BHAGWAN SAHAI AND ANR.versusSTATE OF RAJASTHAN

                        [2016] 3 S.C.R. 533



                 BHAGWAN SAHAI AND ANR.                                 A
                           v.
                     STATE OF RAJASTHAN
                 (Criminal Appeal No. 416of2016)
                          JUNE03,2016                                   B
       [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.)
        Penal Code, 1860: ss. 308134, 323, 324 - Previous enmity -
Prosecution case is that two brothers (appellants) alongwith female
family members formed an unlai-1ful assembly and armed with lethal
weapons caused injuries to few persons - In the incident.father of      c
the appellants died and one of the appellant received injuries -
Trial court gave a finding that there was a free fight between both
the parties and therefore convicted the accused for their individual
liability - High Court held that since both the parties had withheld
the origin and genesis of the occurrence and since it cannot be
                                                                        D
determined as to which party was the aggressor, the case has to be
decided against the accused persons treating it as a case o/ free
fight between the parties - On appeal. Held: 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 offather of the appellants,   E
the only possible and probable course left open was to grant benefit
of doubt to the appellants - Appellants are, therefore, acquitted of
all the charges.
      Allowing the appeal, the Court
      HELD: The appellants can legitimately claim right to use          F
force once they saw their parents being assaulted and when
actually it has been shown that due to such assault and 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
                                                                        G
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. [Para 8] [537-A-C)                                                H
                             533
534             SUPREME COURT REPORTS                            [2016] 3 S.C.R.



A           Lakshmi Singh and others v. State of Bihar 1976 (4)
            sec 394 - referred to.
                                Case Law Reference
             1976 (4) sec 394             referred to         Para 7
B           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 416 of2016.
            From the Judgment and Order dated 14.01.2016 of the High Court
      of Rajasthan at Jaipur in DBCRA No. 1235 of 2011.
             Mani sh Kumar, Ansar Ahmad Chaudhary, Advs. for the Appellant.
c
             Ms. Ruchi Kohli, Adv. for the Respondent.
             The Judgment of the Court was delivered by
             SHIVA KIRTI SINGH, J. 1. Both the appellants have assailed
      the impugned judgment of the High Court of Judicature for Rajasthan at
D     Jaipur Bench whereby Criminal Appeal No. 1235of2011 was disposed
      of by the impugned judgment and order dated 14.1.2016. The High
      Court set aside the conviction of the appellants under Sections 307 and
      307/34 of the IPC respectively but found them guilty under section 308/
      34 of the IPC. The High Court also set aside appellant's conviction
      under Section 326 and 326/34 IPC respectively in view of their being
E
      found guilty under Section 308/34 of the IPC but maintained the conviction
      under Sections 323 and 324 of the IPC. For the offences under Section
      308/34 IPC the appellants were inflicted with punishment of two years
      rigorous imprisonment alongwith a fine ofRs.500/- with a default clause.
      For offences under Sections 323 and 324 of the IPC, the lesser sentence
 F    awarded by the trial court were maintained.
             2. In order to appreciate the submissions advanced on behalf of
      the appellants that even ifthe allegations against them were to be accepted
      as true, they are entitled to acquittal on the plea of right of private defence
      of person, it is necessary to notice the prosecution case, the injuries on
G     appellant No. I and his parents, including his father who received serious
      injuries that proved fatal and whether the prosecution have been able to
      offer any explanation for the injuries on the side of the accused.
            3. According to the prosecution case, two appellants who are
      brothers alongwith female family members, Guddi Devi, Seema and Guiab
H     Devi formed an unlawful assembly in their village on 4.5.2008 at 10.00
   BHAGWAN SAHA! AND ANR. v. STATE OF RAJASTHAN                            535
              [SHIVA KIRT! SINGH, J.]

