Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 12.05.1982 passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 166 of 1980 (State v. Prem Singh and others), arising out of Case Crime No. 27 of 1979, under Sections 304/34, 323/34 I.P.C., Police Station Kheragarh, District Agra, whereby the accused-appellant has been convicted and sentenced to five years'' rigorous imprisonment under section 304 part II read with Section 34 I.P.C.; three months rigorous imprisonment under section 323 read with Section 34 I.P.C.
2. Filtering out the unnecessary details the prosecution case in brief is that the informant Ram Singh has lodged a report on 05.02.1979 at Police Station Kheragarh, District Agra stating that his nephew Mohar Singh was going to his college at 09:30 A.M. to pursue his studies. As soon as he reached near the field of Khubi, suddenly, Prem Singh assaulted him with the lathi who came out of the field of Khubi. When he raised alarm, Nek Ram reached the place of incident who was also assaulted by Prem Singh, Mangal Singh and Bhikam Singh by means of lathi. The informant Ram Singh and Mehtab Singh has raised alarm on which Viram Singh, Hakim and other villagers came on the spot who saved everybody. Nek Ram has sustained many injuries on his head who was taken to Agra District Hospital. Thereafter, the report was lodged.
3. On the basis of this report Head Constable Sonpal Singh PW-6 who scribed the chik report and proved it as Exhibit Ka-5. He further proved the copy of G.D. as Exhibit Ka-6. Investigation was conducted by PW-9 S.I. R.C. Singh, who inspected the spot, prepared the site plan which was proved as Exhibit Ka-7 and submitted charge sheet which was proved as Exhibit Ka-9. Dr. N. B. Saxena is PW-1, who has examined the injured Nek Ram on 05.02.1979 at 08:35 P.M. and found the following injuries on his body:-
(i) Lacerated wound �" X 2/10" X skull deep on the right collar bone inner end 1" away from the mid line.
(ii) Contusion 2" X 1� " around the right eye.
(iii) Contusion 2" X 1" on the left lower eye lid.
(iv) Scabbed abrasion 1" X 1� " on the right side of the face 1" away from the nose.
(v) Traumatic wound on the right side of the face and skull 8" X 6" extremely from the right temporal upto upper part of the right side neck.
(vi) Scabbed abrasion � " X 1/10" at back of the right fore arm upper part.
4. Injury no. (iv) was kept under observation and Xray skull was advised. Injuries (iv) to (vi) were caused by friction rest by blunt weapon. This witness has proved the injury report as Exhibit Ka-1.
5. PW-2 is Dr. J.K Agrawal, who has examined the injured Mohar Singh on 05.02.1979 at 08:10 P.M. and found the following injuries on his body:-
(i) Lacerated wound 2� " X �" X scalp on the top of head left side 3" above left eye brow and 5" above left ear.
(ii) Abraded contusion with swelling 1" X �" on the right side fore head just above the outer part of eye brow.
(iii) Scabbed abrasion 3" X 2/10" on the back of the left fore arm middle.
(iv) Contusion 4" X � " on the left side back lower part just above back portion.
6. All the injuries were simple in nature. This witness has proved the injury report as Exhibit Ka-2.
7. PW-3 is Ram Singh, who is the informant and also an eye witness who proved the first information report as Exhibit Ka-3. PW-4 is Dr. M. K. Rawat, who conducted the post-mortem of the body of the deceased (Nek Ram) and found the following antemortem injuries :-
(i) Stitched wound 4� " size with drainage tube on right side head 3" above right ear.
(ii) Stitched wound 3" size with drainage tube on left side head 1" above left ear.
(iii) Scabbed abrasion 1� " X �" over the right cheek.
8. The bones of the right middle cranial fossa were found fractured. The death was due to comma as a result of skull injury. This witness has proved the postmortem report as Exhibit Ka-4. PW-5 is Mohar Singh, who is also an injured witness. The evidence of PW-6 Sonpal Singh has earlier been discussed. PW-7 is Viram Singh, who is said to be the witness of the incident. PW-8 is Mahtab Singh, who is also said to be a witness of the incident. PW-9 is S.I. R.C. Singh, whose evidence has already been discussed. The formal proof of the police information, the photo of dead body, Information letter sent to the C.M.O. and the inquest report was dispensed with hence they were marked as Exhibits Ka- 12, Ka-13, Ka-14 and Ka-15 respectively.
