R.P. Vyas, J.@mdashThese appeals are directed against the judgment dated July 22, 2002, passed by the learned Additional Sessions Judge (Fast Track), Alwar, whereby she convicted and sentenced each of the accused, namely, Hamida and Khushila @ Kanna u/s 302, I.P.C., to life imprisonment with a fine of Rs. 5,000/- each, in default of payment of fine to further undergo one year''s rigorous imprisonment; accused Jaleb Khan, Islam @ Banda, Ibri @ Ibrahim, Haroon, Chhutta @ Gutta, Subhan Khan and Himmat u/s 302/149 IPC, to life imprisonment with a fine of Rs. 2000/- each, in default of payment of fine to further undergo six months'' rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ banda, Haroon Khushila @ Kanna Chhutta @ Gutta, Subhan Khan and Himmat u/s 148, IPC to one and a half year rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ Banda, Haroon Khushila @ Kanna, Chhutta @ Gutta, Subhan Khan and Himmat u/s 325/149 IPC to 2 years'' rigorous imprisonment with a fine of Rs. 1,000/- each in default of payment of fine to further under six months'' rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ Banda, Haroon, Khushila @ Kanna, Chhutta @ Gutta, Subhan Khan and Himmat u/s 323 IPC to six months'' rigorous imprisonment; and accused Hamida and Khushila 2 Kanna u/s 3/25 of the Arms Act to three years'' rigorous imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo one year''s rigorous imprisonment, all the sentences were directed to run concurrently.
2. Briefly stated, the prosecution case is that on March 2, 1997, one Sussan s/o Chhote Khan lodged a written report (Ex.P- 16) in the Police Station, Ramgarh, District-Alwar, stating, inter alia, therein that on the day of the occurrence, at about 10.30 a.m., Mishri S/o Chhote Khan, AH Khan, Ali Mohammed S/o. Sussan, Ilias S/o. Mishri, Kalli S/o. Gulla, Chhutta S/o. Salem, Mohammed S/o. Sussan, these all the people, while returning from the well of Chhuttan S/o. Salem, after filing up ''farma'' in the well, went to well No. 157 to pull out electric motor from the said well, which was lying there out of order for the last two years and is in the knowledge of the SHO himself, where Hamida, Chhutta S/o. Mohar Singh, Salamdeen, Khushila (Kanna), Jaleba, Banda S/o. Deenu, Ubri, Haru S/o. Suleman and Himmat, Shubhan S/o. Sendu, armed with guns, were sitting there by hiding themselves in the well. As soon as these people (the complainant party) reached there to pull out the electric motor, they (the accused party) started firing on them. Hamida, Chhutta S/o. Mohar Singh, Khushila, Jaleba S/o. Dinu fired on Mishri S/o. Chhote Khan and killed him on the spot. As soon as the firing started, the people ran helter-skelter. Then, Haru and Ubri S/o. Suleman fell down. Chhutta S/o. Suleman with lathies and gun. It was further stated in the written report that Subhan and Himmat S/o. Sedu fired at Kalli S/o. Gulla and fractured his legs with lathies and Farsis. Salamdeen S/o. Deenu fired at Ali Khan and, thereafter, gave a blow on his head with the butt of the gun. It was also stated in the written report that Chhutta S/o. Mohar Singh gave a Tanchia blow on the hand of Ali Mohammed S/o. Sussan and injured him. Banda S/o. Deennu fired a gun at Mohammed S/o. Sussan. Chhutta S/o. Mohar Singh gave a Tanchia blow on Ilias S/o. Mishri, which resulted into fracture of his hand. The said incident occurred at around 10.30 a.m. Or 11.00 a.m., which was witnessed by Pappu S/o. Nathu, Kuhla S/o. Gulla, Umardeen S/o. Sussan and they raised the hue and cry and tried to collect the villagers. On hearing their hue and cry, Sussan, Kalu and Rustam etc. came to the scene of the occurrence. Kallu and Rustam went to Ghaneta to inform the Police Station, Ramgarh telephonically. Hence, the SHO was requested to take necessary action in the matter. Lastly, the complainant stated that these people have indulged in the scuffle and committed the murder. In this plan, Aashu S/o. Bhijju and Ruddhar S/o. Sedu are included. These both the persons happen to visit them in the night and used to say that Mishri had to be done away.
3. On the basis of the aforesaid report, the Police registered FIR No. 38/97 under Sections 147, 148, 149, 323, 325, 307 and 302, IPC, and investigation commenced.
