M.L. Shrimal, J.
1. Five accused Balkaran Singh, Gurcharan Singh, Uday Singh, Madha Singh and Hargovind Singh were tried by learned Additional Sessions Judge, Bikaner in connection with an occurrence which took place on August 28, 1973 at 9.30 A.M. near the culvert, on the outskirts of village Karadwala. In the course of that occurrence, Jeeta Singh (since deceased) received fatal injuries & P.W. 6 Balvinder Singh also sustained gunshot wounds. The case of the defence is that in the same occurrence, appellant Balkaran Singh and his brother-accused-appellant Gurcharan Singh also sustained injuries & they acted in exercise of the right of self-defence. The learned Addl. Sess Judge by his judgment of May 15, 1975 held that the accused were aggressors & the first shot was fired by the, accused He convicted the accused-appellants Balkaran Singh, Gurcharan Singh and Udey Singh under Section 302/34 I.P.C. for causing the death of Jeeta Singh and sentenced each of them to life imprisonment. They were also convicted under Section 26 of the Indian Arms Act and each of them was sentenced to two years' rigorous, imprisonment. In addition to that Gurcharan Singh was convicted under Section 307, I.P.C. for the injuries caused to P.W. 6 Balvinder Singh and was sentenced to three years' rigorous imprisonment. The remaining two accused Madha Singh and Hargovind Singh were acquitted of all the charges framed against them.
2. Tersely speaking and shorn of unnecessary details, the prosecution story as revealed during the trial is: The appellants Balkaran Singh and Gurcharan Singh are real brothers. Their houses and fields are situated on the outskirts of village Karadwala near the culvert. Appellant Udey, Singh is their uncle. P.W. 6 Balvinder Singh is the brother-in-law of Jeeta Singh. (deceased). P.W. 20 Vichitra Singh is the father of Jeeta Singh (deceased). P.W. 27 Mst. Gurpal Kaur is the widow of Jeeta Singh (deceased). There was a long standing quarrel between the families of Jeeta Singh (deceased) and Balkaransingh & others, leading to various criminal cases between the parties.
3. The occurrence relating to this case took place near the culvert on the outskirts of village Karadwala on the road leading from 'choraha', Sadul Sahar to Sangariya. On the right side of the road the field of Jeeta Singh (deceased) was situated, and on the left side of the road near the culvert the field of accused-appellant Gurcharan Singh is situated vide. site-plan Ex. P. 10. On the fateful day i.e. August 28, 1973, on aerial spraying party was working on the right side of the road. The labour was preparing the pesticide for spraying it by the helicopter on the crop, and the officer concerned P.W. 12 Shri P.K. Das, was engaged in putting lime for preparing a helipad.
4. On August 27, 1973, P.W. 6 Balvinder Singh, resident of village Amargarh, came to the house of his brother-in-law to see his sister P.W. 27 Mst. Gurpal Kaur, wife of Jeeta Singh (deceased). In the evening when Jeeta Singh was inside the house and P.W. 6 Balvinder Singh was sitting on the 'chowki', outside the house of Jeeta Singh, two persons came to enquire as to when Jeeta Singh was to go to Amargarh. In response to the enquiry, P.W. 6 Balvinder Singh informed them Jeeta Singh was to go to Amargarh on the next day at 8 A.M. Jeeta Singh (deceased) and P.W. 6 Balvinder Singh started for Amargarh on August 28, 1973, at 9.30 A.M. on an International Tractor No. RJK 9496. When they reached near the 'choraha' of Sadul Sahar, they noticed that the accused party was sitting with various fire-arms on the left side of the road. Suspecting some trouble Jeeta Singh (deceased) diverted his tractor towards his field but the aerial party which was preparing helipad, asked them not to pass by that way because a helicopter was to land shortly. Thereafter, Jeeta Singh had to take a turn and took his tractor on the road leading to village Sangariya. At the relevant time the three appellants along with two other accused and DW 2 Mukhtiyar Singh were sitting in the field of appellant Gurcharan Singh., All the accused were armed with fire arms. The prosecution case is that when Jeeta Singh's tractor came on the road rear the place where the accused persons were sitting the appellant Gurcharan Singh incited and exhorted them that the enemies had reached, and they should not be allowed to escape. The accused Udey Singh challenged Jeeta Singh in a tell-tale answer uttering the words 'Tagda Hoja'. At that stage Gurcharan Singh fired a shot which hit P.W. 6 Balvinder Singh on his right hand, who cried in agony and jumped off the tractor, and rushed towards the 'Gowar' crop and hid himself inside it to save his life. While running towards the field of 'Gowar', he turned back his face towards the accused and saw all the five accused firing towards the tractor. Jeeta Singh sustained injuries at the hards of the accused and met an instantaneous death. After the accused had left the scene of occurrence, P.W. 6 Balvinder Singh came out of the place of his hiding saw his brother-in-law lying dead in a 'Khad'. rushed to his sister's house and narrated the entire occurrence to his sister P.W. 27 Mst. Gurpal Kaur in the presence other father-in-law P.W. 20 Vichitra Singh, who went to the Police Station, Sadul Sahar without any loss of time and lodged the first information report, which was reduced into writing by P.W. 7 Bhagwan Singh ASI. The first information report has been marked as Ex. P. 11. The distance between the police station and the place of occurrence is two miles and a half. After registering the case under Sections 302 and 307, I.P.C. and Section 27 of the Indian Arms Act against the three appellants, P.W. 7 Bhagwan Singh, ASI sent a telephonic message to P.W. 26 Bhanwarlal, SHO at Ganganagar. An entry to this effect has been made in the Roznamcha, a copy of which has been placed on the record of the case and has been marked Ex. P. 88. Thereafter, he reached the spot and deputed constables to guard the place of occurrence and went to the house of P.W. 20 Vichitra Singh. The statement of P.W. 6 Balvinder Singh was recorded. His blood-stained clothes i e. shirt and trouser, Arts, 1 and 2 respectively, were seized and sealed by him vide seizure memo Ex. P. 9 P.W. 6 Balvinder Singh was then taken to the Government Hospital, Sadul Sahar where he was clinically examined by P.W. 10 Dr. Jaswant Singh. He noticed two injuries caused by a fire-arm on the person of P.W. 6 Balvinder Singh. The injury report is Ex. P. 46. On X-Ray, the injuries were found to be grievous. By the time ASI Bhagwan Singh again reached the spot, P.W. 20 SHO Sadul Sahar arrived on the spot and the investigation was resumed by him Site-plan Ex. P. 10, index to the site-plan Ex. P. 10-A, Panchnamas Ex. P. 12 and Ex. P. 13 were prepared. A 12 bore doable barrel gun Article 10 with one bandoleer Article 11, containing 22 cartridges, were seized. On opening the gun, two empties, Articles 12 and 13 in bath the barrels of the gun, were found which were also seized and sealed vide Ex. P. 14 and Ex. P. 15. Blood-stained earth, grass 'Bodi' and sample of earth, taken from different phases, were seized and sealed. One empty of N.P. bore lying under the 'keekar' tree was also seized and sealed separately. The seizure memo is Ex.. P. 17. One 'juti' was seized vide Ex. P. 18. The clothes of the deceased, i. e. shirt, 'chaddar' and 'kachcha' were seized vide Ex. P. 20. A pair of 'chappals' of the deceased Jeeta Singh Article 22 was also seized vide Ex. P. 21 The International Tractor No. RJK 9496, belonging to Jeeta Singh (deceased) was also seized vide Ex. P. 24. As there were marks of gun-shots on the left mud-guard of the tractor, the photograph of the tractor was taken and the left mud-guard was separately sized vide Ex. 26. The autopsy on the dead body of Jeeta Singh (deceased was preformed by P.W. 10 Dr. Jaswant Singh on the spot where the dead body was lying. The doctor noticed eight external injuries and on dissection he found multiple fractures of parietal as well as occipital bones. In the opinion of the doctor, the death was caused due to shock, haemorrage and stopping of the vital functions due to injuries to the brain caused by the gun-shot. The post mortem report of Jeeta Singh (deceased) is marked Ex. P. 47.