9. After the close of the prosecution evidence, the statements of the accused was recorded under section 313 Cr.P.C., in which they denied the occurrence and has stated that Mohar Singh was dismantling the sugarcane fields of the accused Prem Singh. When he was asked not to do so, Nek Ram, Mohar Singh, Prakash, Hakim and Ram Singh came armed with hockey and danda to his fields and assaulted Prem Singh and his companions. This accused also had a lathi. He used his lathi for the self-defence. His wife also sustained the injuries on the head. Accused Bhikam Singh while denying the occurrence has stated that he has been falsely implicated. The accused Mangal Singh has also stated that he had been falsely implicated in this case. The accused have produced DW-1 Dr. N.B. Saxena who examined the accused Prem Singh on 06.02.1979 at 06:00 A.M. and found the following injuries on his person:-
(i) Lacerated wound �" X �" scalp deep on the left side of forehead 1�" above the eye brow with traumatic swelling 2" X 1� ".
(ii) Contusion 1�" X 1" X �" on the top of the right shoulder.
(iii) Scabbed abrasion on �" X 2/10" on the front of the left shoulder with traumatic swelling 2" X 1� ".
(iv) Two scabbed abrasions 2/10" X 2/10" each 2" apart from each other left forearm lower part.
(v) Traumatic swelling 3" X 2" on the front of the left side lower part.
10. Injury no. (i) was kept under observation and advised X-ray. DW-2 is Lakhan Singh, who is said to be an eye witness to the incident.
11. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
12. Feeling aggrieved, the accused has come up in appeal.
13. Heard Kapil Rathore, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
14. Learned counsel for the appellants while assailing the impugned judgment of the trial court has argued on the following points:-
(1) The first information report is delayed.
(2) There was no motive for the appellant to commit the offence.
(3) The witnesses examined by the prosecution are related and interested witnesses.
(4) The injuries on the person of the accused have not been explained by the prosecution.
(5) The accused has the right to private defence which was exercised by him.
(6) The investigation is defective and there may be shortcomings in the investigation.
(1) The first information report is delayed:-
The first information report is the backbone of the criminal case. No doubt, the first information report is not an encyclopedia of the prosecution case but if all the requisite details are present in the first information report then it would be sufficient. In the present case, the first information report is very cryptic and short. It contains the details of the presence of assault, the weapons used, the presence of accused, the date, the time and place of assault, although motive is wanting in the first information report.
Counsel for the appellant has contended that the offence took place on 05.02.1979, at 09:30 A.M., whereas, the report was lodged on the same day at 05:00 P.M. the police station being 14 Km. away from the place of occurrence, thus, there is inordinate delay in lodging the first information report which has not at all been explained by the prosecution, hence the delay in lodging the first information report gives way to the fact that the accused has been falsely implicated. In case of prompt first information report, the chances of false implication of the accused are very remote.
In 2001 (1) JIC 9143 Allahabad, [Jai Lal (dead) and others v. State of U.P.], it has been held that if the first information report is prompt, eye-witnesses are named in the first information report and vivid account of incident is given, then it is sufficient for the prosecution.
