
and Ratna, each under Section 147 and Section 3231149 IPC and sentenced
each of them to various terms of imprisonment. Accused Ramesh, of course,
has been sentenced to life imprisonment with a fine Rs. 5,000 for offence under
Section 302/149 IPC, in default of payment of fine to rigorous imprisonment
B
for six months, to one year R.I. under Section 148 IPC, and to one year R~
under Section 27 of the Arms Act, all the sentences made to run concurrently.
As to accused Prabhu, the High Court has held, that he inflicted a farsa injury
on the head of Mahendra, but as the prosecution has not properly explained the
injuries of Prabhu, he can be heM to have acted in self-defence and therefore
c
he deserves to be acquitted. His acquittal has not been challenged by State by
filing an ·appeal.·
The complainant and the accused persons are all residents of Village
Jaitpur, P.S. Bagchini, District Morena, Madhya .Pradesh. Sundera, PW7 and
Siya Ram, PW9 are real brothers. Lakhan and Bindawan who died in the
D
incident were the sons of their another brother Jagannath. Mahendra, PW8 is
also son of late Jagannath i.e. he is real brother of the two deceased. Thus the
two person who died in the incident and all the injured on the prosecution side
and appearing as eye witnesses are related with each other.
Accused Ramesh, Tika Ram, Prabhu and Bhabhuti were real brothers
E
and resided jointly. Accused Ratna is the son of Bhabhuti. Nanak Ram and
Suresh Accused are the sons of Prabhu. Kashi Ram and Inder Lal were also
related to each other though separated by a few degree of relationship. Thus
all the accused persons are related with each other.
F
According to the prosecution, on 2.10.1984, at about 11 a.m., accused
Ramesh brbught in the Village a trolley, attached to a tractor, loaded with"
mustard straw. Accused, Teekaram, Nanakram, Prabhu, Suresh and Ratna
started unloading the mustard straw and spreading the same on common
pathway of the village. Sundera, PW-7 a'hd deceased Brindawan protested
against this act of the accused persons saying that filth and dirt would be caused
G
in the village by the mustard straw. This enraged accused Ramesh who asked
the boys to come out with lathis, farsa and gun. Accused Ramesh himself
brought a 12 bore gun. Accused Inderlal and Nanakram brought rifles. Accused
Kashiram, Prahhu and Teekaram brought farsas. Accused SurP.sh and Ratna
came out armed with lathi. Accused Suresh and Ratna assaulted deceased
H
Brinda wan with lathis. Sundera, PW-7 and Siyaram, PW-9 tried to intervene
KASH! RAM v. STATE [LAHOTI, J.]
269
and save Brindawan. At the same time Mahendra Singh, PW-8 also came at
A
the scene of occurrence. Accused Kashiram dealt a farsa blow on the head of
Sundera, PW-7. Accused Suresh and Ratna also assaulted Sundera, PW-7 with
lathis. Siyaram, PW-9 was dealt a farsa blow on his head by accused Teekaram.
Prabhu inflicted a farsa injury on the head ofMahendra Singh, PW-8. Sundera,
Siyaram, Mahendra Singh, Brindawan, Lakhan - all ran towards their houses.
B
At that point of time, accused Inderlal fired from his rifle which caused injuries
to Lakhan who fell down and died. Accused Ramesh fired with his gun causing
injuries to Brindawan who also fell down. A woman named Jamuni Dhoban
(washerwoman), who had nothing to do with the incident, happened to be at
the scene of occurrence. A gunshot by Ramesh, though aimed at Sundera, PW7, accidentally hit Jamuni Bai causing injury in her stomach. She fell down
and died. The village people started assembling on hearing the hue and cry
whereupon the accused persons took to their heels and escaped away.
c
At 3. p.m., a wireless message was received at Police Station Bagchini
according to which a clash between two rival parties, resulting in murder, had
D
taken place at Village Jaitpur. The official present at the police station flashed
a message to the Station Officer, who had gone to Morena, the district headquarters, requiring him to reach Village Jaitpur. The police force was kept ready
to move to Jaitpur. ASI, S.M.Sharma left the police station for Village Jaitpur
at 3.30 p.m. accompanied by police force and requisite arms and ammunition.
