DASHRATH SINGH v. STATE OF U.P

Citation: [2004] SUPP. 3 S.C.R. 561

Court: Supreme Court of India

Bench: P. VENKATARAMA REDDI, B.P. SINGH

Case summary

DASHRATH SINGH v. STATE OF U.P.pdf

Judgment text

DASHRATH SINGH v. STATE OF U. P. AUGUST 13, 2004 [P. VENKATARAMA REDD! AND B. P. SINGH, JJ. ] Criminal Trial : Investigation-Defective investigation-IO omitted to make certain importantpoints in the site plan-Effect of-Held: Though the investigation was perfunctory yet it did not materially affect the substratum of the prosecution case which stood established by cogent and reliable evidence. Injuries on the accused-Non-mention of the same in FIR-Effect of-Held: Non-mention of injuries in FIR not a ground to discard the explanation of injuries given at the trial. , Injuries on the accused-Non-explanation-Effect of-Held: The weight to be given to non-explanation ofinjuries on the accused depends upon the quality of the prosecution evidence-Non-explanation of the injuries is one ofthe factors that could be taken in! o account in evaluating the prosecution evidence and the intrinsic worth of the defence version.

Injury-On the occipital region/skull-Weapon causing it-Held: Could be caused by a lathi or stick. Code of Criminal Procedure, 1973: Section 154. Cognizable cases-Investigation in-Omissions in FIR-Informant failed to mention in FIR that his associates tried to resist the attack and that there was a fight-Effect of-Held: Such an omission should not be given undue importance in view of reliable prosecution evidence and unreliable defence version. Penal Code, 1860: Sections 300 thirdly, 302, 304 and 326 read with S. 149. Murder-Intention TO kill-Absence of-Effect-Accused inflicted an injury on the head ofthe deceased by a single blow-Deceased survived for 38 days after the injury-Trial court convicted the accused under S.

302-High Court affirmed the conviction-Correctness of-Held: Both the Court's found that the common object was not to kill the deceased- Moreoever, after inflicting a single blow on the deceased the accused made no further move to attack him-This shows that the accused had no intention to kill the deceased-Further no report or case-sheet filed to indicate condition of deceased after surgery who survived for 23 days thereafter-Therefore, the scope of any intervening ailment unconnected with the surgery is not ruled out-Prosecution has, therefore, ftiiled to establish beyond a reasonable doubt that the eventual cause ofdeath was only the injury inflicted by the accused and nothing else-Hence, accused cannot be convicted under S. 302 or 304-Conviction altered to oni? under s. 326. According to the prosecution, when P brought his cattle and tied them up at a small parcel of land, the appellant R and one G objected to the same and threatened him with dire consequences.

After a few minutes, the appellant R armed with kanta, the other appellant D armed with a country-made pistol, G armed with lathis came to the house of the informant and started inserting some pegs in front of his house. At that time, the informant was sitting near the well. The accused R, using abusive honguage against P, shouted that he should come out of the house. A few minutes later, as P came out of the room, D aimed a shot at him with the pistol. As it did not hit him, )} once again fired; again, it missed the target. When P tried to run away, R stopped him and inflicted an injury on his head with kanta as a result of which P fell down. The nephew of the informant and his brother, in a bid to defend them, picked up the bamboos which were lying nearby and inflicted injuries on some of the accused persons. P was taken to a nearby hospital where he died after 38 days and his dying declaration was recorded. No postmortem of the dead body was conducted.

The trial court believed the eyewitnesses' account and the dying declaration. The trial court disbelieved the defence version that the accused acted in self-defence. However, the trial court was of the view DASHRATH SINGH v. STATE 563 that the common object of the unlawful assembly was not to commit the murder of P and the common object could only be to cause hurt or use criminal force against the prosecution party with a view to refraining P from asserting his rights over the disputed site. Therefore, the trial court held that the other members of the unlawful assembly could not be held vicariously liable for the acts of R and D, the appellants. The trial court convicted R under Sections 302, 323 . and 324 read with Section 149 of the Penal Code, 1860. D was convicted under Section 302 read with Section 34 IPC and Sections 148, 323 and 324 read with Section 149 IPC. The High Court upheld the conviction and sentence of R.

The conviction of D under Section 302 read with Section 34 IPC was altered to one under Section 307 and he was sentenced to five years' RI. Hence the appeal. On behalf of the appellants, it was contended that the injuries on the accused were not explained; that there was no disclosure of the injuries inflicted on the accused in the FIR; that the heap of bamboos which provided the means of counter-attack was not noted by the Investigating Officer (IO) in the site plan and, therefore, there was a lapse in the investigation on the part of the IO. Partly allowing the appeal filed by R and dismissing the appeal filed by D, the Court HELD: 1. The appellant's contention that the lapses or omissions on the part of the Investigating Officer in not noting certain important points in the site plan is untenable. Though the investigation appears to be perfunctory, that should not materially affect the substratum of the prosecution case which stands established by cogent and reliable evidence.

