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2017 DIGILAW 607 (GUJ)

State of Gujarat v. Abdulla Ibrahimbhai

2017-03-17

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The State has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) against the judgment and order dated 22.05.2006 passed by the learned Sessions Judge, Junagadh in Sessions Case No. 165 of 1992. 2. The case of the prosecution in brief is as under. 2.1 On 10th August, 1992, offence came to be registered by one Amin Ismail before Junagadh City Police Station, which is came to be registered as being CR No. I-390 of 1992 for the offence punishable under Sections 307, 147, 148, 149 and 504 of the Indian Penal Code read with Section 135 of the Bombay Police Act inter-alia stating that the complainant is having one residential property, which is in possession of opponent - original accused No. 1 and since long the opponent No. 1 was not handing over the possession of the said property and illegally possessed the said property. Therefore, with a view to vacate the said premises, the complainant went to the Abdulla Bakery situated near the Jail Road at Junagadh at 10.30 a.m. to vacate the said premises. In that event, the opponent No. 1 got annoyed and abused the complainant and thereafter, opponent No. 1 along with others have assaulted the complainant with the weapons like an axe, sticks etc. and causing serious injury to the complainant. Then he taken to the hospital, where his complaint came to be registered. After lodging of the FIR, the Investigating Agency put into motion and the investigation was carried out and having found sufficient material, accused came to be charge-sheeted. 3. The record reveals that after submission of charge-sheet since offence was triable by the Court of Sessions, the learned Judicial Magistrate was pleased to commit the case to the Sessions in exercise of powers under Section 209 of the Cr.P.C. and it is then registered as Sessions Case No. 165 of 1992. The said sessions case came up for consideration before the learned Sessions Judge, Junagadh in which the charge was framed against the respondent accused vide Exh. 1 for the offence punishable under Sections 307, 147, 148, 149 and 504 of Indian Penal Code, read with Section 135 of the Bombay Police Act. The said sessions case came up for consideration before the learned Sessions Judge, Junagadh in which the charge was framed against the respondent accused vide Exh. 1 for the offence punishable under Sections 307, 147, 148, 149 and 504 of Indian Penal Code, read with Section 135 of the Bombay Police Act. Subsequent to framing of charge, plea was recorded of the respondents accused in which they have denied offence being committed and resultantly the case was put up for adjudication. 4. The prosecution with a view to prove and establish case against the respondents accused have led oral as well as documentary evidence in the following form: ORAL EVIDENCE: Prosecution Witness Number Name of Prosecution Witness Exhibit 1 Dr. Nikhilkumar Pusharrai Buch, Medical Officer 15 2 Haji Nurmahmad, Panch 23 3 Jitendra Mansukhlal, Panch 24 4 Jetinlal Madhavji Solanki, Panch 25 5 Dhanji Kanji, Panch 26 6 Javid Abdreman, Panch 27 7 Javidmiya Ibrahimmiya, Panch 28 8 Mansukhlal Ranchhodbhai 29 9 Amin Ismail, Complainant 34 10 Yusuf Allarakkha, Injured person 36 11 Nisar Mahmmad Mahida 42 12 Iqbalbhai Allarakhhabhai 43 13 Jaysinh Jodhabhai Barad, Police Inspector 45 14 Bachubha Gagubhai Solanki, PSO 57 15 Jogaji Nanji Parmar, PSI 61 DOCUMENTARY EVIDENCE: S. No. Particulars of Documentary Evidence Exhibit 1 Injury Certificate 16 2 M.L.C. Case papers 17 3 Yadi sent to Police Station through Hospital 18 4 Certificate of physical condition of injured 19 5 Certificate of medical examination of Abdulbhai 20 6 Certificate of medical examination of injured Amin 21 7 Panchnama regarding collection of blood sample of Abdulla Ibrahim 22 8 Original complaint 35 9 Panchnama of place of offence 46 10 Panchnama – physical examination of injured Amin Ismail 47 11 Discovery Panchnama 48 12 Panchnama of arrest of Abdul Ibrahim 49 13 Discovery Panchnama 50 14 Ravangi note of muddamal to FSL 51 15 Receipt of muddamal in FSL 52 16 FSL Report 53 17 Serological Report of FSL 54 18 FSL Report of Physics Division 55 19 Panchnama of collection of blood sample of Complainant 56 20 Copy of complaint registered being I-C.R. No. 390 of 1992 58 21 Copy of Police Station Diary 59 22 Yadi written by police for recording Dying Declaration 67 23 Dying Declaration 68 5. The prosecution has examined as many as 15 witnesses and has led documentary evidences 23 in numbers and the defense has also examined their witness viz. Khengarbhai Khobabhai Solanki, a Deputy Mamlatdar and after leading such evidence a pursis came to be submitted at Exh. 62 closing the evidence by prosecution. With a view to give an opportunity to the respondents accused, further statement has also been recorded in the form of questionnaire under Section 313 of the Code where as the respondents have denied offence being committed, the case was put up for final adjudication. Issue came to be framed by learned Judge and later on after considering the material on record and after examining the oral evidences the learned Sessions Judge vide judgment and order dated 22nd May, 2006 in exercise of powers under Section 360 of the Cr.P.C. was pleased to pass an order whereby the respondents accused No. 1 and 4 held guilty of offence punishable under Section 335 read with Section 34 of Indian Penal Code and sentenced for offence under Section 335 whereas the benefit of probation then given under Section 360 to the respondents accused and it is this judgment and order which came to be challenged by the State by way of present appeal. 