E
Parallel to these movements, Ram Gopal, the village Sarpanch, who did not
have any knowledge of the details of the incident had reached the scene of
occurrence and found accused Prabhu lying injured near his house. Prabhu was
unable to speak and to give any information about the incident. Sarpanch Ram
Gopal took injured Prabhu to the police station wherefrom Prabhu was sent to
a hospital at Bagchini so as to have him treated for the injuries as also for
medico-legal examination. Though, this factum was recorded in general diary
of the police station, an FIR of the incident could not be recorded as no
information as to any happening amounting to a cognizable crime could be
given either by Prabhu, who was unable to speak or by Sarpanch Ram Gopal,
who was ignorant of what had really happened.
ASI, S.M. Sharma, reached the scene of occurrence at about 6 p.m.
There, Sundera, PW-7 narrated the incident to him which was taken down by
ASI, S.M. Sharma as first information report of the incident. The same was sent
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to the police station and based thereon an offence under Sections 302, 307, 147,
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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148, 149, 452, IPC was registered ~nd investigation commenced. Postmortem
on the dead bodies of three persons, who had died in the incident, and medicolegal examination of other injured persons were conducted by Dr. R.S. Sikarwar,
PW-1. It is necessary to notice the details of injuries as stated by Dr. R.S.
Sikarwar and his opinion as it would have a material bearing on the result of
B
the case.
c
Postmortem on the dead body of Jamuni Bai was conducted at 8.30 a.m.
on 4.10.1984. On external examination, Jamuni Bai was found to have sustained a punctured wound with inverted margins, circular in shape, size 4 x 4.5
c.m. situated on left side of abdomen, 20 c.m. below the left nipple. In the mid
of the intestine four pellets were found embedded. On internal examination,
right and left lungs were found to have been injured and reddish blood fluid
was coming out from the cut surfaces thereof. There was fluid of reddish colour
in the abdnominal cavity. Small intestine was ruptured. Four pellets were
removed from inside the small intestine which were sealed and handed over
D
to the police. The cause of death was excessive bleeding and shock due to
gunshot injury. The injury was homicidal and sufficient in the ordinary course
of nature to cause death.
On the same day, at 9.45 a.m., postmortem was conducted on the dead
E
body of Lakhan. There was two external injuries: (i) a gunshot' lacerated
wound, size 1 c.m. x 1 c.m. on the posterior part of the right thigh; the margins
were rounded and inverted; this was the wound of entry of the bullet; and (ii)
a gunshot lacerated wound - the wound of exit, on inner side of right thigh,
size 20 x 10 c.m. The track of the wound, from the point of entry to the point
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of exit, passed through injuring the skin, muscle, blood veins, nerves and bones
of thigh. The internal damage was confirmed on internal examination. The
injuries were sufficient in the ordinary course of nature to cause death. The
death was homicidal and had occurred due to excessive bleeding as a result
of gunshot.
At 11.20 a.m. on the same day, postmortem on the dead body of Brinda wan
was conducted. On external examination the following injuries were found :-
l.
Wound of entry of pellets 37 in number on right thigh as a result of
gunshot. The size of the wounds varied from 5 cm. to 5 inches. The shape
of the injuries was rounded and margins were inverted. Some of the
...
KASH! RAM v. STATE [LAHOTI, J.]
271
injuries superficial while some of the injuries were deep upto the musA
cles;
2.
One lacerated wound, size 4 x 3.5 x 12.5 ems. on right thigh, margins
inverted, 28 pellets and one foreign body were found in the rear side of
the thigh, deep in the muscles;
3.
An abrasion, 3 x 1 c.m., on ante medial aspect of right knee;
4.
An abrasion, 2 x 1 c.m., on anterior aspect of patella;
5.
An abrasion, 5 x 1.5 c.m., on the patella bone of the left knee.
