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2002 DIGILAW 852 (PNJ)

Ishwar Dass v. State Of Haryana

2002-08-28

HEMANT GUPTA, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. This is a criminal appeal filed by four brothers Ishwar Dass, Lachhman Dass, Bhagwan Dass and Vinod Kumar sons of Hari Chand and it has been directed against the judgment and order dated 15.6.1998 passed by learned Sessions Judge, Ambala, who convicted the appellants under Section 302/34 and 323/34 IPC for committing the murder of Lal Chand and causing simple hurt to Asha Rani (PW-2), Roshan Lal (PW3) and Kishan Lal (PW4), and sentenced each one of them to life imprisonment and to pay a fine of Rs. 2,000/- each and in default of payment of fine each one of them was directed to undergo RI for a period of three months under Section 302/34 IPC. The appellants were further sentenced to undergo RI for a period of three months each under Section 323/34 IPC. The trial Court, however, ordered that all the sentences shall run concurrently. 2. The appellants along with Smt. Wilson Devi daughter of Bhim Singh and Nanak Chand son of Daulat Ram faced charges under Sections 148, 302/149 and 323/149 IPC on the allegations that on 14.8.1997 in the area of village Tundla, falling within the jurisdiction of Police Station, Panjokhra, they were the members of an unlawful assembly and in prosecution of common object of the said unlawful assembly committed the offence of rioting when they were armed with iron Saria, knife, iron rod, hockey and lathis etc. i.e. deadly weapons, which were allegedly used for the commission of the crime. Secondly, it was alleged against them that on the same date, time and place and in prosecution of the common object of the unlawful assembly they intentionally committed the murder of Lal Chand, a young boy of 25 years, by causing him multiple injuries; and thirdly, that on the same date, time and place in prosecution of common object of the unlawful assembly caused hurt to Asha Rani, Roshan Lal and Kishan Lal PW2, and thereby committed the aforesaid offences. 3. The law came into action on the statement of Nanak Chand son of Kishan Lal (PW5), who stated before SI Hari Chand, SHO, Police Station, Panjokhra that he is a resident of village Tundla Mandi and works as tailor with Gramini Tailor Ambala Cantt. 3. The law came into action on the statement of Nanak Chand son of Kishan Lal (PW5), who stated before SI Hari Chand, SHO, Police Station, Panjokhra that he is a resident of village Tundla Mandi and works as tailor with Gramini Tailor Ambala Cantt. A litigation over the issue of wall was going on with Ishwar Dass, Vinod Kumar, Lachhman Das, Bhagwan Dass sons of Hari Chand, residents of the same village, who are their neighbours. About one month back, the dispute was got compromised by the Panchayat between the parties. On 14.8.1997, they have got constructed a wall with the kitchen of their house facing the street at the height of 2 feet. At night, about 9.30 p.m., he and his father Kishan Lal, his brothers Roshan Lal, Lal Chand and his wife Asha were present in the house when Ishwar Dass, Vinod Kumar, Lachhman Dass, Bhagwan Dass and Nanak Chand sons of Daulat Ram came in the street in front of their house. After coming, Lachhman Dass used filthy language and said as to why the wall has been constructed. The complainant side asked him not to use abusive language. Upon this an alteration took place between both the parties. Thereafter, they went away to their home. Then Ishwar Dass armed with lathi, Vinod Kumar armed with iron rod, Lachhman Dass armed with iron handle of hand pump, Bhagwan Dass armed with a knife and Nanak Chand armed with hockey came there after consultation with each other. When the complainant party was standing in the street in front of their house, Lachhman Dass started demolishing the constructed wall and when the complainant party prevented him from doing so, he raised a Lalkara "Pakar lo salo ko, inhe dewar banane ka maja chakhate hain." (catch hold of them and teach a lesson for constructing a wall). He stated that this wall has been constructed in his land. Thereafter, Vinod Kumar and Bhagwan Dass caught hold of his brother and dragged him towards the fields. Lachhman Dass gave injuries on the head of his brother Lal Chand with the help of iron pipe of the hand pump which he was carrying in his hand. Ishwar gave lathi blow on the left leg of his brother Lal Chand and Lal Chand fell down. Lachhman Dass gave injuries on the head of his brother Lal Chand with the help of iron pipe of the hand pump which he was carrying in his hand. Ishwar gave lathi blow on the left leg of his brother Lal Chand and Lal Chand fell down. When his brother Roshan Lal, his father Kishan Lal, his brother Lal Chands wife Asha and the complainant stepped forward in order to rescue Lal Chand, Nanak Chand (since acquitted) gave a hockey blow on the head of his brother Roshan Lal and Bhagwan Dass gave knife blows on both arms of his father Kishan Lal. At the same time Smt. Wilson Devi (since acquitted), Mausi of Ishwar Dass, came at the spot with brick in her hand and she threw the same on Asha Rani wife of Lal Chand which struck her on the eye-brow of left eye. On hearing the noise of quarrel, their neighbour Madan Lal son of Ganga Ram came to the spot and he and the complainant after intervening rescued the injured with great difficulty. On seeing other persons coming from the village, the appellants along with their companions (assailants) ran away from the spot with their respective weapons. Complainant Nanak Chand and one Rakesh brought Lal Chand on a horse-cart of Suresh Kumar to Civil Hospital, Ambala Cantt. After seeing the condition of Lal Chand, the doctor declared him dead and directed the complainant to place the dead body in the dead house. As per the instructions of the doctor, the complainant placed the dead body of his brother in the mortuary in Civil Hospital, Ambala Cantt. itself. In the hospital the complainant came to know that his father, brother and Asha Rani have been admitted in Monga Hospital, Mahesh Nagar. After some time, police arrived in the hospital. The complainant alleges that his brother Lal Chand has died on account of the injuries received during the quarrel, therefore, necessary action be taken against the accused. 