HARISH KUMAR AND ANR.versusSTATE OF M.P.

A                        HARISH KUMAR AND ANR.
                                         v.
                                 STATE OF M.P.

                                   JULY 9, 1996

B            [M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.]

          Oiminal Law :

           Penal Code, 1860: Section 97.
c
           P1ivate defence of person-Right of-:-Accused and their father suffered
    pellet injwies~Accused becoming apprehensive of danger to himself and his
    family meinbm· fired one shot on deceased-Accused look plea of p1ivate
    defenc(f-Held : In peculiar facts and circumstances of the case, presence of
    injwies alone did not probabilise their plea of private defenc(f-Some un-
D   jJleasantness had occiured earlier and tlzat nienzbers of coniplainant party
    started assembling near house of accused-No indiscriminate filing but only
    one shot fired by accused-In the circumstances of the case, the possibility
    could not be mled out that the accused becoming apprehensive of danger to
    himself and his family members chose to be defensive in becoming offensive
E   without having the requisite intention to cause the murder of any particular
    person-His act would, therefore, be temied as one in exercise of the right of
    private defence of person entitling him to acquittal.

          Section 307134-<:omplainant sat down and escaped rifle shot injury at
    the hands of accused-High Court convicted accused on such finding-Held
F   : such a finding was an exaggeration-High Court not justified in convicting
    accused on such a finding.

          Criminal T1ial-Injwy-Whether self inflicted-Detennination of-Held
  : the situs of a pmticular injwy can not be the sole basis to detennine whether
G a fiiendly hand had caused it-Nature of injury too could speak prominently.

          Evidence Act, 1872 : Section 32.

        Dying declaration fixed accused as author of fatal injury-Held: That
  by itself can not be a cmroborative factor to establish the murder charge
H having regard to plea of self-defence taken by accused.
                                        296
                           BARISH KR. v. STATE                            297

      The appellants were convicted under Section 302 read with Section          A
34 of the Indian Penal Code, 1860 and sentenced to undergo rigorous
imprisonment for life. They were also convicted and sentenced to five years'
rigorous imprisonment. Both the sentences \Vere to run concurrently.

       According to the prosecution, the parties involved had formed fac-
tions, one represented by the complainant and the other by the accused.          B
The appellants H and Rand their co-accused, who constituted a family by
themselves, had their residential house in a lane. On the day of the incident
C, of the rival faction, was passing in that lane. N, the father of the
appellants H and R, caught hold of the hands of C and told him that he
was indulging in gundagardi (hooliganism) and that he would be set right         C
by them. Appellants H and R were said to be present there. H was armed
with a ri!le and R was armed with a .12 bore gun. Others were empty
handed. On being exhorted by N to kill C, H tired his rifle at him even
when N was holdong the hands of C. Neither of the two was hurt by the fire
as both had sat down instinctively. Freeing his hands from the hands of
N, C started running away in the lane when R fired at him from his .12
                                                                                 D
bore gun. This time also the fire missed. Some pellets of the second fire
however hit 4 other persons. This was stated by the prosecution to be the
first incident.

      Instead of retiring from the tension-ridden place after the first          E
incident members of the rival faction sat at the closeby tea shop. There-
after, all the five accused came out from their house when H, as before,
was having a rifle, R, as before, a .12 bore gun and the remaining three
accused armed with kattas. On the exhortation of N, the ap1iellant H
allegedly fired a rifle shot towards the victim which hit him on the left side
of his chest, whereupon he fell down. The five appellants then escaped from      F
the place of occurrence. This \Vas termed to be the second incident.

      The victim in an injured condition was admitted to the government
hospital where he died. A dying declaration of the deceased was recorded
by the doctor on duty. A First Information Report was lodged and a G
post-mortem was held. The trial court acquitted all the accused. On appeal
against ac11uittal the High Court reversed the acquittal of appellants H
and R.

