MANO DUTT & ANR.versusSTATE OF U.P.

                        [2012] 3 S.C.R. 686


A                      MANO DUTT & ANR.
                                v.
                          STATE OF U.P.
                 (Criminal Appeal No. 77 of 2007)
                       FEBRUARY 29, 2012
8
        [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

        Penal Code, 1860:

c      ss. 302134 - Murder - Dispute over land - Six accused
  - Murderous assault on the deceased with lathis - Brother
  and father of the deceased trying to rescue deceased also
  received serious injuries - Out of six accused, four convicted
  uls.302 rlw s.34 by trial court - One accused died during
  pendency of the appeal before /-figh Court - High Court
0
  upheld the conviction of rest three uls.302 rlw s.34- Separate
  appeal by one convict before Supreme Court already
  dismissed - On appeal by other two convicts, held: All the
  accused persons had come prepared, mentally and
E physically, to assault the deceased and in furtherance to their
  common intention, had even given exhortation to kill the
  deceased - This incident was witnessed by natural witnesses,
  the father/brother of the deceased who also received number
  of injuries - The defence miserably failed to prove
  commission of the offence in self-defence - Dispute had not
F arisen at the spur of the moment as the evidence clearly
  showed that the accused had gone to the site in question with
  a commori intention and with the preparedness to assault and
  even kill the deceased - Prosecution was able to prove its
  case beyond reasonable doubt and has brought home the
G guilt of the accused u/s.302 rlw s.34.

        s.34 - Applicability of - Held: In the instant case, six
    accused were charge-sheeted uls.302 rlw ss.149 and 323 -
    However, two of the accused were acquitted by trial court and
H                                686
        MANO DUTT & ANR. v. STATE OF U.P.                     687

remaining were convicted of an offence u/ss.302134 and 3231           A
34 - High Court acquitted all the accused of offence u/ss. 3021
34 - One of the accused died during the pendency of that
appeal - Because the alleged number of accused having
become less than five, nature of the offences were changed
from offence uls.149 to s.34 - In the circumstances of the            B
case, the possibility of presence of all other persons in the
appellants' party cannot be excluded - Even where there are
less than five persons who are accused, but the facts and the
evidence of the case is convincing as in the instant case,
where the accused had returned to the place of occurrence             c
with complete preparedness and after giving lalkar had
attacked the deceased there, they have to be held liable for
commission of the crime - It cannot be ignored that the extent
of participation, even in a case of common intention covered
u/s. 34 would not depend on the extent of overt act - If all the
                                                                      0
accused have committed the offence with common intention
and inflicted injuries upon the deceased in a pre-planned
manner, the provisions of s.34 would be applicable to all.

     Evidence:
                                                                      E
     Right of self defence - Held: It is a settled canon of
evidence jurisprudence that one who alleges a fact must
prove the same - When a person claims exercise of private
self-defence, the onus lies on him to show that there were
circumstances and occasions for exercising such a right.              F

      Non-explanation of injuries sustained by the accused
persons - Effect on prosecution case - Held; The normal rule
is that whenever the accused sustains injury in the same
occurrence in which the complainant suffered the injury, the
prosecution should explain the injury upon the accused - But,         G
it is not a rule without exception that if the prosecution fails to
give explanation, the prosecution case must fail - Before the
non-explanation of the injuries on the person of the accused,
by the prosecution witnesses, may be held to affect the
prosecution case, the Court has to be satisfied of the                H
    688          SUPREME COURT REPORTS            [2012] 3 S.C.R.


A existence of two conditions: that the injuries on the person of
  the accused were also of a serious nature; and that such
  injuries must have been caused at the time of the occurrence
  in question - Where the evidence is clear, cogent and
  creditworthy; and where the court can distinguish the truth from
B falsehood, the mere fact that the injuries on the person of the
  accused are not explained by the prosecution cannot, by
  itself, be a sole basis to reject the testimony of the
  prosecution witnesses and consequently, the whole case of
  the prosecution .
       .   '
c          Witnesses:

         Interested witness - Evidentiary value of - Held: When
    the statement of witnesses, who are relatives, or are parties
    known to the affected party, is credible, reliable, trustworthy,
· D admissible in accordance with the law and corroborated by
    other witnesses or documentary evidence of the prosecution,
    there would hardly be any reason for the Court to reject such
    evidence merely on the ground that the witness was family
    member or interested witness or person known to the affected
  E party.