4. Statement Ex. PN made by Nanak Chand was read over and explained to him and he signed the same in token of correctness and it was also attested by SI Hari Singh. The Thanedar made endorsement Ex. 4. Statement Ex. PN made by Nanak Chand was read over and explained to him and he signed the same in token of correctness and it was also attested by SI Hari Singh. The Thanedar made endorsement Ex. PN/1 underneath the said statement at 3.30 a.m. on 15.8.1997 and sent the same to Police Station, Panjokhra for the registration of the case on the basis of which formal FIR was recorded at 4.30 a.m. vide DDR No. 32 dated 15.8.1997. It may also be mentioned here that the place of occurrence is at a distance of 5-1/2 kilometres from the Police Station. The special report of this case reached the Area Magistrate at 11.10 a.m. on 15.8.1997 and the distance of the Police Station and that of the seat of the Area Magistrate is also about 5 kilometres. 5. PW6 Hari Singh, SI/SHO, Police Station, Panjokhra started the investigation of this case when he on 15.8.1997 received the message of murder of Lal Chand. This message was received by him from Police Post Regiment Bazar, Ambala Cantt. from where he collected ruqa Ex.PH and copy of the DDR Ex. PV and reached Civil Hospital, Ambala Cantt and recorded the statement Ex. PN of Nanak Chand which was read over and explained to him. The Thanedar made endorsement Ex.PN/1 underneath the said statement and sent the same to the police station for registration of the case, on the basis of which formal FIR Ex.PN/2 was recorded. 6. The Investigating Officer went to the mortuary where the dead body of Lal Chand was lying. He prepared inquest report Ex.PC. He then went to the scene of occurrence and lifted blood stained earth and made a sealed parcel of the same as Ex.P5 and took it into possession vide memo Ex. PQ. The seal after use was handed over to Nanak Chand PW. Constable Randhir produced after post- mortem examination the clothes of the deceased in a sealed parcel along with a vial of blood and the same were taken into possession vide memo Ex.PX. He also prepared rough site plan Ex.PY of the place of occurrence. On the same day be moved three applications Ex.PZ, Ex.PZ/1 and Ex.PZ/2 in Monga Hospital, Ambala Cantt. He also prepared rough site plan Ex.PY of the place of occurrence. On the same day be moved three applications Ex.PZ, Ex.PZ/1 and Ex.PZ/2 in Monga Hospital, Ambala Cantt. whereby he wanted to obtain the opinion of the doctor if the injured namely, Asha Rani, Roshan Lal and Kishan Lal were fit to make statement and the doctor vide endorsements Ex.PZ/3, PZ/4 and PZ/5 disclosed that the injured had already been shifted to Civil Hospital, Ambala Cantt. Resultantly, the Investigating Officer went to Civil Hospital, Ambala Cantt. and recorded the statements of the three injured witnesses under Section 161 Cr.P.C. On 18.8.1997, after the arrest of Nanak Chand (since acquitted), he was interrogated and on interrogation Nanak Chand disclosed that he had kept concealed a hockey underneath an iron box in his residential house. His disclosure statement Ex.PR was recorded. It was read over and explained to the accused who signed the same in token of correctness. Thereafter, Vinod Kumar accused, who was also in the custody of the police, was interrogated about the weapon of offence and he on interrogation disclosed that he had kept concealed an iron rod in the room of his house and he could get the same recovered by pointing out the place of concealment. His disclosure statement Ex.PS was recorded. It was read over and explained to this accused. He signed the same in token of correctness. It was attested by Nanak Chand PW and HC Mamu Ram. Bhagwan Dass accused under custody was interrogated on 19.8.1997, who made disclosure statement Ex.PAA that he had kept concealed a dagger in his residential house and he could get the same recovered. This disclosure statement was signed by the accused and was attested by Ganga Ram and HC Ram Kumar. On 21.8.1997, the Investigating Officer arrested accused Lachhman Dass and Ishwar Dass and interrogated them about the weapon of offence. They made disclosure statements Exs.PT and PU by stating that they had kept concealed the lathi and iron handle of hand pump in their house which they could get recovered. Their statements were also attested by Nanak Chand PW and HC Ram Kumar. They made disclosure statements Exs.PT and PU by stating that they had kept concealed the lathi and iron handle of hand pump in their house which they could get recovered. Their statements were also attested by Nanak Chand PW and HC Ram Kumar. In view of the said disclosure statements, all these accused got the recoveries effected from the respective places, as a result of which lathi Ex.P4 was recovered at the instance of Ishwar Dass from his house, iron handle of hand pump Ex.P3 was recovered at the instance of Lachhman Dass from his house, vide recovery memos Exs.PBB and PCC, respectively. Thereafter, the dagger Ex.P6 was recovered at the instance of Bhagwan Dass from his house and it was taken into possession vide memo Ex.PDD and iron rod Ex.P7 was recovered at the instance of accused Vinod Kumar vide recovery memo Ex.PEE. The recovery memos were attested by the witnesses. Hockey Ex.P8 was got recovered at the instance of Nanak Chand from his house and it was also taken into possession vide memo Ex.PFF. All these weapons of offence were separately sealed in parcels with the seal of the Investigating Officer bearing inscription HS and the seal after use was handed over to Ganga Ram and Kallu PWs. The Investigating Officer also prepared rough site plans of the places of recovery of the weapons and he also made various sketches of the weapons recovered from the possession of the accused. 7. Dr. Birender Singh (PW1), on 15.8.1997, when he was posted as Medical Officer, Civil Hospital, Ambala Cantt., at 2.00 p.m. on police request Ex.PA conducted post-mortem examination on the dead body of Lal Chand son of Roshan Lal, aged 25 years. It was a well built body of a young man 5-1/2 feet tall, wearing a sleeveless vest light blue in colour with dark blue border. The doctor found the following injuries on his person :- "1. There was a lacerated wound on the scalp right parietal 1.5 cm. x 0.5 cm. and bone deep. 2. There was a lacerated circular wound 1 cm. in diameter on the middle of left lower leg anteriorly in middle. 3. In the skull, there was a fracture of the left parietal bone and a fracture of the right parietal bone. Extra-dural haematoma was present below the fracture sides. 