      In the appeal before this Court, on behalf of appellants Hand Rit was
contended that there was only one occurrence in which the complainant H
    298                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A party injured the father or the appellants and also caused pellet injuries to
    the appellants aD<l an apprehension that their house would be put to lire
    justifying them to employ their weapons in the right or private derence.

          Allowing the appeal, this Court

B        HELD : 1. The High Court has viewed that the factum or C sitting
  down and escaping rifle shot injury at the hands or H to be an exaggera-
  tion. Yet the High Court convicted H for an offence under Section 307/34
  IPC. The High Court was wrong in convicting H after such a finding but
  right in coming to that conclusion. Thus the account or the first occurrence
C has not been placed by the prosecution in a true manner. (306-C-D]

         2.1. In the instant case the dying declaration would at best fix the
  appellant H as the author or the fatal injury, but that by itself is not a
  corro~rirative factor to establish the murder charge, having regard to the
  plea taken by H. When the prosecution witnesses say that H is responsible
D for the killing or the deceased and the deceased in his dying declaration
  states similarly, it only establishes that unless the plea or self- defence of
  person and property set up by tlte appellant gets proved on the test of
  probabilities, the prosecution case shall stand proved provided it stands
  on its own. So the dying declaration is not the tilting factor as viewed by
E the High Court because the same does not by itself walk over the plea of
  self-defence set up by the appellant. That would have to be viewed on its
  own merit. (308-C-D]

         2.2. The injuries on the father of the appellants are superficial in
  nature and could not have been the result of a deliberate attack on him.
F The situs of a particular injury is not the sole basis to see whether a friendly
  hand could have caused it or not. The nature of injury too can speak
  prominently. If the father had received injuries at that juncture when the
  two appellants had also received pellet injuries, then one would have ex-
  pected the appellants too to have surrendered themselves along with their
G father. Their pellet wounds at that time would have been fresh, and the
  totality of circumstances could perhaps have given a probable picture in
  their favour. Here, apparently, the injuries of the father were flung as a
  defence suggestion on the next day of the occurrence but when that did not
  ignite the imagination of the investigation, then the arrest of the appellants
  and their treatment was designedly delayed by viewing something else.
H Therefore, on account of the presence of injuries alone on the accused and
               BARISH KR. v. STA1E OFM.P. [PUNCHHI,J.]                   299

their father, their plea of private defence in not probabilised. [30~-G-H,      A
309-A-B]

      3. Some unpleasantness had occurred earlier and therealter some of
the members of the complainant party had assembled there and others had
started assembling in the lane in which the house of the appellant' lay. As
members of a faction, it is difficult to believe that they would have come      B
there un-armed and less in numbers and be there for no cause, all the more
knowing fully well that amongst the appellants were 2 licensed weapon
holders. In the circumstances therefore, the possibility cannot be ruled out
that H, becoming apprehensive of danger to himself and his family mem-
bers chose to be defensive in becoming offensive, because of the first inci-    C
dent, without having the requisite intention to cause the murder of any
particular person. He therefore fired but only once and the fire was not
repeated. There was nu indiscriminate firing. His act would therefore, be
termed as one in exercise of the right of private defence of person entitling
him to acquittal. [309-D-FJ
                                                                                D
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
572 of 1986.

     From the Judgment and Order dated 25.8.86 of the Madhya Pradesh
High Court in Crl.A. No. 533 of 1983.
                                                                                E
      R.L. Kohli and R.CKohli for the Appellants.

     U.N. Bachawat, Uma Nath Singh and Amitabh Verma for the
Respondent.

      The Judgment of the Court was delivered by                                p
      PUNCHHI, J. This appeal under Section 349 of the Code of Criminal
Procedure has been preferred by Harish Kumar, Advocate and his brother,
Ram Sharan, as of right, as they stand convicted for charges of murder and
attempt to murder by the High court of Madhya Pradesh vide order dated
25.8.1986, setting aside the orders of the Court of Session, whereunder the     G
aforesaid two appellants and three others were acquitted of all the charges.
Now the acquittal of those three others stands maintained whereas the two
appellants have been convicted and sentenced as under :

      (i) Harish Kumar under Section 302 l.P.C. and Ram Sharan under
Section 302/34 l.P.C. for the murder of Virendra Kumar. Both sentenced H
    300                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A to life imprisonment.

