Holding

The Supreme Court upheld the convictions, finding that the prosecution case was proved and the plea of private self‑defence was not established.

Summary

The case arose from a violent incident in which the deceased, Laiq Ram, fired a gun at the accused Durga Nand while trying to rescue his son, after which the accused seized the gun and inflicted fatal injuries on the deceased. The appellants Dharminder and Durga Nand were convicted under Sections 302/34, 307/34 and 323/34 IPC for murder, attempted murder and causing simple injuries, while the State appealed against the acquittal of three co‑accused. The appellants pleaded private self‑defence, arguing that the deceased was the aggressor. The Supreme Court held that the prosecution evidence, including medical reports and eyewitness testimony, established that the deceased acted to protect his son and that the accused were the initial aggressors; the plea of self‑defence was not proved on a pre‑ponderance of probabilities. The Court also ruled that the non‑explanation of the accused's injuries does not automatically invalidate the prosecution case. Consequently, the Court dismissed all the appeals, upholding the convictions and the acquittals of the co‑accused.

Issues considered

The adequacy of the prosecution's evidence to prove the guilt of the appellants under Sections 302, 307 and 323 IPC.
Whether the plea of private self‑defence raised by the appellants was established under Chapter IV of the IPC.
The effect of the prosecution's failure to explain the injuries sustained by the accused on the validity of the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 233
Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 302, s. 307, s. 323, s. 34

Subjects

murderattempted murderself‑defenceprivate defenceburden of proofinjuriesprosecution dutypre‑ponderance of probabilities

Judgment

A DHARMINDER
1'.

STATE OF HIMACHAL PRADESH

SEPTEMBER 3. 2002

B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Penal Code, 1860-Ss. 302134. 307134, 323134-Conviction under-
Deceased fired gun shot injuring accused lo save his son-Plea of selfdefence
C by accused alleging aggression on the part of the deceased-'-On appeal,
held-The facts of the case prove prosecution case-Plea of accused not
proved even on the test of pre-ponderance of prob.abilities-Hence judgment
of Courts below justified

Penal Code, 18601 Evidence Act, 1872-Chapter IV I Section 105-
D Right to self defence of accused-Onus of proof-Held, onus to establish the
right of self-defence is not as onerous as that of the prosecution to prove its
case-Where facts and circumstances lead to pre-ponderance of probabilities
in favour of defence, it would be enough to discharge the burden 10 prove the
case of selfdefence.

E Criminal Trial-Non-explanation of injuries on the accused-Effect of-
He/d. cannot by itself be a sole basis to reject the testimon_F of the prosecution
where it is clear, cogent and creditworthy and where Court can distinguish
the truth fi"om falsehood.

Six accused including the two appellants, were tried for having
F committed murder ofa person, attempt to commit murder of his son and
for causing simple injuries to his wife.

According to the prosecution, deceased left his village and property
and remained away therefrom for about 20 to 22 years and came back to
G the village on being pursuaded by his son. On the day of the incident, wife
of the deceased saw appellants-accused cutting tree and ploughing field
of the deceased. She was about to go to inform her son, but before that
all the accused assaulted her. She raised alarm, and when her son came
to her rescue, all the accused started beating him causing multiple injuries
on him. On seeing the assault on his son, deceased, finding him helpless,
H 16
DHARMINDER ,. STATE OF HIMACHAL PRADESH 17
to save his son tired from his gun from a distance of 20 metres to scare A
away the assailants which caused injuries on the lower parts of the body
.of accused 'ON'. Accused persons then snatched the gun of the deceased
and gave blows causing multiple fractures on his head resulting in
instantaneous death.

PW 14, in her statement under Section 161 Cr.P.C. had mentioned B
that the deceased injured the appellant-accused 'DN' because of
murderous assault on his son. But in her statement before the court she
stated that appellant-accused 'D' fired the gun shot. Defence case was that
the deceased in order to get his property back came armed with gun and
assaulted appellant-accused 'DN' who was alone. Accused 'DN' also filed C
FIR against the deceased, which was closed in view of death of the
deceased. Defence claimed right to private defence. DWI supported the
defence case to the extent that he had seen the accused injured, but DW2
did not support the case. Appellant-accused 'D' and another accused in
their written statement, stated that they were not present at the time of
actual incident nor did they participate in the fight. Still another accused D
in his written statement stated that on hearing the gun shot when he
reached the spot he saw fight between appellant-accused 'DN' on one side
and deceased and his son on the other side.