4. In the neck posteriorily superficial dissection showed multiple peticheal haemorrhages. There was a lacerated circular wound 1 cm. in diameter on the middle of left lower leg anteriorly in middle. 3. In the skull, there was a fracture of the left parietal bone and a fracture of the right parietal bone. Extra-dural haematoma was present below the fracture sides. 4. In the neck posteriorily superficial dissection showed multiple peticheal haemorrhages. Fracture of cervical 4th, 5th and 6th bones of the vertebra was present." The stomach, small intestine and large intestine were containing a small amount of fluid. In the opinion of the doctor, the cause of death was shock and haemorrhage due to the fracture of 4th, 5th and 6th cervical vertebra and fracture of skull. These injuries were sufficient to cause death in the ordinary course of nature. The doctor issued copy of the postmortem report Ex.PB. It was further opined by the doctor that the injuries on the person of Lal Chand were ante-mortem in nature and the duration between the injuries and death was few minutes and between death and postmortem less than 48 hours. After the postmortem examination the doctor handed over to the police well stitched dead body, besides clothes (Exs.P1 and P2) of the deceased and blood sample. The doctor also opined that iron handle of hand pump Ex.P3 could be used in causing injuries on the person of the deceased. Lathi Ex.P4 could also cause the death of the deceased. Inquest report Ex.PC was received by the doctor along with the dead body. 8. On the same day very doctor medically examined Smt. Asha Rani wife of Lal Chand at 12.30 p.m. and found the following injuries on her person :- "1. 1 cm. long stitched wound, one stitch applied on the left parietal surface of scalp. No bleeding was present. Tenderness was present. Bogi swelling was present. 2. 1.5 cm. long stitched wound on the ore-head was present 2 cm. superior to right eye-brow. Tenderness was present and there was no bleeding. Two stitches were present. 3. Slight greenish purlant discharge was present. 4. Complaint of tenderness and pain on the occipital area of the scalp, for which X-ray was advised." Injuries No. 1 and 2 were simple in nature and the probable duration of the injuries was about 24 hours. Tenderness was present and there was no bleeding. Two stitches were present. 3. Slight greenish purlant discharge was present. 4. Complaint of tenderness and pain on the occipital area of the scalp, for which X-ray was advised." Injuries No. 1 and 2 were simple in nature and the probable duration of the injuries was about 24 hours. Injury No. 1 was caused by blunt weapon while the nature of the weapon could not be determined with regard to rest of the injuries. The copy of the MLR is Ex.PD and Ex.PD/1 is the pictorial diagram showing the seats of the injuries. 9. This very doctor on the same day medico-legally examined Roshan Lal son of Kishan Lal at 1.00 p.m. and found the following injuries on his person :- "1. Stitched wound 2 cm long (three stitches) on forehead, 4 cm. superior to left eye-brow. Tender, no fresh bleeding, slight discharge was present (watery). 2. An abrasion 1 cm. x 1 cm. middle of scaro eliac region. 3. Swelling left finger of right hand and M.P. joint of right hand. Advised X-ray for this injury." Injuries No. 1 and 2 were declared simple and injury No. 3 was subjected to X-ray. However, it was declared simple after the receipt of X-ray report. The duration of the injuries was about 24 hours. Injuries No. 2 and 3 were caused by a blunt weapon, but no opinion was given by the doctor with regard to injury No. 1. Ex.PE is the copy of MLR and Ex.PE/1 is the pictorial diagram showing the seats of injuries of Roshan Lal. 10. Further, this doctor examined Kishan Lal son of Gopal Dass, aged 50 years at 1.30 p.m. on the same day and found the following six injuries on his person :- "1. Stitched wound 2 cm. long (3 stitches) on anterior aspect or right upper arm, 8 cm. superior to elbow joint. 2. An abrasion 2 cm. x 1 cm. on lateral aspect of left shoulder joint was present. 3. An abrasion anterior axillary fold right side 1 cm x 1 cm. 4. Complained of pain chest, for which X-ray was advised. 5. An abrasion low back, transverse 4 cm. along just superior to sacro iliac joint. 6. superior to elbow joint. 2. An abrasion 2 cm. x 1 cm. on lateral aspect of left shoulder joint was present. 3. An abrasion anterior axillary fold right side 1 cm x 1 cm. 4. Complained of pain chest, for which X-ray was advised. 5. An abrasion low back, transverse 4 cm. along just superior to sacro iliac joint. 6. Sweeling right elbow was present, for which X-ray was advised." Injuries No. 2, 3, 4, 5 and 6 were found simple in nature and the duration between the injuries and medico-legal examination was within 24 hours. The kind of weapon for injury No. 1 could not be ascertained while rest were caused by blunt weapon. Ex.PF is the copy of MLR and Ex.PF/1 is the pictorial diagram showing the seats of injuries. 11. On 15.8.1997, police submitted application Ex.PG seeking opinion of the doctor whether Kishan, Roshan Lal and Asha were fit to make statement and the doctor vide endorsement Ex.PG/1 declared them fit to make statements. Ex.PH is the ruqa sent by Dr. Alkahnanda to Police Post, Regiment Bazar, Ambala Cantt. The signatures of Dr. Alkahnanda were also identified by Dr. Birender Singh (PW-1). 12. There is one important factor also, that is that there were injuries on the side of the accused which have been proved by Dr. Sudhir Kapoor (DW2), who, on 14.8.1997 at 11.40 p.m. medico-legally examined appellant Laxman son of Hari Chand, aged 40 years. The patient was brought to the hospital by Nanak Chand son of Ram Chander and the doctor found the following injuries on his person :- "1. Lacerated wound of size 3 cm. x 1/2 cm. on parieto occipital region near midline. Reddish colour. Swelling around surrounding area was present. X- ray of the skull and surgeon opinion was advised. 2. Lacerated wound of size 1-1/2 cm. x 1/2 cm. x 1/2 cm. on back of lower 1/rd of left forearm. Swelling around surrounding area was present. X-ray left forearm. A.P. lateral view and ortho opinion was advised. 3. An abrasion of size 2 cm. x 1 cm. on posterio lateral aspect of middle of left thigh was present and it was reddish in colour. 4. A lacerated wound of size 1-1/2 cm. x 1/2 cm. x 1/2 cm. in middle of left side of forehead of reddish colour was present with swelling in its surrounding area. 3. An abrasion of size 2 cm. x 1 cm. on posterio lateral aspect of middle of left thigh was present and it was reddish in colour. 