4. During the course of investigation, the Investigating Officer got conducted the post-mortem of the dead body of the deceased Mishri from the Doctor and prepared site plan vide Ex.P- 1, seized broken pieces of the butts of the gun vide Ex.P-3, seized Control soil and blood smeared soil vide Ex.P-4, live cartridge of a 12 bore gun and 12 bore cartridge cashes vide Ex.P-5. He also seized the blood stained clothes of the deceased Mishri Khan vide Ex.P.8, prepared inquest report of the dead body of Mishri Khan vide Ex.P-9, got the injured X-rayed and collected X-ray reports vide Exs.P12, P-13, P-14, P-15 & P-21 and injury reports vide Exs.P-18 and P-19 of Ali Khan, P-20 of Chuttan, P-22 of Ilyas, P-24 of Umar Mohd. And P-25 of Kalli. He sent the aforesaid seized and sealed articles to the Forensic Science Laboratory (FSL), Jaipur, for examination vide Exs. P-27 and P-28 respectively. He arrested the accused Hamida vide Ex.P-30, Ibrahim vide Ex.P-31, Jaleb Khan vide Ex.P-32, Islam @ Badda vide Ex.P-33, Harun vide Ex.P-34, and Khushila @ Kanna vide Ex.P-35. In consequence of the disclosure statements made by the accused u/s 27 of the Evidence Act, he recovered the alleged weapon-I single barrel gun, one 12 bore single barrel gun and pieces of butts of the broken gun. The reports of the SFL examination are Ex.P-41 and P-42 respectively. The IO also recorded the statements of the witnesses (Ex.D-1 to Ex.D-11) during the course of the investigation.
5. On completion of investigation, the Police filed challan against the accused appellants under Sections 147, 148, 149, 323, 325, 307 and 302, IPC, in the Court of the learned Additional Chief Judicial Magistrate No. 3. Alwar, who, in turn, committed the case for trial to the Court of the learned Sessions Judge, for trial. The learned Sessions Judge transferred the case to the Court of the Additional Sessions Judge No. 2, Alwar, for trial.
6. The learned Additional Sessions Judge No. 2, Alwar framed charges against the accused-appellants Jaleb Khan, Islam @ Banda, Ibri @ Ibrahim, Haroon and Salamuddin under Sections 147, 148, 302/149, 307/149, 325/149, 323, IPC and Sections 3/25 of the Arms Act; against accused Hamida under Sections 147, 148, 302, 307/149, 325/149, 323, IPC and Section 3/25 of the Arms. The accused denied the charges and claimed trial.
7. The learned Additional Sessions Judge No. 2, Alwar examined four witnesses. Thereafter, the case was transferred to the Court of the Special Judge, SC/ST (Prevention of Atrocities Cases), Alwar. The Police also filed a supplementary charge-sheet against the accused-appellants Chhutta @ Gutta, Subhan Khan and Himmat. Subsequently, the case was transferred to the Court of the Additional Sessions Judge (Fast Track), Alwar. The learned Additional Sessions Judge (Fast Track), Alwar framed charge against the three accused appellants, namely, Chhutta @ Gutta, Subhan Khan and Himmat under Sections 147, 148, 302/149, 307/149, 325/149, 323, IPC and Section 3/25 of the Arms Act. These accused also denied the charges and claimed trial.
8. The prosecution produced and examined as many as 23 witnesses (PW 1 to PW 23) and exhibited 43 documents (Ex.P-1 to Ex.P-43) in support of its case. In defence, the accused examined one witness DW 1 Dr. Dinesh Gupta and exhibited 23 documents (Ex.D-1 to Ex.D-23). Explanations of the accused were recorded u/s 313, Cr.P.C. They denied the allegations and stated that due to enmity, they have been falsely implicated in the case.
9. The learned Additional Sessions Judge (Fast Track), Alwar, after hearing the learned Public Prosecutor for the State and the learned counsel for the accused, and perusing & scanning the documents available on record, convicted and sentenced the accused-appellants vide her impugned judgment dated July 22, 2002, as mentioned above.
10. Being aggrieved by the aforesaid judgment dated July 22, 2002, the accused appellants have preferred the instant appeals.
11. It is contended by the learned counsel for the appellants that the learned Trial Court has not taken into consideration the statements of the prosecution witnesses in right perspective and the finding of the Trial Court is perverse to the facts and circumstances as well as the material available on record. It is also contended that there was a dispute with regard to a well situated in Khasra No. 157. The well was in the possession of the accused-party and an electric motor was also fitted there, for taking water from the well and that electric motor belongs to the accused-party. Since the members of the complainant-party wanted to take away the electric motor of the accused-party forcibly, therefore, the alleged incident took place.
12. In this regard, PW 6 Harish Bhatia, Patwari, has deposed in his statement recorded before the Court that there was no entry in the revenue record regarding any electric motor of the complainant-party fitted in the well and the complainant-party wanted to remove the electric motor in order to disrupt the water supply in the agriculture field of the accused-party. He also deposed that only one electric motor was fitted in the well.
13. Learned counsel for the appellants contended that the members of the accused-party also sustained injuries in the scuffle and the learned Trial Court, which convicting and sentencing the accused-appellants, has not taken into consideration that aspect of the matter in right perspective. Apart from that, the prosecution has also failed to explain as to who caused the injuries to the accused.