Trial Court convicted the appellants under sections 302/34, 307/34,
323/34 IPC and acquitted the rest of the accused. The judgment of the E
trial Court was upheld by High Court. Hence these cross appeals by the
accused-appellants and the State. Dismissing the appeals, the Court

HELD: I. Court of Sessions as well as the High Court committed no
error in recording the conviction of the accused-appellants. In so far as F
the question of suppression of the injuries of the accused by the prosecution
is concerned, factually it does not appear to be so. It is true that FIR does
not mention about the injuries of the accused but the fact cannot be lost
sight of that the FIR was lodged by PW6 who was not an eye-witness to
the incident. But PW14 in her statement under Section 161 Cr.P.C. had
come out with the fact that the deceased had fired gun shot injuring G
accused 'DN' because of murderous assault on his son by the accused
persons. Thus it cannot be said that there was any suppression as such of
the injuries of accused 'DN'. It was disclosed at the first opportunity to
the investigating agency in the statement under Section 161 Cr.P.C.
126-C-E] H
18 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A 2.1. Prosecution is under duty to explain the. injuries on the accused
persons but non-explanation of injuries of the accused persons does not
necessarily lead to the conclusion that prosecution case is false and must
be thrown out. 125-FI

Tlwkhji v. Tlwkore Kubersing Clwmansing and Ors., 120011 6 SCC 145
B and Rajinder Singh and Ors. v. State ofBihar. 120001 4 SCC 298, relied on.
I
2.2. In the instant case the investigation took note of the fact which
came to light. during investigation of this case particularly regarding the
injuries caused to accused 'DN' by gun shot fired by the deceased which
C was also the case of 'DN' in his FIR. The prosecution has proceeded to
prosecute the. case on these lines and the effort of PWI 4 to assign the firing
to appellant -accused 'D' in the statement before the Court was thwarted
by confronting' her with her previous statement. The Investigating Officer
had actually investigated the case on the report of accused 'ON' to some
extent. He ha.d both versions before him. 127-D, El
D ,,
Kashiram and Ors. v. State of MP., 12002] I SCC 71, distinguished.

3. In view of Chapter IV of IPC relating to right of self-defence
available to the accused and Section I 05 of the Evidence Act relating to
onus of proof on the accused persons to establish the plea relating to
E exceptions e.g. right of private defe~ce, onus of proof to establish the right
of private defence is not as onerous as that of the prosecution to prove its
case. And wh.ere the facts and circumstances lead to pre-ponderance of
probabilities in favour of the defence case, it would be enough to discharge
the case of self-defence. (27-FI

F 4. If the .deceased had gone determined, armed with a loaded gun
for an aggression to deal with accused 'DN', he would not fire a shot from
a distance of about 20 metres, causing injury only on the lower part of
the body; rather most of the injuries are on the legs and thighs. This
circumstance'strengthens the case of the prosecution that the deceased had
G used the gun,to rescue his son, who was being mercilessly beaten. It also
militates against the story set up by the defence to claim right of private
defence alleging aggression on the part of the deceased. It seems to be
highly improbable that accused 'DN' after receiving the gun shot would
be able to caJse such large number of injuries to the son of the deceased
and also the head injury with such force to the deceased which caused
H multiple fractures resulting in instantaneous death at the spot: Sequence
DHARMINDER v. STATE OF HIMACHAL PRADESH 19
of events as given out in the prosecution case also gets support from the A
medical evidence as well as broad probabilities leading to the conclusion
that wife and son of the deceased had been assaulted first by. the accused
persons, and the deceased arrived later to rescue his son and by that time
his son had already received a large number of injuries. Each of the simple
injuries received by the wife of deceased and daughter of accused is not B
of much significance. It only indicates their presence at the spot at one or
the other stage. It supports prosecution case that wife of the deceased was
assaulted first at the initial stage. 128-0-H; 29-A-CI

5. The prosecution case is also supported by the circumstance that
at the time the deceased was not present at the scene then it would be better C
possible for the accused persons to cause such large number of injuries to
son of the deceased numbering 20 all over the body. It could not be possible
after the deceased had arrived and fired the shot and accused 'ON' had
received the injuries. (29-E)