The first two injuries were gunshot wounds. The track of the wounds had
· damaged the muscles, blood veins and soft tissues. The direction of the injury
was from left to right obliquely upwards. Abrasions were caused by hard and
B
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blunt weapons. All the injuries were ante mortem. Twenty-eight pellets were
taken out from the wounds, sealed in a packet and sent to the police station.
D
The cause of death was haemorrhage which had occurred due to wounds of
entry of the pellets. The injuries were ante mortem.
Sundera, PW-7 was examined on 3.10.1984 and was found to have
sustained the following injuries :-
(1) An incised wound size 2" x 1/2" x 112" present at lower part of the head
caused by sharp cutting object. Such injury could be caused by farsa or sword.
In case the knife is straightened, then also such injury can be caused.
(2) A contusion size 2" x 1" present on medial aspect of right arm.
(3) A contusion size 2" x 1" present on left arm at lateral aspect.
(4) An abrasion 1/4" x 1/4" x 1/4" present on superior aspect of left shoulder
joint.
(5) A swelling size 1" x 1/2" present on left thumb.
(6) A contusion size 3" x I" present on left gluteus region. Injuries no. 2 to
6 could be caused by hard on blunt object like lathi.
On 3.10.1984, Mahendra Singh, PW-8 was also examined and found to
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have sustained the following injuries:
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
A
(1) An incised wound 4" x 1/2" x 1/2" present transversally on the superior
aspect of middle of the scalp. Injury caused by sharp and cutting object.
B
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(2) A swelling size 1/2" x 1/2" present on dorsal aspect of right thumb.
(3) A swelling size 2" x 2" present on inner side of left wrist.
Injuries no. 2 and 3 could have been caused by hard and blunt object
while injury no. 1 was caused by some sharp edge weapon. On x-ray being
taken, Mahendra Singh was found to have sustained fracture of lower portion
of ulna bone of left hand. The injury on the left wrist of Mahendra Singh was
found to be grievous in nature while other injuries were simple in nature.
On 3.10.1984, Siyaram (PW-9) was aiso examined and found to have sustained
the following injuries :-
(1) An incised wound size l" x 112" x 1/2" x 1/2" present on occipital region
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(back part) of the head.
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(2) An abrasion size 1" x 1/2" x 1/4" present on ante surface of the left leg.
(3) An abrasion size 1-1/2" x 112" x 114" present on ante surface of the left leg
along with swelling.
Injury no. 1 was caused by sharp cutting weapon while injuries no. 2 and 3 was
caused by hard and blunt object.
In the opinion of Dr. R.S. Sikarwar, all the injuries sustained by the three
deceased and other three injured persons could have been caused at the time
of the incident.
Accused Prabhu was examined by Dr. N.K. Bhardwaj, Assistant Surgeon, District Hospital, Morena (DW-2), on 2.10.1984, on being referred by
P.S. Bagchini, accompanied by Constable Ram Dayal. He was found to have
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sustained the following injuries :-
( 1) Incised wound, size 3" x 1" x 1/2", on the left side of head, caused by sharp
edged weapon.
(2) Contusion on left forearm size 3" x 3-1/2", caused by hard and blunt
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weapon.
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KASH! RAM v. STATE [LAHOTI, J.]
273
(3) Contusion on left chest size 2" x 1-112", caused by hard and blunt weapon.
A
(4) Contusion on the right side of the chest 2" x 1 ",caused by hard and blunt
weapon.
(5) Injury below the chin on the right side size 1/2" x 1/4" x 4".
Dr. Bhardwaj opined that injuries no. 3, 4 and 5 were simple in nature while
injuries no. 1 and 2 were referred for x-ray examination. Dr. Yogendra Singh,
DW-3, did the x-ray of the head and the right forearm of Prabhu and found
that there was fracture of frontal bone. with radio opaque shadow below mandible area. There was also fracture of styloid process of radium in fore arm in
front side. The radio opaque shadow of rounded metallic density below mandible area could be due to any pellet etc. A foreign body was found to be
present there.
According to the medical opinion, as brought on record by the prosecution and the defence witnesses, the injuries sustained by those who had died
or were injured on the side of the prosecution as also the injuries sustained by
the accused Prabhu could have been caused at or about the time of the incident.