6. At the outset, it appears that respondent No. 2 accused died on 26.04.2012 and with these background the present appeal came up for consideration finally before this Court. 7. Upon hearing the learned Additional Public Prosecutor, it appears that the prosecution has tried to make out a case that looking to the evidence on record the prosecution has proved the case beyond reasonable doubt by leading ocular as well as documentary evidence and therefore no benefit under Section 360 could have been given. Learned Additional Public Prosecutor Ms. Punani has specifically contended that looking to the injuries which have been caused for which the respondents accused are responsible, the learned Judge could not have resorted to an offence under Section 335 of the Indian Penal Code. On the contrary such method which has been adopted is required to be declared as un-called for. Ms. Punani, learned Additional Public Prosecutor has further contended that the manner in which the assault has been committed at the place of business of the victim with deadly weapons like axe, stick etc. On the contrary such method which has been adopted is required to be declared as un-called for. Ms. Punani, learned Additional Public Prosecutor has further contended that the manner in which the assault has been committed at the place of business of the victim with deadly weapons like axe, stick etc. and injured, such act of respondents can never be construed as simply an act of them which would convert an offence under Section 335 from Section 307 of IPC and therefore looking to the entire evidence learned Additional Public Prosecutor Ms. Punani has contended that this is not a fit case in which the learned Judge could have converted the offence from Section 307 to Section 335 of IPC. Ms. Punani, learned APP has further drawn attention of the Court that the infliction of injuries upon the victim and the manner in which a brutal act is committed by the assailants, who are the respondents accused herein armed with weapons, had specific knowledge that such weapon would cause a serious injury which may visit and clearly attract Section 307 of IPC and therefore Ms. Punani, learned APP has contended that in no case such kind of leniency could have been shown by the learned Sessions Judge. In fact, while inferring that offence under Section 335 of IPC is attracted, there appears no reason worth the name and therefore the order having no reason reflects clear non-application of mind. Ms. Punani, learned APP has further contended that on the contrary there appears to be a specific role of Abdulla Ibrahim and his nephew Aamad Haji i.e. respondents accused as emerging from the record and also from testimony of several witnesses and therefore when the injuries are co-related to the specific attribution made in the complaint no other view is possible except the attraction of offence under Section 307 of the IPC and therefore simply because there might be some lack of specific medical opinion it cannot be inferred that such visible serious injuries would not fall within the purview of Section 307 of IPC. On the contrary, grievous hurt is clearly established as defined under Section 320 of IPC and to that extent since even the learned Judge is coming to such conclusion, there is hardly any justifiable reason to ignore such act and to convert the offence from Section 307 to 335 of the IPC. On the contrary, grievous hurt is clearly established as defined under Section 320 of IPC and to that extent since even the learned Judge is coming to such conclusion, there is hardly any justifiable reason to ignore such act and to convert the offence from Section 307 to 335 of the IPC. On the contrary looking to assailants' act going to the place of victim and then attacked the victim can never be treated as sudden provocation resulting in commission of crime. On the contrary, the evidence clearly indicates that it is the respondents accused armed with deadly weapons, formed unlawful assembly, went to the spot of victim and then attacked and therefore such predetermined action to commit an offence can never be branded as a 'sudden provocation' with a view to convert the offence from Section 307 to Section 335 of the IPC and therefore when specific method is established which has been proved by the prosecution, there is hardly any justifiable reason to discard the case of the prosecution and for this purpose to substantiate the arguments Ms. Punani, learned APP has drawn our attention to testimony of one Dr. Nikhilkumar Buch, a Medical Officer who is examined at Exh. 15 as prosecution witness No. 1 as also she has drawn our attention to yet version of another witness Deputy Mamlatdar Khengarbhai Solanki, who is a defense witness No. 1 examined at Exh. 66 