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2023 DIGILAW 566 (RAJ)

Ishab v. State of Rajasthan

2023-02-17

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT Mr. Mahendar Kumar Goyal, J. - This criminal appeal is directed against the judgement dated 7.12.1988 passed by the learned Additional Sessions Judge, Deeg (Bharatpur) in Sessions Case No.47/1985; State of Rajasthan v. Ishab and Ors. whereby, the accused-appellants have been convicted and sentenced as under: Accused-appellant Ishab: 1. Under Section 304 Part-I IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 2. Under Section 307/34 IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 3. Under Section 323/34 IPC: 1 month simple imprisonment. Accused-appellant Nabbu: 1. Under Section 304 Part-I IPC read with Section 34 IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 2. Under Section 307/34 IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 3. Under Section 323 IPC: 1 month simple imprisonment. Accused-appellant Jumrat: 1. Under Section 304 Part-I IPC read with Section 34 IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 2. Under Section 307 IPC: 10 years rigorous imprisonment with a fine of Rs.100; in default thereof, to further undergo 1 month simple imprisonment. 3. Under Section 323 IPC read with Section 34 IPC: 1 month simple imprisonment. All the sentences to run concurrently. 2. At the outset, it may be observed that as per the report dated 12.7.2022 furnished by SHO, Police Station Pahadi, District Bharatpur, the accused-appellant Ishab S/o Jagroop has expired on 10.8.2020. The report is accompanied with a death certificate dated 14.9.2020 issued by the Registrar-Savler, Pahadi, Bharatpur and a certificate dated 12.7.2022 issued by the Sarpanch, Gram Panchayat, Sanwler, Panchayati Samiti Pahadi, District Bharatpur. In view thereof, the appeal of accused-appellant Ishab stands abated. 3. The report is accompanied with a death certificate dated 14.9.2020 issued by the Registrar-Savler, Pahadi, Bharatpur and a certificate dated 12.7.2022 issued by the Sarpanch, Gram Panchayat, Sanwler, Panchayati Samiti Pahadi, District Bharatpur. In view thereof, the appeal of accused-appellant Ishab stands abated. 3. Relevant facts in brief are that the informant/complainant Kamal Khan (PW7) lodged a written report (Ex.P1) dated 1.7.1985 with the Police Station Pahadi, District Bharatpur stating therein that on 30.6.1985 at about 10 am, Ishab, who was digging a foundation in complainant's land, when objected by the complainant, Ibrahim and Islam, inflicted a barbed wire lathi blow on the head of Ibrahim, Nabbu inflicted a barbed wire lathi blow on the temple of Ibrahim, Nabbu and Jumrat inflicted lathi blows on the head of Islam and a lathi blow on his thigh. It was averred that they were saved by Fajjar, Buddha Singh and others lest they would have been murdered. On this report, an FIR No.306/85 (Ex.P2) was registered under Sections 326, 307, 323 read with Section 34 IPC. On death of Ibrahim during the course of investigation, offence under Section 302 IPC was added. The police after investigation filed charge sheet against the accused-appellants under Sections 302, 307, 326, 323, 447 and 34 IPC in the Court of learned Judicial Magistrate, Kaman which was committed to the Court of learned Additional Sessions Judge, Deeg (Bharatpur) (for brevity-'the learned trial court') for trial. 4. Charges under Sections 302, 307/34, 324/34 IPC were framed against accused-appellant Ishab, under Section 302/34, 307/34, 324/34 and 323 IPC against accused Nabbu and under Sections 302/34, 307 and 324 IPC against accused Jumrat. Accused-appellants pleaded not guilty and demanded trial. 5. After trial, the learned trial court convicted and sentenced the accused-appellants vide its judgment dated 7.12.1988 as stated hereinabove. 6. Learned senior counsel for the appellants submits that although the incident is alleged to have taken place on 30.6.1985 at about 10 am; but, the FIR has been lodged with inordiante delay i.e. at about 5 pm on 1.7.1985 despite the distance of the police station from the place of incidence being about 6 kms only which raises serious doubt about genesis of the case. Inviting attention of this Court towards the FIR, learned senior counsel submits that it was received in the court of concerned jurisdictional Judicial Magistrate as late as on 3.7.1985 which further raises doubt about veracity of the prosecution case. He submits that from the site plan (Ex.P3) and statements of the prosecution witnesses, it is apparent that when the accused-appellants were digging foundation in the land under their ownership and long possession, the complainant party attacked them armed with deadly weapons and the injuries came to be inflicted upon them by the accused-appellants in exercise of their right of private defence. Drawing attention of this Court towards the statement of Dr. K.M. Saklecha (PW6), learned senior counsel submits that the accused-appellants have received 15 injuries, some of which were incised wounds and grievous in nature which remained unexplained. He submitted that it was case of the prosecution neither in the FIR nor, in the statements of the witnesses recorded under Section 161 Cr.P.C. that the accused were inflicted with injuries by the complainant as they had attacked his sons with lathis and for the first time, after recording the statement of Dr. K.M. Saklecha (PW6) who has exhibited the injury reports of the three accused persons as Ex.D3, D4 and D5 as also the statements of eye witnesses S/Shri Nihal