# MANO DUTT & ANR v. STATE OF U.P

- **Citation:** [2012] 3 S.C.R. 686
- **Court:** Supreme Court of India
- **Decided:** 2012-02-29
- **Case number:** Criminal Appeal No. 77 of 2007
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mano-dutt-anr-v-state-of-u-p-28324
- **Pages:** 34

## Headnote

Penal Code, 1860:
c
ss. 302134 - Murder - Dispute over land - Six accused
- Murderous assault on the deceased with lathis - Brother
and father of the deceased trying to rescue deceased also
received serious injuries - Out of six accused, four convicted
uls.302 rlw s.34 by trial court - One accused died during
0
pendency of the appeal before /-figh Court - High Court
upheld the conviction of rest three uls.302 rlw s.34- Separate
appeal by one convict before Supreme Court already
dismissed - On appeal by other two convicts, held: All the
accused persons had come prepared, mentally and
E physically, to assault the deceased and in furtherance to their
common intention, had even given exhortation to kill the
deceased - This incident was witnessed by natural witnesses,
the father/brother of the deceased who also received number
of injuries -
The defence miserably failed to prove
commission of the offence in self-defence - Dispute had not
F
arisen at the spur of the moment as the evidence clearly
showed that the accused had gone to the site in question with
a commori intention and with the preparedness to assault and
even kill the deceased - Prosecution was able to prove its
case beyond reasonable doubt and has brought home the
G guilt of the accused u/s.302 rlw s.34.
s.34 - Applicability of - Held: In the instant case, six
accused were charge-sheeted uls.302 rlw ss.149 and 323 -
However, two of the accused were acquitted by trial court and
H
686
MANO DUTT & ANR. v. STATE OF U.P.
687
remaining were convicted of an offence u/ss.302134 and 3231 A
34 - High Court acquitted all the accused of offence u/ss. 3021
34 - One of the accused died during the pendency of that
appeal - Because the alleged number of accused having
become less than five, nature of the offences were changed
from offence uls.149 to s.34 - In the circumstances of the
B
case, the possibility of presence of all other persons in the
appellants' party cannot be excluded - Even where there are
less than five persons who are accused, but the facts and the
evidence of the case is convincing as in the instant case,
where the accused had returned to the place of occurrence c
with complete preparedness and after giving lalkar had
attacked the deceased there, they have to be held liable for
commission of the crime - It cannot be ignored that the extent
of participation, even in a case of common intention covered
u/s. 34 would not depend on the extent of overt act - If all the
0
accused have committed the offence with common intention
and inflicted injuries upon the deceased in a pre-planned
manner, the provisions of s.34 would be applicable to all.
Evidence:
Right of self defence - Held: It is a settled canon of
evidence jurisprudence that one who alleges a fact must
prove the same - When a person claims exercise of private
self-defence, the onus lies on him to show that there were
E
circumstances and occasions for exercising such a right.
F
Non-explanation of injuries sustained by the accused
persons - Effect on prosecution case - Held; The normal rule
is that whenever the accused sustains injury in the same
occurrence in which the complainant suffered the injury, the
prosecution should explain the injury upon the accused - But,
G
it is not a rule without exception that if the prosecution fails to
give explanation, the prosecution case must fail - Before the
non-explanation of the injuries on the person of the accused,
by the prosecution witnesses, may be held to affect the
prosecution case, the Court has to be satisfied of the
H
688
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A existence of two conditions: that the injuries on the person of
the accused were also of a serious nature; and that such
injuries must have been caused at the time of the occurrence
in question -
Where the evidence is clear, cogent and
creditworthy; and where the court can distinguish the truth from
B falsehood, the mere fact that the injuries on the person of the
accused are not explained by the prosecution

## Text

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A
8
[2012] 3 S.C.R. 686
MANO DUTT & ANR.
v.
STATE OF U.P.
(Criminal Appeal No. 77 of 2007)
FEBRUARY 29, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
c
ss. 302134 - Murder - Dispute over land - Six accused
- Murderous assault on the deceased with lathis - Brother
and father of the deceased trying to rescue deceased also
received serious injuries - Out of six accused, four convicted
uls.302 rlw s.34 by trial court - One accused died during
0
pendency of the appeal before /-figh Court - High Court
upheld the conviction of rest three uls.302 rlw s.34- Separate
appeal by one convict before Supreme Court already
dismissed - On appeal by other two convicts, held: All the
accused persons had come prepared, mentally and
E physically, to assault the deceased and in furtherance to their
common intention, had even given exhortation to kill the
deceased - This incident was witnessed by natural witnesses,
the father/brother of the deceased who also received number
of injuries -
The defence miserably failed to prove
commission of the offence in self-defence - Dispute had not
F
arisen at the spur of the moment as the evidence clearly
showed that the accused had gone to the site in question with
a commori intention and with the preparedness to assault and
even kill the deceased - Prosecution was able to prove its
case beyond reasonable doubt and has brought home the
G guilt of the accused u/s.302 rlw s.34.
s.34 - Applicability of - Held: In the instant case, six
accused were charge-sheeted uls.302 rlw ss.149 and 323 -
However, two of the accused were acquitted by trial court and
H
686
MANO DUTT & ANR. v. STATE OF U.P.