14. PW 22 Jeevan Singh has deposed that on 2.3.97, he was posted as SHO, Police Station, Ramgarh and he has conducted the investigation of the case of the accused as well as cross case No. 40/97 of the complainant-party. He has also prepared site plan of the cross-case vide Ex.P-1/A. It may be mentioned that during the investigation of both the cases, the SHO has stated that the dispute took place while pulling out electric motor from the well. There were 5-7 persons from the accused side and from the complainant side, there were 11-12 persons. The SHO has specifically stated that it came to his knowledge during the course of investigation that there was a free-fight between the complainant-party and the accused-party. The accused persons have defended themselves, while from the complainant side, Sussan etc. were more aggressor than accused. The Investigating Officer also found that the well in question was a joint one and two years ago it had dried and Jaleba has invested money on the well, whereas Sussan did not contribute the amount and was interested in taking water from the well in question without making any payment. Lastly, the Investigating Officer concluded that the complainant- party was aggressor.
15. Similarly, PW 23 B.R. Gwala, who was working as Additional Superintendent of Police (Rural), Alwar, on 27.3.97, has deposed that as per directions of the S.P., Alwar, he has taken the investigation in his hand and has conducted the investigation of case No. 38/97. During the course of investigation, he recorded the statements of Sussan, Fajjru @ Fajjar, Sher Singh, Smt. Santosh, Aashu, and Dayaram S/o. Prabhudayal. In the cross-examination, he has stated that there was a free-fight between the complainant-party and the accused-party and both the parties were armed with weapons.
16. It may mentioned that accused Islam, Ibra, Hamida and Gutta have also received injuries in the scuffle, as is evident from the injury reports Ex.D-12 to Ex.D-16. Accused Chhutta @ Gutta was advised for X-ray. His X-ray report is Ex.D-17. So, it is evident that there was free-fight from both the sides.
17. It is vehemently argued by the learned counsel for the appellants that, at the most, the case of the accused Hamid and Khushila @ Kanna falls within the purview of Section 304, Part- II, IPC, instead of Section 302, IPC. It is, therefore, contended that they may be released on the period already undergone by them during the course of confinement.
18. In support of his contentions, learned counsel for the appellants has referred to the case of
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lieing on a most material point and therefore their evidence is unreliable; and
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution.
19. It is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution case.
20. On the other hand, learned Public Prosecutor has supported the judgment of the learned Trial Court dated July 22, 2002 and contended that it is not a case of free-fight and the learned Trial Court has carefully scanned all the materials available on record and after taking into consideration all the facts and circumstances of the case, has passed the impugned judgment convicting and sentencing the accused appellants as mentioned above.
21. We have heard learned counsel for both the parties at length and scanned the material carefully available on record.
22. It is an admitted position that the well in dispute was in possession of the accused-party and the electric motor also belongs to them, as is evident from the statement of PW 6 Harish Bhatia-the Halka Patwari. He has stated that there was no entry in the revenue record regarding the electric motor of the complainant-party. Apart from that, the well belongs to the accused party. It is also an admitted position that the complainant-party was aggressor in this case, as is evident from the statement of PW 23 B.R. Gwala, Additional Superintendent of Police (Rural), Alwar and PW 22 Jeewan Singh-the Investigating Officer, who conducted the investigation. Since the complainant- party was aggressor, the accused-party has a right of private defence. Not only this, even the members of the accused party have also submitted injuries and the prosecution has failed to explain those injuries.
23. It may be mentioned that while appreciating the evidence in a criminal case, the Court should keep in view the two cardinal principles that the guilt against the accused must be proved beyond the reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by them as it lays on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of the probability.
24. It is well settled principle that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and it shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.
25. The Trial Court has ignored the significance of the injuries found on the appellants. Therefore the version of the appellants that they also sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances, the prosecution had a duty to explain those injuries. The failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Thus, it leads to the irresistible conclusion that the accused had inflicted the injuries on the members of the complainant-party in exercise of the right of private defence.
26. In the instant case, when the appellants have also received injuries and the prosecution has not explained those injuries, then the prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
27. The Court can consider the plea of private defence even if the accused have not taken the said plea. The onus of proof to establish the right of private defence is not as onerous as that of the prosecution to prove its case and where the facts and circumstances lead to preponderance of probabilities in favour of the defence case, it would be enough to discharge the burden to prove the case of self-defence.
28. Thus, in the light of the evidence available on the record as well as the circumstances and preponderance of probabilities as emanating from the record and surrounding circumstances, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt and the accused have inflicted injuries in exercise of their right of private defence and property.
29. For these reasons, we dispose of the instant appeals in the following terms :-
(i) We allow the appeal of Jaleb Khan, Ibri @ Ibrahim, Islam @ Banda, Haroona, Chhutta @ Gutta, Subhan Khan and Himmat and set aside the conviction and sentence awarded to them. We acquit them of the charges u/s 148, 302/149, 325/149 and 323, IPC. All these appellants are on bail, they need not surrender and their bail bonds stand discharged.
(ii) We partly allow the appeal of appellants Hamida and Khushila @ Kanna and instead of Section 302, IPC, we convict them u/s 304 Part II, IPC and sentence them to the period already undergone by them in confinement. Their conviction and sentence under Sections 148, 325/149, 323 IPC and Section 3/25 of the Arms Act are, however, maintained. Since the appellants Hamida and Khushila @ Kanna have already suffered the sentence awarded to them, they shall be released forthwith, if not required to be detained in any other case.
(iii) The impugned judgment of the learned trial Judge stands modified as indicated above.