Khan (PW3) Fajjar (PW4) and Ibra (PW5), the complainant eye witness Shri Kamal Khan (PW7) has come out with a plea that he inflicted injuries on the person of accused-appellants as they had attacked his sons which apparently, is an afterthought. Learned senior counsel submits that the incident occurred at the spur of moment with no premeditation. He further submits that even if the prosecution case is taken to be true on its face value, no offence under section 307 IPC is made out as injury no.1 on the person of Islam, though grievous in nature caused with blunt weapon, was not opined to be dangerous to life by Dr. K.M. Saklecha and the learned trial court erred in taking the opinion of the Doctor in this regard qua injury no.1 on the body of Ibrahim as the opinion in respect of Islam. Shri Biri Singh further submits that the investigating officer has not conducted investigation fairly. K.M. Saklecha and the learned trial court erred in taking the opinion of the Doctor in this regard qua injury no.1 on the body of Ibrahim as the opinion in respect of Islam. Shri Biri Singh further submits that the investigating officer has not conducted investigation fairly. Inviting attention of this Court towards his statement as PW1, learned senior counsel submitted that he has stated the subject land to be belonging to the complainant side on the basis of statements of S/Shri Nasru Khan, Nihal Khan and Bhuddha Jatav; but, neither Shri Nasru nor, Shri Buddha Jatav were produced in the witness box. He submits that the investigating officer has not carried out any investigation with regard to injuries suffered by the accused-appellants in the incident. He submits that the learned trial court erred in convicting the accused-appellants on the basis of sketchy evidence. He, therefore, prays that the appeal be allowed, the judgement dated 7.12.1988 passed by the Additional Sessions Judge, Deeg be quashed and set aside and the accused-appellants be acquitted from the charges. He, in support of his submissions, relied upon following judgements: 1) Arvind Kumar and Ors. v. State of Rajasthan; 2) Kashiram v. State of M.P.- (2002) 1 SCC 71 ; 3) Dev Raj v. State of H.P.-1994 Supp (2) SCC 552; 4) Lakshmi Singh v. State of Bihar- (1976) 4 SCC 394 ; 5) Thulia Kalis v. State of Tamil Nadu-AIR 1973 SCC 501; 6) Ishwar Singh v. State of U.P. AIR 1976 SC 2423 ; 7) Gadadhar Chandra v. State of West Bengal 8) Sunil v. State of Haryana- AIR 2010 SC 392 . 7. Per contra, learned Public Prosecutor submitted that there was no delay in lodging the FIR and even if it is assumed to be so, it has well been explained by the prosecution inasmuch the complainant was busy in treatment of his son Ibrahim who had received grievous injuries in the incident resulting into his death on the next day of the incident. Refuting the contention of learned senior counsel for the appellants as to delay in dispatching the FIR, Shri Imran Khan submitted that the FIR was lodged on 1.7.1985 at about 5 pm and was sent to the jurisdictional Magistrate Court on 3.7.1985, 2.7.1985 being local holiday. Refuting the contention of learned senior counsel for the appellants as to delay in dispatching the FIR, Shri Imran Khan submitted that the FIR was lodged on 1.7.1985 at about 5 pm and was sent to the jurisdictional Magistrate Court on 3.7.1985, 2.7.1985 being local holiday. Referring to the prosecution evidence, he submitted that it was established that the subject land was under ownership and possession of the complainant party on which the accused-party was encroacher. He submitted that the accused-appellants attacked the complainant party when they were requested to stop the digging of foundation and therefore, it is not permissible for them to take shelter of right of private defence. Learned Public Prosecutor submits that after taking into consideration the entire evidence on record, the learned trial court has passed the judgement dated 7.12.1988 which does not warrant any interference by this Court. He, therefore, prayed for dismissal of the appeal. 8. Heard the learned counsels and perused the judgement dated 7.12.1988 as also the evidence available on record. 9. The undisputed facts are that the accused-appellants were digging foundation or finishing it on the subject land which was objected by the members of the complainant party resulting into the incident in which persons from both sides have received injuries and Ibrahim died. 10. The accused-appellants have set up a plea of right of private defence. All the accused-appellants have received injuries in the incident as established from the statement of Dr. K.M. Saklecha (PW6) and their injury reports Ex.D3, Ex.D4 and Ex.D5 and they have also admitted presence of S/Shri Kamal Khan (complainant), Ibrahim (deceased) and injured Islam, both sons of the complainant at the time of incident. In view thereof, the issue of delay in lodging the FIR as also delay in its dispatch to the concerned jurisdictional Magistrate which, even otherwise also is well explained by the prosecution, loses significance and does not require any further deliberation by this Court. 