In fact, during the course of hearing, it was not disputed that the injuries on
both sides were sustained during the course of the same incident. This has also
been the stand of the parties in the Trial Court as also before the High Court.
On behalf of the prosecution, there were 13 witnesses examined including Sundera, PW-7, Mahendra Singh, PW-8 and Siyaram, PW-9. On the side
of the defence, the two doctors referred to hereinabove and Ram Gopal, DW1 who had taken Prabhu to the police station, were examined.
A perusal of the judgment of the Trial Court shows that the prosecution
witnesses were confronted with the factum of the accused Prabhu having
sustained injuries in the same incident but none of the prosecution witnesses
offered any explanation or stated circumstances in which accused Prabhu might
have sustained injuries. D.D. Sharma, PW-12, who had investigated into the
incident admitted that during the investigation he had found that the injuries
sustained by accused Prabhu were so sustained in that very occurrence. However, he made no effort at contacting the accused Prabhu and recording his
statement.
The Trial Court made an effort at finding out the location of the place
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of the incident by appreciating evidence in this regard. The site plan, Exbt.
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P/23 indicated the place wherefrom accused Ramesh had fired his gun as that
which was just below the neem tree, outside his house. The place at which
Jamuni Bai's blood had fallen was just in front of the house of the accused
Ramesh. The recovery memo, Exbt. P/36 showed the place wherefrom empty
cartridges of mouser and 12 bore gun were recovered was near a neem tree
standing in front of, and just outside, the house of accused Ramesh. A few
pellets of 12 bore were found embedded in the mud wall of Nadira adjacent
to the house of Bhagwan Lal, which is in front of the house of accused Ramesh.
Tika Ram, PW 10. who had reached the scene of occurrence soon after the
incident had found dead body of J amuni Dhoban lying at the door of Bhagwan
Lal which is in front of the house of Ramesh and Brindawan. Injured Brinda wan
and Lakhan were also lying at a distance of 4 to 5 yards away from Jamuni
Dhoban. This indicated that injuries of all the three persons who died in the
incident were caused when they were in front of the house of the accused
Ramesh and in all probability the gun and the mouser were fired from or near
the house of accused Ramesh. The prosecution case that the place of incident
was situated near the houses of prosecution witnesses Sundera, Siyaram and
Mahendra Singh was thus circumstantially belied .. The triai Court held that
there was an unsuccessful attempt on the part of the prosecution witnesses to
shift the place of incident from near the house of accused Ramesh to a distant
place near the houses of the prosecution witnesses. The Trial Court minutely
examined the nature of the injuries especially their location on the parts of the
bodies of the injured in the light of testimony of Dr. R.S. Sikarwar, PW 1 and
found that the gun shot wounds were inflicted by accused Ramesh in a sitting
posture and that is why the track of pellets in gun shot wounds was from lower
part of the body of injured to upwards. Disbelieving in part the statements of
three eye-witnesses, i.e., Sundera, Siya Ram and Mahendra Singh and on a
cumulative effect of four prominent features of the case, i.e., non-examination
of any independent witness, the testimony of the prosecution witnesses having
been found to be unreliable as to genesis of the incident, an unsuccessful
attempt on the part of the prosecution witnesses to shift the place of the incident
and complete non-explanation by the prosecution witnesses of the injuries
sustained by accused Prabhu, the learned Trial Judge drew an inference that
the members of the prosecution party had opened an attack on the accused
Prabhu and accused Ramesh had fired in exercise of right of private defence
of the person of accused Prabhu. Relying on a number of decisions of this Court
and Madhya Pradesh High Court, dealing with the effect of non-explanation
of injuries of accused person by prosecution witnesses, the learned Trial Judge
concluded that none of the accused persons could be said to have committed
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K.ASHI RAM v. STATE [LAHOTI, J.]
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any offence and whatever they did was protected by Section 95 of Indian Penal
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Code. All the accused persons were therefore directed to be acquitted of the
offences charged.