4. A lacerated wound of size 1-1/2 cm. x 1/2 cm. x 1/2 cm. in middle of left side of forehead of reddish colour was present with swelling in its surrounding area. X-ray of skull and surgeon opinion was advised. 5. Swelling of right forearm upper 1/3rd and swelling right shoulder was present. It was of reddish colour. X-ray and ortho opinion for the same was advised." All the injuries were kept under observation. Prabable duration of the injuries was within 24 hours and the kind of weapon used was blunt. Ex.DE is the correct carbon copy of the MLR. 13 On the same day at 12.20 a.m., this very doctor examined Sudha Devi wife of Laxman Dass, aged 27 years (not challaned). The injured was brought by Nanak Chand aforesaid. The doctor found the following injuries on her person :- "1. There was swelling right fronto parietal region size 6 cm. x 3 cm. X-ray of the skull and surgeon opinion was advised. 2. Lacerated wound of size 4 cm. x 1 cm. x 1 cm. on the inner side of junction of thumb and thenar emminence of left side hand. It was bleeding middly. X-ray of the left hand was advised. 3. The patient complained of left inframammary region. No external mark of injury was seen. Surgeon opinion was advised." There was alleged history of fight as told by the patient, the nature of the injuries was kept under observation and the probable duration was within 24 hours and the kind of weapon used was blunt. Ex.DF is the correct carbon copy of the MLR. 14. DW2 Dr. Sudhir Kapoor also examined on 14.8.1997 at 11.50 p.m. Ishar Dass son of Hari Chand, aged 30 years and found the following injury on his person :- "1. Lacerated wound of size 2 cm. x 1/2 cm. x 1/2 cm. on left parietal region was present. Mild bleeding was there. X-ray of skull was advised. Swelling in surrounding area was also present." The injury was kept under observation and was caused within the probable duration of 24 hours and the weapon used was blunt. Ex.DG is the correct carbon copy of the MLR. x 1/2 cm. x 1/2 cm. on left parietal region was present. Mild bleeding was there. X-ray of skull was advised. Swelling in surrounding area was also present." The injury was kept under observation and was caused within the probable duration of 24 hours and the weapon used was blunt. Ex.DG is the correct carbon copy of the MLR. This doctor after medical examination and admission of the patients sent ruqa to Police Post No. 3, Ambala City. 15. The sealed parcels of the clothes of the deceased, blood stained earth, mettalic Hathi (iron handle) and lathi were sent to the office of Director, FSL, which found human blood on the blood stained earth but no definite opinion could be given with regard to the condition of Kachha and Banian as the contents were disintegrated. The serologist further observed that blood could not be detected on the Hathi and lathi. 16. Madan Lal, the material witness of this case, was given up by the prosecution on the usual plea that he has been won over by the accused vide statement of the Public Prospector made on 17.3.1998 in the trial Court. 17. On completion of the investigation of the case, all the four appellants along with Smt. Wilson Devi and Nanak Chand were sent to the court of Area Magistrate, who supplied the copies of documents to the accused and vide order dated 25.11.1997 committed all the accused to the court of Sessions to face their trial. 18. Vide orders dated 17.12.1997, the learned trial Court framed charges against the appellants and their companions under Sections 148, 302/149 and 323/149 of the Indian Penal Code. The charges were read over and explained to the accused to which they pleaded not guilty and claimed a trial. 19. In order to prove the charges the prosecution examined PW1 Dr. Birender Singh, who conducted post-mortem examination on the dead body of Lal Chand also medico-legally examined PW2 Asha Rani, PW3 Roshan Lal and PW4 Kishan Lal. The medical aspect of this case from the side of the complainant has already been reproduced by us in the earlier portion of this judgment. The prosecution further examined Nanak Chand complainant as PW5, who supported his statement Ex.PN made before PW6 SI Hari Chand. The medical aspect of this case from the side of the complainant has already been reproduced by us in the earlier portion of this judgment. The prosecution further examined Nanak Chand complainant as PW5, who supported his statement Ex.PN made before PW6 SI Hari Chand. His statement is further corroborated by three more witnesses examined by the prosecution, namely, PW2 Asha Rani, PW3 Roshan Lal and PW4 Kishan Lal, PW6 is SI Hari Singh, the Investigating Officer of this case, and PW7 is Ram Saran, Draftsman. Finally the prosecution tendered into evidence report of the Defence Estate Officer and sealed site plan prepared by him Ex.PNN and Ex.PNN/1 and closed the case. 20. On the closure of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and the defence taken up by Ishwar Dass appellant is as follows :- "It is a false case. The complainant party had constructed a two feet wide wall in front of our house towards the street. When I came to my house in the evening, I asked Lal Chand and his father Kishan Lal as to why he had constructed a wall in front of our house on our land, on which they started abusing me in filthy language. I stopped them from doing so. On this Lal Chand gave a Saria blow on my head. On my alarm, my brother Lachhman Dass, his wife Sudha Rani came there to rescue me. On which, Lal Chand gave a Saria blow on the head of Lachhman Dass. Kishan Lal, Roshan Lal and others, who were armed with lathis, gave lathi blows to Lachhman Dass and Sudha. I, my brother Lachhman Dass and his wife Sudha snatched a lathi from the hands of Kishan Lal and used the same in self-defence. The complainant party after assaulting us ran towards the fields of Dal Chand. Our injuries started bleeding. Our relations took us to Police Station, Panjokhra on that night. The police first asked us to (sic) Chand gave a Saria blow on his head. On his alarm, I and my wife Sudha Rani came there to rescue him. On which, Lal Chand gave a Saria blow on my head. Our injuries started bleeding. Our relations took us to Police Station, Panjokhra on that night. The police first asked us to (sic) Chand gave a Saria blow on his head. On his alarm, I and my wife Sudha Rani came there to rescue him. On which, Lal Chand gave a Saria blow on my head. Kishan Lal, Roshan Lal and others, who were armed with lathis, gave