11. The first question which arises for consideration of this Court to examine the plea of right of private defence is as to whether the accused-appellants were digging the foundation in the land under their ownership and/or under their settled possession. None of the parties has produced any document to prove their title over the subject land. 11. The first question which arises for consideration of this Court to examine the plea of right of private defence is as to whether the accused-appellants were digging the foundation in the land under their ownership and/or under their settled possession. None of the parties has produced any document to prove their title over the subject land. As per Ex.P3, the site plan, on one end of the foundation abutting it, is thatched roof kuchha house of the accused-appellants Ishab and at point 'D', abutting the foundation, there is a "kothi" (small kuchha room used to keep grains) of the accused-appellants. The star prosecution witness Shri Kamal Khan (PW7), the complainant and father of deceased Ibrahim, admitted in his cross examination that about 4-5 months ago, with his permission, the accused-appellants had put the stones on the subject land. He further admits that the thatched roof house of the deceased Ishab was constructed on his land about 35-40 years ago. Going against the site plan to which he is a witness, he has denied that "grain kothi" is abutting the foundation. Corroborating the statement of Kamal Khan, prosecution witness Nihal Khan (PW3), his brother, has stated during his cross examination that the stones on the subject land were lying since last winter with the consent of Shri Kamal Khan. He has admitted that "grain kothi" was abutting the foundation. Another prosecution witness Shri Islam (PW9), brother of the deceased and himself injured, has stated during his cross examination that the stones on the subject land were put by the deceased Ishab about a year ago with the permission of his father Kamal Khan. Although, he denies that the "grain kothi" abuts the foundation; but, states in the same breathe that when it was constructed by the accused Ishab many years ago, he or his father did not raise any objection. There is another important prosecution witness namely Fajjar (PW4), son of Nihal Khan (PW3) and first cousin of deceased Ibrahim, who has categorically stated in examination-in-chief that the subject land was under joint ownership of the deceased appellant Ishab and his father Nihal Khan and uncle Kamal Khan which was divided by the Panchayat about a month ago from the date of incident. He admits in his cross examination that the subject land fell in the share of accused Ishab where the foundation was dug. He admits in his cross examination that the subject land fell in the share of accused Ishab where the foundation was dug. He has further stated that the thatched roof house and "grain kothi" were constructed by Ishab about 14-15 years ago. The investigating officer, Shri Aale Ahmed (PW1) though, has stated in his examination-in-chief that in his investigation, he found the subject land to be under ownership and possession of complainant Kamal Khan but, in his cross examination, he states that his statement is based on the information provided by the Sarpanch Nasru Khan, Nihal Khan, Buddha Jatav; but, neither Nasru Khan, nor Buddha Jatav has been produced in the witness box. Therefore, statement of Aale Ahmed is not trustworthy. 12. From the conspectus of statements of prosecution witnesses such as S/Shri Nihal Khan, Fajjar Khan, Kamal Khan and Islam, it is established that the subject land, even if not under their ownership, was in the settled possession of the accused-appellants and it was abutting their immovable property. 13. In view of the prosecution case that the accused-appellants attacked the complainant party when objected while digging the foundation, this Court analyses the evidence as to ascertain the status of foundation at the relevant time. 14. Shri Nihal Khan (PW3) submits in his cross examination that at the time the incident occurred, the foundation was dug at about 15-16 hand in length (23 feet approx) and one and half biland (13.5 inches approx) in depth. Complainant Kamal Khan (PW7) feigns ignorance in his cross examination as to the extent to which the foundation was dug. Shri Buddha Singh (PW8) states that when he was smoking hukka at about 10-10.30 am at the chaupal of Nihal Khan, accused party came and started digging which was objected by S/Shri Kamal Khan and Ibrahim. However, during the course of his cross examination, he submits that the accused-appellants were already digging foundation when he started smoking hukka with Nihal Khan about an hour before the incident occurred. He further submits that he or Nihal Khan did not object to digging. No objection by Nihal Khan, brother of complainant Kamal Khan, to the digging of foundation by the accused-appellants in his presence for more than an hour raises serious doubt as to the prosecution case of the subject land being under ownership and possession of the complainant. He further submits that he or Nihal Khan did not object to digging. No objection by Nihal Khan, brother of complainant Kamal Khan, to the digging of foundation by the accused-appellants in his presence for more than an hour raises serious doubt as to the prosecution case of the subject land being under ownership and possession of the complainant. Injured Islam (PW9) has stated during his cross examination that before the incident occurred, the foundation was dug about 20 feet in length and about a foot in depth. Fajjar (PW4) has stated during his cross examination that the accused-appellants started digging the foundation about 2-3 days before the date of incident and it was ready when the incident took place. Thus, the prosecution witness Fajjar corroborates the defence case wherein, Ishab (DW1) has stated that the foundation was being dug for last three days and it was being filled in when they were attacked by the complainant party. In view of aforesaid evidence, it can safely be inferred that the foundation was already dug to a substantial extent before the incident took place to the knowledge of the complainant party and without any objection by them. It raises serious doubt about veracity of the prosecution case. 15. It is also revealed from the site plan, Ex.P3 and from the testimony of Nihal Khan (PW3) and Kamal Khan (PW7) that stones for filling in the foundation were lying on its both sides. In the aforesaid factual backdrop coupled with the fact that the subject land was under the settled possession of the accused-appellants, the foundation was already dug to a substantial extent to the knowledge of the complainant party without objection, it is apparent that the incident did not occur in the manner the prosecution has stated. 