          (ii) Both convicted under Section 307/34 l.P.C: for individually at-
    tempting to commit murder of Chakodi, P.W. 5 and sentenced to five years
    Rigorous lmprison"1ent.

B         Both sentences to run concurrently.

         The parties involved arc residents of village Madhogarh in the State
  of Madhya Pradesh. Both the courts below have found that parties have
  formed factions, one represented by the complainant's side and the other
C by the accused. It is the case of the prosecution that at a site some distance
  from the village, the appellant, Harlsh Kumar, in partnership with one Ram
  Gulam had taken a contract for transportation of sand and bajri. In the
  vicinity thereof were agricultural lands of Jagdish Prasad, P.W. 7. It is
  alleged that on the morning of 10.1.1982 when Jagdish Prasad, P.W. 7 went
  to his fields, he found that a road had been made by cutting the boundary
D line of his field for using it as a passage for trucks. Incidentally, Ram Gulam
  and Harish Kumar were also there. Jagdish Prasad, P.W. 7 protested to
  them for the trespass on his land. At that time, both Harish Kumar and
  Ram Gulam threatened P.W. 7 that if he ever tried to obstruct their trucks
  from passing on that road, he would be shot dead. It is alleged that the
E matter was reported at the police station.

           It transpires that the Patwari, on orders from higher officers, made
    demarcation of the site on 17.1.1982. It emerged that the site where the
    road was made was owned by one Ramsewak, a nephew of Ram Gulam
    and that Jagdish Prasad's objection to the user of the road was without any
F   basis.

          In village Madhogarh, there is a busy lane/road running from north
    to south, touching perpendicularly the highway between the towns of Satna
    and Rewa. Shortly before reaching the T-junction, there stands erected a
G   stone gate from where a lane bifurcates at a tanget, touching also the same
    highway. The appellants and their co-accused, who constitute a family by
    themselves, have their residential house in that lane, just about in the
    middle between the stone gate towards south and the crossing towards the
    north.

H         The prosecution case is that at about 4.30 p.m. on 17.1.1982, Chakodi,
              HARISHKR. v. STATEOFM.l'. [PUNCHH!,J.)                  301

P.W. 5 of the rival faction was passing in that lane. All the five accused A
were there. The father of the appellants, Narayan Prasad, acquitted co-ac-
cused, caught hold of the hands of Chakodi, P.W. 5, and told him that he
was indulging in gundagardi (hooliganism) and that he would be set right
by them. Harish Kumar, appellant, was then said to be present and armed
with a rifle, and Ram Sharan, appellant too, with a .12 bore gun. Others
                                                                              B
were empty handed. On being exhorted by Narayan prasad lo Kill
Chakodi, P.W. 5, Harish· Kumar fired his rifle al him even when Narayan
Prasad was holding the hands of Chakodi. Neither of the two was hurt by
the fire as both had sat down instinctively. Freeing his hands from the
hands of Narayan Prasad, Chakodi started running away in the lane
towards the north, when Ram Sharan fired at him from his .12 bore gun.       c
This time also the fire missed. It is alleged that some pellets of the second
fire however hit Manju Soni, Surendra Kumar, Indra, P.W. 3 and Jagdamba
Bai, P.W. 4 (the former two were not examined at the trial). This is stated
by the prosecution to be the first incident. Before its actual happening
Ganesh Prasad, P.W. 1 was informed by one Ganesh Prasad Garg that D
some quarrel was going on in front of the house of Harish Kumar, appd-
lant. He rushed to the spot along with Narayan Prasad Tiwari, P.W. 11 and
both claim to have seen the first occurrence in its entirety from the point
when Chakodi's hands were caught by Narayan Prasad, accused till the
end.
                                                                             E
       Instead of retiring from the tension-ridden place after the first inci-
dent, Ganesh Prasad, P.W. 1 and Narayan Prasad Tiwari, P.W. 11 both
members of the rival faction sat at the close by tea shop of one Ram
Sajivan. Other People of the faction such as Ramesh Kumar Gautam, P.W.
2, Chottey Lal Garg, P.W. 13, Virendra Kumar Pandey (deceased) and
others were also seen in the lane collected near the stone gate towards the F
south. Allegedly thereafter, the five accused came out from their house
when Harish Kumar, appellant, as before, was having a rifle, Ram Sharan
as before a .12 bore gun and the remaining three accused this time (on
which there is some discrepancy) armed with kattas, i.e., country-made
pistols. On the exhortation of accused, Narayan Prasad, H"arish Kumar, G
appellant, allegedly fired a rifle shot towards Virendra Kumar Pandey
which hit him on the left side of his chest, whereupon he fell down. The
five appellants then escaped from the place of the occurrence. This is
termed to be the second incident.