Counsel for the appellant has submitted that it is an admitted case of the prosecution, that consultations were made for quite some time and the present first information report is a result of such consultation. He has drawn the attention of the court to the statement of the informant PW-3 Ram Singh who has stated that "usdjke dh gkyr xEHkhj Fkh blfy;s lksp&fopkj esa 1&2 ?kaVk yx x;sA fQj cSyxkM+h esa [kkV ykndj nw/kk/kkjh dkyst igqWaps tks xkao ls 3 ehy dPps esa FkkA tgkWa 2 1@2 fnu dks igWqapsA" . The aforesaid statement of the informant does not show that deliberations and consultations were being made about the names of the accused but this statement goes to show that since the condition of the injured was serious, it was being decided how to take the injured to the hospital, inasmuch as, the injured, son of the deceased Mohar Singh PW-5 has stated that his father vomited blood. He lifted his father and kept on a cot but he could not be managed on the cot. Then a bullock-cart was arranged by which he was taken to Doodadhari College, where the bus stops only on request. The bus came after one and half hour. After that this injured, Biram, Mahtaab Singh and Hakim Singh took his father to the emergency ward of the S. N. Medical College but he was not admitted there. Then he was taken to the District Hospital. From the District Hospital, his father was referred to the Medical College, where later-on his father had died.
In this regard, counsel for the appellant has placed reliance on 2007 Crl. L.J. 4709 (Dilawar Singh v. State of Delhi), in which it has been held as under:-
"In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution."
Delay is always not fatal for the prosecution. In (2007) 2 SCC page 170 (Ramdas v. State of Maharashtra), the Hon''ble Apex Court has observed as follows:-
"24. � mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them."
Besides, there are many factors which have to be taken into consideration, while looking into the factum of delay in a criminal case. It is true that the court has a duty to take notice of the delay and examine the same in a backdrop of the factual score, whether there has been any acceptable explanation offered by the prosecution and whether the same deserves acceptation being satisfactory, but when delay is satisfactorily explained, no adverse inference is to be drawn. It is to be seen whether there has been possibility of embellishment in the prosecution version on account of such delay.
In the present case, it has been stated that since the injured was serious, the family members were more concern about taking him to the doctor and getting first aid for him. Even the doctor has written that when the patient came to him, he was restless.
In 2003 Crl. L.J. 1282 (Amar Singh v. Balvinder Singh and others), the Hon''ble Apex Court has observed as under:-
"Delay in lodging of the FIR many circumstances have to be seen." It has been held that, "There is no hard and fast rule that in delay in lodging FIR would automatically render the prosecution case doubtful. It is necessarily depends upon facts and circumstances of each case where there has been any delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this host of circumstance like conditions of first informant, nature of injury sustained, number of victims, efforts made to provide medical aid to them distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn and either way where merely on account of delay in lodging of the first information report."
In same context, it will be usefull to take note of the following observations made by the Hon''ble Apex Court in Tara Singh and others v. State of Punjab, AIR 1991 SC page 63 is as follows:-
"The delay in giving F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immedicately after the occurrence. Human nature as it is, kith & kin who have witnesses the occurrence cannot be expected to act mechanically with all promptitudes in giving report to the police. At times being grief-stricken because of calamity it may not immediately occur to them that they should give report. After all it is but natural in these circumstances for them to take sometime to go to the police station for giving the report. of course in cases arising out of acute factions, there is a tendency to implicate persons belonging to opposite faction falsely. In order to avert the danger of convicting such an innocent persons, the court should be cautious to scrutinise the evidence of such interested witness with greater care and caution and separate grin from chaff after subjecting the evidence to a closure scrutiny and in doing to, the contents of the first information report also will have to be scrutinised carefully. However, unless there are indications of fabrications, the Court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
Counsel for the appellant has also submitted that the promptness in lodging the first information report lends assurance with regard to the truth of information given by the informant and the delay in lodging the first information report, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultation / deliberation as has been held in Jai Prakash Singh v. State of Bihar [2012 (77) ACC 245].
As I have stated earlier, the consultations between the family members was clear as to how the injured was to be carried to the hospital. The first information report itself reveals, which was short and cryptic and there is nothing on record to prove that consultation were made as to how the first information report would be lodged.
Thus, the delay in lodging the first information report has been very satisfactorily and reasonable explained which has also been freely discussed by the trial court and the delay is not at all fatal for the prosecution case.
(2) There was no motive for the appellant to commit the offence :-
Counsel for the appellant has submitted that in the first information report, no motive has been assigned to the accused for committing the offence. It is trite law that in cases of direct evidence, motive looses its value.