A perusal of the judgment of the High Court shows that the findings
arrived at by the High Court are oscillating to some extent. Vide para 41, the
High Court has held that there was no evidence to suggest the attack having
been opened by the complainant's side and it appeared to be "natural" that the
accused persons "had arrived at the place of the incident armed with deadly
weapons and the complainant's side must have resisted the attack and while
making such resistance, the accused Prabhu had also received some injuries".
Vide para 44, the High Court has criticised the defence for the plea of selfdefence having not been specifically taken by any of the accused persons in
their statements under Section 313 of Cr.P.C. and also accused 'Prabhu' for
having 'not dared to examirte himself as a defence witness'. Vide para 57, the
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High Court has expressed an opinion that even taking the worst side of the
prosecution case and the probable defence of the accused-respondents as sugD
gested to the prosecution witnesses, if it is presumed that any of the injured had
caused some injuries to accused Prabhu and accused Ramesh was compelled
to fire at deceased Brindawan in defence of accused Prabhu even then there
was no justification to fire another gun shot by accused Ramesh towards
complainant Sundera which accidentally hit Jamuni Bai and therefore "by no
stretch of imagination" it can be presumed that accused Ramesh had fired in
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self-defence of his brother Prabhu. The High Court has concluded by saying
"since none of the accused-respondents had taken a specific plea in their
examination under Section 313 Cr.P.C. that the injured had come to assault
them at their house and they were compelled to fire in self-defence, the theory
of self-defence all the more becomes baseless and false". Strangely enough,
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vide para 63, the High Court holds - "further in our opinion although it is
alleged against accused respondent Prabhu that he inflicted a farsa injury on
the head of Mahendra, but since injuries of Prabhu were not properly explained
by the prosecution, his act of causing injury to Mahendra may be justified in
self-defence. In these circumstances, Prabhu alone deserves benefit of doubt
from the charges levelled against him".
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At the hearing the learned counsel for the accused-appellants submitted
that the factum of accused Prabhu having sustained serious injuries including
those on vital part of the body was well established and the trial court as also
the High Court have not doubted such injuries having been received by the
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[2001] SUPP. 4 S.C.R.
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accused Prabhu in the same incident in which those on the side of the prosecution suffered the injuries and such injuries of Prabhu having not been
explained by the prosecution witnesses, the prosecution story should have
been discarded and all the accused persons should have been acquitted. In our
opinion such a submission is too tall a submission and hence cannot be acB
cepted. In State of U.P. v. Mukunde Singh and Ors., [1994] 2 SCC 191, it has
been held that merely on the ground that the· prosecution witnesses have not
explained the injuries on the accused, the evidence of the prosecution witnesses
ought not to be rejected outrightly if the Court finds it probable that the accused
might have acted in exercise of right of self-defence, the Court ought to
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proceed to consider whether they have exceeded the same. In Thakhaji Hiraji
v. Thakore Kubersing Chamansing and Ors., [2001] 6 SCC 145, this Court has
held that Court ought to make an effort at searching out the truth on the material
available on record with a view to find out how much of the prosecution case
was proved beyond reasonable doubt and was worthy- of being accepted as
truthful and the approach of rejecting prosecution case in its entirety for nonexplanation of the injuries sustained by the accused persons is erroneous. This
Court further held, "It cannot be held as a matter of Jaw or invariably a rule
that whenever the accused sustained an injury in the same occurrence, the
prosecution is obliged to explain the injury and on the failure of the prosecution
to do so the prosecution case should be disbelieved. Before non-explanation
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of the injuries on the persons of the accused persons by the prosecution
witnesses may affect the prosecution case, the court has to be satisfied of the
existence of two conditions: (i) that the injuries on the person of the accused
were of a serious nature; and (ii) that such injuries must have been caused at
the time of the occurrence in question. Non-explanation of injuries assumes
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greater significance when the evidence consists of interested. or partisan witnesses or where the defence gives a version which competes in probability with
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that of the prosecution.".