6. It is true that DWI supports the version given by accused 'ON' D
but DW2 does not support the defence case, as when he ai:rived, he found
the accused being removed from the spot, he had not seen any assault on
any one. It is difficult to place reliance on the statement of DWI. (29-DI

7. The defence case that the deceased wanted his property back and
came determined for the purpose is not borne out from any circumstances. E
There is no dispute that the deceased had left the village and the property
\
• and according to prosecution in sheer disgust. He remained away from
home for about 20-22 years. He did not return to the village at his own or
for the love of his property but on pursuation of his son i.e. for the affection
of his son. It is nowhere indicated that during 20-22 years or during the F
period of one year after he came back to the village, he may have moved
any Authority or·Court agitating against the entries in the records made
in the name of accused 'ON' or may have asked them to return the
property. Nor that he may have made any effort earlier to get back the
property. In this background it does not appeal to reason that one fine
morning he would suddenly go armed with a gun to take possession of G
the property. On the other hand there is evidence on record to indicate
that none else but one of the accused had told son of the deceased that
they may not go out of the house on that day as accused persons were not
happy on the return of the deceased and some trouble was in the offing
on the fateful day. These clearly show that the incident occurred in the H
20 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A manner indicated by the prosecution and pre-ponderance of probabilities
also do notsupport the defence case. 129-F-H; 30-AI

8. It is 'not a fit case for interference with the acquittal of the accused-
rcspondcnts in view of the findings recorded by the trial court as regards
their non-participation and non-inl'oll'ement in the assault, which findings
B were affirmed by the High Court. 130-DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
445 of 2001.

From ." the Judgment and Order dated 20.9.2000 of the Himachal
C Pradesh High Court in Criminal Appeal No. 304/98.

WITH

Criminal Appeal No. 838 of 2001.

D WITH

Criminal Appeal No. 693 of 200 I.

Chandrakant Nayak (A.C.), Anil Soni, Ms. Abha Joshi and Ms.
Meenakshi Arora, Anil Nag, Rajeev Bansal and Akslwy Gai, for the appearing
E parties.

The Judgment of the Court was delivered by
/
BRIJESH KU MAR, J. The above-noted appeals arise out of the
•
judgment and order dated September 20, 2000 passed by the High Court of
F Himachal Pradesh in Crl. Appeals No. 304 and 367 of 1998. The three
appeals before us have been heard together and they are being disposed of
by one common judgment.

The appeals preferred by Dharm inder and Durga Nand are against their
conviction under Section 302/34 IPC for murder of Laiq Ram. They have
G been sentenced to undergo imprisonment for life and also to pay a fine of
Rs.5000 each and in default of payment of fine, to undergo rigorous
imprisonment for a further period of two years. They have also been convicted
under Section 307/34 IPC for attempt to murder of Neel Kanth son of Laiq
Ram and sentenced to undergo rigorous imprisonment for seven years and
H also to pay a fine of Rs. I 000 each and in default of payment of fine, to
DHARMINDER 1·. STATE OF HIMACHAL PRADESH IBRl.IESH KUMAR, J.] 21

undergo rigorous imprisonment for a further period of six months. They have A
also been convicted under Section 323 read with Section 34 IPC for causing
simple injuries to Gangawati. wife of Laiq Ram and sentenced to undergo
rigorous imprisonment for six months and also to pay a fine of Rs.500 each
and in default of payment of fine, to undergo rigorous imprisonment for a
further period of two months. So far the appeal filed by the State of Himachal
Pradesh is concerned, it has been preferred against acquittal of Hukmo Devi, B
Promod Kumar and Padma Ram by the trial court and upheld by the High
Court.