       Injured witness - Evidentiary value of - Held: Normally,
  an injured witness would enjoy greater credibility because he
  is the sufferer himself and thus, there will be no occasion for
  such a person to state an incorrect version of the occurrence,
F or to involve anybody falsely and in the bargain, protect the
  real culprit.                                             ,

        Sole witness - Evidentiary value of- Held: The court can
  convict an accused on the statement of a sole witness, even
G if he is a relative of the deceased and thus, an interested party
  - It is only when the Courts find that the single eye-witness is
  a wholly unreliable witness that his testimony is discarded in
  toto and no amount of corroboration can cure its defect. ·

               The prosecution case was that the accused persons
H
        MANO DUTT & ANR. v. STATE OF U.P.                689

  were related to each other. On the fateful day, the victim-   A
  deceased was doing earth filling in front of his sariya (a
  place of tethering cattle). The four accused, 'RD', 'TP',
  'RN', 'MD' out of the six named accused came there and
  asked the deceased not to do earth filling. The deceased
  told them that it was his land and he would not stop the      B
  work of land filling. Thereupon, the deceased called
  villagers. The matter was discussed with the villagers, all
  of whom said that the land was that of the deceased and
  he could carry on with land filling on his own land. After
  deciding this, the villagers went away and the deceased       c
  resumed the filling of the earth. Thereafter all the six
  accused persons armed with lathis, came there and
  chased the deceased. The deceased was able to run for
  a short distance away, whereafter all the accused
  surrounded him. Accused 'RD', 'TP', 'MD' and 'RN' started     0
. beating the deceased with their lathis. The father of the
  deceased and his brother rushed towards the deceased
  to rescue him. They were also beaten up by the accused.
  The deceased fell down after getting the lathi blows.
  Meanwhile, his wife, 'B' and village Pradhan came there.
                                                                E
  Pradhan snatched the lathis of the four accused, who
  then fled away from the scene. The deceased sustained
  serious injuries. The father and the brother of the
  deceased also sustained injuries. The deceased narrated
  the incident to PW-3 and based on that FIR was prepared.
  The deceased died after two days. One of the accused          F
  'RD' had also allegedly lodged a report against the
  deceased and his father and brothers. After registering
  the FIR, the Investigating Officer in his report had also
  stated that the accused 'RD' had sustained some injuries
  on his person.                                                G

    The trial court charged the accused with various
offences under IPC. Out of the six accused, four were
convicted by the trial court under Sections 302/34 and
323/34 IPC. One accused 'RD' died during pendency of            H
    690     SUPREME COURT REPORTS              [2012] 3 S.C.R.


A the appeal before the High Court and all the other
  accused were acquitted of the offences under Section
  323/34 IPC, but convicted for offences under Section 302/
  34 IPC. The two accused 'MD' and 'RN' filed the instant
  appeals.
B
       · Dismissing the appeals, the Court

         HELD: 1. The record showed that 'RD' had lodged a
    complaint of the incident. According to this report, the
    accused in that complaint (i.e., the dece·ased and his
C   family members) had been putting earth on RD's sariya,
    which he had forbade. There was verbal altercation
    between the parties and then the accused in that
    complaint (i.e., the deceased) started assaulting him with
    lathis and it was only by raising an alarm that the people
D   of the village came to the place of occurrence and his life
    was saved. According to this complaint, he had suffered
    injuries on his head. This complaint was not proved by
    'RD' during the trial. Accordingly, the concurrent view
    take·n by the courts below that this document cannot be
E   relied in evidence, cannot be faulted with. Furthermore,
    'RD,' did not examine a single witness in his defence to
    prove that he was attacked by the deceased and his
    family members or .that they were putting earth at the
    door of sariya of 'RD'. No doubt, 'RD' was subjected to
F   medical examination by the Medical Officer. He had
    suffered lacerated wounds on the central and other
    regions of skull, and had complained of pain in left leg.
    This would show that 'RD' had suffered some injuries but
    where and how these injuries were suffered, was for him
G   to establish, particularly when he had taken a specific
    stand that the deceased and his family members were at
    fault and were aggressive. He claims that they had
    caused serious injuries to his person and this incident
    happened in the presence of the villagers. It is a settled
H   canon of evidence jurisprudence that one who alleges a
       MANO DUTT & ANR. v. STATE OF U.P.                  691