coupled with other documentary evidences including the testimony of Investigating Officer and therefore by drawing our attention to these kind of documentary evidences as well as testimony of witnesses, Ms. Punani, learned APP has contended that despite the fact i.e. specific case of Section 307 of IPC is established beyond reasonable doubt by the prosecution, learned Judge has converted the same erroneously into Section 335 of IPC and then granted the benefit of probation. Learned APP Ms. Punani has further contended that granting of benefit of probation under such kind of grievous situation would defeat the very purpose of granting probation and this is not a fit case in which benefit of probation could have been given and therefore ultimately Ms. Learned APP Ms. Punani has further contended that granting of benefit of probation under such kind of grievous situation would defeat the very purpose of granting probation and this is not a fit case in which benefit of probation could have been given and therefore ultimately Ms. Punani, learned APP has seriously contended that this is not a case in which such kind of judgment and order is allowed to be suspended and therefore when the case is made out against respondents accused the appeal filed by the State be allowed by setting aside the judgment and order passed by the learned Sessions Judge, Junagadh. 8. No further submissions have been made. 9. To oppose the stand taken by learned APP Ms. Punani, defense version was represented by learned advocate Mr. Hriday Buch appearing with learned advocate Mr. Param Buch appearing for respondent Nos. 1 to 5 and have contended that there is no error committed by learned Judge in any manner which would warrant interference of this Hon'ble Court in appellate jurisdiction. Mr. Hriday Buch, learned advocate has further contended that the specific version which is narrated by prosecution witnesses is not establishing that such kind of injuries even if caused would sufficient enough to cause death and that this is a very essential element to attract the case under Section 307 of IPC and therefore Mr. Buch, learned advocate has contended that in absence of any such kind of clear medical information, it is hardly available for prosecution to contend that offence of Section 307 is attracted. Mr. Buch, learned advocate has further contended that even in the statement of prosecution witness as well there is no clear assertion as to with which weapon injuries caused to the victim. On the contrary even though Vali Mohmmad, who is said to have a knowledge about such kind of information, the prosecution has chosen not to examine the said material witness Vali Mohmmad in any manner and therefore when the prosecution itself has not chosen to examine the said Vali Mohmmad, who is figuring in some of the testimony of witnesses, in the absence of such cogent material available on record, it cannot be said that offence which was charged against respondent can be said to be established. From the entire reading of testimony of several witnesses by drawing attention of the Court Mr. From the entire reading of testimony of several witnesses by drawing attention of the Court Mr. Buch, learned advocate has contended that there is no iota of evidence by virtue with which it may be inferred that any intention of committing murder is established. Even if the act, as stated to have been committed by respondents, then also the intention is very much missing to attract Section 307 of IPC and therefore Mr. Buch, learned advocate has stated that only case which is left open for prosecution is with respect to grievous hurt. Mr. Buch, learned advocate for the respondents accused has then drawn our attention to some of the provisions contained under the Indian Penal Code as also has drawn attention to definition of 'grievous hurt' as contained under Section 320 of the Indian Penal Code and by drawing attention to other relevant provisions i.e. Section 322, 324, 325 and 326 of IPC and thereby has contended that Section 335 which has been pressed into service by learned Judge is an exception to Section 325 of the IPC. It has also been contended that Section 335 of IPC even if is an exception to Section 326 of IPC, in such a situation where the testimony is reflecting and attracting section 335 of IPC, it cannot be said that any error is committed by learned Judge in passing the order. At the best by the act of respondent a hurt is caused on account of person and therefore it cannot be said that provisions of Section 335 is not attracted. For establishing such contention Mr. Buch learned advocate has drawn our attention to some of the decisions delivered by the Apex Court as well as by Bombay High Court and as canvassed the interpretation of Section 335 in consonance with the evidence on record and ultimately contended that the act even if which is emerging from the record at the best would fall within the purview of Section 335 of the IPC and therefore Mr. Buch has contended that there is no error much less an error of law committed by the learned Judge which would require interference of this Court. 10. Mr. Buch has contended that there is no error much less an error of law committed by the learned Judge which would require interference of this Court. 