# VIJA YEE SINGH AND ORS v. STATE OF UTTAR PRADESH _ _c - **Citation:** [1990] 2 S.C.R. 573 - **Court:** Supreme Court of India - **Decided:** 1990-04-20 - **Case number:** Criminal Appeals Nos. 375-377 of 1987 - **Bench:** S. Ratnavel Pandian, M. Fathima Beevi, B K. Jayachandra Reddy - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vija-yee-singh-and-ors-v-state-of-uttar-pradesh-c-10726 - **Pages:** 36 ## Headnote • Tndian Evidence Act: Section 105-'Burden of proof-What is r 'fact'-When proved-When 'disproved'-Presumption court is entitled to draw-What is. -'t' c 14 accused were tried for offences under section 148 and 302 read with Section 149 of I.P.C. for the murder of two pe..SOns named Mahendra Singh and Virendra Singh and injuries to 3 others named __.,,,, Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2and Kailash Singh. Accused No. 6 Chirkut Singh was further tried under Section 307 l.P.C. for attempting to murder P.W. 1 and all the remaining D accused under section 307 read with Section 149 I.P.C. for causing ' injuries to Uma Shankar and Kailash Singh. The trial court relying on the evidence of P. Ws 1 and 2 who were the main eye witnesses con· victed all the 14 accused under section 302 I.P.C. read with Section 149 I.P.C. and awarded them life imprisonment. The convicted accused -A preferred appeals to the High Court and the State filed appeals for E enhancement of their sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Aggarwal heard the appeals. While Justice Katju allowed the appeals by the accused and dismissed the State appeals, Justice Aggarwal disagreeing with him, dismissed all ~ the appeals, both by the accused and by the State. Consequently the >-- matter was referred to a third judge. Justice Seth who confirmed the F conviction and sentence awarded to accused Nos. 1, 3, 4 and 6 only and )- acquitted all the rest of the aecused on the view taken by him that the specific overt acts were attributable to only tJtese four accused and the rest should be given the benefit.of doubt. Criminal Appeals Nos. 375-377 of 1987 by special leave were preG ' ferred by the convicted accused Nos. 1, 3; 4 and 6 and Criminal Appeals Nos. 372-374 of 1987 preferred by the State against the acquittal of I other accused. Accepting the plea of the accused to the right of self- -,>..__ defence but holding that they bad defmitely exceeded this right when they went to the extent of intentionally shooting the deceased to death and therefore the offence COillillitted was one punishable under section H ,·- 573 574 SUPREME COURT REPORTS I 1990] 2 S.C.R. A 304 Part I I.P.C. and not under Section 302 read with Seeton 149 I.P.C Accordingly in partly allowing the Appeals fded by the convicted accused and dismissing the State appeals, this Court, HELD: A fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist or considers its B existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. l596G-H] A fact ts said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances. of the particular case, to act upon the supposition that it C does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved". l596H; 597AJ The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in o respect of assessing the evidence in criminal cases. [60IE] Section I 05 places "burden of proof" on the accused in the first part and in the second part there is a presumption which the Court can draw regarding the absence of the circumstances, which presumption is always rebuttable. Taking the section as a whole the "burden of proof'' ,.\-_ E and the presumption have to be considered together. It is exiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecutio'l.,!'ase or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecu- -"'\ ## Text _Characters 0–39,985 of 92,040. This is a partial read: ask again with offset=39985 for what follows._ VIJA YEE SINGH AND ORS. A v. STATE OF UTTAR PRADESH _ _c.--- APRIL 20, 1990 [S. RATNAVEL PANDIAN, M. FATHIMA BEEVI AND B K. JAYACHANDRA REDDY, JJ.] • Tndian Evidence Act: Section 105-'Burden of proof-What is r 'fact'-When proved-When 'disproved'-Presumption court is entitled to draw-What is. -'t' c 14 accused were tried for offences under section 148 and 302 read with Section 149 of I.P.C. for the murder of two pe..SOns named Mahendra Singh and Virendra Singh and injuries to 3 others named __.,,,, Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2and Kailash Singh. Accused No. 6 Chirkut Singh was further tried under Section 307 l.P.C. for attempting to murder P.W. 1 and all the remaining D accused under section 307 read with Section 149 I.P.C. for causing ' injuries to Uma Shankar and Kailash Singh. The trial court relying on the