# SQ ONKARNATH SINGH AND ORS v. THE STATE OF U.P

- **Citation:** [1975] 1 S.C.R. 80
- **Court:** Supreme Court of India
- **Decided:** 1974-04-15
- **Case number:** CRIMINAL APPELLATE JuRISD!CTIO'I : Criminal Appeal No. 100 Of 1971
- **Bench:** M. H. Beg, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sq-onkarnath-singh-and-ors-v-the-state-of-u-p-6261
- **Pages:** 14

## Headnote

Cruninal Trial-Failure to Rive explanation by prosecruiu11 witnesses of
i11iuries on the accused-It total to fJrosecution case.
Private dt!fencc-Riglu of.-
The fact of the non-explanation of the injuries on the accused person is
a
question of fact and not of law.
Answer to such a question depends on the
circumstances of ench case. The entire prosecution case cannot be thrown
over-board simply because the pro~ecution witnesses
had
not explained
the
injuries on the person of the accused.
Such non-explanation is a factor
which
is to be taken into account in judging the veracity of the prosecution witnesses
and the courts would scrutinise their evidence \vith care. Each case presents its
own teatures.
In ~on1e cases the failure of the prosecution to ':lccount for the
injuries of the accused may underniine its evidence to the core and falsify the
substratum of its story while in others it n1ay have little or no adverse effect
on- the presecution case.
It may also in a given case strengthen the plea of
private defence set up by the accused but it cannot be !aid down as an invariable
proposition of law that as soon as it is found that the accused had received
injuries in the san1e transaction in which the cornplainant party vvas assaulted
the plea of private defence would stand prirna facie established.
In every case,
the question is really one of appraisal of total eviJence c.tnd it:. effect.
Jn the
instance case, the totality of the evidence on record neither establishes even
with reasonable possibility a right uf private defence in favour of the appellants
nor throw a cloud of doubt dn the prosecution case.
A right of private defence
is essentially one of defence or self protection and not a right of repraisal or
pnnishn1ent. It is subject to the restrictions indicated in section 99 which arc as
important as the right itself.
[89 I-H: 92 G-Hl
CRIMINAL APPELLATE JuRISD!CTIO'I : Criminal Appeal No. 100
Of 1971.
[Appeal under Section 2 (al of the Supreme Court Enlargement
of Criminal Appellate Jurisdiction Act, 1970. Act 28 of 1970 from
the Judgment and Order dated the 24th March, 1971 of the AlbhaA
B
c
0
E
bad High Court in Government Appeal No. 449 of l 967l
F
Nuruddin Ahmed & Shiva Puian Sin!ih, for the Appellants Nos.
1 & 2.
V. K. Krishna Menon, K R. Nambiar, Shiva Puian Sini;h and
R. K. GarR, for the appellants Nos. 3, 4 & 5.
D. P. Unil'al and 0. P. Rana. tor ti1e respondent.

## Text

_Characters 0–39,975 of 41,946. This is a partial read: ask again with offset=39975 for what follows._

SQ
ONKARNATH SINGH AND ORS.
v.
THE STATE OF U.P.
April 15, 1974
[M. H. BEG AND R. S. SARKARIA, JJ.]
Cruninal Trial-Failure to Rive explanation by prosecruiu11 witnesses of
i11iuries on the accused-It total to fJrosecution case.
Private dt!fencc-Riglu of.-
The fact of the non-explanation of the injuries on the accused person is
a
question of fact and not of law.
Answer to such a question depends on the
circumstances of ench case. The entire prosecution case cannot be thrown
over-board simply because the pro~ecution witnesses
had
not explained
the
injuries on the person of the accused.
Such non-explanation is a factor
which
is to be taken into account in judging the veracity of the prosecution witnesses
and the courts would scrutinise their evidence \vith care. Each case presents its
own teatures.
In ~on1e cases the failure of the prosecution to ':lccount for the
injuries of the accused may underniine its evidence to the core and falsify the
substratum of its story while in others it n1ay have little or no adverse effect
on- the presecution case.
It may also in a given case strengthen the plea of
private defence set up by the accused but it cannot be !aid down as an invariable
proposition of law that as soon as it is found that the accused had received
injuries in the san1e transaction in which the cornplainant party vvas assaulted
the plea of private defence would stand prirna facie established.
In every case,
the question is really one of appraisal of total eviJence c.tnd it:. effect.
Jn the
instance case, the totality of the evidence on record neither establishes even
with reasonable possibility a right uf private defence in favour of the appellants
nor throw a cloud of doubt dn the prosecution case.
A right of private defence
is essentially one of defence or self protection and not a right of repraisal or
pnnishn1ent. It is subject to the restrictions indicated in section 99 which arc as
important as the right itself.
[89 I-H: 92 G-Hl
CRIMINAL APPELLATE JuRISD!CTIO'I : Criminal Appeal No. 100
Of 1971.
[Appeal under Section 2 (al of the Supreme Court Enlargement
of Criminal Appellate Jurisdiction Act, 1970. Act 28 of 1970 from
the Judgment and Order dated the 24th March, 1971 of the AlbhaA
B
c
0
E
bad High Court in Government Appeal No. 449 of l 967l
F
Nuruddin Ahmed & Shiva Puian Sin!ih, for the Appellants Nos.