      Ganesh Prasad, P.W. 1 and the aforementioned persons and some H
    302                  SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A others brought Virendra Kumar to the road junction, and putting him in a
    truck took him to Satna for medical aid. On the way however, Ganesh
    Prasad, P.W. 1 got down from the truck and lodgeJ the First Information
    Report at police station Kolgawa at 6 p.m. The investigation was was set
    in motion.

B          Virendra Kumar in an injured condition was admitted in the govern-
    ment hospital at Satna. Thereat Indra, Jagdamba Bai, Manju Soni and
    Surendra Kumar were also brought for medical aid on account of the pellet
    injuries received by them. Virendra Kumar was given immediate medical
    attention by Dr. N.K. Nema, P.W. 14. At 6.35 p.m., when asked in writing
C   by the concerned police officer whether Virendra Kumar was in a position
    to make a statement, Dr. Nema replied thereon in the affirmative. That
    document is Exhibit p. 16. Immediately thereafter, a dyiµg declaration of
    the deceased Exhibit P. 14 was recorded by Dr. Nema on a single sheet, It
    is in Hindi and in a question and answer form. When translated, it reads
    as follows :
D
          Q. 1 : Your name?

          Ans. : Virendra.

          Q. 2 : Fath,,r's name ?
E
          Ans. : Sunder Lal.

          Q. 3 : Where do you come from ?

          Ans. : Madhogarh.
F
          Q. 4 : How did you receive this injury ?

          Ans. : Nil.

          Q. 5 : Who hit y1iu ?

G         Ans. : Harish Dwivedi hit me.
                 Narayan Secretary, (meaning Nayan Prasad accused who is
                 also known as Narayan Secretary).
                 Ram Sharan too.
                 Satish was carrying 395. (description of a firearm).
H                Ravi Shankar.
               1-IARISl-I KR. v. STATEOFM.P. [PUNCHl-IJ,J.]             303

              Ram Sharan was armed wirh 12 (meaning type of the firearm).      A

      Q. 6 : How did the dispute occur ?

      Ans. : He had from the front and hit Me.

      Rattan Singh, Sarpanch of village Kripalpur, P.W. J.9 and Narayan . B
Prasad Tiwari P.W. 11 respectively signed the dying declaration as wit-
nesses to its recording in their presence by Dr. N.K. Nema, P.W. 14, who
too signed the same being the one who had recorded it. The deceased,
Virendra Kumar died at 8. 45 p.m. the same day in the hospital.

       We do not feel obliged to detail out the steps taken by the police to   c
cover and complete the investigation. Yet it would require to be mentioned
that Narayan Prasad, accused, was taken in custody by the police the
following day on 18.1.198~. At that time he had some simple injuries on his
person which when examined by Dr. R.B. Patel, D.W. 2, three days later
on 21.1.1982, were found to be a bruise on the left chest, a lacerated wound   D
on the temporal region, some tenderness on the right chest, right thigh and
left leg which were opined to be more than 24 hours old. The two
appellants were however arrested about four weeks later on 11.2.1982 and
were sent for medical examination. Dr. B.B. Bhattacharya, D.W. 1, found
one pellet injury on the right leg and another one on the right forearm of     E
Harish Kumar,· appellant, and one pellet injury on the left leg of Rarr.
Sharan. The stuck up pellets thereafter were removed by medical assistance
provided during the investigation.