lathi blows to me and Sudha. My brother Ishar, myself and his wife Sudha snatched a lathi from the hands of Kishan Lal and used the same in self-defence. The complainant party after assaulting us ran towards the fields of Dal Chand. Our injuries started bleeding. Our relations took us to Police Station, Panjokhra on that night. The police first asked us to get our injuries examined and then they will record our report. On that very night we came to Civil Hospital, Ambala City. Our injuries were examined by the doctor. We were admitted in the hospital. Police came there but did not record our statements. Our injuries were X- rayed and fractures were found on my person and that of Ishwar. Complainants party was the aggressor and was siding with the complainant party. Nanak PW was not present at the spot. He had lodged a false report against us. My co-accused namely Bhagwan Dass, Vinod, Nanak Chand and Smt. Wilson were not present at the spot. I am innocent. No occurrence took place in the field of Dal Chand." Vinod Kumar appellant took the following plea :- "It is a false case. I was not all present at the spot, therefore, the question of causing any injuries by me by an iron rod does not arise. I have been involved falsely in this case and the recovery, if any, has been planted. I am innocent." Finally, Bhagwan Dass appellant sated as follows :- "I was not at all present at the spot, therefore, the question of causing any injuries by me with the alleged dagger does not arise at all. I have been involved falsely in the case and the recovery alleged to have been made from me has been planted just to involve me in the case. I am innocent." 21. When called upon to enter into their defence, accused examined DW1 Dr. I have been involved falsely in the case and the recovery alleged to have been made from me has been planted just to involve me in the case. I am innocent." 21. When called upon to enter into their defence, accused examined DW1 Dr. R.S. Bugalia, Medical Officer, Civil Hospital, Panchkula, who conducted X-ray examination of Lachhman Dass appellant, Sudha Devi (not challaned) and Ishwar appellant on 16.8.1997 and found fracture of left parietal bone of Ishwar Dass accused and fracture of proximal pharynx of left thumb of Lachhman Dass accused. He did not notice any fracture on the person of Sudha Devi. The doctor submitted his reports Exs. DB, DC and DD, while Exs. D1 and D2 are the relevant skiagrams. DW2 is Dr. Sudhir Kapoor, who medico-legally examined Lachhman Dass appellant and Sudha Devi, the injuries on the side of the accused have also been reproduced by us in the earlier portion of this judgment. 22. The learned trial Court vide impugned judgment and order dated 15.6.1998 came to the conclusion that the prosecution has not been able to prove the charges against Wilson Devi and Nanak Chand. Not accepting the principle of Falsus in uno - falsus in omnibus, it came to the conclusion that the prosecution has been able to prove the charges against Ishwar Dass, Lachhman Dass, Bhagwan Dass and Vinod Kumar, the four appellants and they were convicted and sentenced in the manner as stated above and aggrieved by their conviction and sentence, the present appeal. 23. The learned trial Court in the impugned judgment held that the accused party acted as an aggressor. It was observed by the trial Court "in the case in hand, moreover, even if by any stretch of imagination, it is believed that the complainant side came to attack, even then it was not for the accused persons to give continuous blows one after the other on the person of Lal Chand to kill him. There was no such right vested in any of the accused by any stretch of imagination. A large number of injuries and more serious injuries inflicted on the complainant side, as discussed above at length are conclusive to say that the accused persons attacked the complainant side and the accused person were the aggressors." 24. We have heard Mr. R.S. Ghai, Senior Advocate on behalf of the appellants, Mr. A large number of injuries and more serious injuries inflicted on the complainant side, as discussed above at length are conclusive to say that the accused persons attacked the complainant side and the accused person were the aggressors." 24. We have heard Mr. R.S. Ghai, Senior Advocate on behalf of the appellants, Mr. D.P. Singh, Additional Advocate General, Haryana on behalf of the respondent and with their assistance have gone through the records of the case. 25. It is the story of the prosecution that the occurrence has taken place on 14.8.1997 to 9.30 p.m. There were four injured on the side of the complainant party, namely, Lal Chand (deceased), Asha Rani, Roshan Lal and Kishan Lal. It is the case of the prosecution that Lal Chand in an injured condition was taken to Civil Hospital, Ambala Cantt. A message was sent to Police Post, Regiment Bazar and from there the message goes to SI Hari Singh, the Investigating Officer. Statement Ex.PN has been recorded by the Investigating Officer on 15.8.1997 at 3.30 a.m. Meaning thereby that this statement has been recorded after six hours of the occurrence, though it was argued by Mr. Ghai that the delay of six hours has not been explained by the prosecution and even if all the concession is given to the prosecution, still it has not been able to explain as to why the special report of this case reached the Ara Magistrate at 11.10 a.m. on 15.8.1997. The learned Counsel wanted to submit that the FIR in this case was registered in the police Station at 4.30 a.m. and still it took seven hours for the arrival of special report. Mr. Ghai wanted to convey to us that in fact the Investigating Officer had connived with the complainant party and this time has been consumed by him with a purpose as he wanted to coin out a story to cover up the deeds of the complainant party to be disadvantage of the accused. We are convinced with this argument raised by the learned Counsel for the appellants. We can understand that there can be some delay on the part of complainant Nanak Chand in making the statement. We are convinced with this argument raised by the learned Counsel for the appellants. We can understand that there can be some delay on the part of complainant Nanak Chand in making the statement. We can also understand that there were more injuries on the side of the complainant party but once Lal Chand had been declared as dead by the doctor, there was hardly any justification on the part of the Nanak Chand to wait for making the statement before the Thanedar. There is no explanation coming forth from the side of the prosecution as to why the special report was sent late on 15.8.1997 at 11.10 a.m. The purpose of all this delay is quite obvious if we peep through the statement of the Investigating Officer SI Hari Singh and if that statement is read in the light of the statement made by Dr. Sudhir Kapoor (DW2). Firstly, we would like to refer to the statement of Dr. Sudhir Kapoor from which it would be evident that on 14.8.1997 at 11.40 p.m. he medico-legally examined Lachhman Dass appellant. He further examined Ishwar appellant at 11.50 p.m. and thereafter he also medico-legally examined Smt. Sudha Devi at 12.20 a.m. on the night of 14/15.8.1997. The time of examination would indicate that the accused party had already arrived in the hospital prior to 11.40 p.m. on 14.8.1997. 