1 & 2.
V. K. Krishna Menon, K R. Nambiar, Shiva Puian Sini;h and
R. K. GarR, for the appellants Nos. 3, 4 & 5.
D. P. Unil'al and 0. P. Rana. tor ti1e respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal is directed against the judgment, dated
March 24. 1971. of the High Court of Judicature at Allahabad convicting the appellants, by reversing their acquittal, on charges unlier
ss. 302, 307 read with s. 1419 and 148, Penal Code.
The prosecution case was that on May 18, 1965, at about 10
a.m., Giria Singh (p W. 11) and Sidh Nath (P. W. 8) were proceeding to the Ganim for a bath which runs at a distance of one mile
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ONKARNATH v. U.P. STATE (Sarkaria, I.)
81
from their village Tarapur.
Onkarnath, appellant met them coming
from the opposite direction. He asked Siah Nath as to why he was
walking chest high.
Sidh Nath replied that there was. not~ing abnormal in his gait. Onkarnath appellant then slapped S1dh Nath and
roughly handled him.
Girja
~i,ngh intervened
a.nd remonstrated.
Onkarnath Smgh slapped him, also.
Giria Singh was joint in residence and mess with his cousins,
Jagdish Narain Singh (P. W. I) and D_eep Narain Singh deceased
Jagdish Narain was employeli _ m the Engmeenng _ College of the
Benaras University, and Deep Narain in the Diesel
Locomotives
Works, Varanasi.
The pla-ces of their work being only four or five
miles from this viJlage, they used to return home daily after working hours.
On the day of occurrence, (May 18" 1965), when Deep Narain
returned home at about 4-30 p.m. G!f1a Smgh complamed to him
how Onkarnath had beaten him without any rhyme and reason. Deep
Narain Singh assured him that he would censure and correct Onkarnath appellant.
When Jagdish Narain (P. W. I) rrnched home at
about 4-45 p.m.. Deep Narain told him how Onkarnath hhU beaten
Girja Singh at about noon. Thereafter, the
two
brothers
Jagdish
Narain and Deep Narain proceeded
together to their cotton field
situated towards the east of· the viilage.
About 4-45 p.m., when
they were coming back from the feld, near the Darwaza of Ham;man
Pra51d Singh they met Onkarnath and Chhabi Nath appellants conversing with Ram Asrey
(Primus) son of 'Gauri Shankar.
Deep
Narain asked Onkarnath as to why he had
beaten
Girja
Singh.
Onkarnath insolently replied that he had done so; that he would repeat the feat and would see what he (Deep Narain) cou'd do.
A
scuffle ensued.
Onkarnath grappled with Deep Narain and Chhabi
Nath with Jagdish Narain.
Deep Narain and Jagfah Narain being
stronger threw and pinned down their adversaries to the ground.
In
tr.c meanwhile Ram Asrev (Secondus) son of Jang Bahadur arrived.
Ram Asrev Seeondus and Ram Asrey Primus
di.>engaged
them.
Both the parties then proceeded
to their
respective houses. The
deceased and his brother ha\j hardly gone 70-80 paces and reached
near the Darwaza of Hanuman Prasad, when all the fin appellants
and Amar Nath Singh, the acquitted accused, came there in a body
and surrounded them.
Onkarnath was armed with a spear, Chhabi
Nath with a gandasa. Basdeo Singh and Gya Singh
with
lathis;
while Parasnath Singh and Amar Nath Singh
were empty-handed.
Basdeo Singh and Gya Singh struck Deep Narain with lathis while
Chhabi Nath hit him on the head with the gandasa. Onkarnath Singh
plunged his spear into the abdomen of Deep Narain. The alarm raised
by the victims attracted Vijai Bahadur Singh (p W. 51, Hari Ram
Pandey !P. W 9) and Adit Prasad Singh (P.W. 21 to the spot.
These persons and Ram Asrev (Primus) srouted to the appellants
to desist. Chhabi Nath attempted gandasa blows on the head
of
Jagdish Narain which the latter warded off on his hands Viiai Bahadur Singh snatched away the gandasa from Chhabi Nath. The assailants
7-Lll!Sup Cl./75
82
SUPREME COURT REPORTS
[1975] l S.C.R.
then ran awav leaving Deep Narain and Jagdish Narain injured at
the spot.
The injured were laid on cots and taken to the Arar (cross-roads)
of the village, for further removal to the hospital at Varanasi. Deep
Narain succumbed
to hi; injuries at the Arar. His dead body was
left there while Ja2dis:1 Narain was sent further to S.S.P.G. Hospital
in a rickshaw.
At the Arar, Adit Prasad Singh wrote the· report,
Exh Ka-1 and then carried it to Bohania where he handed it over in
the Police Stat:on. Th"e. on its basis, a case under ss. 302/324,
Penal Code was re~istered at 8-30 p.m.
Jagdish Narain was admitted to the S.S.P.G. Hospital, Varanasi
at 7-45 p.m. As his condition appeared to be serious, his statement
Exh.Ka-7 was recorded bv the Magistrate in the Hospital, at 8-10
p.m., same day.