10. Mr. Buch, learned advocate has further contended that even the prosecution not only has not established the guilt and connectivity of the respondents with commission of crime but even the injuries which are reflecting have also not been explained in any manner and it is settled principle of law that if the prosecution has not established injuries nor explained the brief case of trial such would be a serious fault by the prosecution which requires to be given benefit of doubt in favour of the accused and that is required to be considered by learned Judge in passing the order. Mr. Buch, learned advocate has drawn our attention to follow decisions delivered by the Apex Court which may be dealt with in this very judgment at an appropriate stage. Such decisions are: "(i) Dhondey vs. The State of U.P. AIR 1972 SC 1273 (ii) Emperor vs. Bhagwan Chhagan, 1914 SCC Online Bombay 99 (iii) Lakshmi Singh vs. State of Bihar, 1976 (4) SCC 394 (iv) Bhagwan Sahai vs. State of Rajasthan, 2016 SC 2714 (v) Hari Singh vs. Sukhbir Singh, 1988 (4) SCC 551 " and by relying upon the aforesaid decisions, Mr. Buch, learned advocate has contended that no case is made out for interference and therefore the State appeal being meritless the same is required to be dismissed. 11. Mr. Buch, learned advocate has also drawn our attention to development which has taken place during the pendency of appeal is that respondent No. 2 accused has died on 26.04.2012 and therefore qua him the appeal gets abated and ultimately by drawing our attention to the aforesaid circumstance, it has been contended that State appeal has no merit and the same deserves to be dismissed by confirming the judgment and order which has been passed by learned Sessions Judge, Junagadh. 12. Having heard learned advocates appearing for the respective parties and having gone through the reasons which have been assigned by the learned Judge and having assessed and examined the evidence led before the Trial Court which have been brought to our notice and upon independent assessment of entire circumstances prevailing on record, the following facts are not possible to be ignored to arrive at ultimate conclusion: 13. The evidence revealed that there is a specific charge framed on 07.06.2002 by the learned Sessions Judge, Junagadh that on account of the past animosity on 10.08.1992 at about 10=30 when accused No. 1 came near Abdulla Bakery shop, the other accused persons formulated an unlawful assembly armed with deadly weapons axe, stick and have beaten the complainant by giving blows on head, hands, legs and other parts of the body and thereby committed offence of Section 307 read with Sections 147, 148, 149 and 504 of Indian Penal Code. On the basis of this specific charge the prosecution has examined the Medical Officer Mr. Nikhil Buch, a Prosecution Witness No. 1 at Exh. 15, who was serving at the relevant point of time in Junagadh Civil Hospital. This Medical Officer has deposed before the Court that the complainant Amin Ismail Ghanchi was brought by Vali Mahmmad Musa for the treatment and has informed this Medical Officer that somebody has beaten Amin Ismail Ghanchi and no specific names have been given of any of the accused. It is also reveled from the testimony of this witness that the patient has ran away from the hospital on 29.08.1992 at about 2.00 p.m. and further the witnesses stating in his version that injury Nos. 1, 4 and 5 can be caused by axe with sharp edged whereas injury Nos. 1, 3, 6 and 7 possible by stick. But the entire testimony is indicating that though the injuries have been caused there seems to be no specific opinion of this Medical Officer that these injuries are sufficient to cause death of a person and therefore this testimony is revealing the fact that there is no case of Doctor that injuries can cause death nor revealing name of any of the accused persons. 14. In addition thereto the complainant who was placed as Prosecution Witness No. 9 examined at Exh. 34 has specifically admitted that when incident took place as alleged there was passing and re-passing of several persons. The testimony of this complainant has further revealed that there was some quarrel with respect to property and for that purpose in past the complaint was also required to be lodged. 34 has specifically admitted that when incident took place as alleged there was passing and re-passing of several persons. The testimony of this complainant has further revealed that there was some quarrel with respect to property and for that purpose in past the complaint was also required to be lodged. It was admitted by this witness that on account of said scuffle the case was also lodged which is stated to have been pending and persons were arrested and therefore entire testimony appears to be that some important circumstance is not being projected by this witness which is rightly being considered by the learned Trial Judge. 