5. Just after the occurrence, appellant Balkaran Singh was taken to the hospital at Abhore where P.W. 9 Dr. P.K. Mittal gave first aid to him. The wound was packed and dressed and the injured limb was immobilized and thereafter he was taken to Chandigarh. On the same day, at 5.45 PM, Balkaran Singh was admitted as indoor patient at Chandigarh Hospital. On 30-8-1973 at 9.35 AM his wound was explored by Dr. B.S. Chima, who noticed fix punctured wounds on the left outer thigh of appellant Balkaran Singh. The medico legal report is Ex. P. 51. Balkaran Singh was arrested on August 29 1973 vide Ex. P. 53. Accused Gurcharan Singh was also arrested along with his rifle and live cartridges on August 30, 1973 vide Ex. P. 27 Accused Hargovind Singh (acquitted by the trial court was arrested on September 4, 1973 with a 12 bore double barrel gun and 41 live cartridges, vide Ex P. 28. The rifles of Gurcharan Singh and Hargovind Singh along with cartridges and licences were seized Accused Gurcharan Singh was clinically examined at Hanumangarh Junction Dispensary. His injury report is Ex. P. 77. Later on, the investigation of the case was transferred to P.W. 23 Shri Kashi Parsad Shrivastava, Superintendent of Police, Jhunjhunu, who made queries and sought information from the Medical Officers, Hanumangarh, Abhore and Chandigarh and also from the Ballistic Expert. He seized the gun recovered at the instance of the acquitted accused Madha Singh from the possession of Mukhtiyar Singh. He also seized the gun of the appellant Udey Singh with its licence. The blood stained articles and the fire arm and the ammunitions were sent, in the course of investigation, for Expert's opinion.
6. After completing the investigation, a charge sheet was presented against the four accused Balkaran Singh. Gurcharan Singh. Hargovind Singh and Madha Singh. As the accused appellant Udey Singh, was found absconding, the proceedings under Section 512 Cr. P.C., were initiated against him. After commitment of the case, the appellant Udey Singh surrendered himself before the trial court. Later on the case was transferred to the Court of Additional Sessions Judge, Bikaner and as such all the five accused were tried by the learned Additional Sessions Judge, Bikaner under Section 302/149, 307, 149, 302/ 34, 307/34, 148 I.P.C., and Section 27 of the Indian Arms Act.
7. The accused pleaded not guilty to the charge and the prosecution examined 28 witnesses in support of their case. The accused-appellants in their statements recorded under Section 313, Cr. P.C. admitted their presence on the scene of occurrence. The accused-appellant Gurcharan Singh raised the plea of self-defence to person and stated that the deceased Jeeta Singh was the aggressor. The first shot was filed by Jeeta Singh, as a result of which his (Gurcharan Singh's) brother appellant Balkaran Singh sustained severe gunshot injury on his left hip and, thereafter, Jeeta Singh took an aim and fired a second shot. The pellets coming out of the fire by Jeetasingh grazed his arm & passed away. At that stage he and the other accused Madha Singh lifted the rifles lying there and fired towards Jeeta Singh. The firing at Jeeta Singh was made by him to save his own life & catch hold of Jeetasingh He further stated that out of the three shots fired by him two were mis-fires He admitted the presence of P.W. 6 Balvindersingh at the time of occurrence, that after his firing the shot Bavinder Singh jumped from the tractor & went towards the field of 'Gowar' and had himself in the 'Gowar'. Jeeta Singh also got down from his tractor with a gun in his hand and went into a ditch and took a lying position to fire at the accused. At that stage Madha Singh and Gurcharan Singh again fired towards Jeeta Singh. The accused goes on to state that as his brother Balkaran Singh was seriously injured and was groaning under pain he put him in the jeep and took him to the hospital at Abhore. Before leaving the scene of occurrence, he asked Udey Singh to go to the Police Station and lodge the first information report. After getting Balkaran Singh admitted at Chandigarh he surrendered himself to the police on August 30, 1973 with a report Ex. D. 3. Balkaran Singh and Udey Singh did not admit the firing of any shot but adopted the statement given by Gurcharan Singh The accused in support of their defence, set up by them, examined D.W. 1 Premsingh and D.W. 2 Mukhtiyar Singh.
8. The suggestion of the prosecution that injuries sustained by the appellants Balkaran Singh and Gurcharan Singh were self-sustained and were the result of fabrication did not find favour with the learned Additional Sessions Judge. The learned Judge held that P.W. 6 Balvinder Singh was a partly reliable witness, Gurcharan Singh was initially responsible for resorting to firing. Bhanna Singh or the Block Development Officer did not make any attempt to lodge the first information report on behalf of the accused regarding the occurrence and it was not believable that the report given on behalf of the accused was not deliberately recorded and was evaded by the investigating Officer. Placing reliance on the statements of P.W. 6 Balvinder Singh, P.W. 20 Vichitra Singh, P.W. 27 Gurpal Kaur and the first information report Ex. P. 11, & other evidence on record, the learned Judge convicted the three appellants and sentenced each of them as mentioned above. He, however, gave benefit of doubt to the two accused vis. Madha Singh and Hargovind Singh as their names were not mentioned in the first information report amongst the assailants.
9. Aggrieved with the aforesaid judgment, the convicted accused-appellants have challenged their conviction and sentence by this appeal. The appeal filed by the State against the acquittal for the two accused was dismissed in limine because it was barred by limitation.
10. It cannot be disputed and has not rightly been disputed that Jeeta Singh (deceased) sustained gun-shot wounds at the time and place
mentioned by the prosecution and as a result of which he met an instantaneous death. It has been proved beyond any shadow of doubt that P.W. 6 Balvinder Singh also sustained gun-shot injuries in the course of the same occurrence.