After registecing the c1se, S. 0. Mohd. Zubur Khan (P. W. 15),
reached the snot at 11 p.m. and started the investigation. He found
some blood and blood-stained tiles of an obsolete brick-kiln ( awa)
near tl?e Darwaza of Ram Kishore Singh. He took those tiles
and
blood soakel:l earth into possession. He did not find any blood near
the Darwaza of Hanuman Prasad Singh.
Vijai Bahadur produced
the gandasa (Ext.P-1) and the investigating officer took it into posses-
~ion. He recorded the statements of all the material witnesses, and
held the inquest on the same night and sent the dead body for post
mortPm examination next morning.
He ~searcheli for the
accused
but could not find them.
Chhabi Nath was arrested from the Hospital of Benaras University on May 18, 1965 at 9 p.m.
The remaining accused were proceeded against under ss. 87 /88 Cr.P.C.
Onkarnath, Basdeo Singh
and Gva Singh surrendered iri Court on May 26, J 965 and Paras
Nath Singh and Amar Nath Singh on May 27, 1965.
The autopsy was conducted by Dr. J. N. Bajpai on May 19,
1965 at 11-30 a.m.
There were four injuries on the dead body.
Injury No. 1 was an incised wound on the right side of head above
the eye-brow.
The bone underneath was found cut. Injury 2 was a
lacerated wound on the left side of head.
Injury 3 was
another
lacerated wound on the right hand.
Injury 4 was a punctured
wound 1-1/4 .. X 314 .. goin_g
deep into the
abdominal cavity. A
loop of intestine was protruding from the wound. Blood was comin_g out of the wound.
Dr. S D. Ohri found three inc'sed
wounds
on the person of
Jagdish Nara.'n Singh.
Injury 1 was located on the left forearm
and the dersem of left-hand.
Injurv 2 on the right hand and Injury
:3 also on the right ha'ld between the thumb and the index-finger.
Chhabi Nath appellant was examined by Dr. K. P. Singh at the
Universitv Hospital on May 18, 1965 at 9 p.m. These injuries were
found on his person :
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ONKARNATH v. U.P. STATE (Sarkaria, /.)
83
I. Lacerated injury scalp size 3" X t': Xh :" inb rightMfrontoparietal bone about 3" 'above the ng t eye- row.
argms
irregular.
2. Punctured wound in right elbow region on the tip of the
medical epicondyle 1/10" x 1/10".
3. Abrased contusion 4" X 1 .5'' in the left arm upper part
4" below the tip of the acromion.
4. Abrased contusion 1" X 2" in the posterior aspect
of
left fore-arm 1.75" above the left ulnar styloid process.
Onkarn1th appellant was examined by Dr. Udai Singh on May
21. 1966 between 3-45 pm. and 4 p.m.
ancl these injuries were
found on his person :
1. Scabbed
abrasion
2" x 1-1/2" on the back of
right
elbow.
2. Scabbed linear abrasion 3" on the upper and outer part
of right fore-arm.
3. Multiple small scabbed abrasions in an area of 1" X 1/2"
on the dorsem of the lower part of the right fore-arm just
above the right wrist-joint.
4. Scabbed
abrasion
2" X 1" on the inferior (1) angle of
right accapula.
5. Scabbed abrasion 2" x 1/2" on the
second,
third
and
fourth lumber spins.
Dr. Singh examined Parasnath appellant, also and fonnd two injuries.
One was a scabbed abrasion on the lcilver and outer part of left forearm
just above the left wrist-joint, and the other was a swelling over the
dorsem of the left hand-. X-Ray examination revealed a fracture of the
head of the first metacarpal bone cf the left hand under injury 2.
At the trial, Onkarnath and Cbhabinath admitted an incident but
denied that it had taken place in the manner alleged by the prosecution.
Chhabinath stated :
·
"At about 6 p.m. (I) was inside my house.
Then I
heard the alarm of my Baba, Deo Narain Singh, which seemed
to emanate from the Darwaza of Hanuman Prasad Singh
Thereupon I ran tc~ the Darwa~a of H~numan Prasad Singh:
a~d saw Deep Naram and Jagd1sh Naram beating Dea Narain
Smgli. I remonstrated with them.
Thereupon they started
beating me.
On be.ing beate!1 I fell down unconscious on
the. sp::>t.
On regammg consciousness I found myself in the
Umvers1ty Hospital, where I was arrested."
Onkarnath admitted that he had on the da
f
about 11. a.m. slapped Giria Singh, but added ih o hccurrence at
this. slappmg was that Girja- Sineh had taunted h. at t ~· nfa.:on for
qualify m the examination. He denied that h h d1m1 on
is . allure to
He further stated :
e a s apped S1dh Nath.
84
SUPREME COURT REPORTS
(1975] l S.C.R.
"On the same day at about 6 p.m. while I was going tq
the Darwaza of Hanuman Prasad, Jagdish Narain and Deep
Narain came from the western direction having Gandasa and
Lathi, respectively, and challenged me ...... saying that they
were giving me a taste for having beaten
Girja Shankar.
Thereupon 1 raised alarm and wielded lathi in self-defence.