evidence of P. Ws 1 and 2 who were the main eye witnesses con· victed all the 14 accused under section 302 I.P.C. read with Section 149 I.P.C. and awarded them life imprisonment. The convicted accused -A preferred appeals to the High Court and the State filed appeals for E enhancement of their sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Aggarwal heard the appeals. While Justice Katju allowed the appeals by the accused and dismissed the State appeals, Justice Aggarwal disagreeing with him, dismissed all ~ the appeals, both by the accused and by the State. Consequently the >-- matter was referred to a third judge. Justice Seth who confirmed the F conviction and sentence awarded to accused Nos. 1, 3, 4 and 6 only and )- acquitted all the rest of the aecused on the view taken by him that the specific overt acts were attributable to only tJtese four accused and the rest should be given the benefit.of doubt. Criminal Appeals Nos. 375-377 of 1987 by special leave were preG ' ferred by the convicted accused Nos. 1, 3; 4 and 6 and Criminal Appeals Nos. 372-374 of 1987 preferred by the State against the acquittal of I other accused. Accepting the plea of the accused to the right of self- -,>..__ defence but holding that they bad defmitely exceeded this right when they went to the extent of intentionally shooting the deceased to death and therefore the offence COillillitted was one punishable under section H ,·- 573 574 SUPREME COURT REPORTS I 1990] 2 S.C.R. A 304 Part I I.P.C. and not under Section 302 read with Seeton 149 I.P.C Accordingly in partly allowing the Appeals fded by the convicted accused and dismissing the State appeals, this Court, HELD: A fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist or considers its B existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. l596G-H] A fact ts said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances. of the particular case, to act upon the supposition that it C does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved". l596H; 597AJ The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in o respect of assessing the evidence in criminal cases. [60IE] Section I 05 places "burden of proof" on the accused in the first part and in the second part there is a presumption which the Court can draw regarding the absence of the circumstances, which presumption is always rebuttable. Taking the section as a whole the "burden of proof'' ,.\-_ E and the presumption have to be considered together. It is exiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecutio'l.,!'ase or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecu- -"'\ F lion failed to prove its own case beyond reasonable doubt. [60IF-G] G The initial obligatory presumption regarding circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record, gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adduqing evidence or otherwise creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. [60IH; 602A] The presumption regarding the absence of existence of circumstH ances regarding the exception can be rebutted by the accused by intro- -{. VUAYEE SINGH v. STATE OF U.P. 575 ducing evidence. If from such a rebuttal, a reasonable doubt arises A regarding his guilt, the accused should get the benefit of the same. Such · --- a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evideuce, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a B reasonable doubt which arises from the legal and factual considerations 'y even under Section 105 of the Evidence Act should necessarily go to the accused. [602C-E] --Y Section 3 is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of fact, in other words, "believes it to exist" and secondly in which though he may not c feel absolutly certain of a fact, he thinks it so extremely probable that a ¥ prudent man would under the circumstances act on the assumption of Its existence. [602G-H; 603A] - The Evidence Act while adopting the requirement of the prudent D man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be --1said to be proved. [6030] E The general burden of establishing the guilt of accused is always on the prosecution and it never shills. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of ~ discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the proba- >---- bilities and circumstances obtaining in the case. [606F-G] F >-- In the instant case, as per the evidence of the material witnesses, the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath. Even in the plea set up by accused No. 6 it is not stated specifically that deceased Nos. l and 2 were armed with any deadly weapons. Therefore, the assailants had definitely exceeded the G ... right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries. Therefore, the offI ence committed by them would be one punishable under Section 304 -:;...... Part I I.P.C. The conviction of accused No. 1, 3, 4 and 6 under Section 302 read with Section 149 I.P.C. and the sentence of rigorous imprison- .