11. In his ably marshalled arguments, Mr. Mukherjee appearing for the appellants presented the case of the accused with great clarity and fairness. We are greatly impressed with his eloquence and persuasiveness. He has urged that it is not clear what moved the accused to commit that dastardly act alleged by the prosecution, pending of cross cases does not explain the immediate cause of the incident. First information report was sent to the Magistrate on the next day which provides a legitimate basis to suspect that it was recorded after the Investigating Officer had returned to the Police Station after recording the statements of the witnesses. He further urged that the entire prosecution case was sought to be proved on the testimony of a solitary witness P.W. 6 Balvinder Singh, who is not a trust worthy witness and was an interested witness, who had no qualm of conscience in implicating falsely at least two accused who have been acquitted by the trial court. There is considerable doubt about the truth of his testimony with regard to initiation of the quarrel by the accused persons, and his seeing the five accused persons firing towards Jeeta Singh while he was running for his life in Gowar crop. His testimony stands contradicted by the testimony of the other witnesses as well aS by circumstantial evidence. The prosecution has failed to examine the independent witnesses in this case, though their presence on the scene of occurrence has been admitted by the prosecution witnesses. The prosecution has further failed to explain the injuries sustained by the accused which have been proved to be not self sustained. The trial court has ignored the significance of the injuries found on the appellants Balkaransingh and Gurcharan Singh. The failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true and further those injuries probabilities the plea of self-defence taken by the appellants. Such a failure can lead to two results: (1) The accused had inflicted the injuries on the members of the complainant party in exercise of the right of self-defence, and (ii) 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.
12. The learned Counsel urged that the two persons on the side of the accused were injured by gun-fire and it was not possible for the appellants to weigh their blows in golden scales. Jeeta Singh was armed with a gun and the accused-party would have undoubtedly a reasonable apprehension that either death or grievous hurt may be caused to the appellants or one of them. This being the position, they were wholly justified in firing at jeeta Singh. It is not the requirement of law that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence in operation. The learned Counsel urged that even if it is held that the accused persons failed to prove the right of private defence, the cardinal rule of administration of criminal justice is that the prosecution must prove the guilt of the accused beyond all reasonable doubt and that he accused need not prove any thing. He is entitled to stand on the presumption of innocence which the law imputed to him till it is displaced. The burden testing on the prosecution never shifts. The prosecution must establish bey and all reasonable doubt that no other alternative than the truth of the prosecution story will explain the facts. The prosecution has miserably failed to prove its case. The court can not look to the plea of the accused and the evidence led by them to bolster up the case of the prosecution.
13. The learned Government Advocate and Mr. Than Chand Mehta have supported the judgment of the trial court.
14. The motive showing the cause for the crime as disclosed in the first information report Ex. P. 11 and other documents as well as in the statements of the prosecution witnesses was along standing quarrel between the parties. The accused in their statements recorded under Section 313, Cr. P.C. have also admitted the existence of enmity between the parties. Both the parties had exchanged gun-shots in this case and as such the existence of the enmity between the parties cannot be of much avail to either of the two parties. There is no evidence on the record showing the immediate cause of the incident. It is not always easy to prove the motive or immediate cause for an offence. Often the motive is locked up in the heart of the offender. If proved, the motive in a case and the immediate cause of the incident. it does lend additional support to the finding of the Court that the accused were guilty but the absence of clear proof of motive or immediate cause for the incident does not necessarily lead to the contrary conclusion.
15. Keeping the above principles in view we now proceed to evaluate the other evidence in the case.
16. The learned Counsel Mr. Mukherji, appearing for the appellant, submitted that the learned Additional Sessions Judge has over-looked certain important aspects of the case. He pointed out that the first information report which is stated to have been lodged at the Police Station, Sadul Sahar on August 98, 1973 was sent out from the Police Station next day as admitted by P.W. 25 Munir and P.W. 22 Gurdeep Singh. It appears from the record that the Magistrate received it on August 29, 1973. The Court of the Magistrate is situated at a distance of 22 miles. The road between the police station, and the court is a pucca road and the buses pass between the two places off and on. It is not under standable as to why the report was sent to the Magistrate about twenty two hours after its stated hours of receipt at the police station. Section 157 of the Code of Criminal Procedure. 1973 requires the first information report to be sent 'forth-with' to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the time recorded therein, virtually affording the prosecution sufficient time to introduce improvement and embellishment and set up a distorted version of the occurrence. We do not feel persuaded to agree with the learned Counsel for the accused. It is true that under Section 157, Cr. P.C. the first information report should be despatched forthwith. There is nothing on the record to show that there was any deliberate delay in despatching the first information report P.W. 7 Bhagwan Singh stated that after recording the first information report Ex. P. 11, he recorded the statement of P.W. 20 Vichitra Singh and informed the Station House Officer, Bhanwrlal P.W. 26) at Ganganagar by the telephonic message regarding the case. In support of this statement, the prosecution has placed on record Ex. P. 88 a copy of the 'Roznamcha Am'. A perusal of the document shows that the first information report No. 71 of this case has been mentioned there. The number of the first information report could be mentioned only after the recording of the first information report and registration of the case against the accused. The inquest report which was admittedly made within few hours of the occurrence also bears the number of the first information report No: 71. Besides that, there is clinching evidence on the record to prove that Ex. P. 11 was recorded at the Police Station on the date and at the time mentioned therein. P.W. 6 Balvinder Singh was taken to the hospital for clinical examination and he was examined by Dr. Jaswant Singh (P.W. 10) on August 28, 1973 at 2 p.m. The injury is Ex. P. 46. Prior to that his statement Ex. D. 2 was recorded by the police. A perusal of Ex. D. 2 shows that he named all the five accused persons as assailants. If the first information report Ex. P. 11 has been recorded later, then in that case the names of all the five accused persons would have appeared in it whereas the names of all the five accused persons would have appeared in it where as the names of only three persons have been mentioned as assailants in it. The evidence of P.W. 7 Bhagwan Singh shows that after recording the first information report and sending the message to Bhanwarlal Station House Officer, he immediately left for the spot at 11.55 A.M. and the entries in the Roznamcha Am kept at Sadul Sahar Police Station clearly shows that the first information report was recorded prior to P.W. 7 Bhagwan Singh's leaving the Police Station and reaching the spot. There is nothing to show that apart from the first information report Ex. P. 11 the A.S.I. got any other information regarding the murder of Jeeta Singh which necessitated his visit on the scene of occurrence at 11.55 A.M. on August, 28, 1973.
17. It is well settled that mere delay in despatch of the first information report is not a circumstance on the basis of which the entire prosecution case be thrown out. A similar argument as raised before us was raised before their Lordships of the Supreme Court in Pala Singh v. The State of Punjab : 1973CriLJ59 . His Lordship Dua J. speaking for the Court repelled that argument and observed as under:
No doubt, the report reached the Magistrate at about 6 p. m. Section 147, Cr. P.C. requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
18. The observations of his Lordships apply to the facts of the present case, as discussed above, and the prosecution case cannot be rejected on this count. The appellants have raised, in this case, the plea of self-defence to person and have admitted firing of shot at Jeeta Singh (deceased), but the burden which rests on the prosecution to establish its case beyond reasonable doubt is neither neutralised nor shifted because the accused plead the right of private defence. The prosecution is bound to discharge its initial burden to establish the complicity of the accused not until it does so, can the question arise whether the accused has acted in self-defence. It is open to a criminal court to find out, even if the accused does not take the plea of self-defence, from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence is exceeded. We will therefore first keep apart the plea of the accused and examine briefly by applying the well known standards of proof whether the prosecution has proved its case. The evidence on record shows that eight witnesses have been examined as eye-witnesses to the occurrence in this case, out of whom seven witnesses viz. P.W. 1 Natha Singh, P.W. 2 Dharisingh, P.W. 3 Pritam Singh, P.W. 4 Arjun Singh, P.W. 5 Shyamlendu Sarkar, P.W. 6 Balvinder Singh, P.W. 12 P.K. Das have been examined on behalf of the prosecution and DW 2 Mukhtiyar Singh has been examined on behalf of the defence.