26. Now we would like to refer to the statement of PW1 Dr. Birender Singh, who, too, has given the time of examination of Smt. Asha Rani at 12.30 p.m., of Roshan Lal at 1.00 p.m. and Kishan Lal at 1.30 p.m. Switching over to the statement of SI Hari Chand, it will make it clear that it was in his knowledge that the accused has also the injuries. He stated in his cross-examination as follows :- ".......On 15.8.1997 I had received a telephonic message that Ishwar, Sudha and Lachhman Dass were admitted to Civil Hospital, Ambala City. I went there. I recorded their statements. But I did not obtain medico-legal reports. However, I did not register a cross-case." In such a situation, the conduct of SI Hari Chand has become very suspicious as he was not interested to obtain the MLRs of the accused nor he was interested to register a cross-case against the complainant party. I went there. I recorded their statements. But I did not obtain medico-legal reports. However, I did not register a cross-case." In such a situation, the conduct of SI Hari Chand has become very suspicious as he was not interested to obtain the MLRs of the accused nor he was interested to register a cross-case against the complainant party. The only inference which we would like to draw is that the Investigating Officer was fully aware that the occurrence has taken place in a different manner than the one now being depicted by Nanak Chand and his companions, but he wanted to withhold the origin of the fight and gave twist to the entire facts by recording a favoured statement of PW5 Nanak Chand. 27. The things do not rest here. If we examine the statement Ex.PN critically made by PW5 Nanak Chand before the Investigating Officer, he does not make a single allegation or averment that from the side of the complainant any injury was caused to any of the accused or their companions. Entire statement Ex.PN is barren in this regard. Let us see now what is the stand of complainant Nanak Chand when he appeared as PW5 before the trial Court while making the narration of the facts as contained in Ex.PN. He again does not say anything with regard to the injuries of the accused. Smt. Asha Rani while appearing as PW2, Roshan Lal while appearing as PW3 and Kishan Lal while appearing as PW4, too, do not want to explain the injuries of the accused. In such a situation when the injuries of the accused have not been explained, what is the position of the law has been amply explained by the Honble Supreme Court in the facous case of Lakshmi Singh and others etc. In such a situation when the injuries of the accused have not been explained, what is the position of the law has been amply explained by the Honble Supreme Court in the facous case of Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 2263 and the relevant observations are as follows :- "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect the omission on the part of the prosecution to explain the injuries. Held, on facts and circumstances that the High Court was in error in brushing aside the serious infirmity in the prosecution case regarding non- explanation of injuries sustained by the accused on unconvincing premises. The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses was the person who examined the accused also. The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses was the person who examined the accused also. In view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances, it was clear that the prosecution had miserably failed to prove the case against the appellants beyond reasonable doubt." 28. Now let us make a comparison of the injuries of the accused with that of the prosecution. So far as Lal Chand deceased is concerned, he had three injuries on his person. Certainly, injuries No. 1 and 3 had done the maximum harm attributed to Lachhman Dass appellant and injury No. 2 was on the middle of left lower leg and this injury has been attributed to Ishwar Das. PW2 Asha Rani virtually had two injuries though described as four, because injury No. 3 as was simply a greenish discharge and under injury No. 4 the doctor observed complained of tenderness. So far Roshan Lal injured is concerned, he had three injuries out of which one was an abrasion of 1 cm. x 1 cm. Kishan Lal had six injuries which are predominant. Three are abrasions and one is complained of pain in the chest. In other words, we can say that two injuries on the person of Lal Chand i.e. injuries No. 1 and 3 are most serious injuries which caused maximum damage resulting to the death of the gentleman. As against this, now let us see the injuries on the side of the accused. Lachhman Dass appellant, as per the statement of DW2 Dr. Sudhir Kapoor, had five injuries. Injury No. 1 was on the occipital region near midline and X- Ray was advised of this injury. Further, the doctor opined that the opinion of the surgeon be also taken in this regard. Injury No. 4 was yet a lacerated wound of the size of 1-1/2 cm. x 1/2 cm. x 1/2 cm. in the middle of left side of forehead and X-ray of skull and surgeon opinion was advised of this injury also. If we exclude injury No. 3 being an abrasion, still there are four injuries on the person of appellant Lachhman, which have not been explained by the prosecution. x 1/2 cm. x 1/2 cm. in the middle of left side of forehead and X-ray of skull and surgeon opinion was advised of this injury also. If we exclude injury No. 3 being an abrasion, still there are four injuries on the person of appellant Lachhman, which have not been explained by the prosecution. We are not in a position to say that these injuries are superficial or minor in nature or these are