687
remaining were convicted of an offence u/ss.302134 and 3231 A
34 - High Court acquitted all the accused of offence u/ss. 3021
34 - One of the accused died during the pendency of that
appeal - Because the alleged number of accused having
become less than five, nature of the offences were changed
from offence uls.149 to s.34 - In the circumstances of the
B
case, the possibility of presence of all other persons in the
appellants' party cannot be excluded - Even where there are
less than five persons who are accused, but the facts and the
evidence of the case is convincing as in the instant case,
where the accused had returned to the place of occurrence c
with complete preparedness and after giving lalkar had
attacked the deceased there, they have to be held liable for
commission of the crime - It cannot be ignored that the extent
of participation, even in a case of common intention covered
u/s. 34 would not depend on the extent of overt act - If all the
0
accused have committed the offence with common intention
and inflicted injuries upon the deceased in a pre-planned
manner, the provisions of s.34 would be applicable to all.
Evidence:
Right of self defence - Held: It is a settled canon of
evidence jurisprudence that one who alleges a fact must
prove the same - When a person claims exercise of private
self-defence, the onus lies on him to show that there were
E
circumstances and occasions for exercising such a right.
F
Non-explanation of injuries sustained by the accused
persons - Effect on prosecution case - Held; The normal rule
is that whenever the accused sustains injury in the same
occurrence in which the complainant suffered the injury, the
prosecution should explain the injury upon the accused - But,
G
it is not a rule without exception that if the prosecution fails to
give explanation, the prosecution case must fail - Before the
non-explanation of the injuries on the person of the accused,
by the prosecution witnesses, may be held to affect the
prosecution case, the Court has to be satisfied of the
H
688
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A existence of two conditions: that the injuries on the person of
the accused were also of a serious nature; and that such
injuries must have been caused at the time of the occurrence
in question -
Where the evidence is clear, cogent and
creditworthy; and where the court can distinguish the truth from
B falsehood, the mere fact that the injuries on the person of the
accused are not explained by the prosecution cannot, by
itself, be a sole basis to reject the testimony of the
prosecution witnesses and consequently, the whole case of
the prosecution .
c
. '
Witnesses:
Interested witness - Evidentiary value of - Held: When
the statement of witnesses, who are relatives, or are parties
known to the affected party, is credible, reliable, trustworthy,
· D admissible in accordance with the law and corroborated by
other witnesses or documentary evidence of the prosecution,
there would hardly be any reason for the Court to reject such
evidence merely on the ground that the witness was family
member or interested witness or person known to the affected
E party.
Injured witness - Evidentiary value of - Held: Normally,
an injured witness would enjoy greater credibility because he
is the sufferer himself and thus, there will be no occasion for
such a person to state an incorrect version of the occurrence,
F or to involve anybody falsely and in the bargain, protect the
real culprit.
,
Sole witness - Evidentiary value of- Held: The court can
convict an accused on the statement of a sole witness, even
G if he is a relative of the deceased and thus, an interested party
- It is only when the Courts find that the single eye-witness is
a wholly unreliable witness that his testimony is discarded in
toto and no amount of corroboration can cure its defect. ·
H
The prosecution case was that the accused persons
MANO DUTT & ANR. v. STATE OF U.P.
689
were related to each other. On the fateful day, the victimA
deceased was doing earth filling in front of his sariya (a
place of tethering cattle). The four accused, 'RD', 'TP',
'RN', 'MD' out of the six named accused came there and
asked the deceased not to do earth filling. The deceased
told them that it was his land and he would not stop the
B
work of land filling. Thereupon, the deceased called
villagers. The matter was discussed with the villagers, all
of whom said that the land was that of the deceased and
he could carry on with land filling on his own land. After
deciding this, the villagers went away and the deceased c
resumed the filling of the earth. Thereafter all the six
accused persons armed with lathis, came there and
chased the deceased. The deceased was able to run for
a short distance away, whereafter all the accused
surrounded him. Accused 'RD', 'TP', 'MD' and 'RN' started 0
. beating the deceased with their lathis. The father of the
deceased and his brother rushed towards the deceased
to rescue him. They were also beaten up by the accused.
The deceased fell down after getting the lathi blows.
Meanwhile, his wife, 'B' and village Pradhan came there.
Pradhan snatched the lathis of the four accused, who
then fled away from the scene. The deceased sustained
serious injuries. The father and the brother of the
deceased also sustained injuries. The deceased narrated
the incident to PW-3 and based on that FIR was prepared.
The deceased died after two days. One of the accused
'RD' had also allegedly lodged a report against the
deceased and his father and brothers. After registering
the FIR, the Investigating Officer in his report had also
stated that the accused 'RD' had sustained some injuries
on his person.