19. P.W. 1 Natha Singh, P.W. 2 Dhari Singh, P.W. 3 Pritam Singh and P.W. 4 Arjun Singh were examined as eye-witnesses by the prosecution. During the investigation the statements of these witnesses were recorded under Section 164, Cr. P.C., All the four witnesses in their statements before the trial court resiled from their previous statements. They were declared as hostile witnesses by the prosecution and were allowed to be cross-examined. They were confronted with the various portions of their statements recorded by the Magistrate under Section 184, Cr. P.C., as well as the Police during investigation. Instead of explaining the contradictions, the witness had the audacity to state that they did not make such statements before the Police or before the Magistrate. All these witnesses except P.W. 2 Dharisingh have stated in the trial court that they had admitted before the Magistrate that they were not making those statements before him owing to the fear of the police but in fact those statements were made by them under the presence of the police because the police had given them beating. P.W. 2 Dharisingh stated that he told the Magistrate that he was giving that statement before him under the pressure of the police. It does not stand to reason why inspite of such a statement the Magistrate recorded his statement under Section 164, Cr. P.C. Thus all the above named four eyewitnesses by their own showing are not the witnesses of truth. They appear to be obliging witnesses who first obliged the prosecution by making the statements before the Police and the Magistrate and when they made the statements before the trial court they obliged the defence. All of them are labourers by profession and one of the accused appellant was admittedly the Sarpanch of the Panchayat Samiti, Sadul Sahar. Admittedly they belonged to the weaker section of the Society, and in all probability did not have the courage to state the facts implicating the Sarpanch of the Panchayat Samiti, Sadul Sahar and has associates in his (Sarpanch's) presence. The statements of these witnesses cannot be relied upon and they are of no avail either to the prosecution or to the defence. P.W. 5 Shyamlendu Sarkar, who was a mechanic in the Cambatta Aviation (Pvt) Ltd. stated that he saw neither the red tractor nor any-body firing the gun. He only heard the sound of gun-fire. This witness was also declared hostile by the prosecution. He was confronted with various portion of his statement before the police Ex. P. 8, but instead of explaining contradictions, the witness has the braveness to state that he did not make such a statement. During cross-examination by the accused the witness went on to the extent of saying that he took the bang noise to be the burst of a type because many vehicles were passing on the road. A perusal of the statement of this witness shows that he was suppressing the truth and no reliance can be placed on any portion of his statement either in favour of the prosecution or in favour of the defence P.W. 12 P.K. Das who was the manager of Cambatta Aviation (Pvt) Ltd., stated that on August 28. 1973 he went to the site where a helicopter was supposed to land. He reached the spot at 8.40 or 9. A.M. At that time 3 or 4 persons were standing under the true which was on the left side of the road. He went to the labourers who were on the right side of the road and were putting the drums etc. When he was claiming the area of helipad and was putting lime line marking 'H' for landing of the helicopter the Block Development Officer, Sadul Sahar came in a jeep who went to the left side of the road where the other persons were standing, under the tree. At that stage he saw a red tractor coming from the field towards the landing ground. Two persons were silting over it. He told them not to come towards the landing ground, and then the tractor turned towards the road. Thereafter within one or two minutes he heard noise of a gun-shot being fired. The witness goes on to state that after the first shot was fired he did not look back but when he further heard the noise of two or three shots being fired, he looked back and found the labourers running to and fro. He also saw the tractor going in the cotton field and there was none on the tractor. He also saw a Sardarji lying on the ground under the tree and holding his leg. He went towards the crossing of the road. In the mean-time he saw the Block Development Officer going in a jeep towards Sadul Sahar who told him to pack up and go home as there would be no spray. Both the parties have tried 10 interpret the statement of this witness to be in their respective favour, but we did not find any thing in his statement on the basis of which it can be said as to which of the parties was aggressor. Absence of the occupant of the tractor and the going of the tractor in the cotton field without a driver at the time the witness is alleged to have turned his face back and seen it, is suggestive of the fact that by that time Jeeta Singh had sustained fatal injury and the holding of the leg by a Sardarji is also suggestive of the fact that by that time one of the accused was injured. Thus on the statement of this witness no finding can be given as to which of the parties opened the first fire P.W. 6 Balvinder Singh is the person who admittedly had sustained injuries during the course of the occurrence. His presence on the scene of occurrence cannot be doubted. His presence on the scene of the occurrence has also been admitted by accused persons in their statements recorded Under Section 313 Cr. P.C. The learned Counsel, appearing on behalf of the accused appellants, has urged that this witness has made improvements in his statement before the trial court on all material points and has urged that no reliance can be placed on his statement. He has also brought to our notice the infirmities found by the trial court in the statement of this witness, and urged that the witness was found by the trial court to have made a false statement on number of points and as such on the statement of such a condemned witness it cannot be held that the accused persons were the aggressions or the first shot was fired at form the side of the accused person. The learned Counsel, appearing on behalf of the State, has vehemently urged that the findings arrived at by the trial court regarding the contradictions appearing in the statement of this witness are based on misreading of the evidence and the witness is of sterling worth.