fact must prove the same. The contention of the appellant        A
cannot be accepted that the prosecution had not
explained the injuries on the accused and, therefore, the
attack with lathis was in exercise of self-defence was a
circumstance which created a serious doubt in the story
of the prosecution. When a person claims exercise of             8
private self-defence, the onus lies on him to show that
there were circumstances and occasions for exercising
such a right. In other words, these basic facts must be
established by the accused. Just because one
circumstance exists amongst the various factors, which           C
appears to favour the person claiming right of self-
defence, does not mean that he gets the right to cause
the death of the other person. Even the right of self-
defence has to be exercised directly in proportion to the
extent of aggression. As per the medical report, the
injuries on the body of 'RD' were found to be 'simple in         D
nature'. The bone of contention between the parties was
the statement of the deceased, that he was filling the earth
over some land, which he claimed to be his land;
according to the accused, the earth-filling was carried out
in front of the door of 'RD'. According to both the parties,     E
the villagers came to the spot. Out of the two versions,
the one put forward by the prosecution and the other in
the defence of the accused, the version of the
prosecution, as was disclosed by the eye-witnesses, is
trustworthy, reliable and entirely plausible in the facts        F
and circumstances of the case. The mere fact that the
Investigating Officer has not been produced, or that there
was no specific explanation on record as to how 'RD'
suffered the injuries, would not vitiate the trial or the case
of the prosecution in its entirety. It is not always             G
mandatory for the prosecution to examine the
Investigating Officer, provided it can establish its case
beyond reasonable doubt even in his absence. Where the
accused lead no defence, they cannot take benefit of the
fact that the prosecution did not examine any                    H
   692    SUPREME COURT REPORTS              [2012] 3 S.C.R.

A independent witnesses. The accused would be deemed
  to have been aware of the consequences in law when
  they gave a statement admitting the occurrence but
  attributing aggression and default to the deceased and
  his family members. [paras 15-17] [705-F-H; 706-A-H; 707-
B A-H]

        2. Accused 'TP' was also sta.ted to own a sariya and
   was also allegedly using his lathi in self-defence, as
   according to their story, four persons with the deceased
   and his family members had attacked them. Strangely,
C 'TP' suffered no injury. These were the circumstances
   which, examined cumulatively, would provide support to
   the case of prosecution. The pleas on behalf of the
   accused/appellants that only family members of the
   deceased were examined as witnesses and they being
D interested witnesses cannot be relied upon and that the
   prosecution did not examine any independent witnesses
   and, therefore, the prosecution has failed to establish its
   case beyond reasonable doubt were without much
   substance. There is no bar in law in examining family
E members, or any other person, as witnesses. More often
   than not, in such cases involving family members of both
   sides, it is a member of the family or a friend who comes
   to rescue the injured. Those alone are the people who
   take the risk of sustaining injuries by jumping into such
F a quarrel and trying to defuse the crisis. Besides, when .
 . the statement of witnesses, who are relatives, or are
   parties known to the affected party, is credible, reliable,
   trustworthy, admissible in accordance with the law and
   corroborated by other witnesses or documentary
G evidence of the prosecution, there would hardly be any
   reason for the Court to reject such evidence merely on
   the ground that the witness was family member or
   interested witness or person known to the affected party.
   There can be cases where it would be but inevitable to
H examine such witnesses, because, as the events
         MANO DUTT & ANR. v. STATE OF U.P.                  693


 occurred, they were the natural or the only eye witness           A
 available to give the complete version of the incident.
 [Paras 18-19) [708-A-G]