E
F
G
The trial court charged the accused with various
offences under IPC. Out of the six accused, four were
convicted by the trial court under Sections 302/34 and
323/34 IPC. One accused 'RD' died during pendency of H
690
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A the appeal before the High Court and all the other
accused were acquitted of the offences under Section
323/34 IPC, but convicted for offences under Section 302/
34 IPC. The two accused 'MD' and 'RN' filed the instant
B
appeals.
· Dismissing the appeals, the Court
HELD: 1. The record showed that 'RD' had lodged a
complaint of the incident. According to this report, the
accused in that complaint (i.e., the dece·ased and his
C family members) had been putting earth on RD's sariya,
which he had forbade. There was verbal altercation
between the parties and then the accused in that
complaint (i.e., the deceased) started assaulting him with
lathis and it was only by raising an alarm that the people
D of the village came to the place of occurrence and his life
was saved. According to this complaint, he had suffered
injuries on his head. This complaint was not proved by
'RD' during the trial. Accordingly, the concurrent view
take·n by the courts below that this document cannot be
E relied in evidence, cannot be faulted with. Furthermore,
'RD,' did not examine a single witness in his defence to
prove that he was attacked by the deceased and his
family members or .that they were putting earth at the
door of sariya of 'RD'. No doubt, 'RD' was subjected to
F medical examination by the Medical Officer. He had
suffered lacerated wounds on the central and other
regions of skull, and had complained of pain in left leg.
This would show that 'RD' had suffered some injuries but
where and how these injuries were suffered, was for him
G to establish, particularly when he had taken a specific
stand that the deceased and his family members were at
fault and were aggressive. He claims that they had
caused serious injuries to his person and this incident
happened in the presence of the villagers. It is a settled
H canon of evidence jurisprudence that one who alleges a
MANO DUTT & ANR. v. STATE OF U.P.
691
fact must prove the same. The contention of the appellant
A
cannot be accepted that the prosecution had not
explained the injuries on the accused and, therefore, the
attack with lathis was in exercise of self-defence was a
circumstance which created a serious doubt in the story
of the prosecution. When a person claims exercise of 8
private self-defence, the onus lies on him to show that
there were circumstances and occasions for exercising
such a right. In other words, these basic facts must be
established by the accused. Just because one
circumstance exists amongst the various factors, which
C
appears to favour the person claiming right of selfdefence, does not mean that he gets the right to cause
the death of the other person. Even the right of selfdefence has to be exercised directly in proportion to the
extent of aggression. As per the medical report, the
injuries on the body of 'RD' were found to be 'simple in
D
nature'. The bone of contention between the parties was
the statement of the deceased, that he was filling the earth
over some land, which he claimed to be his land;
according to the accused, the earth-filling was carried out
in front of the door of 'RD'. According to both the parties,
E
the villagers came to the spot. Out of the two versions,
the one put forward by the prosecution and the other in
the defence of the accused, the version of the
prosecution, as was disclosed by the eye-witnesses, is
trustworthy, reliable and entirely plausible in the facts
F
and circumstances of the case. The mere fact that the
Investigating Officer has not been produced, or that there
was no specific explanation on record as to how 'RD'
suffered the injuries, would not vitiate the trial or the case
of the prosecution in its entirety. It is not always
G
mandatory for the prosecution to examine the
Investigating Officer, provided it can establish its case
beyond reasonable doubt even in his absence. Where the
accused lead no defence, they cannot take benefit of the
fact that the prosecution did not examine any
H
692
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A independent witnesses. The accused would be deemed
to have been aware of the consequences in law when
they gave a statement admitting the occurrence but
attributing aggression and default to the deceased and
his family members. [paras 15-17] [705-F-H; 706-A-H; 707B A-H]
2. Accused 'TP' was also sta.ted to own a sariya and
was also allegedly using his lathi in self-defence, as
according to their story, four persons with the deceased
and his family members had attacked them. Strangely,
C 'TP' suffered no injury. These were the circumstances
which, examined cumulatively, would provide support to
the case of prosecution. The pleas on behalf of the
accused/appellants that only family members of the
deceased were examined as witnesses and they being
D interested witnesses cannot be relied upon and that the
prosecution did not examine any independent witnesses
and, therefore, the prosecution has failed to establish its
case beyond reasonable doubt were without much
substance. There is no bar in law in examining family
E members, or any other person, as witnesses. More often
than not, in such cases involving family members of both
sides, it is a member of the family or a friend who comes
to rescue the injured. Those alone are the people who
take the risk of sustaining injuries by jumping into such
F a quarrel and trying to defuse the crisis. Besides, when .
. the statement of witnesses, who are relatives, or are
parties known to the affected party, is credible, reliable,
trustworthy, admissible in accordance with the law and
corroborated by other witnesses or documentary
G evidence of the prosecution, there would hardly be any
reason for the Court to reject such evidence merely on
the ground that the witness was family member or
interested witness or person known to the affected party.