15. Yet another witness who has been examined as the Investigating Officer Mr. Jaisinh Jodhabhai Barad, a Prosecution Witness No. 13, who as at the relevant point of time serving as Police Inspector In-charge of Junagadh City Police Station. Now as per the testimony of this witness though now he had retired has conveyed that two crime register numbers were lodged being (i) I-C.R. No. 389 of 1992 and (ii) I-C.R. No. 390 of 1992. The testimony of this witness is reflecting that some marks of blood were found from the scene of offence and from inside of Abdulla Bakery Shop one knife was recovered. It has further been mentioned by this Investigating Officer that Crime Register No. 389 of 1992 was in process wherein Amin Ismail was discharged from the hospital on 01.10.1992 the knife which was used in the alleged incident is recovered and thereafter the Investigating Officer Mr. D.R. Buch was entrusted for some time and thereafter the charge-sheet came to be filed by Police Inspector Mr. R.H. Chudasma. The entire testimony of this witness revealed that in Crime Register No. 390 of 1992 which was registered, there was no allegation with respect to use of knife whereas complaint being Crime Register No. 389 of 1992 there was an allegation pertaining to use of knife which has been recovered and sent for FSL and the same was found from the premises of the shop in question. The recovery which is sought to be proved by testimony of this witness appears to be not in consonance with the requirement of law and therefore it appears that the learned Trial Judge has taken the same under consideration. 16. The recovery which is sought to be proved by testimony of this witness appears to be not in consonance with the requirement of law and therefore it appears that the learned Trial Judge has taken the same under consideration. 16. During the course of adjudication of the case the record indicates that defence has also examined and put their witness in the form of one Khengarbhai Khobhabhai Solanki as defense witness No. 1 at Exh. 66. This Khengarbhai was at the relevant point of time serving as Deputy Mamlatdar at Junagadh who recorded the statement of Amin Ismail - the complainant on 10.08.1992. In this testimony it is emerging that while recording the Dying Declaration an opinion of doctor appears to have been taken but then a categorical assertion is coming out from this testimony that Aminbhai has not stated that accused Abubhai has given axe blow on head as well as hand and therefore all accused persons have inflicted blow is not coming out from the version of this witness who was Deputy Mamlatdar, Junagadh. The statement in the form of Dying Declaration at Exh. 68 has been recorded when the complainant was in conscious set of mind and there was an endorsement of doctor as well and therefore this witness who can be stated to be an independent witness has specifically revealed that complainant has not given the specific names of the accused persons. 17. The aforesaid witness who was Deputy Mamlatdar has though denied that Aminbhai has not mentioned about Abubhai and other persons but the Dying Declaration which is reflecting at Exh. 68 in which names have been reflected and therefore there appears to be a clear contradiction appearing in the version of this defense witness. 18. In light of aforesaid circumstances which are prevailing on record of the case one thing has been established that Abubhai - an accused person with his nephew appears to have inflicted blow upon the complainant. The learned Trial Judge has also come to the conclusion rightly that on the basis of testimony of Medical Officer there is no opinion reflecting that injuries which have been caused are such which would cause death of a person. The learned Trial Judge has also come to the conclusion rightly that on the basis of testimony of Medical Officer there is no opinion reflecting that injuries which have been caused are such which would cause death of a person. Now in light of aforesaid situation, the learned Trial Judge did believe that prosecution has established the case of some scuffle which took place but then the same appears to have on account of sudden provocation and therefore the act of the respondent accused viz. Abdulla Ibrahimbhai - accused No. 1 and Amad Hajibhai - accused No. 4 has been held to be guilty of offence under Section 335 of the Indian Penal Code read with Section 34 of the IPC and came to be acquitted from the offence punishable under Sections 307, 147, 148, 149 and 504 of Indian Penal Code read with Section 135 of the Bombay Police Act and on the basis of aforesaid version of the complainant since nothing incriminating was found from evidence with respect to role played by accused Nos. 2, 3 and 5 they have been acquitted from the charge for which they have been tried. 19. On the basis of aforesaid situation prevailing on record the question was put up for consideration was whether main charge of Section 307 is rightly been not held to be proved and the act of accused Nos. 1 and 4 is treated to have attracted the offence of Section 335 of IPC. Now in this contest offence of Section 307 of IPC reads like thus. "307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts. - [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]" A bare reading of the aforesaid offence there must be an establishment of intention or the knowledge of the accused to constitute murder. Attempts by life convicts. - [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]" A bare reading of the aforesaid offence there must be an establishment of intention or the knowledge of the