According to the prosecution case the incident occurred on 24.10.1995
at about 2.00 P.M. when Gangawati PW-5 on return to her house after cutting C
grass from Jungle, heard the sound of cutting of tree and on going to the spot,
she found that the appellant Durga Nand was cutting her Baan tree and the
appellant Dharminder was ploughing the field. She wanted to go to her house
to inform her son but in the meantime the appellants along with Hukmu Devi,
Bhaskra Nand and Bimla Devi attacked her with Dandas. They were also
helped by Pramod. She raised alarm, upon which Neel Kanth, her son arrived D
to rescue her. All the accused persons started beating Neel Kanth. On seeing
this merciless assault, Laiq Ram, father of Neel Kanth and husband of PW-
5 Gangawati, finding himself helpless to save his son, took up the gun and
fired to scare away the assailants as a result of which Durga Nand received
injuries on his legs, thighs and abdomen. The accused persons are said to E
have snatched the gun of Laiq Ram and he was also given lathi blows. They
are said to have pushed Laiq Ram and Neel Kanth below the field. Durga
Nand gave a blow with pipe on the head of Laiq Ram. As a result of the
injuries received, Laiq Ram died at the spot. His dead body was thrown in
the Nala. It is further alleged that Neel Kanth who had also received severe
injuries was dumped near the dead body of Laiq Ram. F
PW-14 Kanta Devi, wife of Neel Kanth rushed to the house of Shiv Lal
for help. He came to the spot and saw Laiq Ram lying dead and Neel Kanth
in the injured condition. He went to Lafu-ghati where he lodgeo the report
and his statement was recorded by PW-18 Pratap Singh, AS!. He also took
Neel Kanth to Theog and got him admitted in the hospital. G
The police after completing the investigation filed the chargesheet against
the aforesaid persons.

The prosecution case in so far motive for com1111ss1on of crime is
concerned is that Padma Ram, at the instance of Ganeshu. father of Gangawati H
22 SUPREME COURT REPORTS f2002] SUPP. 2 S.C.R.

A started living in Ganeshu's house in village Kel.vi Jubber, Gangawati was
then aged about 6 or 7 years. Laiq Ram and Durga Nand are sons of Padma
Ram. On the death of Ganeshu, Padma Ram started looking after the entire
property of Ganeshu. It is said that Ganeshu desired that his daughter
Gangawati be married with Laiq Ram. Gangawati on attaining majority
B inherited the property of her father. Padma Ram married his son Laiq Ram
to Gangawaii. The prosecution case further is that Padma Ram wanted that
Durga Nand be. also recorded as co-sharer to the extent of half share in the
property inherited by Gangawati but Gangawati and Laiq Ram did not agree
to it. Appellant Durga Nand, Padma Ram and other members of the family
harassed Laiq Ram so much on that count that he started living in another
C village Kathog with one Soda. Gangawati is said to have been pregnant at
that time and later she gave birth to Neel Kanth. It is further said that Laiq
Ram stayed away from home for about 20-22 years. In the meantime Padma
Ram succeeded in getting half share in the property of Gangawati recorded
in the name of Durga Nand. Neel Kanth persuaded his father to came back
to the village in 1994 during Diwali festival. Return of Laiq Ram was not
D liked by Padma Ram and Durga Nand and members of his family so much
so that they wanted to finish him and in that regard Padma Ram is said to
have asked Gangawati and Neel Kanth not to come out of their house on
24.10.1995 as he apprehend such an incident to take place. The accused
-
persons do not dispute that the incident occurred on 24. I0.1995 in which
E Laiq Ram died and Neel Kanth received injuries but they pleaded right of
self defence. They have also submitted treir written statements in defence u/
s 233 of Criminal Procedure Code. According to the accused persons land
bearing Khasra No.69, 206117 and 178 measuring 24 bighas 9 biswas situate
in Chak Lafu, Pergna Dha11hi, village Kelvi Jubber belongs to them. Laiq
Ram after having come to the village, conspired to dispossass them from the
F land. With that end in view on 24.10.1995 at about 2.00 P.M. while Durga
Nand was working on Plot No.69, Laiq Ram, Gangawati and Neel Kanth
trespassed on his land. Laiq Ram who was armed with a gun fired a shot
injuring Durga Nand upon which Durga Nand assaulted Laiq Ram and Neel
Kanth after snatching gun from Laiq Ram and Danda from Gangawati, Durga
G Nand and his wife Hukmo Devi and daughter Bimla who arrived later also
received injuries at the hands of Neel Kanth and others. Durganand also
lodged a report which was partially investigated by the police. According to
Durga Nand the fight was between him on one hand and Laiq Ram and Neel
Kanth on the other. Appellant Dharminder, Hukmu Devi and Padma Ram
filed their separate written statements taking up the case of self defence as
H has been taken up by Durga Nand. According to them Dhanninder and Padma
DHARMINDER 1·. STATE OF HlMACHAL PRADESH [llRl.IESH KUMAR. J.] 23
Ram were not present at the time of the actual incident nor they participated A
in the fight at all. Yet another written statement had been put in by Pramod
in defence who alleges to have arrived at the spot on hearing the gunshot and
saw the fight going on between Durga Nand on the_ one hand and Laiq Ram
.. ; and Neel Kanth on the other. He took Durga Nand to the hospital.