Perusal of the first information report shows that the motive is wanting in the first information report. No doubt motive is a double edged weapon which on one hand instigates the accused to commit the crime and on the other hand it works as a catalyst in falsely roping the accused in the case. It is only the author of the crime who knows what was the circumstances and cause of action, lead to the commission of the crime.
Different person reacts differently under the given circumstances. Murder can be committed even on very trivial issues. It is also difficult to say or lay down any hard and fast rule as to how and in what manner a person would react and could go to extent to achieve his motive in the commission of the crime under a particular circumstances. It is not possible to measure the extent of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a given circumstances. The Hon''ble Apex Court in the case of Ranganayaki v. State, (2004) 12 SCC 521 has held as under:
"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."
In this connection, following observations of the Hon''ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh, 2003 (47) ACC 7 (SC) are also relevant:
"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."
The Hon''ble Apex Court in Mangaru and others v. State of U.P., 2008 (62) ACC 40 has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value.
After all motive is psychological phenomenon to translate the mental deposition of the accused. Though, no motive has been mentioned in the first information report. The motive finds place in the Statement of PW-5 Mohar Singh, who is the injured witness, due to which the whole incident is said to have taken place. He has stated that some altercations took place between the parties in the village. The accused were annoyed, due to the fact that PW-5 Mohar Singh used to negate down Bhikam Singh (the party of the accused in wrestling). This witness was not cross-examined on this point, although, if the prosecution goes with a weak motive or with the motive which does not stand proved, it will not make much difference because in cases of direct evidence, as I have said earlier, motive looses its value, hence the motive in this case is not of much consequence.
(3) The witnesses examined by the prosecution are related and interested witnesses :-
No doubt, the evidence of related and interested witnesses has to be scrutinised with caution. Ram Singh PW-3 has admitted that the injured Mohar Singh, PW-5 is his nephew by virtue of being of same pedigree.
As far as related and interested witnesses are concerned, in the case of Dalip Singh and others v. State of Punjab, (AIR 1953 SC 364), it has been laid down as under by the Hon''ble Apex Court:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."
Observations of the Hon''ble Apex Court Masalti and others v. State of U.P., A.I.R. 1965 SC 202, are worth mentioning:-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
The above decision has been followed in Guli Chand and others v. State of Rajasthan, 1974 (3) SCC 698, in which Vadivelu Thevar v. State of Madras, AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon''ble Apex Court in Israr v. State of U.P., [2005 (51) ACC 113] in para-12 of the judgement are also important:-
".... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
The above position has been highlighted again in the case of Galivenkataiah v. State of A.P., 2008 (60) ACC 370, in which reference has been made to some other cases also.
The Hon''ble Supreme Court in the case of State of Andhra Pradesh v. S. Rayappa and others, 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses has observed as under:-
"...... By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.:
In para-8 their Lordships have further observed:
"The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..."
The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or interested witnesses.
No doubt, Ram Singh PW-3, Mohar Singh PW-5 and the deceased were related to each other but Ram Singh PW-3 besides being the eye witness is also the informant.
Counsel for the appellant has submitted that there was no reason as to why the deceased went for 4 to 5 fields away to ease himself. There is contradiction in the prosecution case, whether the deceased Nek Ram came to the spot from his house or came from the nearby fields, where he was easing himself because as per the statement of Mohar Singh PW-5, injured who has stated that his father Nek Ram came to the spot from some nearby field, where he was attending the call of nature. He came, when he heard hue and cry, whereas, Ram Singh PW-3, the eye witness and the informant has stated that when the injured Mohar Singh PW-5 was being assaulted, his father namely Nek Ram reached the spot.
I do not think this is something which would entitled the accused for acquittal because, even the defence has half heatedly admitted the presence of the deceased at the spot.