- ment for life awarded thereunder is set aside and instead they are H 576 SUPREME COURT REPORTS (1990] 2 S.C.R. convicted under SectiOJI 304 Part I read with Section 34 I.P.C. and each A of them sentenced to undergo rigorous imprisonment for IO years. Their other convictions/sentences are confirmed the sentences to run concurrently. l608C-E] Mohar Rai & Bharath Rai v. The State of Bihar, (1968] 3 S.C.R. B 525; Lakshmi Singh & Ors. v. State of Bihar, ]19761 4 SCC 394; Pratap v. State of Uttar Pradesh, AIR 1976 S.C. 966; Woo/mington v. The Director of Public Prosecutions, (1935] Appeal Cases 462; Emperor v. U. Damapala, AIR 1937 RangGon 83; Parbhoo & Ors. v. Emperor, AIR 1941 Allahabad 402; K.M. Nanavati v. State of Maharashtra, (1962] Suppl. 1 SCR 567; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 S.C. 1563; Rishi Kesh Singh & C Ors. v. The State, AIR 1970 Allahabad 51; Bhikari v. State of Uttar Pradesh, AIR 1966 S.C. I; Behram Khurshed Pesikaka v. The State of Bombay, (1955] 1 SCR 613; Government of Bombay v. Sakur, AIR 1947 Bombay 38; State of Uttar Pradesh v. Ram Swarup, AIR 1974 S.C. 1570; Mohd. Ramzani v. State of Delhi, AIR 1980 S.C. 1341; State v. D Bhima Devraj, AIR 1956 Sau. 77; Miller v. Minister of Pensions, (1947] 2 All ER 373; C.S.D. Swami v. The State, AIR 1960 S.C. 7; V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 S.C. 1762; Harbhajan Singh v. State of Punjab, AIR 1966 S.C. 97; Amjad Khan v. The State, (1952] S.C.R. 567 and Puran Singh & Ors. v. State of Punjab, AIR 1975 S.C. 1674, referred to CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 375-77 of 1987. From the Judgment and Order dated 22.10.1984 in the Allahabad High Court in Cr!. A. Nos. 1925, 1808 of 1981 and Government p Appeal No. 2599 of 1981. G R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli, Sbivpujan Singh, Manoj Prashad, Dalveer Bhandari, T. Sridharan (N.P.) and B.S. Chauhan for the appearing parties. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. On 29.5.1981 at about 8 A.M. -----· - ··--"' a grave rioting took place in the village of Tirro in Varanasi District. In -"' - the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain H Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh VIJAYEE SINGH v. STATE OF U.P. [REDDY, J.] 577 received injuries. In respect of these offences 14 accused were tried A under Sections 148 and 302 read with Sec. 149 I.P.C. Chirkut Singh, ~- Accused No. 6 was tried for offence punishable under Section 307 I.P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307 read with Sec. 149 I.P.C. for causing in juries to U ma Shankar Singh, P. W. 2 and Kail ash Singh. It is alleged that the rraterial prosecution witnesses, deceased persons and the B accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also T pending in the courts. On the day of occurrence at 8 A.M. P.W. 1 went to his pumping set. P.W. 2 Uma Shankar Singh and his relation -f Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 were proceeding alongwith the rasta towards the pumping set for takc ing bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 LaUan Singh exhorted the other ·~ accused who were all lying .in wait to kill them. All the 14. accused emerged out of the Khandar. Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis. They D advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile Accused No. 4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other ~·· . accused carrying lathis advanced towards P. W. 1 who ducked and E escaped unhurt. Then the lathis-wielding accused assaulted P.W. 1 Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kail.ash Singh. P. W. 1 managed to escape and ran away. ~. The trial court relying on the evidence of P. Ws. 1 and 2, who are ~-- the main eye witnesses, convicted all the 14 accused of the offences. for F ' which they were charged and the substantial sentence awarded is Iimprisonment for life under Section 302 I.P.C. read with Section 149 I.P .C. The convicted accused preferred appeals. The State also filed appeal for .enhancement of the sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals. Justice Katju allowed the appeals filed by the G accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dismissed all the appeals concurring with I the trial court. The matter came up before a third Judge Seth, J. He ~:;>.._~ took the view that only such of those accused to whom specific overt acts were attributed could be covicted and the other should be given benefit of doubt. In. that yiew of the matter he confirmed the convicH 1. 