The prosecution, in all, has produced 18 witnesses to prove its case out B
of whom PW-4 Gangawati. PW-5 Neel Kanth and PW-14 Smt. Kanta are the
eye witnesses. PW-14 Kanta is the wife of Neel Kanth. PW-6 Shiv Lal
lodged the first information report at Theog Police Station. Pw-12 Dr. Ashwani
Tomer examined the injuries of Neel Kanth and prepared the memo of injuries
Ex.PW 12/A. PWl3 Dr. Kuldeep Kanwar medically examined Gangawati C
and preparedinjury repm1 but the same has not been proved by the doctorin
the statement. PW-13 Dr. Kuldeep Kanwar also performed the post mortem
.. examination on the dead body of Laiq Ram. The post mortem report is
Ex.PW13/B. The case was investigated by PW-18 Shri Pratap Singh. PW-15
Shri Mohan Singh , S.H.O. Police Station Theog stated that he had partly
investigated the report of Durga Nand. He also investigated the case on the D
report of Shiv Lal. The remaining witnesses are more or less of formal
nature.

So far accused persons are concerned, they have examined four defence
witnesses. DW-1 Baldev Singh has been examined to support the version of E
defence that Laiq Ram came at the spot armed with a gun and fired on
Durganand. DW-2, Jagat Ra:n stated that on hearing the cries of Hukmo he
went to the spot and found Durga Nand being removed by Hukmo and
Dharminder with the help of Baldev and Pramod. He also stated that he did
not see Laiq Ram, his wife and son at the place of occurrence. DW-3 Shri
Yashpal Thakur, Sr. Pharmasist produced record to prove injuries on F
Durganand. DW-4 Dr. P.L. Ghonta examined Durga Nand on 3.4.1997 alld
recovered pellets from his scrotum.

\Ve may now peruse the injuries which are said to have been received
}
by both the parties. The injuries of Neel Kanth were examined by PW-12, Dr. G
Kuldeep Tomer on 24.10.1995 at 9.10 P.M. at Civil Hospital, Theog. He
found:

Injury No. I

Multiple lacerated wounds on scalp which consisted of: H
24 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A (i) H shaped lacerated wound on frontal region each limb 10 cm. X
bone deep;
(ii) V shaped lacerated wounds on right side (Lateral) to Injury No. I
on parietal region placed at distance of around 5 cm. Each. It is •..
also bone deep;
B (iii) Lacerated wound on right parietal region 6 cm. X bone deep
placed in saggital plane. Redish coloured;
(iv) Curved lacerated wound on occipital region horizontally placed
8 cm. x bone deep;

c (v) Lacerated wound on occipital region 2 cm. X bone deep 5 cm.
Below injury No. iv.
2. Lacerated wound on face, right side near right Zygomatic arch.
7 cm. Lateral to right eye obliquely downwards. ~

3. Patterned bruises 5 in number on back lateral to spine 6 cm.
D Lateral to the spine on right side obliquely downwards.
4. Four bruises on right fore-arm, redish blue in colour I0 cm. X
2 cm swelling positive in the region of right radius.
5. Three patterned bruises on back left side 4 cm. Lateral to spine.
Redish blue.
E
6. Abrasion on right leg I 0 cm. Long obliquely downwards in upper
I/3rd and lower 2/3 rd lateral aspects.
7. I0 .cm. X 4 cm. Long brownish black, linear abrasion with clotted
blood on left region. Injury No. I is noted to be dangerous to life
F According to the doctor he was semi conscious when brought to the
hospital. The injuries could be caused by sticks and iron pipe.

PW 13 Dr. Kuleeep Kanwer Sr. Medical Officer, Civil Hospital, Theog

G
conducted the post mortem examination on the dead body of Laiq Ram. He
found lacerated wound on the left frontal portion 2" x l/2"x l/2"two inches
..
above the left eye brow, abrasion on the right hand on the ring and the
middle finger size approximately 2"x2" on the back side.

On internal examination the doctor found multiple fract•Jre of the left
frontal parietal region with extensive laceration of the underlying brain with
H its covering. In the opinion of the doctor Laiq Ram died of the brain injury.
DllARMINDFR 1·. STATE OF HIMACHAL PRADESH [BRIJESH KUMAR. J.] 25
PW 13 Dr. Kuldip Kanwar stated to have medically examined PW 4 A
Gangawati who had received simple injury but the report was not formally
proved while recording the statement of the doctor.