In the meantime accused Parasnath Singh arrived there and
started snatching the Gandasa of Jagdish Narain Singh. Accnsed Chhabinath also arrived at the scene of the incident
with spear. Accused Parasnath snatched the Gandasa from
Jagdish Narain Singh, Deep Nore.in 1nd Jagdish Narain started
attacking accused Chhabinath Singh who wielded his spear in
self-defence. Accused Parasnath Singh wielded the snatched
Gandasa in self-defence ........ Accused Parasnath Singh
left the gandasa on the spot. Parasnath Singh Chhabinath
Singh and I received the injuries in the marpit . ... We got
medically examined."
The learned Additional Sessions Judge found that the prosecut10n
witnesses had not come out with a correct version as to how the mamit
started, and that they had failed tc give a reasonable explanation for the
injuries found on the accused person. He therefore accorded the benefit
of doubt tel the accused and aoquitted them.
On appeal by the State, the High Court set aside the acquittal and
convicted the five appellants herein under s. 302 read withs. 149, Penal
Code in respect of the murder cif Deep Narain and sentenced each of
them to imprisonment for life. The appellants were further convicted
under s. 307 read with s.149, Penal Code for the attempted murder
of Jagdish N airain Singh and sentenced to seven years' rigorous imprisclru:nent, each.
They were convicted under s. 148, Penal Code, also.
It was directed that the sentences would run concurrently. The acquittal
of Amar Nath singh, was, however, maintained.
Hence this appeal
by the convicts under s.2(a) of the Snpreme Court Enlargement of
Criminal Appellate Jurisdiction Act, 1970.
Mr. Nuruddin Ahmed, appearing on behalf of Onkarnath
and
Chhabinath appellants, contends that the High Cc~nt had erred in
reversing the well considered judgment of the trial oourt. It is stressed·
that the prosecution had not given any .,xplanation whatever of the injuries found on Onkarnath, Chhabinath and Parasnath appellants and
that the le'lrned Judges o~ the High Ccr.rrt had invented an explanation
for those injuries which was nobody's case. It is urged that Deep Narain
and Jagdish Narain were the aggressors as they had come with the
avowed object of avenging the beating of their cousin, Girja Singh. It
is submitted that though the appelhmts in fneir examination under s. 342.
Cr.P.C. had not come forward with a full and correct version yet it was
manifest that the injuries to the deceased and his brother Jagdish Narain
were cansed in self-defence.
Jn any case, maintains the Counsel, the
circumstances on record establish such a degree of probability in favclur
of this plea of private de~ence that the entire prosecution case becomes
doubtful, and in the ultimate analysis, it must be held that the prosecution had failed to bring home the cirnrges to the appellan.s bevond
doubt. It is further argued that, in fact, there was only one. QJ:.curreni:e
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O"IKARNATH v. li.P. STATE (5arkaria, /.)
85
near the Darwaza of Ram Kishore Singh, in the course of which,
!both sides received injuries, because the distance between the Darwaza
of Hanuman Prasad Singh and the Darwaza of Ram Kishore Singh
was hardly 70-80 paces (about 365-420 ft) and there was no appreciable interval of
time between the alleged grappling and the main
occurrence.
It is also pointed out that in his statement recorded as
"dying declaration" (Ka-7) dated May 18, 1965. Jagdish Narain P.W.1
had not specifically named Gya S'ingh and Basdeo Singh as two of
the assailants; and in the FJ.R. Adit Narain Singh (P.W.) did not
mention the presence of Parasnath aod Amarnath at the scene at all.
It is urged that these omissions show that subsequent additions to the
number of assailants had been made by the prosecution.
Mr. R. K. Garg, appearing on behalf of Basdeo, Parasnath and
Gaya Singh appellants, contends that once it is found that these injuries
were caused by the complainant party in the same occurrence or
transaction, the prosecution must fail unless it proves, as a inatter of
law, that those injuries were caused by the complainant party to the
accused party in the exercise of their right of private defence. Reference
in this connection has been made to certain observations, made by
one of us (Beg J.) in Rishikesh Singh and ors. v. The State(!).
In reply, Mr. Uniyal argues that the reasoning of the learned trial
Judge was manifestly erroneous and the High Court was right in reversing the same.
Leai:ned Ccjunsel has referred to the evidence of the
medical officers who had examined the injuries of Chhabinath, Onkarnath and Amar Nath, and pointed out that those injuries excepting one
injury on Parasnath were all superficial and could be easily fabricated;
that in any event. the injuries found on Chhabinath and Onkarnath were
such that could have been received by them in the course c.f the scuflle
with J agdish Narain and Deep Narain. According to the Counsel, the
twin circumstances, namely, that Deep Narain and Jagdish Narain were
unarmed and that the incident of grappling and the main occurrence
were separated by time and distance clearly showed that no right of
private defence had ever accrued to any of the appellants, who deliberately attacked the deceased and his ccimpanion to avenge their humilia.
!ion in the grappling. Attention has been invited to Onkarnath's exami·
nation under s. 342, Cr.P.C. wherein an incident in front of the Darwaza
of Hanuman Prasad was admitted. The entire prosecution case, it is
submitted, could not be thrown out simply on the ground that the
prosecution witnesses did not explain the doubtful and superficial
injuries of the appellants, particularly when a plausible explanation
is implicit in the veiry story of grappling propounded by the prosecution. In this oonnection, reference has been made to Bankey Lal
and Ors. v. State of U.P.( 2 ) Munney Khan v. State of M.P.('l and
l(ishan v. State of M.P.(')
At the outset. we may note that
the case against Parasnath
Basdeo Singh and Amarnath accnsed was
clearly distinguishable
(I) A.LR. 1970 All 5l(F.B.)