16. In the aforesaid factual backdrop coupled with the fact that the subject land was under the settled possession of the accused-appellants, the foundation was already dug to a substantial extent to the knowledge of the complainant party without objection, it is apparent that the incident did not occur in the manner the prosecution has stated. 16. The evidence on record also reveals that although, the prosecution has tried to develop a story that when objected by the complainant party, on asking of the deceased appellant Ishab to murder them, all the three accused persons brought "lathi" from their house and attacked the complainant party in furtherance of their common intention as is apparent from the statements of S/Shri Nihal Khan (PW3), Kamal Khan (PW7), Buddha Singh (PW8) and Islam (PW9); but, they all have admitted during the course of their cross examination when confronted specifically that no such statement was made under Section 161 Cr.P.C. Therefore, it cannot be held that the accused-appellants attacked the complainant party in furtherance of their common intention. 17. The Hon'ble Supreme Court in Munshi Ram and Ors. v. Delhi Administration, held as under: "15.xxxxxxxxxxx It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner." 18. Thus, in view of the aforesaid dictum, since, the accused-appellants were in settled possession of the subject land, this Court holds that they acted in exercise of their right of private defence. 19. There is another important aspect of the matter. As is evident from Exhibits D3, D4 and D5, the injury reports of Jumrat, Ishab and Nawab respectively and the statement of Dr. 19. There is another important aspect of the matter. As is evident from Exhibits D3, D4 and D5, the injury reports of Jumrat, Ishab and Nawab respectively and the statement of Dr. K.M. Saklecha (PW6), the accused-appellants have received in all 15 injuries including two incised wounds on the head of Nawab which have been found to be grievous in nature. No investigation has been carried out as to how the accused-appellants received injuries. While, the eye witnesses namely Nihal Khan (PW3) and Fajjar (PW4) have not whispered a word in their deposition as to how the accused-appellants received these injuries; after the statement of Dr. K.M. Saklecha (PW6) who has proved the Exhibits D3, D4 and D5, for the first time, Shri Kamal Khan (PW7) has come out with a plea that he inflicted these injuries on the person of accused-appellants in order to save his sons. S/Shri Aale Ahmad (PW1), Nihal Khan (PW3) and Fajjar (PW4) have denied so when specifically asked during the course of their cross examination. There is no reason as to why the prosecution did not come with this case from the inception, if it was so. It is also not digestible that an old man could inflict 15 injuries to three persons with a "jelly", a two or four pronged agricultural tool as different witnesses have described it differently. In view thereof, the prosecution evidence in this regard is not trustworthy. 20. The Hon'ble Apex Court in the case of Kashiram v. State of M.P.- (2002) 1 SCC 71 , held as under: "22. A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the accused in their defence. 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, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. 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." 21. In Dev Raj and Anr. v. State of H.P.-1994 Supp (2) SCC 552, the Hon'ble Supreme Court, held as under: "9. As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence 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. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible, the accused should be given the benefit of doubt xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." 22. Their Lordships in Lakshmi Singh v. State of Bihar- (1976) 4 SCC 394 , held as under: "18. Thus in view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Normally this Court does not interfere in an appeal by special leave with concurrent finding of fact, but this is one of those cases where the judgment of the High Court is manifestly perverse and where the High Court has not considered important circumstances which completely demolish the prosecution case. In fact the High Court has hardly made any real attempt to analyse or discuss the evidence and has merely affirmed the finding of the Sessions Judge by narrating the evidence relied upon by it. We have already pointed out that on one of the most important points arising in a criminal trial, namely, the non-explanation of the injuries on the person of the accused by the prosecution, the High Court has not only committed an error of fact but an error of law by showing a lack of proper appreciation of the principles decided by this Court. For these reasons, therefore, we think there are special circumstances in the present case which have compelled us to interfere in this appeal by special leave." 