578 SUPREME COURT REPORTS [1990] 2 S.C.R. tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the A accused. Accused Nos. 1, 3, 4 and 6 applied for special leave which was granted by this Court and their appeals are numbered as Criminal Appeal Nos. 375-77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos. 372-74/87. B -------- It is contended on behalf of the State that the occurrenc;; ha;; taken place in broad-day light and merely because the witnesses are ·}· interested their evidence cannot be rejected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted. On the other hand, the counsel ,- appearing for the accused submitted that witnesses who were partisans C and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated. It is also their "- further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed D in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that nnder these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted. E F Before we consider these rival contentions some of the facts which are not indispute may be noted. There was a longstanding rivalary between the two groups. The time and place of occurrence are not in controversy. That the two deceased persons died of gun-shots injuries also is not in dispute. P.Ws. 1 and 2 also received injuries during the course of this occurrence. The prosecution in support of its case examined P .Ws 1 to 11. P. W. 7 the Doctor examined P.W. 2 at about 11.40 A.M. on the same day and·found 10 in juries. All of them were contusions and he opined that they might have been caused by a blunt object like lathi. On the same day, he examined P.W. 1 and on his person he found four contuG sions which could have been caused by Lathis. The Doctor also examined Kailash Singh, who was not examined as a witness. and found two contusions. P.W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun-shots ~~ - wounds on the cranial cavity. Injury No. 1 is an entry wound and injury No. 2 is an exist wound. Then he conducted the autopsy on the H dead body of deceased No. 1. He found two injuries, the first one is on VIJAYEE SINGH v. ,STATE OF U.P. (REDDY, J.] 579 the left nipple which is an entry wound and injury No. 2 is on the left palm. On internal examination he found a bullet embedded and the same was recovered. P. W. 5 is the Investigating Officer. After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead-bodies and recorded the statement of the witnesses. He also found two live cartridges one of 16 bore and another of 12 bore. P.W. 3 is another eye-witness. He deposed that Accused Nos. 1, 3, 4 and 6 were armed with-guns and the other were armed with lathis. Accused No. 1 fired at the deceased No. 1 and Accused No. 3 also fired at him as a result of which he fell down and when deceased No. 2 tried to move, Accused No. 4 shot at him and deceased No. 2 also fell down. When P.Ws 1, 2 and Kailash Singh rushed towards the place, accused No. 6 fired at P.W. 1 but he escaped. Then the lathi-wielding persons beat P .Ws 1 and 2 and Kailash Singh. To the same effect is the evidence of P .Ws 1and2 also. Under Section 313 Cr.P.C. all the circumst.ances appearing against the accused were put to them. They in general denied the offence. However, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their presence at the scene of occurrence. Accused No. 6 in particular stated that P.W. 1 and others armed with guns, spears and lathis tried to' do fishing in the pond in which accused No. 6 had a share. Accused No. 6 and others went to the pond for fishing. P. W. 1 and other challenged and they chased accused No. 6 and others and accused No. 13 was shot at by P.W. 1 and others and he and accused No. 14 were beaten with la this and in defence he fired two gun shots hitting deceased Nos. 1 and 2. He then went to the police station and lodged a report and deposited his gun and that P.W. 1 h.as falsely implicated him. As regards this report which is purported to have been given by accused No. 6, P.W. 5 the Investigating Officer was questioned. He admitted that when he returned to the Police Station on 30th May, 1980 he came to know that accused No. 6 has surrendered his gun. He also admitted in the crossexamination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken. Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them. The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No. 13. It may be noted that the same has not been explained by the prosecution. P. W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skindeep 12" x 2" lacerated wound on the left thigh and a wound certificate was issued. He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was referA B c D E F G H 580 SUPREME COURT REPORTS [ 1990] 2 S.C.R. red to the radiologist. P. W. 7, however, stated that he has not seen the A report of the radiologist. The defence examined Dr. S.K. Singh as D.W. 1. He deposed that he took the X-ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit. He further deposed that the shadows in the X-ray go to show that there were 10 radio opaque round shadows and these shadows B may very well correspond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone. His examination further showed that the pallets remained embedded in the thigh. c D E F 0 H Before the trial court as well as before the High Court, firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore, their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused acted in right of self-defence. Relying on the presence of gun-shots injuries on accused No. 13 it was strongly contended that the prosecution party have also used fire-arms and, therefore, the accused were entitled to the right of private defence. The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not su(fer from any serious infirmity. So far as the plea ofself-defence is concerned, the trial court held that the plea taken by accused No. 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on. As regards the presence of injuries on the accused persons, learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos. 13 and 14 took the view that they are simple and that it is not proved that these injuries were received during the occurrence. Regarding the presence of the alleged gun-shots injuries on accused No. 13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time ·when this incident took place. In the appeal before the High Court, Justice Katju took the view that the theory that the injuries on accused Nos. 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No. 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No. 2 was fired by a 16-Bore gun and that as admitted by the Investigating Officer, P.W. 5, it was accused No. 6 only in that area who had a licence for 16-Bore gun which was deposited by him in the police station after the occurrence. Coming to the injuries found on accused Nos. 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye-witnesses have not furnished any explanation regarding those in.juries and that these -·~ VIJAYEE SINGH v. STATE OF U.P.'[REDDY, J.l 581 witnesses have falsely implicated some of the accused due to enmity A and, therefore, their evidence cannot be relied upon and accordingly ~- ordered total acquittal. As already mentioned Justice Agrawal, on the other hand, agreed with the trial court completely. Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed. Dealing with the plea of self B defence Justice Seth held that lacerated injury on accused No. 14 was a , simple one and he could have received that even subsequent to the -f ' occurrence. With regard to the gun-shots injuries found on accused No. 13 Mahendra Kahar, the learned Judge himself examined accused ~ No. 13 who was present in the Court when the appeal was being heard ~ and found that hard substance were palpable underneath the flesh c round about the location of his injury. In the circumstances it',does. appear that fire-arm shots to exist underneath the location of injury ~- found on the person of accused Mahendra Kahar. But he ultimately held that in all probability the pallets found in the leg of accused No. 13 Mahendra Kahar must have been there long before the incident, as · in the view of the learned Judge it was doubtful that those pallets could D have entered the body through the external injuries which are described as tiny abrasions. Seth, J. accordingly rejected the plea of selfdefence. -.,;. Before we advert to the above contentions it becomes necessary to consider whether the accused No. 13 Mahendra Kahar and accused E No. 14 Sant Singh received the injuries during the course of occurrence. P.W. 7 the Doctor examined accused No. 13 Mahendra Kahar on 30.5.1980 at about 6 A.M. and he found the following injuries. - 1. Five tiny abrasions in the area of 4cm x 4cm on outer surface -- of right thigh just above knee joint. / F ~ 2. The injured complained of pain in the right thumb and left ' forearm. In respect of injuty No. l..the Doctor advised X-ray with a view to ascertain whether or not there were pallets; and pending the same G he reserved his opinion. P.W. 7 also opined that injuries appeared to -~~ have been caused within 24 hours preceding the medical examination which correspond to the time of occurrence, namely, 8 A.M. on 29.5.1980. P.W. 7, however, stated that the X-ray report was not Shown to him. The evidence of P. W. 7 makes it clear that accused No. 1:.'I Mahendra Kahar r.