There can be cases where it would be but inevitable to
H examine such witnesses, because, as the events
MANO DUTT & ANR. v. STATE OF U.P.
693
occurred, they were the natural or the only eye witness
A
available to give the complete version of the incident.
[Paras 18-19) [708-A-G]
3. PW5, the doctor who examined the deceased
when he was brought to hospital stated that he had
8
examined the father and the brother of the deceased on
the fateful day itself and noticed as many as five injuries
on the brother of the deceased and four injuries upon the
person of the father of the deceased. These injuries were
suffered by them from a blunt object. The brother of the
C
deceased was examined as PW2 and his statement was
cogent, coherent, reliable and fully supported the case of
the prosecution. However, the other injured witness was
not examined. Non-examination of the father of the
deceased, to which the accused raised the objection,
would not materially affect the case of the prosecution.
D
Normally, an injured witness would enjoy greater
credibility because he is the sufferer himself and thus,
there will be no occasion for such a person to state an
incorrect version of the occurrence, or to involve
anybody falsely and in the bargain, protect the real
E
culprit. It is wrong to state that the material witness having
. not been examined and the entire prosecution story
being based upon the statements of PW1 and PW2, who
were the interested witnesses, the entire prosecution
evidence suffered from a patent infirmity in law. NonF
examination of any independent witness, in the facts of
the instant case was not fatal to the case of the
prosecution. The court can convict an accused on the
statement of a sole witness, even if he is a relative of the
deceased and thus, an interested party. The condition
G
precedent to such an order is that the statement of such
witness should satisfy the legal parameters stated by this
Court in a catena of judgments. Once those parameters
are satisfied and the statement of the witness is
trustworthy, cogent and corroborated by other evidence
H
694
SUPREME COURT REPORTS
[2012] 3 S.C.R. -
A produced by the prosecution, oral or documentary, then
the Court would not fall in error of law in relying upon the
statements of such witness. It is only when the Courts
find that the single eye-witness is a wholly unreliable
witness that _his testimony is discarded in toto. and no
B amount of corroboration can cure its defect. [paras 2223, 25-26) [710-F-H; 711-A-B; 713-8-G]
Namdeo v. State of Maharashtra (2007) 14 SCC 150:
2007 (3) SCR 939; Balraje @ Trimbak v. State of
C Maharashtra (2010) 6 SCC 673: 2010 (6) SCR 764; Satbir
Singh & Ors. v. State of Uttar Pradesh (2009) 13 SCC 790:
2009 (3) SCR 406; Abdul Sayeed v. State of Madhya
Pradesh (2010) 10 SCC 259: 2010 (13) SCR 3; Anil Phukan
v. State of Assam (1993) 3 SCC 282: 1993 (2) SCR 389 -
relied on
D
4. The FIR was lodged by the deceased along with
PW3 who transcribed the same at the police station itself.
The deceased was seriously injured, but was fully aware
of what he was doing and he had no reason to falsely
E implicate any person. His father and brother had also
been injured in the occurrence. It was specifically
recorded in the statement of these witnesses that when
the appellant 'MD' and other accused came for the second
time, to the place where the deceased was filling the earth
F at the sariya, they gave a lalkar 'Maro sale ko' and then
assaulted him with lathis. When he tried to run away, he
fell to the ground. The blood-stained earth was collected
by the Investigating Officer. Thereafter, the villagers ·had
come and taken the lathis away from the accused
G persons. The deceased was· taken to the police station
arid then to the hospital, where he died. It is evident that
all the accused persons had come prepared, mentally
and physically, to assault the deceased and in
furtherance to their common intention, had even given a
/a/kar to kill the deceased. This incident was witnessed
H
MANO DUTT & ANR. v. STATE OF U.P.
695
by natural witnesses the father and the brother of the A
deceased as well as wife of the deceased PW1. When
brother/father of the deceased even intervened and tried
to protect their son/brother, but in the process, they also
received number of injuries, as is clear from the medical
evidence produced on record. As per the medical report B
and statement of PW5, the deceased had suffered a
number of injuries and not only three. The collection of
the bloodstained earth itself is a relevant piece of
evidence and provided the link in the commission and the
place of crime. [paras 27-28] [713-G-H; 714-A-E, G-H]
c
5. Effect of non-explanation of injuries sustained by
the accused persons. The normal rule is that whenever
the accused sustains injury in the same occurrence in
which the complainant suffered .the injury, the
prosecution should explain the injury upon the accused. D
But, it is not a rule without exception that if the
prosecution fails to give explanation, the prosecution
case must fail. Before the non-explanation of the injuries
on the person of the accused, by the prosecution
witnesses, may be held to affect the prosecution case, E
the Court has to be satisfied of the existence of two
conditions: that the injuries on the person of the accused
were also of a serious nature; and that such injuries must
have been caused at the time of the occurrence in
question. Where the evidence is clear, cogent and
F
creditworthy; and where the court can distinguish the
truth from falsehood, the mere fact that the injuries on the
person of the accused are not explained by the
prosecution cannot, by itself, be a sole basis to reject the
testimony of the
prosecution
witnesses and G
consequ~ntly, the .whole case of the prosecution. PW4
had clearly noticed that injury on the person of the
deceased, his father and brother were all caused by a
blunt weapon. He had specifically observed that the
injuries were sufficient, in the ordinary course of time, to H
696
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A cause death and had, in fact, resulted in the death of the
deceased. [Paras 29, 30, 31] [716-D-H; 717-A-C]
Rajender·Singh & Ors. v. State of Bihar (2000) 4 SCC
298: 2000 (2) SCR 1073; Ram Sunder Yadav & Ors. v. State
B of Bihar (1998) 7 SCC 365; Vijayee Singh v. Stateo of UP.