23. In the aforesaid factual and legal backdrop, this Court has no hesitation in recording a finding that the complainant party attacked the accused persons while they were finishing the work of foundation in the land under their settled possession and the injuries on the person of complainant party came to be inflicted in exercise of their right of private defence of the property as also of the person at spur of moment without any premeditation. Since, the deceased Ibrahim has received three injuries, the injury no.1 with blunt weapon on his head grievous in nature and dangerous to life and rest two injuries simple in nature with blunt weapon, Islam has received four injuries, the injury no.1 on his head with blunt weapon grievous in nature and rest injuries simple in nature with blunt weapon, this Court is of the opinion that the accused-appellants did not exceed their right of private defence. This Court finds that while convicting the accused-appellants, the learned trial court has not considered this important aspect of the matter which vitiates its findings. 24. The Hon'ble Apex Court in Arvind Kumar and Ors. v. State of Rajasthan, held as under: "46. A private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual Accused alone, to be applied to the others. Though the initial onus is on the Accused to satisfy the court, the extent of evidence is that of preponderance of probabilities. Thereafter, the onus shifts. Once a private defence is accepted, there are two questions alone to the answered by the court, namely, the defence coming within the purview of Section 96 to Section 102 Indian Penal Code and the other acting in excess. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger. When the apprehension gets effaced with the attack being continued by an Accused taking the plea of private defence, exceeding the said right would occur. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger. When the apprehension gets effaced with the attack being continued by an Accused taking the plea of private defence, exceeding the said right would occur. The weapons used in the process would attain significance depending upon the facts of the case and if the injuries suffered by the Accused unless being minor and superficial or suppressed on purpose, the benefit shall enure. The following paragraphs of the celebrated judgment of this Court in Kashiram v. State of M.P., (2002) 1 SCC 71 would be felicitous: 22. A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the Accused in their defence. 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, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of Accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of Accused Prabhu. 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. 23. 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, it must be borne in mind that 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, it must be borne in mind that 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 (see Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563 ], State of Punjab v. Gurbux Singh [1995 Supp (3) SCC 734 : 1996 SCC (Cri.) 88] and Vijayee Singh v. State of U.P. [ (1990) 3 SCC 190 : 1990 SCC (Cri.) 378 : AIR 1990 SC 1459 ]). In Vijayee Singh case [ (1990) 3 SCC 190 : 1990 SCC (Cri.) 378 : AIR 1990 SC 1459 ] this Court emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would therefore 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 which is reasonable". (SCC p. 218, para 29) 28. In Dev Raj v. State of H.P. [ 1994 Supp (2) SCC 552 : 1994 SCC (Cri.) 1489 : AIR 1994 SC 523 ] 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. 47. In Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 , this Court considered the effect of suppression of injuries suffered by the Accused. Accordingly, it was held that if the injuries on the Accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured Accused deposes otherwise. Accordingly, it was held that if the injuries on the Accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured Accused deposes otherwise. Paragraph 12 of the aforesaid judgment, states thus: 12. ...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 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. 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 [ (1975) 2 SCC 7 ] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [ (1975) 2 SCC 7 ] 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 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." 25. Upshot of the aforesaid discussion is that conviction of the accused-appellants cannot be sustained in the eye of law. 26. Consequently, the appeal is allowed. The judgement dated 7.12.1988 passed by the learned Additional Sessions Judge, Deeg (Bharatpur) in Sessions Case No.47/1985 is quashed and set aside. The accused-appellants Nabbu and Jumrat are acquitted from the charges under Sections 304 Part-I IPC read with Section 34 IPC, 307/34 IPC and Section 323 IPC and under Section 304 Part-I IPC read with 34 IPC, 307 IPC and 323 IPC read with Section 34 IPC respectively. The accused-appellants Nabbu and Jumrat are on bail, therefore, their bail bonds and sureties are discharged. They need not surrender. 27. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the aforesaid appellants are directed to forthwith furnish a personal bond in the sum of Rs.10,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.