       The appellants when put to trial had to face a swarm of evidence
led by the prosecution )Vith regard to both the incidents. When put the F
prosecution case, the appellants raised the plea of right of private defence
of person and property suggesting that only one incident took place, that
the complainant's faction had a grouse against the accused because the
decision in the boundary dispute had gone in their favour on the day of
the occurrence, which was the reason for the complainant party to have G
come in a large number to attack the accused and membe!s of their
families and that not only was father, Narayan Prasad hit by members of
the complainant party, but kattas in their hands were used too, causing
injuries to both the appellants, which compelled them to defend themselves
in exercise of the right of private defence of person as well as property as
it was apprehended that their house too would be put to fire.                H
    304                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A         The Court of Session in dealing with each and every aspect of the
    matter. in detail, keeping in vi~\V the instances of litigation pr,n<ling and
    decided between the said factions replete in testimony, came to the con-
    clusion thal the prosecution witnesses were not trustworthy and reliable. It
    also viewed that the dying dec'laration was not a trustworthy document
B because firstly it \Vas vague in content, not conveying any sense, and
    secondly, the Doctor, had nowhere written on the dying declaration itself,
    certifying that Virendra Kumar was in a fit position to make a statement.
    The statement of Dr. Nema that he had done so vide Exhibit P-16 was not
    considered reliable. This broadly led to the acquittal of the accused per-
    sons.
c
           On appeal preferred by the State of Madhya Pradesh, a different
    view was taken by the High Court insofar as the two appellants were
    concerned. The acquittal of the' remaining three co-accused was however
    maintained. The High Court took the view that even though the prosecu-
D   tion witnesses belonged to one faction, their evidence could not be dis-
    carded altogether for two reasons, (i) the defence had not denied and had
    rather admitted the presence of the prosecution witnesses at the time of
    the occurrence and (ii) their version at best would require a closer scrutiny
    and not total discardence, Proceeding on that basis, the High Court
    approved of their evidence in establishing the guilt of the two appellants,
E   taking corroboration from the dying declaration above-referred to, holding
    that Dr. Nema, a responsible medical officer was not expected to get in
    league with the faction of the prosecution witnesses and that he is expected
    to have performed his duties in a responsible manner, having regard to the
    situation then existing. The High Court further took the view that insofar
F   as Virendra Kumar was concerned, he had specifically named Harish
    Kumar, appellant, to be the one who had fired at him, which established
    the charges of murder. This is how the conviction of the appellants has
    come to be recorded.

          Learned counsel for the appellants stressed before us that there was
G   only one occurrence, cause of which was the favourable demarcation of
    land by the Patwar~ which angered the complainant party and hence
    hooliganism was indulged into by them, to the point of hurting Narayan
    Prasad the father of the appellants, by inflicting on him four injuries and
    by using their country-made pistols (Kattas) in causing pellet injuries to the
H   two appellants and an apprehension that their house would be put to fire,
               HARISI-IKR. v. STATEOFM.P. [PUNCHJ-11,J.]                 305

justifying them to employ their weapons in the right of private defence. In A
the alternative, it was urged that it could at best be said that the right of
private defence, had been exceeded.