(1990) 3 sec 190: 1990 (2) SCR 573 - relied on.
6. The High Court and the trial court recorded
reasons for returning the concurrent finding of guilt. The
appellant argued that one of the accused, 'RD' who is
C now dead had in his statement under Section 313 CRPC
stated that the land in between the house of the parties
was his and that despite his protest, the villagers were
putting earth on that land and when he objected all of
them ran after him and started beating him and in view
D of this stand the other accused cannot be said to have
been involved in the commission of crim. This argument
• is self serving submission. All the accused were related
to ·each other. Once the plea of self-defence is
disbelieved,- then a statement of a co-accused under
E Section 313 CrPC cannot be of any advantage to the coaccused, as the prosecution has been able to establish
its case beyond any reasonable doubt. In the instant
case, in the chain of events, nowhere does the plea of
self-defence as sought to be raised by the appellantF accused or other accused, fit in. The defence miserably
failed to prove any fact or any need for resorting to
commission of the offence in self-defence. The police had
charged this accused for an offence under Section 302
read with Section 149 and 323 of the IPC. However, two
G of the accused were acquitted by the trial court and the
remaining were convicted of an offence under the said
Sections 302/34 and 323/34, IPC. The High Court
acquitted all the accused of offence under Section 302/
34 IPC and unfortunately, 'RD' died during the pendency
H
MANO DUTT & ANR. v. STATE OF U.P.
697
of that appeal. Because the alleged number of accused A
had become less than five, nature of the offences were
changed from offence under Section 149 to Section 34,
IPC. In face of the acquittal of the two accused, which
was not assailed by the State, it must be taken that they
were not present. Then remain three accused, 'TD' and B
the appellants. Thus, in the circumstances of the case, the
possibility of presence of all other persons in the
appellants' party cannot be excluded. It is also not quite
possible that the accused have deposed incorrectly
before the Court in regard to the number of persons and c
their participation. Even where there are' less than five
persons who are accused, but the facts and the evidence
of the case is convincing as in the instant case, where
the accused had returned to the place of occurrence with
complete preparedness and after giving /a/kar had 0
attacked the deceased there, they have to be held liable
for commission of the crime. It cannot be ignored that the
extent of participation, even in a case of common
intention covered under Section 34 IPC would not depend
on the extent of overt act. If all the accused have
committed the offence with common intention and E
inflicted injuries upon the deceased in a pre-planned
manner, the provisions of Section 34 would be applicable
to all. [Para 32] [717-D-H; 718-A-H; 719-A]
7. It was not a dispute which arose at the spur of the
F
moment as the evidence clearly showed that the accused
had gone again to the site in question with a common
intention and with the preparedness to assault and even
kill the deceased. Even the site plan clearly showed that
all these places, i.e. the land on which the deceased was G
putting the earth, the house of the accused and that of
the deceased were all nearby. This was even fully
corroborated by the oral evidence. Thus, on the basis of
the documentary and ocular evidence, the prosecution
was able to prove its case beyond reasonable doubt and H
698
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
has brought home the guilt of the accused under Section
302 read with Section 34, IPC~ [Paras 33] [719-C-E]
Karlar Singh v. State of Punjab AIR 1961 SC 1787: 1962
SCR 395 - relied on.
B
Marimuthu & Ors. v. State of Tamil Nadu (2008) 3 SCC
c
D
E
F
205: 2008 (1) SCR 547 - Distinguished .
. Yunis @ Kariya v. State of M.P. (2003) 1 SCC 425 - held
inapplicable.
Case Law Refererice:
2007 (3) SCR 939
relied on
Para 19
2009 (3) SCR 406
relied on
Para 20
2010 (6) SCR 764
relied on
Para 21, 24
2010 (13) SCR 3
relied on
Para 23
. 1993 (2) SCR 389
relied on
Para1 26
1962·SCR 395
relied on
Para 28
2000 (2) SCR 1073
relied on
Para 30
(1998) 1 sec 365
relied on
Para 30
1990 (2) SCR 573
relied on
Para 30
(2003) 1 sec 425
held inapplicable Para 32
2008 (1) SCR 547
Distinguished
Para 33
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
G No. 77 of 2007.