It has also been contended on behalf of the appellant that Mohar Singh was a young lad and he was in a hurry to go to school. He would have walked hurriedly and the deceased being an aged person, could not have reached the place of occurrence so soon. This argument has no legs to stand because the deceased Nek Ram ultimately died and he did not appear before the court to say anything. I do not think, the witnesses would have much in a position to say from where Nek Ram came. Another arguments has been advanced on behalf of the appellant that the school bag was not recovered by the I.O. and the presence of the school bag is doubtful. Although, it has come in evidence that Mohar Singh PW-5 was carrying a school bag when he was being assaulted and when he was going to attend his school. In this regard, Mohar Singh has admitted that he had a bag with him in which books were kept but he said that he did not know who took away his bag. Most probably, the bag must have been given to some child to give it back to his home. I do not think that Mohar Singh PW-5 who was a young lad at the time of incident below 20 years, would have been much bothered about his bag and copies than the life of his father, who was seriously injured. Although Ram Singh PW-3 has stated that Mohar Singh was carrying bag when he went from his house. He had collected the books and sent them home through a child. Thus, this is a very minor fact which can be ignored in the circumstance of this case.
The Statement of Prem Singh, the accused was recorded under Section 313 Cr.P.C. which could also be taken into consideration because, he has stated that in his sugarcane fields, Mohar Singh was dismantling the sugarcane. When he shouted at him, Nek Ram, Mohar Singh, Prakash and Hakim accompanied with Ram Singh came with lathi and started assaulting Prem Singh. Prem Singh was also holding lathi which he used in self-defence. Thus, the presence of the eye witness Ram Singh and the deceased Nek Ram is admitted by the defence also.
(4) The injuries on the person of the accused have not been explained by the prosecution :-
Counsel for the appellant has submitted that the injuries on the person of the accused has not been explained by the prosecution which is fatal for the prosecution case. In this regard, counsel for the appellant has placed reliance upon 2013 (80) ACC page 622, (Mohd. Khalil Chisti v. State of Rajasthan), in which relying upon the case of Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394, the Hon''ble Apex Court has observed as under :-
"...It is well settled 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 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....."
It is clear that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witness is untrue and (2) that the injuries probabilize the plea taken by the appellants. In a murder case, non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"(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 lying on a most material point and therefore their evidence is unreliable;
(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 case."
It is further clear that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries.
In the above ruling, itself it has been held that if the injuries of the accused are superficial and minor, it out-raises the effect of omission, on the part of the prosecution to explain the injuries.
In the same context, counsel for the appellant has also placed reliance upon AIR 1998 SC 2554, State of Rajasthan v. Rajendra Singh, in which it has been held that if there is lacerated wound on the body of the accused which has not explained, then it casts a shadow of doubt on the whole prosecution case.
As far as explanation of injuries on the person of the accused is concerned, in (2009) 11 Supreme Court Cases 414, (State of Uttar Pradesh v. Gajey Singh and another), it has been held that non explanation of the injuries of the accused rendered the prosecution version doubtful and makes the defence version more probable and that the deceased was shot, in exercise of right of private defence.
The same principle of law has been laid down in a catena of decisions by the Hon''ble Supreme Court in the following cases:-
(1976) 4 Supreme Court Cases, 394, (Lakshmi Singh and others v. State of Bihar).
(2010) 3 Supreme Court Cases, 648, (Boddella Babul Reddy v. Public Prosecutor, High Court of Andhra Pradesh).
(2003) 9 Supreme Court Cases 426, (State of M.P. v. Mishrilal (Dead) and others).
(2009) 15 Supreme Court Cases 612, (State of Punjab v. Rajinder Singh).
1991 Supp. (2) Supreme Court Cases 396, (State of Rajasthan v. Madho and another).
As the law is laiddown, it cannot be said to be the duty of the prosecution to explain injuries on the person of the accused in each and every case and non-explanation of injuries of accused is fatal in each case.
Injuries of the accused have been proved by DW-1 Dr. N.B. Saxena, who found a lacerated wound �" X �" scull deep on the left side of the head. It has been submitted that this injury is not a superficial injury, hence, it was the duty of the prosecution to explain these injuries. This witness was cross-examined by the prosecution in which he has stated that the X-ray relating to the aforesaid injury was not before him at the time of evidence. Even DW-2 Lakhan Singh has stated that when the Mohar Singh and other were dismantling the sugarcane from the field of Prem Singh, suddenly Prakash, Hakim, Ram Singh, Mohar Singh and Nek Ram came armed with lathi. They abused Prem Singh and started beating him with lathi.