       We have carefully gone through the evidence led by the parties and
have also taken into account the arguments addressed by respective coun- B
sel. We would, to begin with, go with the prosecution (though not positively
holding so) that there were two occurrences. To recount, Ganesh Prasad
Shanna, P.W. l was informed by Ganesh Prasad Garg (not examined by
the prosecution) that there was some quarrel going on near the house of
Harish Kumar, appellant. Then, he and Narayan Prasad Tiwari, P.W. 11
and Naresh Garg (not ·examined) went to the place where the quarrel was         c
going ou. Both were able to sec Narayan Prasad, accused, holding both the
hands of Chakodi, P.W. 5, leading him to some distance, telling him that
he was indulging in hooliganism and that they would deal with him. At that
tin1e, Harish I<umar, appellant, \Vas having a .315 bore gun (someti1nc
described as rifle in the prosecution evidence), Rain Sharan was having a D
.12 bore gun an<l the remaining three, i.e ... Narayan Prasad, Salish and Ravi
Shankar were empty handed. While, Narayan Prasad was holding the hands
of Chakodi, he exhorted his co-accused to kill Chakodi by firing. Harish
Kumar, appellant, is said to have fired from his rifle al Chakodi instan-
taneously with the intention to kill him. At that moment, both Chakodi,
P.W. 5 and Narayan Prasad, accused, are said to have sat <l.own and saved E
themselves, It appears to us that this conduct of Harish Kumar, appellant,
in abruptly firing at Chakodi, P.W. 5, without caring for the safety of his
father is a conduct which docs not stand the test of reason; all the more
when no injury on Chakodi, P.W. 5 or Narayan Prasad was resulted. It is
further alleged that having sat on the ground and thereby saving himself, F
he extricated himself and ran away whercafter Ram Sharan fired from his
.12 bore gun towards him. This time also he \Vas not injured. Sile Plan,
Exhibit P. 26, prepared by the Patwari, P.W. 16, goes to show that the
persons who were hit by the pellets of the second shot were present in the
northern portion of the lane from which it could safely be inferred that
Chakodi had run, if at all, towards the northern side so as to attract a fire   G
being made in that direction. No\v, \Vhen, we advert to the evidence of
Ramesh Kumar Gautam, P .W. 2, he says that on hearing of a shouting
"killed" "killed", made by Chakodi, P.W. 5, the latter on the asking of the
former had told him that the two appellants had fired at him in the manner
above-stated. P.W. 2, further says that when Chakodi P.W. 5, ran away H
    306                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A towards his house, then he, Vircndra Kumar deceased and Chottey Lal
  Garg came and sat near the old stone gate wherefrom they saw the accused
  coming fully armed, i.e., both the appellants in the manner afore-stated and
  the other three accused with kattas. This would mean that when Chakcdi
  is supposed to have run away towards the north, P.W. 2 and his companions
  including the deceased had walked from the northern side down the lane
B
  and to have assembled at the stone gate after passing in front of the house
  of the accused. In this interval, the three acquitted accused are suggested
  to have armed themselves with kattas. The need to arm themselves could
  only be felt if they were anticipating further trouble at the hands of the
  complainant's faction in the form of a second occurrence in a higger way.
C The High Court has viewed that the factum of Chakodi sitting down and
  escaping rifle shot injury at the hands of Harish Kumar, appellant, to be
  an exaggeration. Yet the High Court convicted Harish Kumar for offence
  under Section 307/34 !PC. It appears to us that the High Court was wrong
  in convicting Harish Kumar, appellant after such funding but right in
D coming to that conclusion, but we would not stop at that and go further to
  hold that the account of the first occurrence has not been placed by the
  prosecution before the court in a true tnanner; more so on account of the
  statements of Indra P.W. 3, Jagdamba Bai, P.W. 4, Chakodi, P.W. 5 and
  Sumitra Nandan P.W. 6, father of Indra, P.W. 3.

