STATE OF MADHYA PRADESH v. SARDAR

Citation: [2001] 3 S.C.R. 1161

Court: Supreme Court of India

Bench: M.B. SHAH, S.N. VARIAVA

Judgment text

STATE OF MADHYA PRADESH r v. ... _ SARDAR - JULY 25, 2001 [M. B. SHAH AND S. N. VARIAVA, JJ. ] Criminal Trial: Evidence-Omissions and contradictions in -Effect of-Held: Omissions and contradictions which affect basic structure of prosecution case may be sufficient for giving benefit of doubt to accused-But if benefit of doubt is given to some accused persons on the basis of some contra that, without opening them, one cannot enter. " .... _ ,J. _. It must, however, be noted that this witness has also stated that the door of the house was flooded with blood and that the other doors were closed. He also deposed that at several places handles of axe were lying and that the door of the house was stained with blood and was broken at seJeral places by strokes ofaxe. The evidence of this witness has to be read as a whole. It conveys that the doors had not been completely -separated from its hinges. This witness corroborates the fact that th.

~ door had been broke open at several places by the strokes of an axe. Merely because the inmates ,. managed to close tlie door which was opened by the accused, would not mean that earlier the door had not been broke open. This is evidence of an independent witness, ·who was first on the. scene after the incident. He has no axe to grind and is not interested in taking sides. Far from assisting the accused the evidence indicates that the main incident took place at the house ofMubarik. PW 20 Amamath Upadhyay, SHO was also examined. He has stated that on receiving the information he had gone t? the spot prepared a map of the spot on the basis of identification by the complain. ant Yaqub. He deposes fabout having seen blood on the spot of the incident and having seized the blood stained soil and ordinary soil. He further deposed about seizure of axe and Saliya from the accused persons respectively and the· arrest of accused persons.

In cross-examination he admits that the accused had lodged a complaint on the same day and that he had also investigated that crime as three of the accused persons were also injured. H'e admits _that accused Daulat and Sikander had remained in the hospital ev_!! n when they were arrested as their injuries were not completely cured. He had also prepared a map of the spot where according to the accused the incident took place and had riot found any blood on that spot. He stated that the spot indicated by the accused is a thoroughfare. It is his say that he made enquiries from the neighbours but nobody was ready to speak. The prosecution has proved a site map which was marked as Ex. P-12 through the evidence of PW14 Bhagirath Patwari. This site map showed that the door of Ahmad Noor's house had broken marks on it. It must be mentioned that during cross-examination there has been virtually no challenge to the wfacts mentioned in this site map.

In our view, the evidence of injured witnesses as well as eye-witnesses ( including that of PW14 Bhagirath Patwari, who prepared the site map, and PW7 Head Constable Ramesh Chander, who visited the house on receipt of information, proves beyond reasonable doubt that the door of Mubarik's house was broke open. This would mean that incident took place as narrated by the injured witnesses. Their testimony has not been affected by crossexamination nor there is any contradiction or omission on this aspect. Further, the suggestion made to the witnesses in the cross-examination would also indicate that door in question was broken. It was suggested by the defence that door was broken by the injured witnesses.

In the cross-examination, Yakub (PWl} stated that it is wrong that we people had assaulted Sikander, Daulat and accused Ahmad Noor with stick and axe, in which Daulat's head was fractured; it is wrong that no door of Mubarik's house was broken nor any assault was done; it is wrong that Mubarik himself had broken the door of his house to save him from the report of these accused persons. Yusuf (PW4) stated that it is wrong that we ourselves had broken the door of our house to save us from the responsibility of the assault of accused persons; it is wrong that incident had taken place at our house, it occurred in the street which is in front of the house of Gokul. In this set of circumstances, there is no reason to disbelieve the prosecution evidence that accused entered the house of Mubarik after breaking open the door and inflicted injuries to the prosecution witnesses.

Further, lsmile (PW5) has stated that injuries were caused to him by accused Ahmad Noor, Daulat and Ramzu and injuries to deceased Ahmad Noor were caused by accused Usman and Sardar. Yusuf(PW4) has stated that injured Mubarik was attacked by accused Daulat, Sikander and Ahmad Noor and he himself was attacked by Ramzu, Sikander and Usman and deceased Ahmad Noor was attacked by Usman and Sardar. As per third injured witness Mubarik (PW2), accused Sardar and all other accused assaulted Ahmad Noor; he was assaulted by accused Sikander and Yusuf was assaulted by accused Ahmad Noor. From the above evidence of all the injured witnesses one thing is clear that all have stated that accused Sardar had assaulted Ahmad Noor. It is true that there is contradiction in naming the accused with regard to the assault on the injured witnesses. For assault and injury to self, they named different accused, but out of them PW2 and PW4 named accused Sikander and Ahmad Noor who assaulted and injured them.

PW5 stated that he was assaulted by Ahmad Noor, Daulat and Ramzu. Question would be whether evidence of these injured witnesses should be discarded on some omissions or contradictions? Normally, omissions or contradictions which affect the. basic ......... structure of the prosecution case may be cbnsidered to be sufficient for giving. benefit of doubt to the accused. From the facts narrated above, all the witnesses have named all the accused as assailants. On the basis of some contradictions, no doubt, benefit of doubt is given· to two accused, but that' would not mean that basic structure of the prosecution version that accused came at the house of Mubarik and assaulted injured witnesses as well as the· deceased is affected at all and it stands proved beyond reasonable doubt. Hence, in our view, after considering "the omissions and contradictions and .

after appreciating the entire evidence, if the courts below have arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against some accused, it would not be a 'case for interference under Article 136 of the Constitution. The next contention of the learned counsel for the accused is that the prosecution has failed to explain the serious injuries caused to accused and that prosecution has suppressed the'genesis of the incident and changed the scene of offence. It is proved on record that in the same incident accused received serious injuries. Question is what is the effect of non-explanation of such injuries sustained by the accused. In the present case, it has to be decided whether accl1:sed were the aggressors as contended by the prosecution, and aggressor to such an extent that they went at the house of the deceased, broke upon the door and inflicted fatal injuries to Ahmad Noor and serious injuries to Mubarik PW2 and Yusuf PW4 and ! smile PW5.