20. The learned Additional Sessions Judge seems to be wrong making the following observation in the impugned judgment, 'Balvinder Singh also introduced the story of visit of two persons which does not find mention in his police statement Ex. D. 2'. Because a glance at the police statement Ex. D. 2 of Balvinder Singh shows that he made the following statement:
dy jkr dks fnu fNius ds ckn nks vkneh;ks us eq>ls iwNk Fkk fd ftrk vejx<+ dc tk;sxk A eSus dgk Fkk fd lqcg vkB ukS cts tk;sxk A
and therefore he did not make any improvement on this point in his statement recorded in the Court. The learned trial Judge also observed that the witness was false in stating that he did not see any jeep or tractor or any other person on the spot when the occurrence took place. The learned Judge found this portion of his statement to be false on the ground that it was inconsistent with the statements of labourers P.W. 1 to P.W. 4 and P.W. 10 Shri P.K. Das regarding the presence of the jeep and the tractor. A perusal of the statement of this witness shows that he stated that he had seen the jeep & the tractor on the right side of the load and did not see any jeep or tractor near the accused when he saw towards them first time. Thus his statement is qualified one and it can not be branded as false. To us it appears that the learned Judge was not correct in taking into consideration the omission of certain facts in the first information report, while judging the veracity of the statement of this witness. It must be remembered that the report was not given by the eye-witness or the injured person. It is unlikely that at that time Vichitra Singh, who had lost his married young son in the prime of life as a result of the dastardly act of the accused and in whose house the other injured was lying and who himself was running fever for last three days would have been in a position to give a detailed version. The first information report under Section 154, can not be treated as a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in the court. The learned Judge was not correct in holding this witness as party untrue witness because the story of exhortation by Gurcharan Singh and Udey Singh was not mentioned in the first information report given by Vichitra Singh and because it was not mentioned in it that the first shot was fired by Gurcharan Singh towards Balvinder Singh (P.W. 6). That it was mentioned in the first information report that what sort of guns Balkaran Singh and Gurcharan Singh were having. Suffice it to say that the first information report was not made by this witness. Moreover the first information report is not the last word in a prosecution case. The lack of details in the first information report Ex. P. 11 which was given under the circumstances mentioned above should not have been viewed too narrowly. A perusal of the first information report shows that all the broad features of the prosecution case have been mentioned therein. The names of all the three appellants find mention in the report. The circumstances leading to the murderous assault on Jeeta Singh have been given. The place from which the shots were fired by the accused has also been mentioned, In our opinion it is neither practical or necessary to mention all the minutest details of the prosecution case in an oral first information report lodged by a village rustic at the Police Station. In a similar situation in Podha Narayana v. State of Andhra Pradesh : AIR1975SC1252 His Lordship Hon'blc Fazl Ali J., speaking for the Court observed as under:
In the first place, it was argued, that the learned Additional Sessions Judge rightly held that as the FIR did not contain the evert acts attributed to such of the accused, the story of the prosecution must be held to be an after thought. Dealing with this aspect of the matter, the High Court pointed out that the FIR was lodged soon after the occurrence and there was no occasion for the informant to have mentioned all the material particulars in the FIR, which had to be narrated and proved at the trial. We find ourselves in complete agreement with the reasons given by the High Court. In fact we find from the perusal of Ext. P. 1 that all the essential details that the FIR should contain are given there, names of the accused are clearly mentioned, the circumstances leading to the murderous assault on the deceased Linganna have been set out. It has also been mentioned that the accused got down from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep. It is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which constituted the motive for the murder. Thus shorn of minutest details the broad picture presented by the prosecution was undoubtedly revealed in the FIR, which was lodged very soon after the occurrence. In our opinion, it is neither customary nor necessary to mention every minute detail in the FIR China P.W. 1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body was carried away. It is in that state of mental agony that he was not able to give further details in the FIR.
21. The learned Judge considered certain omissions in the statement (Ex. D. 2) of this witness recorded by the police and on the basis of those omissions held that the witness had made certain improvements in his statement. No doubt there are certain omissions in his statement before the police but such and every omission cannot be teemed to be a contradiction as held by their Lordships of the Supreme Court in Tehsildar Singh v. State of UP : 1959CriLJ1231 .
22. No doubt there is variation in the statement of this witness, recorded before the trial court and before the Police regarding Jeeta Singh's (deceased; gun being not loaded at the time of occurrence. Besides this some, other minor variation in narration of details appear in the statement of this witness but on that count also the testimony of this witness cannot be discarded. While scanning the evidence the court must keep in view whether the scene of occurrence is rural or urban. The witness is a village rustic or uneducated young man, some contradictions are bound to appear in the statement of truthful witnesses during the stress of cross-examination. Photographic picturisation of the occurrence can not be expected from the witnesses who are not tutored. On the contrary, effort to harmonise minutest details betray police tutoring nor rugged truthfulness. Discrepancies in details, contradictions in narrations and embellishments in inessential parts can not militate against the veracity of the case and the testimony. We are satisfied that in the testimony of this witness, who is a young lad of 16 years, there is impress of truth and confirmity to the probabilities of the case.
23. We do not find any merit in the contention of the learned Counsel for the accused-appellants that Balvinder Singh's evidence relating to the incident is not true, or at any rate not wholly true, because he failed to explain as to how accused Balkaran Singh and Gurcharan Singh happened to sustain the injuries. This witness had not seen the entire occurrence. As already noted above, his evidence is to the effect that the first shot was fired by Gurcharan Singh, which hit him on his right hand as a result of which he jumped from the tractor and ran for life into the field where the Gowar crop was standing and hid himself there. While running towards the field, he turned his face backwards and found all the fire accused firing Admittedly, this witness did not claim to have seen any thing after he had hidden himself in the Gowar crop so when he was asked in the cross examination, as to whether he had seen all the five accused going away in the jeep he stated that he did not see them and if he would have seen them then certainly they would not have left him alive. Thus, it cannot be said that this witness deliberately narrated a truncated version of the incident, and as such he cannot be held guilty of suppressing the truth, on account of his failure to explain the injuries sustained by appellants Balkaran Singh and Gurcharan Singh.
24. No doubt this witness has made incriminating statement against all the five accused tried by the learned Additional Sessions Judge, Bikaner out of whom two persons viz., Madha Singh and Hargovind Singh, were acquitted of all the charges levelled against them. It is enough to point out that the learned Additional Sessions Judge gave the benefit of doubt so far as these two accused persons were concerned because their names did not appear in the first information report. He did not hold that P.W. 6 Balvinder Singh's evidence was false with respect to those persons Reference may be made to Ramratan v. State of Rajasthan : 3SCR590 . Their Lordships observed as under:
Lastly it was urged that Jawanaram had named five assailants and at least two have been acquitted, and that shows that Jawanaram is not wholly reliable. It is enough to point out chat the Sessions Judge gave the benefit of doubt so far as two accused persons were concerned. He did not hold that Jawanaram's evidence was false with respect to those two persons. Apparently those two persons did not take any active part in the incident and that may have led the Sessions judge to give them the benefit of doubt, that is, however, no reason for disbelieving the testimony of Jawanaram.
It is, in our opinion, not necessary for us to express any opinion on the point as to whether these two accused were rightly acquitted or not. All that we can say is that the benefit of doubt which resulted in the acquittal of other two accused would not vitiate the conviction of the remaining three accused based on the testimony of this witness and its corroborative evidence. Reference may be made to Amir Hussain v. State of U.P. : 1975CriLJ1874 . We are, therefore, of the opinion that the learned trial court was right in relying upon the evidence of Balvinder Singh. His evidence is corroborated undoubtedly by the statement of P.W. 27 Mst. Gurupal Kaur, who stated that Jeeta Singh (deceased) and Balvinder Singh started from her house on a tractor at 8 A.M. on the fateful day. Nearly after two hours Balvinder Singh came back to her house. At that time he was weeping and his hand was bleeding. His clothes were stained with blood. Balvinder Singh, in her presence, and in the presence of her father-in-law. Vichitra Singh stated that all the five accused Gurcharan Singh, Balkaran Singh, Udey Singh, Madha Singh and Hargovind Singh fired shots at him and his brother-in-law Jeeta Singh (deceased), as a result of which Jeeta Singh died and was lying dead in the 'khad'. The first shot fired by Gurcharan Singh hit him on his right hand, and he ran into the field of 'Gowar' crop for his life. The statement of this witness P.W. 6 Balvinder Singh further stands corroborated by the first information report Ex. P. 11 so far as the accused appellants are concerned. The first information report of this occurrence was lodged at the Police Station, Sadul Sahar within 1&Frac12; hours of the occurrence. The occurrence, according to the prosecution case, took place at 9.30 A.M. As a result of the occurrence. Jeeta Singh met an instantaneous death while P.W. 6 Balvinder Singh received serious injuries in his hand. It is plain that the witness must have got stunned because of the sudden attack in the course of which one of his close relative received serious injuries which led to his death. The witness rushed towards his sister's house to narrate the story. It must have taken some time for P.W. 20 Vichitra Singh to get out of the state of shock and regain his composure. P.W. 20 Vichitra Singh, an old man of 52 years, must have got stunned after hearing the news regarding gruesome murder of his son Jeeta Singh (deceased) by the accused persons. Inspite of his illness Vichitra Singh rushed to the Police Station, Sadul Sahar and lodged the first information report. The first information report Ex. P. 11 lodged at the Police Station, Sadul Sahar within 1&Frac12; hours of the occurrence contains all the material facts. The names of all the three appellants have been mentioned therein as assailants of Jeeta Singh (deceased). This first information report lends considerable corroboration to the ocular evidence given by this witness, at the trial. The statement of this witness also finds corroboration from the statement of P.W. 10 Dr. Jaswant Singh and the post mortem report of Jeeta Singh (deceased) Ex. P. 47 as well as his injury report Ex. P. 46. P.W. 26 Bhanwarlal. investigating Officer of this case has proved the description memo regarding site inspection Ex. P. 10A and the site-plan Ex. P. 10, A perusal of these documents show that at point No. 18, marked in the site-plan Ex. 10 blood stains were found which were seized by the Police. It further shows that a portion of the Gowar crop, where the witness P.W. 6 Balvinder Singh is alleged to have hidden himself, after being injured, was found to be broken. Both these documents and the statement of the investigating officer lend support to a portion of the story narrated by this witness.