(2) A.LR. 1971 S.C. 2233.
(3) [1971] 1 S.C.R. 943. (4) A.1.R. 1974 S.C. 244.
86
SUPREME COURT REPORTS
(J 975] ] S.C.R.
from that of Onkarnath and Chhabinath appellants.
In the F.l.R.
which was lodged by Adit Narain Singh, an eye-witness, Parasnath
Singh and Amar Nath Singh accnsed were not named at all. In the
so-called 'dying declaration' Ex.Ka· 7, which was recorded on May
18, 1965, in the Hospital, Jagdish Narain Singh (P.W.)
did
not
specifically name Basdeo Singh and Gaya Singh among the
assailants. Of course he stated there that in addition to the four accus-od
name therein, "his uncle etc." were also there.
It was argued by
Mr. Uniyal that the expression "uncle etc'\ was meant to cover Gaya
Singh and Basdeo Singh and that Jagdish Narain -could not speci·
fically name all the assailants, nor give other material details of the
occurrenc·e because he was in intense pain at that time. Undoubtedly,
there is some force in this argument. But in Ka-7 Jagdish Narain clearly
stated that "uncle etc." were not beating but were only shouting. The
fact mmains that in his earliest statement Jagdish Narain PW did not
ascribe any part in the actual assault to Parasnath and Amarnath.
Amarnath's acquittal was
maintained
by
the
High
Court,
because his palrticipation "appears to be dcjubtful though he was
also p,resent at the time of the incident". The reasoning was : "He
is not named in the First Information Report.
He is said to have
been empty-handed.
It was only in the 'dying-declaration' that
it
was said that he was also with
Chhabinath Singh. Furthermore, it
has come in the prosecution evidence that he and
Parasnath Singh
moved aside after Basdeo Singh and Gaya
Singh had given lathl
blc1Ws".
But the benefit of the same doubt was nm given to Parasnath Singh because it was thought that his participation "has been
proved by the defence evidence and also by the fact that he had
received the iIJJjturies".
With respect, this reasoning and the distinction drawn on its basis appears to us. to be entirely unsustainable.
The prosecntion had to stand on its own legs; it oould not take
advantage of the weakness of the
defence.
The
injuries
found
on Parasnath were mere compatible with the conclnsion that
he
was a victim rather than a participant in the assault.
Nor oould Basdeo Singh and Gaya
Singh be denied the same
benefit -of doubt which was accorded to Amar Nath Singh.
They
were not named even as associates of the assailants by J agdish Narain
in Ex. Ka-7.
In the F.l.R. Ex. Ka-29, Adit Narain did not say
that these two aJ)pellants had cansed anyl injury tb Deep Narain
and Jagdish Narain All that was said was that they exhelrted Onkarnath and Chhabinath to assault the deceased and his brother J agdish.
At the trial, however, Adit Narain improved upon the F.I.R. and
said that these two appellants had also dealt lathi blows to the victims.
This improvement had to be ignored.
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Thus, the case against Parasnath Singh, Basdeo Singh and Gaya
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Singh, mere or less stood on the same footing as that of Amar
Nath.
We would, thwefore, give the benefit of doubt to these three
appellants also and acquit them.
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ONKARNATH v. U.P. STATE (Sarkaria, /.)
87
Now remains tbo ca;e of Onkarnath and Chhabinath.
The lirst
question to be considered is : Were the injuries found
on . these
appellants received by them in the course or tne same rransacuon 111
which Deep Narain and Jagdish Narain were injured?
it is common ground that at about 11• A.M.. on the day of
occurrence Onkarnath had slapped and manhandled Gi,rja
Singh,
c10usin of the deceased. It is further in evidence
(vide,
Jagdish
Narain P. W. 1) that as soon as Deep Narain returned
home
at
about 4-30 p.m. Girja Singh complained to him about his unmerited beating at the hands of Onkarnath. Deep Narain then told Girja
Singh that he would correct Onkarnath, the actual wards used by
him were "samjha doonga".
These words were evidently spoken in
ironic and sardonic tone.
The object was to assure the complainina boy that Onkarnath would be suitably censured and moderately
ch';istised for his misbehaviour. It is significant that soon after hearing this complaint, the two brothers, Deep
Narain
and Jagdish
Narain set out, and at about 5-45 p.m. met Chhabinath. and <mkarnath appellants in front of the Darwaza of Hanuman Prasad Singh.
According to Jagdish Narain PW, they were returning from
their
cotton field when they per chance met the appellants.
But it may
not be safe to accept his ipse dixlt on this puint as no independent
evidence w hi oh was available-was produced to show that they had
any cotton crop in their field at that time .
There was no past enmity between the pairties and the slapping
incident in which only the teenagers were involved, was not such a
serious matter that would have
impelled, the
deceased
and
his
brcither to beat Onkarnath with weapons.