Undisputedly, incident took place. However, defence version is that incident took place at a different place, namely, near a public water tap. That defence is disbelieved by both the courts below and as discussed hereinabove, in our view, there is no reason to take a different view from the view taken by the High Court as well as the Sessions Court. Then, next question iswhat is effect of non-explanati. on of i~iuries sustained by the accused at about the time ofoccurrence? It is settled law that in case of non-explanation of injuries to the accused, Court can draw following inferences : • 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. / ;.... _ 3. that in case there is a defence version which explains the injuries ____.. ,,,..

on the person of the accused it is rendered probable so as to _.. , throw doubt on the prosecution case. But, non-explanation of injuries may loose its importance where the evidence his clear, cogent and creditworthy and where court can distinguish the truth froni falsehood without much difficulty. It is also true that the reasonable inference which could be drawn in such cases is that accused persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted such injuries. On that basis again, the question would be whether the accused caused the injury to the prosecution witnesses and the deceased by exercising right ofprivate defence? Ji If the prosecution establishes that the accused were the aggressors and went / at the residence of the deceased or the prosecution witness and inflicted injuries to the deceased and witnesses, there is no question of right of private - defence to the accused. On the contrary in.

such situation, the prosecution party would have the right of private defence. In Kashmiri Lal and Others v. State ofPunjab, [1996] IO SCC 471, the Court observed thus:- "The law does not confer a right of self-defence en a person who invites an attack on himself by his own attack on another. The principle >. of right of self-defence cannot legitimately be utilized as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat. " Facts proved on record establish that accused were aggressors. Accused and the prosecution witnesses were having long standing dispute over the land. Because of previous incident of accounting Yakub, it is the prosecution story that all the six accused came at the scene of offence, first assaulted !

smile and at the house of Mubarik by breaking open the door which was closed, assaulted Ahmad Noor, Yusuf and Mubarik. At that stage, if someone from prosecution party counter attacked the assailants, there is no question of disbelieving the prosecution witnesses nor any right of private defence to a· the accused could be inferred. In such cases, there must be some evidence on record to probabilise such defence. In this view of the matter, we see no infirmity in the judgment of the trial Court or in the judgment of the High ... Court in convicting the Appellants in CriminalAppeal No. 872 of 1997. As set out hereinabove, accused Sardar had been acquitted by the High Court only on the ground that he should be given the same benefit of doubt which had been given to accused Usman and Rarnzu. The High Court also accepts the fact that the door was broken open and 3 pezsons of the complainant party were injured in the house.

The High Court also notes that circumstances indicate pres~nce of "more persons". The High Court also notes that as door was broken open there was possibility of presence of axe in the hands of some persons. Yet the High Court acquits Sardar only on ground that acquittal of two accused had become final. It is to be noted that Sessions Court gave benefit of doubt to Usman and Ramzu on the basis of contradiction in deposition of witnesses, Ismile, Yusuf and Mubarik with regard to the assault to the witnesses and also as there was no mark of injuries on their person. But this would not mean that there was any reason to discard the consistent evidence of prosecution witnesses with regard to the assault made by Sardar. The High Court also observed that according to Yaqub, Usman and Sardar both were armed with axe, but no axe injury, i. e. incised wound has been found on the body of any person of the complainant party.

Mubarik has stated that Sardar caused injury to Ahmad Noor by blunt part of the axe, but this does not find place in the FIR. Ismile has also stated that Usman and Sardar had axe, but as observed earlier, no incised injury has been found on the body of any person from the complainant side. The High Court observed that Sardar allegedly caused injury by axe, but no incised injury has been found and, therefore, Sardar deserved the same benefit as his participation becomes doubtful and does not stand corroboration from the medical evidence. In our view, this part of reasoning is entirely fallacious. It is to be seen from the evidence on record that Sardar is the main aggressor. It is established beyond reasonably doubt that he was the person who first accosted Yaqub, caught hold of him, beat him and threatened him.

Thereafter within few minutes, he long with other accused came at the house of Mubarik, first assaulted Ismile and thereafter broke open the door of the house of Mubarik which was closed and assaulted deceased Ahmad Noor as well as Mubarik and Yusuf. Merely because the trial court has given benefit of doubt to Usman and Ramzu, it would not mean that Sardar who is the main person should also be given benefit of doubt despite the fact that all the witnesses have named him and stated that he was the aggressor and assaulter.

It is true that incised injury is not found on the pers·on of the injured witnesses or the deceased, but that would not be a ground for giving him benefit of doubt in the facts and circumstances of the present case because it would depend on whether the blunt side or the sharpedged side of the axe was used, but ( considering the evidence of prosecution witnesses entirely is required to be convicted for the offence punishable under Section 302 read with 34 IPC and not only under Section 302 IPC. In the result, Criminal Appeal No. 871 of 1997 filed by the State is allowed. Th~ judgment and order passed by the High Court acquitting respondent is set aside and the order of the trial Court convicting the respondent for the offence punishable under Section 302 read with section ·34 is restored. He is directed to surrender within two weeks from today before the trial court for undergoing remaining part of his sentence. Criminal Appeal No. 872 of 1997 filed by the accused is dismissed. V. S.

S. Criminal Appeal No. 871197 allowed. Criminal Appeal No. 872/97 dismissed.