E        No\v, according to Indra, P.W. 3, she \Vas in the lane in order to go
  to boy some bangles and when she got near the crossing (meaning towards
  the north) she heard a shot fired at Chakodi P.W. 5 whercafter she entered
  in somebody's house. She claims to have been hurt by the pellets of the
  second shot made by Ram Sharan, when she was peeping to sec things
F happening. Otherwise she states she never come out of the house in which
  she had taken refuge. As it appears to us her statement is unnatural docs
  not inspire confidence, because if she had entered a house, it is difficult to
  conceive as to ho\v coukl she have received a pellet injury on her neck
  while peeping, unless she had exposed that portion of her body for the
  pellet to hit her, which was next to impossible while peeping. Her word in
G that regard of having seen the appellants first is thus not reliable. Similarly,
  P.W. 4, jagdamba Bai, could not say as to who had fired the shot. She was
  declared hostile. On cross-examination by the public prosecutor, she dis-
  closed that being weak of eye sight and having become scared, she did not
  see the shot being fired and by whom. Her evidence too in that regard is
H of no use to the prosecution. Insofar as P.W. 5 Chakodi is concerned, when
              I!ARISH KR. v. STAlloOFM.P. [PUNCHHl,J.J                  307

he had taken to heels after the fire of Harish Kumar which firing we view A
with suspicion, he has no basis to claim lhal he could see Ram Sharan firing
the second shot al his back. Sumitra Nandan Garg, P.W. 6, the father of
Indra, P.\V. 2, clairr.s to be present in the lane when Ram Sharan appellant
came before him at a distance of 10 or 15 yards with a .12 bore gun. The
witness claimed that he shouted at Ram Sharan not to fire at him, but all
                                                                              B
the same Ram Sharan did lire at him. He claimed that he bent down a
little lo avoid the fire. While so, a boy told him that his daughter had been
injured by a gun shot. Now, he would have us believe that a separate gun
shot was fired at him. This is not possible otherwise we find he is connected
with Chakodi, P.\V., as a brother in relationship being a collateral and thus
interested. Such evidence therefore docs nol inspire confidence to accept C
the veracity of the first occurrence and to n1aintain conviction on such
accu:;ation against Rain Sharan, on the unreliable \Vord of Chako<li, P.W.
5, Sumitra Nandan Garg, P.\V. G. lndrawati, P.W. 3 and Jagdamba Bai,
P.\V. 4. Their evidence being unacceptable and untrustworthy on the
charge of murderous assault on Chakodi, would entitle Ram Sharan appcl- D
lant acquittal for offence under Section 307/34 IPC and sequclly would
Harish Kun1ar appellant too deserve acquittal for offence under Section
307/34 !PC. On recording such verdict of acquittal of both the appellants
for offence under Secli~n 307/34 !PC, Ram Sharan appellant, also would
be entitled to acquittal under Section 302/34 IPC on account of the murder
 of Virendra Kumar for the same reasoning as has been adopted by the E
High Court to maintain the acquittal of the other three accused, since he
too had not done any overt act towards committing the murder of Viren<ler
Kumar. \Ve therefore order acquittal of Ram Sharan of all the charges.

      No\V con1ing to the second occurrence, the sole accused \vho caused      F
the sole injury to the deceased was Harish Kumar, appellant. On his behalf
capital was made as to the injuries on the person of his father, on himself
and his brother Ram Sharan to countermand and contend that he had a
right of private defence of person as well as property. The High Court has
leaned sufficiently on the dying declaration as the corroborative material
to the factional nature of the prosecution evidence. We need not emphasize     G
herein the value of a dying declaration, which is well understood and well
appreciated in legal annals. Here, the deceased, according to Dr. Ncma,
\vhcn giving the <lying <leclaration \Vas surrounded by very many people and
police personnel. Dr. Nema had asked the policcn1cn to remove the cro\vd,
but the policemen were unable to do so. The crowd kept present in the          H
    308                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A room when he went near the deceased to record his statement. According
    to him, when he was talking to the deceased, those persons kept talking to
    Virendra Kumar loo and lo each other. Dr. Nema frankly admitted that
    earlier to the instant case he never had an opportunity to record a dying
    declaration of any patient. Before recording the dying declaration however,
B   he had given to the patient sometimes earlier, a Himosil Morphia injection.
    The effect of the same necessarily would have brought the patient to some
    stupor. In spite of his delicate condition ~nd grave surroundings, he was
    able to say categorically to Dr. Nema that it was Harish Kumar, who had
    hit him fatally. The dying declaration therefore would at best fix the
    appellant, Harish Kumar, as the author of the fatal injury, but that by itself
C   is not a corroborative factor to establish the murder charge, having regard
    to the plea taken by Harish Kumar. When the prosecution witnesses say
    that Harish Kumar, appellant, is responsible for the killing of the deceased
    and the deceased in his dying declaration stales similarly, that only estab-
    lishes that unless the pica o(sclf-defence of person and property set up by
D   the appellant gels proved on the lcsl of probabilities, the prosecution case
    shall stand proved provided it stands on its own. So the dying declaration
    is not the tilting factor as viewed by the High Court because the same does
    not by itself walk over the plea of self-defence set up by the appellant,
    Harish Kumar. That would have to be viewed on its.own merit.