25. DW 2 Mukhtiyar Singh, examined as a witness, on behalf of the defence, admitted the following facts during the course of cross-examination:
lc ls igys xq:pj.kflag us djhc djhc ikap N% dne ls Qk;j fd;k Fkk A VSDVj vkSj xqjopu flag dk bruk Qklyk Fkk A cyfoanjflag tc VSDVj ls dwnk rks mlds igys xksyh xq:cpuflag ds py xbZ Fkh vkSj ek/kflag ds xksyh py x;h A eq>s ugh irk fd ifgys tks xq:cpuflag vkSj ek/kflag us Qk;j fd;s Fks oks thrflag dks yxs ;k ugh A xokj okyk [ksr lM+d ls 10&15 dne ds Qklys ij Fkk A xokj dkaVs ftruh Wph Fkh A cyfoanj flag ds dwnus ls igys ,d gh Qk;j gqvk Fkk A fQj dgk dwnus ls ifgys ek/kflag vkSj xq:pj.k flag ds Qk;j bdB~Bs gks x;s A xq:pj.k flga dk igyk Qk;j VSDVj ds yxs ;k ugh eq>s ugh irk A
No question was asked to this witness in the re-examination by the learned Counsel appearing on behalf of the accused as such it is not open to the defence to state at this stage that DW 2 Mukhtiyar Singh made the above statement in a different context and he did not mean that the first fire was shot by accused Gurcharan Singh. While making the above submission the learned Counsel for the accused has ignored the hard truth that an important object of cross-examination is to elicit admission of facts which would help to build the case of the cross-examiner. It cannot be said that the only purpose of cross-examination of a witness is to discredit him. The person cross-examining a witness can very well rely on the portion of the statement elected from the witness.
26. The fact, that, a day prior to the date of occurrence, two persons went to the house of Jeeta Singh (deceased) and enquired as to when he was going to leave for Amargarh considered in conjunction with the fact that the three appellants along with others were sitting in their field on the cots with the guns on the day of occurrence, especially when there was no occasion for them to be armed with guns because the accused Gurcharan Singh and Balvinder Singh had their residential place nearby, all this suggests that they were waiting for their prey. Exhortation by Udey Singh and participation of all the three accused in firing at Jeeta Singh (deceased) further leads to an inference that all the appellants intended to cause his death, or at least intended to cause such bodily injuries as would in the ordinary course of nature cause his death. In adopting this course, the appellants would be clearly guilty of the offence of murder if it is proved that no right of private defence was available to them.
27. Now we come to deal with the question of right of private defence. It is urged on behalf of the accused that Jeeta Singh (deceased) was the aggressor. He fired the first shot which hit the accused Balkaran Singh as a result of which he sustained six punctured wounds in an area of 8 c.m. vertical and 5 c. m. transverse on the left outer thigh. In support of this contention, reliance has been placed on the injury report Ex. P. 1 and the statement of P.W. 1 Dr. M.N. Goyal. It has also been urged that during dressing of the wounds of the appellant Balkaran Singh on September 7, 1973 at Chandigarh Hospital a piece of wad Article 30 was recovered from one of his wounds. The dispersion of the pellets and the recovery of the wad from the wounds are suggestive of the fact that Balkaran Singh was injured at the hands of Jeeta Singh (deceased) at the time when Balkaran Singh was at a distance of near about 6 feet from Jeeta Singh (deceased). In support of this contention reliance has been placed on the following observations made by Major Sir Gerald Burrard, in his book 'The identification of fire-arms and Forensic Ballistics at page 74:
The over-shot card wad, when one is used, separates from the shot charge and rest of the wadding first of all and seems invariably to have dropped clear of the shot charge before a range of 6 feet is reached. This being so, the presence of an over-shot card wad in a wound provides very strong presumptive evidence that the shot was fired from less than 6 feet;
It was further urged that the site-plan Ex. P. 10, and the description memo of the site Ex. P. 10. A have been proved by the statement of P.W. 26 Bhanwarlal. In the site-plan Ex. P. 10, point No. 13 has been shown as the place where the blood of Balkaran Singh fell. The blood-stained earth seized by the Police from this place was sent to the Serologist who found it to be of 'O' Group, & the blood of Balkaran Singh is of 'O' Group Thus it can be safely said that Balkiran Singh was hit at the time when he was standing near point No. 13, shown in the site-plan Ex. P. 10 The learned Counsel urged that the cumulative effect of all the above mentioned facts proved on the record leads to the only inference that when Jeeta Singh (deceased) after taking a turn from his field came on the road fired the first shot at Balkaran Singh, as a result of which the latter was injured. It was further contended that it has been proved beyond reasonable doubt that the appellant Balkaran Singh sustained gun-shot injuries in the same course of the incident in which Jeeta Singh deceased) sustained fatal shots and P.W. 6 Balvinder Singh sustained the injuries. Once it is found that these injuries were caused by the complainant party in the same occurrence or transaction the prosecution must fail We are unable to agree with this contention. Hon'ble the Supreme Court of India & this Court in a number of cases have repeatedly painted out that the entire prosecution case cannot be thrown over board simply because the prosecution witnesses did not explain the injuries on the person of the accused Such a none explanation, however is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and the Court is required to scrutinise the evidence with care. It cannot be laid down as invariable proposition of law of universal application that as soon as it is found that the accused had received the injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established, and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party. The non-explanation of the injuries sustained by the accused on the part of the prosecution witnesses can lead to the following three results, as held by their Lordships of the Supreme Court in State of Gujarat v. Bai Fatima : 1975CriLJ1079 :
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of the 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.
Question is in which category the present case falls?