All that they
intended
. was to rebuke and slap Onkarnath so that he realised his mistake
and promised to behave in future.
But to their surprise they found
Onkarnath in a defiant mood.
Being in the company of his elder
brother, Chhabinath, he not only refused to apologise for the beating
of Girja, but proclaimed that he would beat him again.
This exchange of hot words developed into a violent-scuffle.
Deep Narain
and J agdish Narain became interlocked with Onkarnath and Chhabinath respectively. In that grappling, the deceased and his bmther
who were admittedly stronger,
severely dealt with their adversaries.
They knocked down and pinned the appellants to the ground. Evidently, in the hostile grappling, more violent than 'all-in-wrestling' the
appellants being the weaker party, were worsted and probably 'subjected to a grinding operation against the grclund.
Dr. Udai Singh (PW 3) explained that all the ~imple lllJUftei\
found on Onkarnath could have been
Cdnsed by friction
against
some haird substance on May 18, 1965 at 6 p.m.
He did oot rule
out. the possibility of injuries 1, 4 and 5 having been caused, with a
lath1.
He was positive that injuries 2 and 3 ccjuld not be caused
H · with a lathi.
Cross-examined by the Stat~ Counsel, Dr. Udai Singh
opined that the injuries of Onkarnath could be caused by his fall
on ground having kankars and brick.bats.
He significantly added
that his injuries could also be 'made up' i.e. fabricated.
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SUPREME COURT REPORTS
[1975] 1 S.C.R.
Dr. K. P. Singh, DW 1, was the Medical Officer of Benaras Hindu
University wherein Chhabinath was employed.
He examined Chhabinath on May 18, 1965 at 9 p.m. and found four simple fresh
injuries on him. Injury 1, was located on the frontoparietal region.
It was a lacerated injury with irregular margins.
Its size as noted
in the medico-legal report was 3Xt". In the Bed-Head ticket, however,
the dimensions of this injury was noted as:
4"xt"><!".
Dr. K. P. Singh was unable to explain this discrepancy, because the
Bed-Head ticket was in the hand of Dr. Mehta.
All the injuries
were however, simple and excepting No. 2 could be caused with a .
blunt weapon.
Regarding injury, 2, he stated that it had no depth
and could be caused by a nail prick.
He signiiicantly opined that
this injury' could also be "made up". It is to be noted that thi~
Dcl~tor who examined the injuries at 9 p. m. found them "fresh".
That is to say, he found them fresh even three hours after the occur·
rence.
If the grappling incident was true, and we have no doubt that it
was so, then looking at the location and nature of the injmies and
the violent manner in which the appellants must have been thrcrwn
down, floored and thrashed against the ground, it appears to be probable that these injuries, mostly superficial were received by Onkarnath and Chhabinath in the course of that grappling or scuflle.
' The evidence qf ;this grappling ~ncident near the Darwaza of
Hanuman Prasad Singh, was given by Jagdish Narain (P. W. 1)
and Ram Asrey (Primus) (P. W. 7). The fatter Wai an indepen·
dent witness.
He had no axe to grind against the appellants.
He
emerged unshaken from a gruelling cross-examination.
The reason
given by Ram Asrey for his presence at the spot was that he was
returning after giving a message to Vijay Baltadur Singh
at
the.
latter's house that he shquld carry the meals of his brother to tlie
University Hospital.
Even
the learned trial judge held : "There is
nothing improbable in his evidence on the point and I believe 1t".
The High Court also found his evidence
reliable.
Even according
to the defence version given by these appellants and D.W. 4,
the
trouble started with an incident in front of the Darwaza of Hanuman
Prasad Singh.
In agreement with the High Cciurt,
therefore,
we
have no hesitation in accepting the prosecution story with regard to
the grappling incident near the Darwaza of Hanuman Prasad Singh.
Evidence with regard to the main occurrence which took place
some minutes after the grappling was given by P.Ws. Jagdish Narain,
Ram Asrev Primus, Vijav Bahadur Singh and Hari Ram
Pandey.
The sum and substance of their testimony was that Deep Narain anti
· Jagdish Narain while going back to their houses were surrounded
by all the appellants and Amar Nath near the Darwaza of Ramkishore Singh, and there· Onkarnath and Chhabinath
belabomed
them with a spear and a gandasa,
respectively,
which they
had
brought from their nearbv house after the scuflle.
P .Ws.
Vi jay
Bahadur Singh and Hari Ram Pandey stated that they were on their
way to their houses, when they saw the occurrence. Their evidence
was assailed before the trial Judge on the ground that the scene of the
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A
crime does not lie on the direct route to their houses.
The learned
;'
trial Judge repelled this contention in these terms :
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"I made local inspection at the request of the defence
vide my inspection note on the record.
On local inspection I find that the route which passes by the Darwaza of
Ram Kishore Singh was more convenient to Vijay Bahadur
Singh and Hari Ram Pandey to reach their respective houses
than the routes suggested by the defence."
On the basis of the evidence of P.Ws. Jagdish Narain, Vijay
Bahadur Singh, Ram Asrey (Primus) and Hari Ram Pandey, the
trial Judge found that "all the six accused were participants in the
marpit which took place at the Darwaza of Ramkishore Singh." He
however rejected the consistent and otherwise impeccable
evidence
of these eye-witnesses mainly on the ground that they had failed to
give an explanaticln of the injuries of Onkarnath, Chhabinath
and
Parasnath appellants.