accused to constitute murder. From the totality of the circumstance which is prevailing on record, it appears that the prosecution has not established the intention of the respondent accused and therefore when the role established unequivocally of accused Nos. 1 and 4 even if there is no other charge framed an act cannot be allowed to unpunished and therefore the Trial Court appears to have undertaken an exercise as to under which offence the established guilt of respondent who are convicted can be attracted and for that purpose the learned Trial Judge has resorted to an offence of Section 335 of IPC which reads as under: 20. The Trial Judge has evaluated the evidence and has established that injuries which have been caused can come within the purview of grievous hurt as defined under Section 320 of IPC. Section 320 of IPC is defining a grievous hurt which reads as under: "320. Grievous hurt. - The following kinds of hurt only are designated as "grievous":- First.- Emasculation Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear, Fourthly.- Privation of any member or joint. Fifthly. - Destruction or permanent impairing of the powers of any member or joint. Sixthly. - Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or both. Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." The Medical Officer, as stated above, has not clearly opined that injuries which have been caused are possible to cause death or not but at the same time there appears to be the reflection of injuries caused by the respondent to the complainant in which a fracture was found on the wrist of left hand and fracture on tibia bone of right side radius and therefore it seems that injuries which have been reflected this fracture injury is coming within the purview of 7th Clause of Section 320. Rest of the injuries are not opined to be serious injuries looking to the testimony of the Medical Officer Mr. Buch at Exh. 15 and therefore this appears to be an act of grievous hurt but the injuries are not reflecting intention of committing murder. In the context of this it is worth to be noticed the relevant offences than as defined under Section 320, 322, 324, 325 as well as 326 of IPC. Now the sentence which has been imposed upon is by attracting Section 335 which appears to be an exception to even Section 326 as well as Section 325 of IPC. This causing of injuries appears to be the result of the provocation as reflecting from the evidence of the witnesses on record and therefore it appears that the learned Trial Judge has rightly come to the conclusion that what has been attracted as an establishment of offence under Section 335 of IPC. In the context of this issue few propositions laid down by various decisions are also worth to be taken note of. In a case of Dhondey and ors. v. The State of U.P. 1972 SC 1273 wherein also from the background of fact the Apex Court has come to the conclusion that the act of respondent was probable to attract an offence under Section 335 of IPC and therefore after considering the evidence of that case the conviction which was ordered under Section 326/34 of IPC came to be converted into an offence of Section 335/34 of IPC. 21. Yet another case which is brought to our notice has also an applicability on the facts on hand. The Indore Bench of Madhya Pradesh High Court in case of State of M.P. v. Rajesh and others, 1997 Cri.L.J. 2466 has profounded that injuries which have been caused to the person on provocation gets a benefit of causing injury on provocation and such act can be covered under Section 335 of the IPC. The relevant portion deserves to be quoted hereinafter. "39. The next point that arises for determination is as to what offence is made out. There is no evidence to show that the injury was sufficient in the ordinary course of nature to cause the death. The injury has been caused during exchange of hot words between Shivnarain and Jagdish and therefore, the intention of murder cannot be inferred. 40. The next point that arises for determination is as to what offence is made out. There is no evidence to show that the injury was sufficient in the ordinary course of nature to cause the death. The injury has been caused during exchange of hot words between Shivnarain and Jagdish and therefore, the intention of murder cannot be inferred. 40. However, the fact of provocation caused by Jagdish stands proved in the case. Jagdish has got lavatory, urinal and bath room in his house but despite that he came for urination in front and in the corner of the house of Shivnarain. The same was objected by Shivnarain. Jagdish persisted and there was exchange of hot words. That was not a place which could be used as a urinal and, therefore, Shivnarain was perfectly justified in objecting to it. 41. If a person urinates (definitely by opening his private organ) in front of the house of other person occupied by members of the family including women folk, the owner of such house has got a right to object and if a person persists in using that place as urinal this would amount to causing of provocation. Thus, Rajesh caused injuries to Jagdish on such provocation. He is, therefore, entitled to the benefit of causing injury on provocation and his act would, therefore, be covered under Section 335 of IPC but the same benefit is not available to Ajaykumar who caused injury to Babulal. 