Prem Singh defended himself with his lathi. This witness has admitted that Nek Ram, Mohar Singh and Prem Singh sustained injuries. In cross-examination, he has stated that the five assaulted Prem Singh for 5 to 6 minutes and Prem Singh assaulted all the 5 for the same tenure. He has further stated that Prem Singh sustained 4 to 5 injuries but this witness did not stated this fact to anybody.
Thus, I conclude that non explanation of the injuries on the persons of the accused is not fatal for the prosecution case.
(5) The accused has the right to private defence which was exercised by him :-
The defence has come up with the case that the injuries that were caused to Nek Ram were caused in self-defence, by the accused appellant Prem Singh. In this regard in (1996) 1 Supreme Court Cases, 458 (Wassan Singh v. State of Punjab) in which it has been held that while exercising right of private defence, one can also cause death of a person. It has been laid down as under:-
"While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the `light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation."
In (2010) 2 Supreme Court cases (Cri) 1037, (Darshan Singh v. State of Punjab and another) it has been laid down that as under:-
"in order to justify act of causing death of assailant, accused has simply to satisfy court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. Question whether apprehension was reasonable or not is a question of fact depending upon facts and circumstances of each case and no straitjacket formula can be prescribed in this regard. Weapon used, manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether apprehension was justified or not."
The same liberty of law has been laid down in (2007) 1 Supreme Court Cases (Cri) 437, (Krishnan v. State of Tamil Nadu).
The right to private defence has been enumerated by the Apex Court in 1975 AIR page 1478, (State of Gujarat v. Bai Fatima and another), in which it has been laid down that the effect of non explanation of injuries on the person of accused have been given which are as follows:-
"(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all."
The basic principle underlying the doctrine of right of private defence have been laid down in Criminal Appeal No. 1057 of 2002, (Darshan Singh v. State of Punjab), in which it has been held as under:-
"SCOPE AND FOUNDATION of THE PRIVATE DEFENCE
24. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:
"..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.
25. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book `Principles of Penal Laws'' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.
26. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.
27. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self-defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.
28. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.
29. The right to protect one''s own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: "It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other." But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.
30. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of selfdefence is only right to defend oneself and not to retaliate. It is not a right to take revenge.
31. Right of private defence of person and property is recognised in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.
32. A legal philosopher Michael Gorr in his article "Private Defense" (published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".
33. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
34. This court in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilised jurisprudence. In Robert B. Brown v. United States of America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife".
35. According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.
36. The courts have always consistently held that the right of private defence extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100 of the IPC. According to the combined effect of two clauses of section 100 IPC taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of selfdefence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. When we see the principles of law in the light of facts of this case where Darshan Singh in his statement under section 313 has categorically stated that "Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the gandasa. I apprehended that I too would be killed and I then pulled the trigger of my gun in self defence." Gurcharan Singh died of gun shot injury.
37. In the facts and circumstances of this case the appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself.
BRIEF ENUMERATION of IMPORTANT CASES:
38. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor, [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports, 28 Madras 454 Ranganadham Perayya, In re, (1957) 1 Andhra Weekly Reports 181.
39. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.
40. A Full Bench of the Orissa High in State of Orissa v. Rabindranath Dalai & Another, 1973 Crl LJ 1686 (Orissa) (FB) summarised the legal position with respect to defence of person and property thus: "In a civilised society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.
41. In Laxman Sahu v. State of Orissa, 1986 (1) Supp SCC 555 this court observed that it is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation.
42. In Raghavan Achari v. State of Kerala, 1993 Supp. (1) SCC 719 this court observed that "No court expects the citizens not to defend themselves especially when they have already suffered grievous injuries".