We have already expressed that the explanation for the injuries
of Chhabinath and Onkarnath was apparent from the circumstance
that they were manhandled, floored and violently dealt, with by the
physically stronger Deep Narain and Jagdish Narain in the grappling.
It is only with regard to the grievous injury of Parasnath that it can
be said that there is no explicit
or
implicit explanation from the
side of the prosecution.
The question is, what is the effect of this non-explanation of the
injuries of Parasnath ? This is a question of fact and not one of law .
Answer tc1 such a question depends upon the circumstances of each
case.
This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do llOt explain the injuries cin
the person of
the
accused (see Bankey Lal v. State of U.P.) (supra)
and Bhagwan
Tana Patil v. State of Maharashtra Criminal Appeal 78 of 1970 decided on 9-10-73.
Such non-explanation, however, is a factor which is to be taken
into account in judging the veracity of the prosecution witnesses, and
the Court will scrutinise their · evidence
with
care.
Each
case
pres<;nts its own features.
In some cases, the failure of the prosecution to account for the injuries of the accused may undermine
its evidence to the core and falsify the substratum of its story, while
in others it may have little or no adverse effect on the prosecution
case.
It may also, in a given case, strengthen the plea of private
defence set up by the accused.
But it cannot be laid down as an
invariable proposition of law of universal application that as soon·
as it is found that the accused
had received
injuries in the same
transaction in which the complainant party was assaulted, the plea
of private defence would stand prima fade established
and
the
burden would shift on to the prosecution to prove that those injuries
were caused to the accused in self-defence by the complainant party.
For instance where two parties come armed with a determination to
90
SUPREME COURT REPORTS
(1975] l S.C.R.
(measure their strength and to settle a dispute by force of arms and
in the ensuing fight both sides receive injuries, no question of private
defence arises.
The observations of one of us (Beg J.) in Rishikesh Singh's case
(supra) on which Mr. Garg relies should not be torn out of the
context to deduce a cast-iron rule of law out of a matter which
is
essentially one of fact.
A reading of the whole opinion of Beg J.
in Rishi Kesh Singh's case will show that the real question under
consideration in that case was whether the evidence present in a
case which may support the existence of a right of private defence
must be excluded altogether from consideration where the accused
fails to establish his defence by a ''preponderence of probabilities",
or, it must be taken into account to determine whether the prosecution has established its case beyond reasonable doubt. It was held
there that
evidence as a whole must be considered,
whether
it
comes from the side of the prosecution or the defence, to determine
whether the inlfliction of injuries for which an accused is prosecuted
were either proved by a "balance of probabilities" to
have
been
inflicted in the course of exercise of a right of private defence, or,
even if the accused fails to do that, it is sufficient to
make
the
prosecution case doubtful on an ingredient of the offence.
It
is
only in one of these two possible situations that the accused could
get an 'acquittal. If circumstances which se•em to
support
the
plea of private defence are satisfactorily explained .away
by
the
prosecution on the evidence in the case, so as to be consistent with
the prosecution version, the case may still result in a conviction.
In
every case, !he question is rea!ly one of appraisal of total evidence
and its effect.
This was pointed out by Beg J. in Rishi Kesh Singh's
case (supra in para 1.11, p. 85) where two cases Emperqr v.
U.
Damapala(') and Thein v. The Kin1:r(') were referred to as illustrations of kinds of situations on facts in which the prosecution case
would become doubtful on an
ingredient
of
the
offence.
The
meaning of "reasonable doubt" and the manner in which the evidence has to be sifted were also indicated (para 112, p. 85
and
paras 128 to 130, p. 89-90). It was also pointed out that mere
removal of the obligatory presumption at the end of s. 105 of the
Evidence Act, by showing that some circumstances did
exist
to
sur-port a plea of private defence, may not be enough to secure an
ocquittal (para 161, pp. 97-98).
The view taken there was that
the obli_gatorv presumption at the end of s. 105
merely
imposes
a duty upon the accused of showing that certain circumstances exist
which remove this presumption. It was held there that, despi!e the
removal of this special presumption at the end of s. 105, Evidence
Act, by showing that some circumstances of th~
kin~ mentioned
there did exist in the case, the accused may fail to discharge
the
burden of proving his plea of private defence by balance of nrobab!-
lities.
Nevertheless, despite the failure of the accused to prove his
plea of private defence, the effect of the totality of the evidence may
(1) A.I.R. 1937 Rang. 83 (F.B.) (2) A.l.R. 1941 Rang. 1975.
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ONKARNATH v. U.P. STATE (~arkaria, !.)
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be to throw an ingredient of the offence in the region
of
doubt.
That ingredient, in a case in which private defence is set up so that
the commission of the injurious act is admitted even indirectly,
is
the required "mens rea".
This was also pointed out there (paras
143 to 148 at p. 93-94).
In other words, the result or tlie effect
of the total evidence is to be jndged by taking the whole
evidence
into account.
No single feature of the evidence will determine the
fate of the case.