self-suffered or created so as to raise a defence against the prosecution version. The arrival of the accused party in the hospital is rather prior to the arrival of the complainant party. Similarly, if we examine the injuries of Sudha Rani, we will notice that she too had injuries on vital parts of her body like head and thumb, which indicates that she too was the victim of attack and while defending her person who might have sustained injury No. 2 on her thumb. Similarly, on examination of the injuries of Ishwar, we will notice that this gentleman also suffered a lacerated wound on the left parietal region. There was mild bleeding and the doctor advised X-ray of the skull. In other words, the accused party had injuries on the sensitive parts of the body and out of these injuries it has been confirmed by DW1 Dr. R.S. Bugalia that there were fractures of left parietal bone of Ishwar and fracture of proximal pharynx of left thumb of Lachhman Dass, though there was no fracture on the person of Sudha Devi. Thus, if the comparison is made of the nature of the injuries of both sides, one will come to a definite conclusion that the accused had suffered serious injuries which must be explained by the prosecution and if those are not explained by the prosecution either in the FIR or at the trial, the position of law is well clear as reproduced above by relying upon the case of Lakshmi Singh and others etc. v. State of Bihar (supra). Of course, this judgment was brought to the notice of the trial Court also but for the convenient reasons the learned trial Court could not distinguish in a proper manner as to why the benefit of this judgment should not go that accused. v. State of Bihar (supra). Of course, this judgment was brought to the notice of the trial Court also but for the convenient reasons the learned trial Court could not distinguish in a proper manner as to why the benefit of this judgment should not go that accused. The position with regard to non-explanation of the serious injuries on the persons of the accused has again been reiterated by the Honble Supreme Court in Kashiram and others v. State of M.P., 2001(4) RCR(Crl.) 556 (SC) : 2002(1) SCC 71 were it was observed as follows :- "The Investigating Officer, having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of the accused. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided. Investigating Officer having failed to do so the investigation suffers from a serious infirmity which has prejudiced the accused in their defence." 29. In this case the accused have come with a right of private defence and their pleas have already been reproduced above. We all know that the burden of proving that the alleged offence falls within the exception of exercise of right of private defence lies on the accused, that burden has to be discharged on the basis of preponderance of probabilities with the standard of a prudent person. This was so observed by the Honble Supreme Court in Kashiram and others v. State of M.P. (supra) in para No. 23 of the judgment which runs as follows :- "Section 105 of the Evidence Act, 1872 provides that the burden of proving the existence of circumstances which would bring the act of the accused alleged to be an offence within the exercise of right of private defence is on him and the court shall presume the absence of such circumstances. However, the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. However, the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If on the material available on record a preponderance of probabilities is raised which renders the plea taken by the accused plausible then the same should be accepted and in any case a benefit of doubt should deserve to be extended to the accused. A reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version would indirectly succeed. It is the doubt of a reasonable astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence." Further, in paras 27 and 28 of the judgment their Lordships held as follows :- "27. The injuries on the side of the prosecution party is a circumstance revealing the real story to some extent. On the person of Siyaram there are two abrasions and one incised wound on occipital back part of the head, all simple in nature. Sundera has sustained one incised wound on lower part of head. Other injuries are contusions, abrasions and swelling on non-vital parts of the body. Mahendra has sustained one incised wound and two swellings. The injury caused by sharp weapon was minor in nature though he had sustained a fracture on left wrist. Brindawan, the deceased had sustained pellet injuries caused by a single fire which were on the thigh. So also Lakhan, the deceased had sustained a single gunshot wound on the thigh. Neither Brindawan nor Lakhan had sustained gunshot injury on any vital part of the body. Dr. R.S. Sikharwar admitted during the cross-examination that injury to Brindawan could have been caused while he was in a standing position and the person firing the shot was in a sitting position. Similar is the opinion, expressed by Dr. Sikarwar, as to the injury sustained by deceased Lakhan. 28. Dr. R.S. Sikharwar admitted during the cross-examination that injury to Brindawan could have been caused while he was in a standing position and the person firing the shot was in a sitting position. Similar is the opinion, expressed by Dr. Sikarwar, as to the injury sustained by deceased Lakhan. 28. In Dev Raj v. State of H.P. this Court has held that where the accused received injuries during the same occurrence in which the complainants were injured and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution." In Jagdish v. State of Rajasthan, AIR 1979 SC 1010 it was observed by the Honble Supreme as follows :- "It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied : 1. That the injuries on the person of the accused must be very serious and severe and not superficial; 2. That it must be shown that these injuries must have been caused at the time of the occurrence in question." In The State of Gujarat v. Bai Fatima and another, AIR 1975 SC 1478 it was observed by the Supreme Court in para 18 of the judgment as follows :- "Even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.": In State of Rajasthan v. Madho and another, 1991(2) Recent C.R. 463 (SC) it was observed by the Honble Supreme Court in para 2 of the judgment that in a murder case if the accused has also received injuries and the witnesses failed to explain the injuries, it casts doubt on the genesis of prosecution and gives an impression that witnesses were suppressing some part of incident and on this score accused are entitled to the benefit of doubt. 