We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the
High Court while hearing an appeal against an acquittal has powers as wide
and comprehensive as in an appeal against a conviction and while exercising
its appellate jurisdiction the High Court can re-appraise the evidence, arrive at
findiD.gs at variance with those recorded by the trial court in its order of
acquittal and arrive at its own findings, yet, the salutary principle which would
guide the High Court is -
if two views are reasonably possible, one supporting
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KASH! RAM v. STATE [LAHOTI, J.]
277
the acquittal and the other recording a conviction, the High Court would not
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interfere merely because it feels that sitting as a trial court its view would have
been one of recording a conviction. It follows as a necessary corollary, as has
been held by this Court in Chandu v. State of Maharashtra (2001) 4 Scale 590,
it is obligatory on the High Court while reversing an order of acquittal to
consider and discuss each of the reasons given by the trial court to acquit the
accused and then to dislodge those reasons. Failure to discharge this obligation
constitutes a serious infirmity in the judgment of the High Court.
A few relevant factual and legal aspects overlooked by the High Court
may not be noticed. The investigatio~ suffers from a serious infirmity which
has to some extent prejudiced the accused in their defence. The investigating
officer having found one of the accused having sustained injuries in the course
of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at
. investigating the cause of, and the circumstances resulting in, injuries on the
person of accused Prabhu. Not only the investigating officer did not do so, he
did not even make an attempt at recording the statement of accused Prabhu.
If only this would have been done, the defence version of the incident would
have been before the investigating officer and the investigation would not have
been one-sided.
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Section 105 of Evidence Act, 1872 provides that the burden of proving
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the existence of circumstances which would bring the act of the accused alleged
to be an offence within the exercise of right of private defence is on him and
the Court shall presume the absence of such circumstances. However, 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 preponderF
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ance 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 deserve to be extended to the accused (See : 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 UP., AIR
(1990) SC 1459). In V(jayee Singh s case this Court emphasised the difference
between a flimsy or fantastic plea taken by the defence which is to be rejeeted
altogether and a reasonable though incompletely proved plea which casts a
genuine doubt on the prosecution version and would threfore indirectly sueH
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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ceed. "It is the doubt of a reasonable, astute and alert mind arrived at after due
application of mind to every relevant circumstance of the case appearing from
the evidence which is reasonable".
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The High Court was also not right in criticising and discarding availability of plea of self defence to the accused persons on the ground that the plea
was not specifically taken by the accused in their statements under Section 313
Cr.P.C. and because the accused Prabhu did not enter in the witness box.
Though Section 105 of the Evidence Act enacts a rule regarding burden of
proof but it does not follow therefrom 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 by introducing such plea in the cross-examination of prosecution
witnesses or in the statement of the accused persons recorded under Section
313 Cr.P.C. or by adducing de.fence evidence. And, even if the plea is not
introduced in any one of these three modes still it can be raised during the
course of submissions by relying on the probabilities and circumstances obtaining in the case as held by this Court in Vijayee Singh s case (supra). It is basic
criminal jurisprudence that an accused cannot be compelled to be examined as
a witness and no adverse inference can be drawn agsint the defence merely
because an accused person has chosen to abstain from the witness box.
We do not deem it necessary to state the law of private defence of person
in very many details, as for our purpose, it would suffice to notice a few
provisions of the Indian Penal Code and re-state only a few-relevant and settled
principles. Section 96 provides that nothing is an offence which is done in
exercise of the right of private defence. Under Section 97 every person has a
right, subject to the restrictions contained in Seetion 99, to defend his own
body, and the body of another person, against any offence affecting the human
body. Under Section 99 the right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
Under Section 100, right of private defence of the body extends to causing
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death if the offence which occasions the exercise of such right is an assault
which reasonably causes an apprehension of death or grievous hurt, amongst
others. Under Section 101, save as provided by Section 99, the right extends
to the voluntary causing to the assailant of any harm other than death. Under
Section 102 the right once available continues as long as an apprehension of
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danger to the body continues. When the apprehension of danger has ceased
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KASH! RAM v. STATE [LAHOTI, J.]
279
and yet a person continues his attack, he exceeds the right of private
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defence.
Reverting to the case at hand, we have already noted the injuries caused
to accused Prabhu. These injuries are not explained by any of the prosecution
witnesses.