43. In Jagtar Singh v. State of Punjab, AIR 1993 SC 970 this court held that "the accused has taken a specific plea of right of self-defence and it is not necessary that he should prove it beyond all reasonable doubt. But if the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him by the deceased or their companions, then if he had acted in the right of self-defence, he would be doing so lawfully."
44. In Puran Singh & Others v. The State of Punjab, (1975) 4 SCC 518 this court observed that in the following circumstances right of private defence can be exercised :-
i. There is no sufficient time for recourse to the public authorities.
ii. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned.
iii. More harm than necessary should not have been caused.
45. In Bhagwan Swaroop v. State of Madhya Pradesh, (1992) 2 SCC 406 this court had held as under:-
"It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified."
46. The facts of this case are akin to the facts of the instant case.
47. In Kashmiri Lal & Others v. State of Punjab, (1996) 10 SCC 471, this court held that "a person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat."
48. In James Martin v. State of Kerala, (2004) 2 SCC 203, this court again reiterated the principle that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
49. In Gotipulla Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh & Another, (1970) 1 SCC 235, this court held that "the right to private defence is a very valuable right and it has been recognised in all civilised and democratic societies within certain reasonable limits."
50. In Mahabir Choudhary v. State of Bihar, (1996) 5 SCC 107 this court held that "the High Court erred in holding that the appellants had no right to private defence at any stage. However, this court upheld the judgment of the sessions court holding that since the appellants had right to private defence to protect their property, but in the circumstances of the case, the appellants had exceeded right to private defence. The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing".
51. In Munshi Ram & Others v. Delhi Administration, (1968) 2 SCR 455, this court observed that "it is well settled that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of materials available on record.
52. In State of Madhya Pradesh v. Ramesh, (2005) 9 SCC 705, this court observed "every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."
53. In Triloki Nath & Others v. State of U.P, (2005) 13 SCC 323 the court observed as under:-
"No decision relied upon by the Appellants lays down a law in absolute terms that in all situations injuries on the persons of the accused have to be explained. Each case depends upon the fact situation obtaining therein."
54. In Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244, the court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."
55. In Jai Dev v. State of Punjab, AIR 1963 SC 612 the court held as under:-
"as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."
56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
57. In Buta Singh v. The State of Punjab, (1991) 2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact."
58. The following principles emerge on scrutiny of the above noted judgments:
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
In the light of the aforesaid law and on the basis of statement of the accused recorded under Section 313 Cr.P.C., the evidence of defence witnesses and even on the basis of prosecution witnesses and attending circumstances, it has to be seen, whether accused had the right of private defence and if so, whether, it was exceeded or not.
If the defence states a plea of self defence, the burden will lie on the defence to prove that mean. Nowhere defence has been able to prove that if the appellant Prem Singh would not have assaulted Nek Ram, he would have been killed. Thus, the plea of the accused that the he acted in self-defence cannot be accepted.
(6) The investigation is defective and there may be shortcomings in the investigation :-
It has been submitted that there are many loopholes and shortcomings in the prosecution case and the investigation is defective. It has been submitted that the I.O. did not collect the blood stained earth from the place of incident, hence the place of incident is doubtful. In support, counsel for the appellant has placed reliance upon Satendra v. State of U.P., 2012 (77) ACC 291. I do not think, this is at all relevant, because, perusal of the injuries of the deceased shows that he did not sustained any open injury and none of his injuries was bleeding, hence there is no question of blood falling on the ground.
Counsel for the appellant has further stated that the I.O. has not showed the place from where the witnesses saw the incident, thus, the presence of the witnesses is doubtful. As has been laid down in 2012 (79) ACC 549, (Deo Raj v. State of U.P.).
I think, the information, if any, given to the Investigating Officer by the witnesses is nothing but a memo of what the Investigating Officer himself found on the spot and such statement does not call within the four corners of Section 166 Cr.P.C.
The prosecution has been attacked by counsel for the appellant on this ground also that there are contradictions in the statements of the witnesses recorded before the trial court and by the I.O. Thus, even omissions would amount the contradictions as has been laid down in 2011 (72) ACC 699, (Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra).