Tn the instant case, the totality of the evidence on record neither
establishes even with reasonable possibility a right of private defence
in favour of the appellants nor throw a cloud of doubt on the prose>·
cution ease.
Parasnath Singh appellant had two injuries, one a scabbed abrasion oa the lower, outer part of the left forearm, and the
other
a swelling over the dorsem of left hand with a fracture underneath.
According to Dr. Udai Singh, P. W. 3, these injuries could be caused with a blunt weapon, including a lathi. But in cross-examination
by the State Counsel, the Doctor explained that an abrasiqn with
a lathi blow is possible only when the surface of the lathi is rough
and the blow is a light one and the lalhi slips away from the place
of its contact.
He added that when a lathi blow is delivered
and
there is a full impact thereon on the person hit, it will always result
in a contused wound or confusion. He also stated that injurv No. 1
appeared to have been caused by friction against hard substance.
The age of these in;iuries, in the Doctor's opinion, appeared to be
the same as those found on Jagdish Narain (P.W.).
Dr. Udai Singh's opinion could be relied upon to
hold
that
Parasnath appellant received these injuries near about the time
of
occurrence; but his ooinion was not definite and cogent enough
to
base a finding that these injuries were caused to the appellant with
a lathi or like weapon.
The version of Onkarnath was that J agdish
Narain and Deep Narain were armed with ga~dasa and lathi respectively and Parasnath had snatched the gandasa and wielded it
in self-defence.
This version was manifestly incredible.
There was
no cut-wound on any of the appellants. The very story of grappling
and the nature
of
the
injuries
received
by
Chhabinath and
Onkarnath were inconsistent with the defence suggestion that
the·
deceased and his companion v;ere armed with lethal weapons.
In our opinion, the presence of injuries
on
the
person
of
Parasnath, which could have been caused at or about the time of
occurrence, coupled with the failure of the prqi;ecution to explairr
those injuries, was on the facts of this case far from sufficient ta
establish even a reasonable possibility of the injuries to the deceased
and his companion having been caused in repelling an
attack
on
Parasnath.
The key to the problem is in the question : Where and precisely when were these injuries caused to Parasnath ?
Were they
92
SUPREME COURT REPORTS
[1975] l S.C.R.
<:aused in the grappling that took place in front of the Darwaza of
Hanuman Prasad Singh, or, subsequently in
the
course
of
the
occurrence near the Darwaza of Ram Kishore Singh ?
Parasnath Singh curiously enough, in his
examination
under
s. 342, Cr. P. C. did not allege how and where he
had
received
these injuries, although Q. No. 25 with referen.ce to the
medical
evidence was put to him. - Q. No. 13 specifically related to the
aS>ault on the deceased and Jagdish Narain by
Chhabinath
and
Onkarnath with a gandasa and spear, respectively, in front of the
Darwaza of Ram Kishore.
In reply, the
appellant
emphatically
denied his presence at the scene of occurrence.
Onkarnath's version was that Parasnath received the injuries in the marpit in front
of the Darwaza of Hanuman Prasad Singh.
According to Dr. Udit
Narain Singh (D.W. 4), these injuries on Parasnaih were inflicted
by the deceased following a quarrel in front of the
Darwaza
of
Hanuman Prasad Singh.
As already discussed,
the prosecution had established by cogent
and convincing evidence that, in fact, two incidents took place, one
was the grappling in front of the Darwaza of Hanuman Prasad Singh
and the other was the occurrence in which fatal injuries were caused
to the deceased near the Darwaza of Ram Kishore by the
appellants.
The distance between the Darwaza of Hanuman Prasad Singh
and Ram Kishore is about 70-80 paces i.e. 365 to 420 ft.
There
wus an interval of a few minutes between the grappling and the
fatal assault.
The two incidents were separated by time and distance.
There was no continuity of action.
Assuming that Parasnath received the injnries in or about that
grappling incident, then he could not be said to have received them
in the course of the same occurrence in which the
deceased
was
fatally assaulted.
After their disengagement, both the parties had
'Ptoceeded from the Darwaza of Hanuman Prasad
Singh
towards
their respective houses.
The houses of the appellants were in
the
viCinity, while those of the complainant party were farther away.
The complainant party had already retreated and gone away to a
distance of about 365 to 420 ft. when Chhabinath and Onkarnath
returned armed with deadly weapons from their nearby houses and
then pursued, overtook, surrounded and made a murderous assault
on the deceased and his brother.
In such a situation a right of
private defence never accrued
to them.
The question of exceeding
that right simply did not arise.
A right of private defence given by the Penal Code is essentially
one of defence or self-protection an,d not a right of reprisal
or
punishment.
It is subject to the restrictions indicated in s. 99, which
are as important as the right itself.
One of them is that the harm
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inflicted in self-defence must be no more than is legitimately necesH
sary for the purpose of defence.
Further, the right is co-terminus
with the commencement and existence of a rea_sonable apprehension
of danger to body from an attempt or a threat to commit the offence
{see s. 102). It avails only against a danger, real,
present
and
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ONKARNATH v. U.P. STATll (Sarkaria, I.)
93
i=inent. Such a dang,r did not exist here.
There was no reason·
able apprehension of harm, much less of grievous hurt or deatheven.