Durga Nand was medically examined on 24.10.1995 at 5.00 P.M. The
doctor found multiple pellet injuries on both legs, thighs and abdomen. There
were burn marks around the injury which were circular and oval in shape. B
According to the opinion of the doctor the injuries were caused by the use
of a fire arm, fired from a distance of more than 20 meters.

Appellant Durga Nand was also examined by DW-4 Dr. P.L. Ghonta,
Registrar, Department of Urology, IGMC, Shim la. Pellets from scrotum were C
temoved by the doctor who also stated that it was not dangerous to life.

So far the facts are concerned, there is rio dispute about t~e date time
and place of occurrence. It is also not in dispute that both sides received
injuries at the hands of each other but according to them in different manner.
The crucial question therefore which falls for consideration is as to which D
party initiated the assault on fae other and in what manner and circumstances.

Learned amicus curiae appearing for the appellants has vehemently
urged that the prosecution has suppressed the injuries of Durga Nand and that
by itself is sufficient to throw out the case of the prosecution since injuries
of Durga Nand remain unexplained. Therefore, their version of having caused E
injuries to the complainant side in self defence is but to be accepted.

Reliance has been placed on Thakhaji v. Thakore Kubersing Chamansing
and Ors., [2001] 6 S.C.C. 145. No doubt in view of the observations made
in the above-noted case, prosecution is under duty to explain the injuries on
the accused persons but it has further been observed in Paragraph 17 of the F
judgment that non-explanation of injuries of the accused persons does not
necessarily lead to the conclusion that prosecution case is false and must be
throwr. out. It is further observed that "where the evidence is clear, cogent
and creditworthy and where the court can distinguish the truth from falsehood
the mere fact that the injuries on the side of the accused persons are not G
•· explained by the prosecution cannot by itself be a sole basis to reject the
testimony of the prosecution witness and consequently the whole of the ·
prosecution case."

Another decision which has been referred to is reported in [2000] 4
SCC. 2'J8 -Rajinder Singh and Ors., v. State of Bihar. It is on the same H
26 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A proposition as laid in the case of Thakhaii (supra). It has been observed that
non-explanation of injuries on the accused. ipso fix10 can not be held to be
fatal to the prosecution case. It is also observed. ordinarily prosecution is not
obliged to explain each and every injury on the accused even though injuries
might have been caused during the course of occurrence and they are minor
I '
B in nature but where the injuries are grievous, .non-explanation of such injuries
attract the Court to look at the prosecution case with little suspicion on the
ground that prosecution has suppressed the true version of the incident.

Apart from what has been indicated above, in so far as the question of
the suppression of the injuries of Durga Nand by the prosecution is corcerned,
C it may be observed that factually it does not appear to be so. It is true that
the FIR does not mention about the injuries of Durga Nand but the fact
cannot be lost sight of.that the FIR was lodged by PW 6 Shiv Lal who was
not an eye witness to the incident. But PW 14 Kanta in her statement under
Section 161 Cr. P.C. had come out with the fact that Laiq Ram had fired gun
shot injuring Durga Nand because of th~ murderous assault on Neel Kanth
D by the accused persons. In the statement in court she appears to have stated
that the fire was shot by Dharminder but she was confronted with her previous
statement which has been brought on record. In the statement, other witnesses
have also stated about the firing on their behalf. Thus it cannot be said that
there was any suppression as such of the injuries of Durga Nand. It was
E disclosed at the first opportunity to the investigating agency in the statement
under Section 161 Cr.P.C.