In 1998 C.A.R. (S.C.) 208, (State of U.P. v. Harban Sahai and others, the Hon''ble Apex Court has held that lapses on the part of the I.O. cannot be a ground to give benefit of doubt to the accused especially, if the ocular and medical evidence corroborate the prosecution case.
In 2000 (S.C.) page 648, (Ambika Prasad and another v. State (Delhi Administration), the Hon''ble Supreme Court has laid down that the defective investigation or negligence of the I.O. should not result in acquittal of the accused when the prosecution case is otherwise established. It has also been held that the court should not only see that no innocent person is punished but should also see that no guilty person should escape unpunished.
Now, if at all the investigating officer fail to discharge his duties properly, who is to be blamed? The poor victim or the investigating officer! Thus, pain is found in the observation of the Full Bench of this High Court in the case of Gopal v. State of U.P., 1999 (39) ACC page 981, wherein it has been held as under:-
"At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only, this human cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officer, who investigate the case, also know that they should take prompt action and should immediately record statement of the witnesses, should not make cuttings and overwriting etc. in the police papers so as to create suspicion about sanctity of the papers. They should fairly prepare the inquest report and police papers and should writ the case diary with accuracy and correctly. The preposition of law and fact cannot be disputed, but if the police officers deliberately slip over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officer did. If they intervene, a judicial notice of the fact can be taken they are humiliated even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are ignorant of the fact that what shall be effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In out view that investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the FIR promptly. If the FIR is recorded soon, or in recorded after 4 or 5 hours why should the prosecution or the person who have died suffer? Each and every case has to be decided on its intrinsic evidence. If the eye witnesses are believable, the mere weakness of the investigation should not be a ground to reject their testimonies."
Hence, any shortcomings on the part of the Investigating Officer would not benefit the accused.
15. An objection has also been raised on behalf of the appellant that the scribe of the first information report namely Sonpal Singh was not examined by the trial court which is fatal for the prosecution case. I do not agree with this argument because in AIR 2002 Supreme Court page 1965, (Krishna Manjhi and others v. State of Bihar), it has been laid down that even if the first information report is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution. Thus, the prosecution has been able to prove its case beyond reasonable doubt against the accused appellant.
16. Counsel for the appellant has lastly been submitted that the occurrence took place in the year 1979. More than 37 years have passed. At present the appellant Prem Singh is more than 56 years of age, hence, at this juncture of age, he should not be sent to jail but the sentence should be reduced. In support, he has placed reliance upon 2012 (77) ACC 483, (Kishori v. State of U.P.) and 1995 Suppl. (3) SCC 708, (State of Punjab v. Bira Singh and others), in which it has been laid down that since occurrence took place more than 10 years back, instead of sending the appellant to jail by imposing a sentence for imprisonment to appellant was let off by sentencing him to pay a fine of Rs. 5000/- and sentences was reduced to fine.
17. Imposition of adequate sentence is the cry of society, but keeping in view the fact that the occurrence took place 37 years before and at present, the appellant is above 57 years of age, I do not think it proper to send him to jail at this time.
18. However, the conviction of the appellant is liable to be upheld but the sentence is liable to be reduced from 5 years rigorous imprisonment, under Section 304 part II read with Section 34 I.P.C. to a fine of Rs. 25,000/-. The further sentence of three months rigorous imprisonment, under Section 323 read with Section 34 I.P.C. is reduced to a fine of Rs. 1,000/-.
19. Accordingly the appeal is partly allowed.
20. The accused appellant Prem Singh is sentenced to fine of Rs. 25,000/- under Section 304 part II read with Section 34 I.P.C. and Rs. 1,000/- under Section 323 read with Section 34 I.P.C. which he should deposit within two months from the date of delivery of judgment. In default, he shall undergo rigorous imprisonment for three years under Section 304 part II read with Section 34 I.P.C. and three months rigorous imprisonment under Section 323 read with Section 34 I.P.C.
21. 50% of the fine, deposited, shall be paid to the legal representative of the deceased (Nek Ram).
22. Let the copy of this judgment be sent to the trial court concerned for compliance.