E         The injuries on Narayan Prasad, were simple in nature. The prosecu;
    tion has not owned them. The High Court has opined that these could have
    been caused because of a fall or striking against a hard or pointed sub-
    stance. The fact remains that these injuries were found on the person of
    Narayan Prasad \Vhen arrested a day later than the occurrence. He \Vas
F   medically examined late though, after three days. Beside it is contended
    that the pellet injuries received by the appellant as well as by Ram Sharan,
    co-accused, \Vere the result of the assault n1ountcd on them because many
    men1bers of the con1plainant party had carried and used kattas. Our vic\v
    v.'ith regard to these two suggestions on careful consideration is that the
    injuries on the father arc superficial in nature and could not have been the
G   result of a deliberate attack on him. The situs of a particular injury is not
    the sole basis to see whether a friendly hand could have caused it or not.
    The nature of injury too can speak prominently. If the father had received
    injuries at that juncture when the two appellants had also received pellet
    injuries, then we would have expected had the appellants too lo have
H   surrendered themselves along with their father. Their pellet wounds at that
               HARISHKR. v. STATE OFM.P. [PUNCHHl,J.]                     309

time would have been fresh, and the totality of circumstances could per- A
haps have given a probable picture in their favour. Here, apparently, the
injuries of the father were flung as a defence suggestion on the next day of
the occurrence but when that did not ignite the imagination of the inves-
tigation, then the arrest of the appellants and their treatment was desig-
nedly delayed by viewing something else. Thus, on account of the presence
                                                                             B
of injuries alone on Narayan Prasad, Harish Kumar and Ram Sharan,
accused, we are not prepared to probabilise their defence in these peculiar
facts and circumstances.

      That is not however the end of the road. We have recorded our view
with regard to the first occurrence. We may add lo those that some incident C
between the parties definitely happened but we stand deprived of a truthful
account of the same. So fit,'llrativcly there was a first occurrence which led
to the second one. Some unpleasantness had occurred earlier wherefor
some of the members of the complainant party had kept being there and
others had started assembling in the lane in which the house of the D
appellants lay. As members of a faction, it is difficult to believe that they
would have come there un-armed and less in nun1bers and be there for no
cause, all the more knowing fully well that amongst the appellants were 2
licensed weapon holders. It is alleged by the prosecution that it was Harish
Kumar, accompanied by his companions, who first stepped forward
towards the complainant party, present near the stone gate. Here then was        E
direct confrontation. In the circumstances therefore, the possibility cannot
be ruled out that Harish Kumar, becoming apprehensive of danger to
himself and his family members chose to be defensive in becoming offen-
sive, because of the first incident; without having the requisite intention to
cause the murder of any particular person. He therefore fired but only once . F
and the fire was not repeated. There was no indiscriminate firing. His act
\VOuld therefore 1 be termed as one in exercise of the right of private
defence of person entitling J:iim to acquittal. It is so ordered.

       As a result, the appeal of both the appellants is allowed. They are
acquitted of all the charges. The judgment and order of the High Court is        G
set aside and the order of the Court of Session is restored.

v.s.s.                                                       Appeal allowed.