42. Section 335 of IPC reads as follows:- Voluntarily causing grievous hurt on provocation:- Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees or with both. The words " if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who have the provocation" is very important. Its plain reading would clearly show that this benefit is available against a person who gave provocation and not against a by-stander or intervenor. Here in this case Babulal has given no provocation. Its plain reading would clearly show that this benefit is available against a person who gave provocation and not against a by-stander or intervenor. Here in this case Babulal has given no provocation. He was simply an intervenor and, therefore, Ajaykumar has no right to cause injury to him. He would, therefore, be held guilty for causing simple injury by dangerous weapon to Babulal while is punishable Under Section 324 of IPC." 43. As a result we allow the appeal partly. The acquittal of accused respondent Shivnarain from all charges is wholly upheld and is affirmed. The acquittal of accused - respondents Rajesh and Ajaykumar Under Section 307 of IPC is also upheld; but accused Rajesh is held guilty and convicted Under Section 335 of IPC, for causing grievous injury to Jagdish on provocation and accused Ajaykumar is held guilty and convicted under Section 324 of IPC for voluntarily causing simple injury by dangerous weapon to Babulal." 22. In the background of aforesaid facts the learned Trial Judge has when considered the evidence in the context of aforesaid provisions and has specifically found that at least the case is made out against accused Nos. 1 and 4 who caused injuries but on account of provocation and therefore the same were held to be responsible for offence under Section 335 read with Section 34 of IPC. The background of the present case on hand would clearly indicate that there seems to be no infirmity in the conclusion arrived at by the learned Trial Judge. 23. Yet another point which has been canvassed apart from this is that on the contrary the prosecution has miserably failed in explaining the injuries. It has been specifically contended by counsel appearing for the respondent that prosecution has not led any evidence in the form of any witness who explained the injuries and therefore non-explanation of injuries is also a benefit to be lean in favour of accused. To substantiate and canvassed the point, learned counsel for the respondent has relied upon heavily on few of the decisions which are referred to hereinafter. To substantiate and canvassed the point, learned counsel for the respondent has relied upon heavily on few of the decisions which are referred to hereinafter. In case of Lakshmi Singh vs. State of Bihar, (1976) 4 SCC 394 in which the Apex Court has also taken up an issue about non-explanation of injuries sustained by the accused found to be a very serious and important circumstance from which the Court can drawn the inference as stipulated in paragraph 12 of the said decision and it is profitable to quote the said observation of Apex Court at this juncture. "12. P.W. 8 Dr. S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the postmortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22, 1966 and found the following injuries on his person: 1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle. 2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the late ral part of the left upper arm, near the shoulder joint. 3. Punctured wound 1/2" x 2 m. m., x 4 m. m. on the lateral side of the left thigh about 5 inches below the hip joint. According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows: The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants. This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab [Criminal Appeal No. 266 of 1971 decided on April 25, 1975] which was also a murder case, this Court, while following an earlier case, observed as follows: [SCC p.531 : SCC (Cri) p.621, para 20] In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975) one of us (Untwalia, J., speaking for the Court, observed as follows: In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that 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 sup- pressed 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 prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in 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 credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 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 credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises." 24. Yet in another decision in the case of Bhagwan Sahai v. State of Rajasthan, AIR 2016 2714 in which also in the recent pronouncement the Hon'ble Apex Court has profounded relying upon the aforesaid decision that High Court was correct in drawing inference but since in that situation of the case it could not be determined as to which party was aggressor in the absence of any explanation, adverse inference must be drawn against the prosecution and thereby by referring to the act of the accused of that relevant person of that relevant case the Apex Court has ordered an acquittal of the accused appellants. The relevant extract