H
From the Judgment & Order dated 21.03.2006 of the High
Court of Judicature at Allahabad at Lucknow in Criminai Appeal
No. 19 of 1982.
MANO DUTT & ANR. v. STATE OF U.P.
699
P.N. Misra, K.K. Tyagi, lftekhar Ahmad, P. Narasimhan for
A
the Appellants.
R.K. Gupta, Rajeev Dubey, Kamlendra Mishra for the
Respondent.
The Judgment of the Court was delivered by
B
SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment and order dated 21st March,
2006 of the High Court of Judicature at Allahabad, Lucknow
Bench, which had partially accepted the appeal by acquitting c
the accused persons of the offence under Section 323 read
with Section 34 of the Indian Penal Code, 1860 (hereafter,
'IPC'), but affirmed the imposition of life imprisonment for the
offence under Section 302 read with Section 34, IPC as
awarded by the learned trial court vide its judgment dated 6th
D
January, 1982. The trial court had found the four accused Ram
Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain
guilty of an offence under Section 302, read with Section 34,
IPC and also offence under Section 323, read with Section 34,
IPC and had awarded them life imprisonment for the first
E
offence and a fine of Rs.1,000/- for the second, in default of
which, to undergo rigorous imprisonment for three months.
2. This is a case where the incident, on 22nd October,
1977, which resulted in the death of Siya Ram, is admitted
between the parties. The primary question that falls for
F
determination is, as to which of the parties was the aggressor,
besides determining the merits of the contentions raised on
behalf of the appellant. Before noticing the prosecution version,
we may notice that in the present case, six accused were
charged and tried for an offence under Sections 302 and 323,
G
both read with Section 34 IPC. Learned trial court, vide its
judgment dated 6th January, 1982 had acquitted accused Sher
Bahadur and Jagdish, while it convicted Ram Dutt, Thakur
Prasad, Mano Dutt and Ram Narain for both the afore-stated
offences. During the pendency of the appeal before the High
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[2012) 3 S.C.R.
A Court, Ram Dutt died and the Court convicted the other accused
vide its judgment under appeal.
3. Thakur Prasad had filed a separate appeal challenging·
the said judgment of the High Court, being SLP (Crl.) No.3929
8 of 2006 titled Thakur Prasad v. State of UP. which came to
be dismissed by order of this Court dated 18th August, 2006.
In other words, the conviction of the accused Thakur Prasad
under Section 302 read with Section 34 IPC attained finality.
However, vide the same order, this Court granted leave to
appeal in the case of Mano Dutt and Ram Narain. This is how
C the present appeal has come up for final hearing before us.
4. The case of the prosecution is that Mano Dutt, Ram
Narain and Jagdish are real brothers while Ram Dutt and
Thakur Prasad are their cousins. On 22nd October, 1977 during
D day time, Siya Ram was doing earth filling in front of his sariya
(a place of tethering cattle). The four accused, namely, Ram
Dutt, Thakur Prasad, Ram Narain and Mano Dutt out of the six
named accused had come there and asked Siya Ram not to
do earth filling. Siya Ram told them that it was his land and he
E would not stop the work of land filling. Thereupon, Siya Ram
called certain villagers. The matter was discussed with the
villagers, all of whom said that the land was that of Siya Ram
and he could carry on with land filling on his own land. After
deciding this, the villagers went away and Siya Ram resumed
F the filling of the earth. Accused Ram Dutt, Thakur Prasad, Mano
Dutt, Ram Narain, Jagdish and Sher Bahadur, armed with
lathis, came there and chased Siya Ram. They said that they
would finish Siya Ram. Siya Ram was able to run for a short
distance away, whereafter all the accused surrounded him in
front of the house of one Fateh Mohmad. Accused Ram Dutt,
G Thakur Prasad, Mano Dutt and Ram Narain started beating
Siya Ram with their lathis. The father of Siya Ram, Nankoo and
brother Salik Ram rushed towards Siya Ram to rescue him.
Accused Sher Bahadur and Jagdish intercepted them in front
of one Chiddan's door and beat them with their lathis. Siya
H
MANO DUTT & ANR. v. STATE OF U.P.
701
[SWATANTER KUMAR, J.]
Ram fell down after getting the lathi blows. Siya Ram rai.sed
A
alarm, but still these accused persons continued to beat him
and in the meanwhile, Smt. Sangam Devi, Bhurey and Pradhan
came there. The Pradhan snatched the /athis of the four
accused, who then fled away from the scene. Siya Ram
sustained serious injuries. Nankoo and Salik Ram also
B
sustained injuries. Pradhan and the other villagers took the
injured to the Police Station.
5. The incident was narrated in the form of a report of
occurrence, by the deceased Siya Ram, who was in an injured
C
state at that time. The same was transcribed by Panna Lal
Pandey, PW3 and submitted to the Police Station, where a
First Information Report (hereafter, 'FIR') Exhibit Ka7 was
prepared.