It is then submitted that Durga Nand had lodged his report against Laiq
Ram but that case has not been investigated by the police otherwise the case
of self defence as taken up by the appellant would have clearly been made
p out. In this connection, the Police Inspector had stated that he had started the
investigation on •that report which was not completed. It is submitted that
Laiq Ram who was accused in the case had since died, there was no point
in further investigating the case. Without further going into the question
whether the investigation was rightly closed in view of the death of Laiq
Ram or not, suffice it to say that in the facts and circumstances of this case
G it will make little difference as it shall be discussed shortly.

ft is to be noted that to prove its case of private defence the appellants
have examined defence wi.tnesses in support of their version. The accused
persons including the appellants have also submitted their written statement
H in defence u/s 233 Cr.P.C. They are all placed on record. Therefore, in the
DllARMINDER 1•. STATE OF HIMACHAL PRADESH [BRIJESH KUMAR, J.] 27
present case the merits may have to be examined on the basis of the evidence A
on record and as to whether facts and circumstances make out a case of self
defence in favour of the appellants or not. It may also be noted though not
very significantly that Durga Nand also does not seem to have pursued the
matier on the basis of his FIR in the manner whatever may have been available
under the law to do so.
B
In the above circumstances and facts of the case, the decision reported
in (2002] I SCC 71 Kashiram and Ors v. State of M.P. on the question of
non investigating of the report of Durga Nand will not be helpful to the
appellant. Our attention has been particularly drawn to Para 22 of the decision
that in case injuries on the accused person had been noticed, the investigating C
officer could have made an effort to find out the cause of the injuries so that
the defence version of the incident would have come in the knowledge of the
1.0. In the case in hand we find that the investigation has taken note of the
fact which came to light during investigation of this case particularly regarding
the injuries caused to Durga Nand by gun shot fired by Laiq Ram which was
also the case of Durga Nand in his FIR. The prosecution has proceeded to D
prosecute the case on these lines and the effort of PW 14 to assign the firing
to appellant Dharm inder in the statement before the Court was thwarted by
. confronting her with her previous statement. The 1.0. had actually investigated
the case on the report of Durganand to some extent. He had both versions
before him. It was not so in Kashi Ram's case.
E
The High Court considered the relevant provisions of law pertaining to
the right of self defence available to the accused persons as contained under
Chapter IV of the Indian Penal Code and Section I05 of the Evidence Act
relating to onus of proof on the accused persons to establish the plea relating
took exceptions e.g right of private defence. After considering the relevant F
law on the point it has been observed, and in our view rightly, that onus of
proof to establish the right of private defence is not as onerous as that of the
prosecution to prove its case. And where the facts and circumstances lead to
pre-ponderance of probabilities in favour of the defence case, it would be
enough to discharge the burden to prove the case of self defence.
G
We may now consider the merits of the present case, in the lighf of the
evidence available on the record as well as the circumstances and pre-
ponderance of probabilities as emanating from record and surrounding
circumstances. The prosecution witnesses have categorically stated that PW
4 Gangawati was attacked first by Durganand and others and on her alarm H
28 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A her son arrived at the spot who was also severely assaulted by Durgariand
Dharminder and other accused persons. The prosecution case fmiher is that
Laiq Ram who also arrived in the meantime seeing the murderous assault on
his son picked up the licensed gun of his wife. Gangawati and fired the shot
which hit Durga Nand causing multiple pellet injuries on his legs, thighs and
B some pellets on his abdomen. Thereafter the gun was snatched from Laiq
Ram by Durganand, Laiq Ram thereafter was assaulted by the accused persons
as a result of which he received head injury, under which multiple fractures
were found. He succumbed to his injuries and died at the spot. We have
already noticed the injuries received by Neel Kanth quite a few of them are
multiple injuries which in all would not be less than 20 injuries spread all
C over his body including five on the head itself. A simple injury was also
found on the person of Gangawati

It is not understandable, if Laiq Ram had gone determined anned with
a loaded gun for an aggression to deal with Durganand, he would fire a shot
from a distance of about 20 meters, causing injury only on the lower part of
D the body rather most of which are on legs and thighs. This circumstance
strengthe.ns the case of the prosecution that Laiq Ram had used the licensed
gun of his wife Gangawati to rescue his son Neel Kanth, who was being
mercilessly beaten. It also militates against the story set up by the defence to
claim right of private defence alleging aggression on the part of Laiq Ram.
E The medical evidence also suppo1is the prosecution case, looking the large
number of injuries which have been found on the person of Neel Kanth
including on the vital parts of the body. According to Durganand he was
alone on his side. He dis-armed Laiq Ram of his gun and Gangawati of her
Danda and assaulted Laiq Ram and Neel Kanth. Later Simla daughter of
Durga Nand and his wife Smt Hukmu Devi also arrived and they were also
F assaulted. They are said to have one simple injury each. What seems to be
highly improbable is that Durganand after receiving the gun shot would be
able to cause such large number of injuries to Neel Kanth and also the head
injury with such force to Laiq Ram which caused multiple fractures of his
head resulting in instantaneous death at the spot. It may also be noted that
G Neel Kanth would obviously be younger in age to Durganand. According to
the doctor Durganand was brought to the hospital, who was then crying with
agonizing pain. Later pellets were also recovered from his scrotum. In such
a condition it is not possible that Durganand wouid be able to snatch Dandas
and gun from the complainant party and would also :issault in the manner
indicated above. It is not a question of number of injuries caused to each
H side. at times an aggressor may receive rnore injuries than the defenders but
DHARMINDER 1·. STATE OF HIMACHAL PRADESH [BRIJESH KUMAR, J.] 29
the case in hand is not a case of that kind. Sequence of events as given out A
in the prosecution case also gets support from the medical evidence as well
as broad probabilities leading to the conclusion that Smt. Gangawati and