(572-E-G] 2. The High Court took note of the fact that the prosecution witnesses did explain that the injuries came to be inflicted on the accused with bamboos picked up by PW 2 and his brother in order to ... repel the further attack by the accused. The High Court observed that the mere fact that the FIR was silent regarding the injuries received by the accused is not a ground to discard the explanation giveD at the trial. There may be initial reluctance on the part of the informant to disclose that the prosecution party made a counter attack resent on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eye-witnesses. " The law on the subject has been succinctly clarified by R. C. Lahoti, J. (as he then was) speaking for a three Judge Bench in Takhaji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 sec 145.

After referring to the three Judge Bench decisions of this Court, it was observed: ".. the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution.

Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons. " The injuries of serious nature received by the accused in the course ofthe same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision.

It is here the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evic! ence available having bearing on the origin ofthe incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may primafacie make a dent on the credibility of their evidence.

So also where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of nonexplanation of the injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to th~ aspect of non-explanation of the injuries should be considered. The decisions above cited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of nonexplanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth ofthe defence version. By this explanatory note, we are only elucidating what has been laid down in a catena of decisions on this aspect.

Coming back to the situation in the present case, the High Court found that independent and reliable evidence including dying declaration of the victim is available. The defence version does not inspire confidence in the estimation of the Court and does not compete in probability with that of the prosecution. That is how the High Court has approached the matter and we cannot find fault with the same. To add to what the High Court has said, we may point out that there is every possibility that PW-4 the informant, would not have been in a position to notice that some of the accused received severe injuries. It is true that one of the appellants Dashrath had a facture of the little finger which is described as a grievous injury but there could hardly be any occasion to observe such injury in the melee that followed the aggressive attack ofthe accused party. So also, the injuries on the other accused might not have been noticed by PW-4 the informant.

Still, he could have mentioned broadly that his associates tried to resist the attack and there was a fight. The omission to state so in the FIR should not be given undue importance, as held by the High Court. Coming to the investigation stage, by the time the investigation was taken up, a clear picture had emerged. The counter-complaint ofRaja Ram given a few hours later was on record. The investigation into these two FIRs would have proceeded simultaneously. There could not have been any suppression ofthe other part ofthe incident at that stage. No such questions were put to the 1. 0. in order to elicit whether there was such suppression. However, there is one aspect which remained unexplained even at the trial i. e, the incised wounds - one each on Ranjit Singh and Hari Lal which, according to the medical evidence, could have been caused by a sharpedged weapon.

As far as Ranjit Singh is concerned, the question of explaining the injury caused to him does not arise as he was acquitted for the reason that his presence was doubted. In fact Ranjit Singh himself in the course of Section 313 examination denied the knowledge of the incident. There remains the incised injury caused to Hari lal which at first blush seems unexplained. PW-6 noted incised wound of 5 cm. x I cm. x scalp deep on the occipital region, with the exposure of skull bone. PW- I and his brother were supposed to have wielded bamboo sticks. Ifwe go strictly by medical evidence, this injury might have been caused by a sharpedged weapon but not a lathi. But, we get it from the text books on Medical Jurisprudence that some of the lacerations caused by a blunt instrument could look like incised wounds if the blunt force is applied on the areas such as scalp. The following passages from Medical Jurisprudence and Toxicology (Seventh Edition) authored by HWV Cox and edited by Dr. P. C.

Dikshit would clarify the position: "The most common place for serious lacerations to be found, especially in forensic practice, is the scalp which is often the target for homicidal attack. As mentioned above, the hard underlying skull forms an unyielding base upon which the skin and soft tissues can be crushed, so that many blunt injuries ofthe scalp are indistinguishable at first sight from a laceration caused by a knife, sharp axe or any other cutting instrument. " Under the head Split Laceration, it is explained: "Splitting occurs by crushing the skin between two hard objects. They are also called incised looking wounds. When there is application of blunt force on areas where the skin is closely applied to the bone and sub-cutaneous tissue is scanty, the wounds are produced by linear splitting of the skin. The common areas are scalp, eyebrows and hibones. They. can be differentiated by eiqunining the margins by magnifying glass and in these cases the roots of hair are crushed.

" Again, at the beginning of the Chapter V dealing with wounds ofthe heiid it is explained: "Blunt injuries to the scalp are classically confused with knife slashes, due to the splitting of the tissues because of the firm underlying cranial bones beneath the aponeurosis. This has been described in the last chapter, but it should be repeated that the distinction between blunt splits and knife cuts may be difficult, but usually possible by a minute examination of the wound margins. " In Modi 's Medical Jurisprudence & Toxico,logy (Twenty-Second edition) edited by B V Subrahmanyam, it is explained at page 342: "Occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, skin, perineum etc... " It is further clarified at Page 404- "...

A scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends ofthe wound must be carefully seen to make out a tom edge from a cut and also to distinguish a crushed hair bulb from one cut or tom...... " Therefore, the evidence of the Medical Officer does not necessarily lead to the conclusion that the injury found on the occipital region/skull could not have been caused by a lathi or stick. Even if there is some doubt on this aspect, taking an overall view, we do not consider it a legitimate ground to reject the prosecution case lock, stock and barrel. The prosecution case as regards the head injury inflicted by Raja Ram on Pratap Singh with kanta and the attempt on his life by Dashrath by resonmg to firing having been established beyond reasonable doubt, the next question is as to the nature of offence committed by Raja Ram. Firstly, it must be noted that the intention to cause the death ofPratap Singh cannot be imputed to the accused Raja Ram.

Apart from the finding ·B of both the Courts that the common object of the unlawful assembly was not to kill Pratap Singh or any other member ofhis family but only to cause hurt or apply criminal force in order to desist them from assening the rights over the disputed site, one more circumstance that rules out the intention on the part ofany ofthe accused to kill Pratap Singh is that after the single blow inflicted on the victim with the kanta, there was no funher move to attack him. PW-I made this clear in his deposition. IfRaja Ram intended to kill him, he would not have stopped at injuring him once only. Still, the question remains whether the offensive act done by the appellant Raja Ram falls within clause thirdly of Section 300. That the appellant intended to cause bodily injury to the victim by striking him on his head with a sharpedged weapon the appellant was carrying cannot be denied in view of the sequence of events deposed to by PWs I to 4.

From the medical evidence of PWs 6 & 8 coupled with the magnitude of the injury caused on head with a dangerous weapon, it can be presumed that the injury which was inflicted and intended to be inflicted is sufficient in the ordinary course of nature to cause death. PW-8 who performed the surgery on 13. 8. 1977 noted the pre-operative diagnosis on Exhibit ka-9 as follows: "Right fronto-parietal infected compound communated fracture of skull with brain heriniates,. underneath: brain abscess and cerebratis with heriniation. " He prescribed post-operative treatment. PW-8 stated that the death was on account of the head injury which caused brain abscess and such injury could lead to the occurrence of death in the ordinary course of nature. The evidence of PW-8 leaves no doubt that the skull and brain injury caused to the victim was sufficient in the ordinary course of nature to cause death.

PW-6 who attended on the victim on the day of occurrence itself noticed the incised wound of 15 cm x 5 cm x brain tissue deep found on the head of the patient. He stated that the injury was appearing to be dangerous to life and the i. njury must have been inflicted by a sharp-edged object thrust with sufficient force. The medical evidence however, does not establish beyond reasonable doubt that the ultimate cause of death was the aforesaid injury. From the date of the surgery, the victim was alive for 23 days and undergoing treatment in the hospital. He survived for 38 days after the injury was received. Not a word has been said and no report or case-sheet has been filed to indicate the condition of the patient after the surgery. No doubt, there was no cross examination of the Doctor (PW-8) on this aspect.

Yet, it was the primary duty of the prosecution to adduce evidence in regard to the post-operative condition of the patient so that the scope for any intervening ailment unconnected with the injury is ruled out. This becomes all the more important because of the long time lag and the omission to hold post-mortem. Apparently, there was a callous indifferenre or lack of vigilance on the part of the Investigating Officer in failing to ensure the post-mortem examination in a case ofthis nature. PW-8 came forward with the explanation that the postcmortem is not absolutely necessary to ascertain the cause of death. But, then, the prosecution has to establish beyond reasonable doubt that the eventual cause of death was only the injury inflicted by the appellant and nothiqg else, but it has failed to do so. We are therefore of the view that the appellant Raja Ram cannot be held guilty of an offence under Section 302 or Section 304.

He must be held guilty under Section 326 for voluntarily causing a grievous hurt by means ofa dangerous weapon. Accordingly, his conviction is modified to Section 326 and he is sentenced to undergo rigorous imprisonment for six years and to pay the fine of Rs. 1,000. In default of payment of fine, he shall undergo further imprisonment for four months. The accused will have the benefit of set off of the period of imprisonment undergone in terms of Section 428 Cr. P. C. In the result, the Criminal Appeal No. 910 of2000 filed by Raja Ram is allowed partly. The Criminal Appeal No. 909 of2000 filed by Dashrath Singh is dismissed. v. s. s. Criminal Appeal No. 90912000 dismissed. Criminal Appeal No. 910/2000 partly allowed.