6. On this statement, the officer present at the police station
D
had registered a case under Section 308, IPC and the
investigation was taken over by C.R. Malviya. During
investigation, C.R. Malviya recorded the statements of a
number of witnesses as well as sent Siya R'am to the hospital.
Siya Ram succumbed to his injuries on 24th October, 1977 at
E
about 8.00 a.m. in the District Hospital, Faizabad. Upon his
death, the offence was converted to one under Section 302,
IPC. The Investigating Officer visited the spot, recovered bloodstained earth, Ex. Ka-8 and prepared the site plan, Ext. Ka-9
and examined various witnesses. After completion of the
F
investigation, the charge sheet was filed before the court of
competent jurisdiction. The trial Court vide its order dated 30th
July, 1980 charged the accused with offences under Sections
147, 304/149 and 323/149. However, subsequently, the charge
was amended and all the accused 'were charged with offences
G
under Sections 302/149-147 and 323/149, IPC. The accused
pleaded not guilty and faced trial before the Court of Sessions.
As already noticed, out of the six accused, four were convicted
by the trial court. One accused, namely Ram Dutt, died during
pendency of the appeal before the High Court and all the other
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[2012] 3 S.C.R.
A accused were acquitted of the offences under Section 323/34
IPC, but convicted for offences under Section 302/34 IPC. For
the reasons afore-recorded in the present appeal, we are only
concerned with the two accused, namely Mano- Dutt, and Ram
Narain.
B
7. The prosecution had examined Smt. Sangam Devi, PW1 (wife of the deceased), Salik Ram, PW-2 (injured witness).
Panna Lal Pandey, PW-3 (scribe of Siya Ram's statement) and
two doctors, Dr. S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh
C (P.W. 5), besides examining the formal witnesses.
8. Dr. Surya Bhan Singh, PW-5 had examined Salik Ram
when he was brought to the hospital on the evening of 22nd
October, 1977 at about 4.30 p.m. He had noticed lacerated
bone-deep wound, 3 cm x 0.5 cm, on the frontal region of the
D scalp, from which blood was oozing. The doctor described the
injuries on the body of the deceased as follows:-
E
F
"(1)
Lacerated wound mark 3 cm x 0.5 cm on the left
side of head on the parietal region.
(2)
Bruise 9 cm x 1.5 cm in the left scapula region.
(3)
Bruise 12 cm x 1.5 cm in the right scapula region
of scalp.
(4)
Bruise 9 cm x 2 cm in the right scapular region of
scalp.
(5)
Bruise 19 cm x 2 cm in the right scapular region of
scalp."
G
9: This very doctor had examined Salik Ram, son of
Nankoo and had noticed as many as five injuries on his body.
He had also examined Nankoo and noticed four injuries on his ·
person. The injuries on the bodies of Nankoo and Salik Ram
both were found to be simple injuries and were caused with blunt
H object like lathi, while Siya Ram was· transferred to the
MANO DUTI & ANR. v. STATE OF U.P.
703
[SWATANTER ~UMAR, J.]
specialist for obtaining expert opinions on his injuries and for
A
his treatment
10. After the death of Siya Ram on 24th October, 1977,
the post-mortem on the body of the deceased was performed
by Dr. S.N. Rai, PW-4, who noticed four ante-mortem injuries
8
as follows:-
"(1)
Lacerated wound 2.5 cm x % cm x bone deep, on
Rt. side head, 6.5 cm above the eyebrow of right
eye.
(2)
Lacerated wound 2.5 cm x 1 cm x bone deep
injures 1-2 cm on the left side of the head.
(3)
Contusion 6 cm x 4 cm in the right side of the face
involving whole orbital area.
(4)
Diffused, swelling on the Rt. Side of head parietal
region."
11. Upon internal examination of the body of the deceased,
c
D
he also found the following internal injuries:- ·
E
"1.
Comminuted fracture in the area of 11.5 cm x 10
cm on the right Parietal Region of the skull.
2.
Comminuted fracture in the area of 6.5 cm x 6.5 cm
in the frontal Bone was found.
F
3.
Com minuted fracture in the area of 10 cm x 4 cm
on the left side of temporo parietal Region was
found.
4.
Large quantity of blood was accumulated on the
G
right side of head between skin and bone."
12. The doctor stated that, in his opinion, the cause of
death was a shock due to ante-mortem injuries and loss of
blood. He specifically stated that all the injuries are possible
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[2012] 3 S.C.R.
.\ by blows of lathis. In his cross-examination, he clearly stated
thatthese injuries are ordinarily sufficient to cause death.
13. It needs to be noticed that one of the appellants, namely
Ram Dutt, had also allegedly lodged a report against the
8 deceased Siya Ram, injured Nankoo, and two other sons of
Nankoo, i.e., Salik Ram and Ram Dhiraj. After registering the
FIR, the Investigating Officer in his report had also stated that
the accused Ram Dutt had sustained some injuries on his
person.