, Neel Kanth had been assaulted first by Durganand and Dharminder, and Laiq
Ram arrived later to rescue his son and by that time his son had already
received a large number of injuries. The accused persons may have been
successful in dis arming Laiq Ram and to hit on his head with such a great B
force that it proved to be a decisive blow causing injury sufficient to cause
death in the ordinary course. Neel Kanth must have received injuries before
and not after Durganand was fired at and received fire arm injuries. We don't
attach much significance to the one simple injury received by Gangawati and
Bimla each so as to make it necessary to deal with them in detail. It only C
indicates their presence at the spot at one or the other stage. It supports
proseci.;tion case that Gangawati was assaulted first at the initial stage.

It is true that DW I Baldev Singh supports the version given by Durga
Nand but OW 2 Jagat did not suppo1i the defence case, as when he arrived,
he found Durganand being removed from the spot, he had not seen any D
assault on any one. It is difficult to place reliance on the statement of DW
I Baldev Sirtgh.

The prosecution case is also supported by the circumstance that at the
time Laiq Ram was not present at the scene then it would be better possible E
for Durganand and Dharminder to cause such large number of injuries to
Neel Kanth numbering 20, all over the body. It could not be possible after
Laiq Ram had arrived and fired the shot and Durganand had received the
injuries.

Yet another feature of the defence case that Laiq Ram wanted his F
property back and came determined for the purpose is not borne out from any
circumstances. There is no dispute that Laiq Ram had left the village and the
property and according to prosecution in Sheer disgust. He remained away
from home for about 20-22 years. He did not return to the village at his own
> or for the love of his property but on pursuation of his son Neel Kanth i.e.
for the affection of his son. It is nowhere indicated that during 20 -22 years G
or during the period of one year after he came back to the village, he may
have moved any authority or coul1 agitating' against the entries in the records
made in the name of Durganand, or may have asked them to return the
prope11y . Nor that he may have made any effo11 earlier to get back the
prope11y. In this background it does not appeal to reason that one fine morning. H
I
30 SUPREME COURT REPORTS .(2002] SUPP. 2 S.C.R. '
A he would,suddenly go armed with a gun to take possession of the property. ~'
On the other hand there is evidence on the record to indicate that none else
but Padatiia Ram had told Neel Kanth that they may not go out of the house
on that day·as accused persons were not happy on the return of Laiq Ram and
'
some trouble was in the offing on the fatefulday. The above discussion clearly
. ·. B · shows that ·.the incident occurred in the manner indicated by the prosecution
and pre-ponderance of probabilities also do not support the defence case.

For ihe reasons indicated above we find that the Court of Sessions as
weil as the High. Court coinmitted no error in recording the conviction of .~
Dharminder and Durga .Nand.
c So far appe~I against acquittal is concerned, PW 14 Kanta had stated .
that Padma ,Ram was in. the house. A finding has been recorded that Pramod
and· Padma Ram do not seem. to have participated in the assault and they
· seem to have arrived at the scene of occurrence later on. So far as Smt.
Hukmu .is concerned, it was found that though she was present and participated
D yet her involvement has not been satisfactorily established. We do not find
it a case fit for interference with the acquittal of the respondents which has
been recorded and affirmed by the High Court

In the result all the appeals -viz filed by Durga Nand and Dharminder
against their conviction and the one filed by the State of l:limachal. Pradesh
E against the acquittal of Hu1<mu Devi, Pramod and Padma Ram are devoid of
merit and they are dismissed.
I
K.K.T. Appeals dismissed. '