contained in para:8 is reproduced hereinafter. "8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the Appellants, the only possible and probable course left open was to grant benefit of doubt to the Appellants. The Appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault any injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case." 25. This is not the factual situation in the present case." 25. Here also looking to the background on facts on hand the testimony of witnesses is indicating that it is difficult that in what manner the offence is committed and who was the aggressor and who was the person to provoke and therefore in the background of such piece of evidence when the testimony is examined by Trial Court and come to the conclusion that act of respondent Nos. 1 and 4 falls within purview of Section 335 of IPC there appears to be a plausible view which deserves to be sustained. This is more so in view of the fact that the necessary element of Section 307 are not established beyond reasonable doubt by the prosecution and therefore under the circumstances we are unable to dislodge the finding of learned Trial Judge and interfere in order passed. In any case a further circumstance has also weighed with the Court is that a plausible view is taken on the basis of analysis of the evidence on record and a specific conclusion came to be arrived at by the Trial Court which has an advantage to see demeanor of witnesses and therefore we see no reason to arrive at a different conclusion in absence of any legal infirmity or any perversity in the order. 26. While dealing with the appeal filed by the State we are also mindful of the fact that peripheral scope of appellate jurisdiction is not to review the entire evidence. The appellate Court has no doubt a clear power to dislodge the findings if any perverse view or legal infirmity is visible which has caused miscarriage of justice but we see no such infirmity in the judgment and order which has been passed by the learned Trial Judge and accordingly by considering the following propositions of law laid down by the Apex Court on the issue of exercise of appellate jurisdiction we are of the considered opinion that the order passed by the learned Trial Judge requires no interference. The settled prepositions laid down by catena of decisions, and we deem it proper to incorporate some of decisions which has been arrived at by us and therefore, same are reproduced hereinafter: "16.2 In the decision delivered by the Supreme Court in case of Sureshkumar v. State of Haryana, (2013) 16 SCC 353 , it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para.55, 56 and 57 which read as under: 55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal. 56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P. (2008) 10 SCC 450 : AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598 as follows: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." 57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : 2013 AIR SCW 6180, particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : AIR 2012 SC 2297 : 2012 AIR SCW 3318 to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed: "The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889 and Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994). Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889 and Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994). 16.2 In yet another decision in the case of Ramaiah @ Rama v. State of Karnataka, 2014 (9) SCC 365 , it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed as observed in paragraph Nos. 30 and 31. 16.3 In the case of Upendra Pradhan v. State of Orissa, 2015 (5) Scale 634 , it has been held by Hon'ble Apex Court that when there are two views culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No. 10 of the said decision reads thus: 10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In, this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (See Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (See Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld. 16.4 The decision taken by the Apex Court in the case of V. Sejappa v. State, 2016 AIR (SC) 2045, wherein the apex Court in paragraph No. 21 observed thus: 21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary, (2005) 8 SCC 364 , this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 ." 27. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 ." 27. In the premises aforesaid and in view of the facts and circumstances stated hereinabove, we see no justifiable reasons from the record which permit us to take a different view from the view which has been taken by the learned Trial Judge and therefore in absence of any perversity or legal infirmity or any miscarriage of justice we are unable to agree with the State and found that the State Appeal is meritless and accordingly we hereby dismiss the same by confirming the judgment and order dated 22.05.2006 passed by the learned Sessions Judge, Junagadh in Sessions Case No. 165 of 1992. 28. The present appeal is dismissed. The judgment and order of acquittal, dated 22.05.2006, passed in Sessions Case No. 165 of 1992, by the learned Sessions Judge, Junagadh, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith. Appeal Dismissed.