a.m. Armed with lethal weapons they went near the "Bada" of Jagram         A
and caused injuries to Sajana Devi with blunt weapon, simple injury to
Jagram and his wife Malli Devi with blunt as well as incised weapon and
also caused simple as well as grievous injuries to Kailash Chand with
blunt and incised weapon. According to prosecution the offences under
Sections 147, 148, 323, 324, 326 and 327 read with Section 149 of the
                                                                            B
JPC were committed by the accused persons on account of old enmity
between the parties.
       4. The defence of the accused persons is denial of the occurrence
in the manner alleged. According to the accused persons, the prosecution
case is false. They examined Dr. Suresh Chand Meena and Bhagwan
Sahai Meena as PW 1 and PW2 and also proved documentary evidence-
                                                                            c
exhibits DI to DJ 1. The defence witnesses were examined to support
the contention that the members of the prosecution party had beaten
one Kanchan, father of the appellants and as a result he subsequently
died. These injuries were proved by Dr. Suresh Chand Meena who also
proved injuries of Guiab Devi and others.                                   D
       5. The Trial Court noticed the defence case but failed to discuss
the same. The defence witnesses were neither commented upon nor
there was any comment upon the defence exhibits and injuries sustained
on their side.
                                                                            E
       6. The High Court in the impugned judgment has taken a
mechanical note of the defence witnesses 1 and 2 and thereafter has
given the following observations while noticing the injuries of Kanchan,
and of the appellant Bhagwan Saliai Meena and his mother Guiab Devi:-
           "Appellants were tried in case arising out of cross
      version. It is to be noted that in the occurrence, Kanchan            F
      father of both the appellants had died. Appellant Bhagwan
      Sahai, his mother Guiab Devi acquitted accused, Seema
      acquitted accused and appellant Satish had suffered injuries
      alongwith Jalli Devi. In respect of cross case, a separate
      appeal has been filed bearing D.B. Criminal Appeal                    G
      No.1255/2011. The trial court had given a finding that there
      was a free fight between both the parties and therefore,
      had convicted the accused for their individual liability.
      In the occurrence, Kanchan Lal father of the appellants
      had received follO\\ ing injuries:-                                   H
536             SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A                   "l. Lacerated wound with bleeding 6 cm x 1 cm bone
              deep on left parietal region of scalp.
                     2. Lacerated wound with bleeding 2 cm x Yi cm on
              occipital region of scalp."
                    Bhagwan Sahai appellant also received two injuries
B             and the same were noted in the injury repo11 as under:-
                    "I. Lacerated wound 3 cm x 'h cm x 'h cm on palmar
              aspect of base of left thumb.
                     2. Lacerated wound I Yi cm x Yi cm x Yi cm on right
c             parietal region of scalp."
                    Guiab Devi mother of both the appellants had also
              received two injuries and same are noted as under:-
                    "!. Lacerated wound with bleeding I cm x Y2 cm x
              Yi cm on forehead.
D
                    2. Bruise (reddish) I0 cm x 2 cm over right shoulder."
             7. The High Court has also noted that both the sides had taken a
      plea that the land in question where the occurrence had taken place is in
      their possession. One of the injured Mall'i Devi-PW6 also deposed, as
      noted by the High Court, that the parties were having dispute with the
E     accused over land. The High Court has also noted the Judgment of this
      Court in the case of Lakshmi Singh and others v. State of Bihar'
      which was relied upon by the counsel for the accused persons in support
      of private defence and for acquittal on the ground ofnon-explanation of
      death and injuries on the side of the accused. The High Court drew
F     correct inferences from the aforesaid judgment but proceeded to convict
      the appellants on the misconceived ground that since both the parties
      had withheld the origin and genesis of the occurrence and since it cannot
      be determined as to which pai1y was the aggressor, the case had to be
      decided against the accused persons treating it as a case of free fight
      between the parties.
G
             8. The aforesaid view of the High Court is devoid oflegal 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
H     1
          1976(4}SCC394
   BHAGWAN SAHA! AND ANR. v. STATE OF RAJASTHAN                               537
              [SHIVA KIRT! SINGH, J.)

benefit of doubt to the appellants. The appel Iants can legitimately claim    A
right to use force once they saw their parents being assaulted and when
actually it has been shown that due to such assault and 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
                                                                               8
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.
       9. Therefore, we have no hesitation in allowing the appeal and
                                                                               c
acquitting the appellants of all the charges. We order accordingly. They
shall be released from jail custody forthwith, if not required in any other
case. The appeal is allowed.

                                                                               D
Devika Guj!al                                               Appeal allowed.