C
14. The conviction of the accused and the impugned
judgment have been challenged inter alia, but primarily, on the
following grounds:-
(i) The prosecution did not examine the material witnesses
D like the investigating officer as well as other witne~ses who, as
per the case of the prosecution, were actually present at the
time of occurrence of the incident.
. (ii) According to the prosecution, PW-1 and PW-2 both are
eye~witnesses but they are the widow and brother of the
E deceased, and therefore, are interested witnesses and their
statement cannot be relied upon by the Court. ·
(iii) The accused persons themselves had lodged a
counter report against the deceased, PW-2 and other relations
F of the deceased, alleging attack/aggression. This was not a
counter blast but a true ·and correct happening of events as
reported by the accused, against the complainants, in which the
accused Ram Dutt had suffered injuries. For these reasons, the
accused should be entitled to the benefit of doubt and
G consequently, to an order of acquittal.
(iv) Even if the entire prosecution story is assumed to be
correct, even then it does not constitute an offence under
Section 302, IPC. In the facts and circumstances of the case,
at the worst, the accused could be held guilty of an offence
H punishable under Section 304, Part-I, IPC.
MANO DUTI & ANR. v. STATE OF U.P. .
705
[SWATANTER KUMAR, J.]
(v) The deceased had only three injuries, therefore, OA the
A
one hand, the story that six accused had assaulted him with
lathis even when he was lying on the gr9und is not physically
possible and on the other hand, the prosecution has failed to
explain the injuries suffered by Ram Dutt, accused. Thus, it
creates a specific doubt in the story of the prosecution.
B
(vi) Lastly, it is contended that the dismissal of the other
Special Leave Petition filed by Thakur Prasad does not have
any bearing on the fate of the present appeal, inasmuch as the
Court is vested with wide powers in terms of Section 38, IPC,
C
to deal with the case of the present appellants on distinct and
different footing. Even if Thakur Prasad's conviction for an
offence under Section 302 read with Section 34 IPC has
attained finality, the appellants may still be acquitted.
15. We have already noticed that the incident in question
D
is admitted. According to the accused, the fight was started by .
the deceased and his relations and they had exercised their
right of private self-defence, to protect themselves. To the
contrary, according to the witnesses of the prosecution as well
as according to the version given by the deceased, the
accused were aggressive and had attacked the deceased and
his family members after deliberately planning to assault and
kill them. It is not a case where the circumstances, even
remotely, can be construed to have satisfied the ingredients of
self-defence. We may examine few of the circumstances in this
case. From the record, it appears that Ram Dutt had lodged a
complaint of the incident that took place on 22nd October, 1977
E
F
at about 12.00 p.m. According to this report the accused in that
complaint (i.e., the deceased and his family members) had
been putting earth on Ram Dutt's sariya, which he had forbade.
G
There was verbal altercation between the parties and then the
accused in that complaint (i.e., the deceased herein) started
assaulting him with lathis and it was only by raising an alarm
that the people of the village came to the place of occurrence
and his life was saved. According to this complaint, he had
suffered injuries on his head.
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[2012] 3 S.C.R.
A
·16. Firstly, this complaint had not been proved by Ram
Dutt during the trial. Accordingly, the concurrent view taken by
the courts below, that this document cannot be relied in
evidence, cannot be faulted with. Furthermore, Ram Dutt did
not examine a single witness in his defence to prove that he
8 was attacked by the deceased and his family members or that
they were putting earth at the door of Ram Dutt's sariya. No
doubt, Ram Dutt was subjected to medical e~amination by the
Medical Officer vide Ex.Kha 1. It was noticed that he had
suffered lacerated wounds on the central and other regions of
C skull, and had complained of pain in left leg. This would show
that Ram Dutt had suffered some injuries but where and how
these injuries were suffered, was for him to establish,
particularly when he had taken a specific stand that the
deceased and his family members were at fault and were
aggressive. He claims that they had caused serious injuries to
D his person and this incident happened in the presence of the
villagers. It is a settled canon of evidence jurisprudence that one
who alleges a fact must prove the same. It is also his case that
the prosecution has not explained the injuries on his person and,
therefore, the argument impressed upon the Court is that the
E attack with lathis was in exercise of self-defence and the failure
of the prosecution to explain injuries on the person of Ram Dutt
is a circumstance which creates a serious doubt in the story of
the prosecution. We are not impressed with this contention
primarily for the above reasons and also because of the fact
F that if the police was not investigating into the complaint, Ram
Dutt was not helpless or remediless in law. He could have filed
an application before the concerned Magistrate in accordance
with the provisions of Code of Criminal Procedure, 1973
(Cr.P.C.) for directing the police to investigate and even to
G summon the accused in that complaint. But none of the
accused, including Ram Dutt, took any of the steps available
to them in law. When a person claims exercise of private selfdefence, the onus lies on him to show that there were
circumstances and occasions for exercising such a right. In
H other words, these basic facts must be established by the
MANO DUTT & ANR. v.