28. The defence wants us to believe that Jeeta Singh (deceased) was a desperate character who went in the company of P.W. 6 Balvinder Singh on a tractor near the accused and fired a shot at Balkaran Singh. It does not stand to reason that Jeeta Singh (deceased would go into the lion's den knowing it fully well that the accused were armed with carbine guns and other fire-arms. If he wanted to initiate the quarrel by firing a shot at Balkaran Singh he would have atleast taken the prosecution asking Balvinder Singh to come on the right mud-guard of the tractor because Balvinder Singh brother-in-law of Jeeta Singh (deceased) was unarmed and was sitting on the side on which the accused were sitting armed with guns. Besides that taking into consideration the number of the accused and the magnitude of the arms possessed by them, Jeeta Singh (deceased) would not have opened fire especially when he was busy in driving the tractor. Such an act on his part in the facts and circumstances of the case would amount to an invitation to death. The defence case is that Jeeta Singh (deceased) opened fire while the gun was lying on his thigh. It does not stand to reason that while driving the tractor Jeeta Singh (deceased) would fire a shot towards the accused without taking an aim when the gun was lying on his thigh. Such an aimless firing would have exposed him and his brother-in-law to a volley, of fire by the other side. The story of Jeeta Singh's, firing from his gun while it was lying on his thigh does not find any mention in the application Ex. D. 3 dated August 30. 1973 made by Gurcharan Singh and the telegram Ex. D. 4 dated August 31; 1973. As per the defence version accused Gurcharan Singh Balkaran Singh. Madha Singh, Udey Singh and DW 2 Mukhtiyar Singh as well as, the Block Development Officer were present on the scene of occurrence but no first information report of the occurrence was lodged from the side of the accused persons just after the occurrence. If Jeeta Singh (deceased) would have been an aggressor, accused Udey Singh, the then Pradhan of the Panchayat Samiti Sadul Sahar would have moved heaven and earth to get a case registered against the members of the complainant party.
29. There is clinching evidence regarding the guilt of the accused in the recovery of shirt Article 32 from the person of appellant Balkaran Singh. This shirt was found to be stained with blood of AB group by the Serologist vide his report Ex. P. 114. It has also come in the prosecution evidence that the blood group of Balkaran Singh was of 'O' Group whereas that of Jeeta Singh (deceased) was of 'AB' Group The defence case is that the first shot fired by Jeeta Singh (deceased) hit Balkaran Singh on his hip. Looking to the nature of the injuries sustained by Balkaransingh. it can be surely said that after sustaining the injuries he could not have come near Jeetasingh (deceased) either to catch hold of him or to grapple with him. The presence of 'AB' group of blood on the shirt of appellant Balkaransingh is a very strong presumptive evidence of the fact that he came near Jeetasingh (deceased) after Jeetasingh's receiving the gun-shot injuries. This could be possible only when Jeeta Singh would have sustained the injuries prior to Balkaran Singh's sustaining the injuries in the incident. This fact further finds, support from the statement of accused-appellant Gurcharan Singh recorded under Section 313 Cr. P.C. wherein he stated that in order to save his own life and to catch hold of Jeeta Singh (deceased) he fired at him. In reply to the last question accused-appellant Balkaran Singh has also adopted the statement of Gurcharan Singh saying; xq:pj.kflag us tks c;ku fn;s gs os lgh gS A It was the duty of the accused Balkaran Singh to have explained as to how his shirt Article 32 got stained with blood of 'AB' group A failure on his part to give any explanation probabilities the prosecution case that after Jeeta Singh (deceased) had sustained atleast one of the injuries Balkaran Singh must have sustained the injuries on him. We are unable to agree with the contention of the learned Counsel for the accused-appellants that the shirt Article 32 of Balkaran Singh must have sustained the blood stains of 'AB' group, While he was being transferred from one place to another place in the hospital on a stretcher. There is no evidence worth the name to create such a suspicion. Equally devoid of any merit is the contention that the shirt Article 32 would have got mixed with the other clothes while being sent to the Serologist for analysis Shirt Article 32, recovered from the possession of the accused-appellant Balkaran Singh and the clothes of the deceased Jeeta Singh were recovered at different times, They were seized and sealed at different times in different bundles and as such the question of mixing does not arise. Thus from the preponderance of the probabilities of the case, the result which emerges is that the appellant Balkaran Singh must have sustained the injuries after P.W. 6 Balvinder Singh and Jeeta Singh (deceased) sustained injuries at the hands of the appellants. As already stated above P.W. 6 Balvinder Singh had not seen the entire evidence, he jumped off the tractor, as soon as he was hit by shot fired by one of the appellants and ran for life and hid himself behind the 'Gowar' crop. It was not expected of him to explain as to how Balkaran Singh happened to sustain the injuries. The prosecution case cannot be said shaken at all on this count.
30. As regards injuries on the person of Gurcharan Singh, it would suffice to say that the note appended to the injury report Ex. P. 77 of the accused-appellant Gurcharan Singh reads as under:
There is one circular blackish mark 3/4' in diameter on the shirt fore arm pus. Two blackish mark 1/4' and 1/2' in diameter respectively, 3&Frac12;' lateral on the above circular mark. Shirt is torn in one blackish area i. e. No. 2 Shirt is also torn in elbow area. The torn ends are also everted, non-inverted except 2-4 threads.
PW 18 Dr. Roop Singh examined Gurcharan Singh clinically for his injuries on August 31, 1973. He by his letter dated December 27, 1973 (Ex. P. 79) informed the Superintendent of Police Shri K.P. Shrivastava that the blackish mark on the shirt of Gurcharan Singh did not correspond to the injuries. The marks on the shirt as well as the injuries of Gurcharan Singh could be concocted. He made a similar statement on oath before the trial court. Nothing has appeared in the cross examination of this witness on the basis of which the veracity of his testimony can be doubted. Thus the injuries sustained by the accused Gurcharan Singh were not required to be explained by the prosecution witnesses. DW 2 Mukhtiyar Singh, though supported the defence in examination-in-chief but could not withstand the cross-examination and in an unguarded moment during the course of cross-examination admitted that the first shot was fired by the accused-appellant Gurcharan Singh when the tractor on which Jeeta Singh (deceased) was sitting was at a distance of 5 or 6 'karams'. He further admitted that Balvinder Sing jumped from the tractor after a shot was fired. DW 2 Mukhtiyar Singh instead of proving the case of the accused has thus lent support to the truthfulness of the prosecution case. The learned Additional Sessions judge was correct in holding that the accused have failed to prove their plea of the right of self-defence.
31. Next the question remains whether the circumstances of the case and the defence plea and the evidence led in support of it is sufficient to make the prosecution case doubtful. Mr. Mukherji, learned Counsel for the appellants is correct in stating that under Section 105 of the Evidence Act the burden of proving the existence of the circumstances bringing the case within any of the general exceptions contained in Chapter IV of the Penal Code is upon the accused, and the Court is required to presume the absence of such circumstances but the burden which rests on the accused does not absolve the prosecution from discharging its initial burden and truly, the primary burden never shifts save when a statute displaces the presumption of innocence. The. evidence though insufficient to establish the exception may be sufficient to negative one or more of the ingredients of the offence. That is to say an accused may fail to establish affirmatively the existence of the circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution in which event he would be entitled to an acquittal. The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond reasonable doubt.