<;_ceived these injuries dllri?g the course of the H 582 SUPREME COURT REPORTS (1990] 2 S.C.R. A occurrence. D.W. 1 is the Doctor who took the X-ray. He deposed that on 5.6.80 he took the X-ray of the right thigh of the undertrial prisoner Mahendra Kahar accused No. 13 and the same is marked as ·~- Ex-Kha-12. On the basis of the X-ray plate he opined that he noticed 10 radio opaque round shadows in the injured and they correspond to the pallets fired by some fire-arm. Justice Seth considered the eviB dence of these two Doctors. He also examined the accused in the Court and he found that hard substance were palpable underneath the flesh. As already mentioned he was of the view that these appeared to ·--y. be pallets but according to him they must have been there long before the incident. The learned Judge took this view because he was doubtful that those pallets could have entered the body through the external ~ c in juries which are described as tiny abrasions. Having given our care- ~ ful consideration we are unable to agree with the view taken by Seth, J. P.W. 7 the Doctor's evidence makes it clear that the external injuries were caused during this occurrence only and underneath the -:~ same these pallets were found by the radiologist D.W. 1. The injuries , are not self-inflicted. Therefore, there is no basis whatsoever to pre· D sume that the pallets under the flesh must have been there already even before this occurrence took place. As a matter of fact accused No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there was an injury. P.W. 7 having examined him found that there were 10 'radio opaque round shadows underneath the injury and it was only for that reason he referred the injured to the radiologist and D.W. 1 the v E radiologist after taking the X-ray concluded that underneath the injury pallets discharged from a fire-arm were embedded in the flesh. Therefore, the only view that is possible is that accused No. 13 Mahendra Kahar received gun-shot injuries during the course of this occurrence only. P.W. 7 also examined accused No. 14 Sant Singh on the same day. He found a skin-deep 12' x2' lacerated wound vertically inflicted ~ F on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain. The Doctor pointed out -'._' that the injury was simple and could have been cau_sed by blunt weapon like a lathi. The injury was also stitched. It is suggested by the prosecution that this could have been a self-intlicted one but again there is no basis for such presumption. The Investigating Officer said G that on finding the injury on him he was sent for medical examination. As a matter of fact accused No. 6 in his statement under Section 313 stated that accused Nos. 13 and 14 received injuries and he also' went ' to the police station and lodged a report to that effect. It, therfore, .,_,L - emerges that accused No. 13 received gun-shot injuries and accused No. 14 received lacerated injury during the course of the same occurH rence and these in1uries must have been caused by some member VUAYEE SINGH v. STATE OF U.P. [REDDY, J.] 583 belonging to the prosecution party. A ~- Now the question is whether the prosecution has explained these in juries and if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should B automatically be rejected, without any fur~her probe. He placed considerable reliance on some of the judgments of this Court. In Mohar ~ Rai & Bharath Rai v. The State of Bihar, [1968] 3 SCR 525, it is observed: .,.-- "Therefore the version of the appellants that they sustained - injuries at the time of the occurrence is highly probabilised. c Under these circumstances the prosecution had a duty to ·--.(' explain those injuries. The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him it was most unlikely that they would have been caused at the D instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecution to offer any explanation in that regard shows ~ that evidence of the prosecution witnesses relating to the E incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." - In another important case Lakshmi Singh and Ors. v. State of Bihar, [ 1976] 4 SCC 394, after referring to the ratio laid down in Mohar Rai's ,....... case, this Court observed: F -c "Where the prosecution fails to explain the injuries on the .,>- accused, two results follow: ( !) that the evidence of the prosecution witnesses is untrue; and that the injuries probabilise the plea taken by G the appellants. I It was further observed that: -. .:.... .. "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurH , A B c D 584