30. The ratio relied upon by us is fully applicable to the facts in hand. In the present case the accused have come with a specific plea that the complainant party acted as aggressor. Rather, they tried to explain the injuries of the prosecution. The right of private defence cannot be weighed in golden scales. The prosecution is supposed to prove the case beyond reasonable doubt while the right of private defence is based on broad probabilities. In the case in hand the conduct of the Investigating Officer was under doubt when he specifically came to know that the accused party had also sustained serious injuries and they were lying admitted in the hospital, yet he did not bother to collect their MLRs from the doctor. He simply recorded their statements and still did not want to proceed against the complainant party perhaps for the obvious reasons that Lal Chand had died and that gentleman belonged to the complainant party. His sympathies were with the complainant party. But he suppressed the truth about the genesis of the occurrence and origin of the fight and conducted one side investigation by recording the statement of Nanak Chand. The object of the investigation is to arrive at a truth and not to sway by the number of injured. Even the aggressor in such like cases can suffer serious injuries. Here is a case where the dispute was between two neighbours. Earlier there was a dispute over the wall which was compromised. Again there was a dispute over the construction of a wall by the side of the kitchen. Even the doctor while medico-legally examined the injured makes a mention that there was a fight. How the fight originated and under what circumstances it erupted, is a mystery which could only be explained by the independent witnesses of the locality, but none of the independent witnesses has been examined. So much so, Madan Lal, admittedly, was present at the time of occurrence as is evident from the statement Ex.PN made by Nanak Chand. He has been conveniently withheld by the prosecution on the usual plea that he has been won over by the accused. So much so, Madan Lal, admittedly, was present at the time of occurrence as is evident from the statement Ex.PN made by Nanak Chand. He has been conveniently withheld by the prosecution on the usual plea that he has been won over by the accused. In such a situation, when the prosecution has not come forward with any independent person so as to arrive at a conclusion about the origin of the fight and when the prosecution has suppressed the grievous injuries suffered by the accused party by furnishing no explanation, in such a situation, it will be difficult for us to maintain the conviction and sentence of the appellants. 31. We have gone through the reasons advanced by the learned trial Court. It is not a case of exceeding the right of private defence. The basic law of the land is that when there is a reasonable apprehension to the accused that a grievous hurt would be caused to them, the right of private defence even exists up to the stage of causing death. It is difficult for us to hold that the accused party was the aggressor. Rather, the preponderance of the case is suggestive of the fact that both the parties fought over a wall dispute but the origin of the fight has been conveniently withheld by the prosecution witnesses. It is true that the complainant party has lost Lal Chand but this fact alone is not enough for us to hold that the accused party acted as an aggressor. If Asha Rani is injured from the side of the complainant, Sudha Devi, though not prosecuted, also sustained injuries on her person. The duration of injuries of all the three injured from the accused side is same as that of the complainant side. It cannot be lost sight in these circumstances that the accused have fabricated their injuries just to create a defence. Rather, they have come with a version which can equally be true. 32. The learned Counsel appearing on behalf of the State facing this difficulty argued that aggressor has an edge and an aggressor has no right of private defence. Since there are more injuries on the side of the complainant, therefore, a ready reference should be drawn that the accused party acted as an aggressor. We have considred this submission raised by Mr. D.P. Singh. Since there are more injuries on the side of the complainant, therefore, a ready reference should be drawn that the accused party acted as an aggressor. We have considred this submission raised by Mr. D.P. Singh. Keeping in view the circumstances of this case, we are not in a position to endorse this submission. It is not a universal rule of law that an aggressor has an edge. If the opposite side is prepared to meet that eventuality, the aggressor can even suffer more damage than that of the defence side. The number of injuries is one of the criteria to come to a conclusion as to who is the aggressor and the aggrieved, but there should be lot of difference between the injuries of the complainant party and the accused party. Here the injuries are not so disproportionate so as to come to a definite conclusion that the accused acted as aggressors. Both the sides had grievous injuries. Even some of the injuries on the persons of the accused are on the vital parts of their bodies. One of the grievous injuries is on the parietal region of the accused. The seats of the injuries on both sides would show that there was an aggression and defence from both sides and even after grappling with all the circumstances of the case, this court is not in a position to come to a definite conclusion about the origin of the fight. 33. Certainly, this court has the jurisdiction to separate grain from the chaff, but if the very grain is broken and it is so mixed with the chaff that it cannot be separated, in such a situation the court has to extend the benefit of doubt to the accused. 34. Resultantly, we are of the considered opinion that this appeal deserves acceptance and it is ordered accordingly. The judgment and order of conviction and sentence passed by the trial Court is hereby set aside and all the four appellants are hereby acquitted of the charges framed against them. They shall be set at liberty forthwith, if not wanted or required in any other case. Let intimation about the passing of this judgment be sent to Chief Judicial Magistrate and jail authorities, Ambala.