32. The law on the subject is well settled. In a case where the accused fails to prove the plea of self-defence, as in the case on hand, the evidence as whole is required to be considered, whether it comes from the side of the prosecution or the defence, to determine whether the infliction of the injuries for which the accused are prosecuted have been proved by a 'balance of probabilities' to have been inflicted in the course of exercise of a right of private defence, or even if the accused fails to do that, it is sufficient to make the prosecution case doubtful on an ingredient of offence., It is only in one of these two possible situations that the accused can get an acquittal. If circumstances which were to support the plea of private defence are satisfactorily explained away by the prosecution on the evidence in the case, so as to be consistent with the prosecution version, the case may still result in a conviction.
33. In the instant case, the totality of the evidence on record neither establishes even with reasonable possibility a right of private defence in favour of the appellants, nor throws a cloud of doubt on the prosecution case. There was no reasonable apprehension of harm so as to entitle the appellants to fire a shot at Jeeta Singh (deceased) or Balvinder Singh. It was urged that admittedly besides the witnesses examined in this case the presence of independent witness Daulat Ram, Block Development Officer, Sadul Sahar, on the scene of occurrence, at the time of incident, has been proved but the prosecution has failed to examine him. Purposefully with-holding of the independent witnesses by the prosecution is explicable to only one hypothesis that if examined they would not have supported the prosecution case and would have supported the defence theory of the exercise of the right of self defence. The Block Development Officer Shri Daulat Ram was the Secretary of the Panchyat Samiti, Sadul Sahar of which the accused-appellant Udey Singh was Pradhan. It has also come in the evidence that the Block Development Officer was not ready to disclose the facts. A perusal of the statement of Daulat Ram, recorded under Section 164, Cr. P.C. reveals that the witness was not ready to tell the truth. Though he admitted Jus presence near the scene of occurrence, but refused to be an eye-witness of the occurrence. This witness can not be termed to be a witness necessary to unfold the case. Even at the risk of repetition we will like to mention that out of the seven eye-witnesses produced by the prosecution five had to be declared hostile & production of this witness in the court would not have in any way furthered the cause of justice. A similar question was raised before their Lordships of the Supreme, Court in Masalti v. State of Uttar Pradesh : 8SCR133 . Hon'ble Gajendragadkar, C.J., speaking for the Court, laid down the law as under on this point:
It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorist of win over prosecution witnesses, and if the prosecutor honestly and bonafide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for, unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under Section 540, Cr. P.C.
34. As already discussed above the evidence of P.W. 6 Balvinder Singh is convincing and natural and no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of Balkaran Singh and Gurcharan Singh. His statement stands corroborated by the statement of P.W. 27 Mst. Gurpal Kaur as well as the first information report Ex. P. 11, post-mortem report Ex. P. 4 7, injury report Ex. P. 46 of Balvinder Singh (P.W. 6), and the statement of P.W. 10 Dr. Jaswant Singh. His evidence regarding complicity of the accused Balkaran Singh in the crime farther stands corroborated by the recovery of blood-stained shirt Article 32 from his possession. As already mentioned above, the shirt Article 32 was found to be stained with human blood of 'AB' Group. It is an admitted case of the parties that blood group of Balkaran Singh was of the 'O' group, whereas blood-group of deceased Jeeta Singh was of 'AB', and this evidence can be very well said to be a clinching piece of evidence fastening the guilt on the accused appellant Balkaran Singh in support of the statement of P.W. 6 Balvinder Singh. The statement of this witness regarding the accused-appellant Gurcharan Singh stands corroborated by the letter's attempt to produce false evidence regarding injuries on his person as already noted above. As regards Udey Singh the statement of this witness apart from the other corroboration further stands corroborated by the evidence of his absconding just after the occurrence for a period of more than nine months. Thus this case falls in the third category as enumerated in State of Gujarat v. Bai Fatima : 1975CriLJ1079 , Non-explanation of the sustained by the two accused i. e. Balkaran Singh and Gurcharan Singh by the prosecution does not in any way adversely affect the case of the prosecution
35. As already stated above, it has been proved by the evidence of P.W. 6 Balvinder Singh that a day prior to the occurrence two persons came to enquire at the house of Jeeta Singh (deceased) as to when he was leaving for Amargarh on the next morning. It has come in the evidence that on the fateful day the accused persons were sitting on the cots and chairs in their field which is adjacent to the road leading from village Karadwala to Sangariya. There was no occasion for the accused appellants Gurcharan Singh and Balkaran Singh for being armed with carbine guns because they were sitting on their own field on which their residential place is situated. From the facts on record it stands proved that the assailants were waiting for Jeetasingh's arrival. On his arrival with Balvinder Singh near the place where they were sitting, accused Gurcharan Singh stated that the enemies had arrived on which Udey Singh Pradhan asked Jeeta Singh to be alert 'Tagda Hoja'. At that stage Gurcharan Singh fired a shot which hit P.W. 6 Balvinder Singh on his right arm. Balvinder Singh rushed for life. While going towards the field where 'Gowar' crop was standing, he saw behind and found that all the accused were firing shots towards the tractor. All this evidence is sufficient to hold that the common intention of all the accused-appellants was to commit the murder of Jeeta Singh (deceased). In similar circumstances in Dharam Pal and Ors. v. The State of U.P 1975 CAR (SC) 343 Hon'ble Beg J. (the present Chief Justice), speaking for the Court, observed as under:
Even if the number of assailants could have been less than five in the instant case (which we think, on the facts stated above, was really not possible, we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows preplanning. Some of the assailants had sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a preconcert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C., also to this case.
36. The above mentioned observations squarely apply to the facts of the case on hand. We are unable to agree with the learned Counsel for the accused-appellants that it is a case of similar intentions and not of common intention to murder. In the case on hand, all the three appellants fired shots after exhortation by Udey Singh. In the cast murderous assault by many hands with guns had ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose injuries have not been proved fatal. When people play with guns and lives, the circumstances that one man did not hit the vulnerable part of the person of the victim or had hit only the tractor or missed the mark is of no consequence to fix the guilt of murder. We may also advert to the tacit exposition of the law on the subject in Hatshadsingh v. State of Gujarat : 1977CriLJ352 . Hon'ble Krishna Iyer J., speaking for the Court, has observed as under:
Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34 I.P.C. fixing constructive liability conclusively silences such a refused plea of extrication.
His Lordship while dealing with the question of fixation of constructive liability under Section 34, I.P.C. observed:
They also serve who only stand & writ a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be passed into service to nullify or jettison the plain punitive purpose of the Penal Code.
37. As regards the effect of the acquittal of the two accused Madha Singh and Hargovind Singh it is suffice to say that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused for whom such a doubt arises. It is the duty of the Court to separate the chaff from the grain, and if it is proved, as in the case on hand, that the convicted persons were certainly attacking the deceased then there can be no principle of law or justice which could stand in the way of the applicability of Section 34, I.P.C. for convicting those found indubitably guilty of participation in carrying out the common intention of the assailants.
38. For the above mentioned reasons, in agreement with the trial court, we uphold that the guilt of the three appellants has been proved beyond any reasonable doubt, and this appeal stands dismissed.