       3. PW5, the doctor who examined the deceased
  when he was brought to hospital stated that he had               8
  examined the father and the brother of the deceased on
  the fateful day itself and noticed as many as five injuries
  on the brother of the deceased and four injuries upon the
  person of the father of the deceased. These injuries were
  suffered by them from a blunt object. The brother of the         C
  deceased was examined as PW2 and his statement was
  cogent, coherent, reliable and fully supported the case of
  the prosecution. However, the other injured witness was
  not examined. Non-examination of the father of the
  deceased, to which the accused raised the objection,
  would not materially affect the case of the prosecution.         D
  Normally, an injured witness would enjoy greater
  credibility because he is the sufferer himself and thus,
  there will be no occasion for such a person to state an
  incorrect version of the occurrence, or to involve
  anybody falsely and in the bargain, protect the real             E
  culprit. It is wrong to state that the material witness having
. not been examined and the entire prosecution story
  being based upon the statements of PW1 and PW2, who
  were the interested witnesses, the entire prosecution
  evidence suffered from a patent infirmity in law. Non-           F
  examination of any independent witness, in the facts of
  the instant case was not fatal to the case of the
  prosecution. The court can convict an accused on the
  statement of a sole witness, even if he is a relative of the
  deceased and thus, an interested party. The condition            G
  precedent to such an order is that the statement of such
  witness should satisfy the legal parameters stated by this
  Court in a catena of judgments. Once those parameters
  are satisfied and the statement of the witness is
  trustworthy, cogent and corroborated by other evidence           H
    694    SUPREME COURT REPORTS               [2012] 3 S.C.R. -


A produced by the prosecution, oral or documentary, then
  the Court would not fall in error of law in relying upon the
  statements of such witness. It is only when the Courts
  find that the single eye-witness is a wholly unreliable
  witness that _his testimony is discarded in toto. and no
B amount of corroboration can cure its defect. [paras 22-
  23, 25-26) [710-F-H; 711-A-B; 713-8-G]

        Namdeo v. State of Maharashtra (2007) 14 SCC 150:
  2007 (3) SCR 939; Balraje @ Trimbak v. State of
C Maharashtra (2010) 6 SCC 673: 2010 (6) SCR 764; Satbir
  Singh & Ors. v. State of Uttar Pradesh (2009) 13 SCC 790:
  2009 (3) SCR 406; Abdul Sayeed v. State of Madhya
  Pradesh (2010) 10 SCC 259: 2010 (13) SCR 3; Anil Phukan
  v. State of Assam (1993) 3 SCC 282: 1993 (2) SCR 389 -
  relied on
D
        4. The FIR was lodged by the deceased along with
  PW3 who transcribed the same at the police station itself.
  The deceased was seriously injured, but was fully aware
  of what he was doing and he had no reason to falsely
E implicate any person. His father and brother had also
  been injured in the occurrence. It was specifically
  recorded in the statement of these witnesses that when
  the appellant 'MD' and other accused came for the second
  time, to the place where the deceased was filling the earth
F at the sariya, they gave a lalkar 'Maro sale ko' and then
  assaulted him with lathis. When he tried to run away, he
  fell to the ground. The blood-stained earth was collected
  by the Investigating Officer. Thereafter, the villagers ·had
  come and taken the lathis away from the accused
G persons. The deceased was· taken to the police station
  arid then to the hospital, where he died. It is evident that
  all the accused persons had come prepared, mentally
  and physically, to assault the deceased and in
  furtherance to their common intention, had even given a
  /a/kar to kill the deceased. This incident was witnessed
H
       MANO DUTT & ANR. v. STATE OF U.P.               695

by natural witnesses the father and the brother of the A
deceased as well as wife of the deceased PW1. When
brother/father of the deceased even intervened and tried
to protect their son/brother, but in the process, they also
received number of injuries, as is clear from the medical
evidence produced on record. As per the medical report B
and statement of PW5, the deceased had suffered a
number of injuries and not only three. The collection of
the bloodstained earth itself is a relevant piece of
evidence and provided the link in the commission and the
place of crime. [paras 27-28] [713-G-H; 714-A-E, G-H]       c
     5. Effect of non-explanation of injuries sustained by
the accused persons. The normal rule is that whenever
the accused sustains injury in the same occurrence in
which the complainant suffered .the injury, the
prosecution should explain the injury upon the accused.        D
But, it is not a rule without exception that if the
prosecution fails to give explanation, the prosecution
case must fail. Before the non-explanation of the injuries
on the person of the accused, by the prosecution
witnesses, may be held to affect the prosecution case,         E
the Court has to be satisfied of the existence of two
conditions: that the injuries on the person of the accused
were also of a serious nature; and that such injuries must
have been caused at the time of the occurrence in
question. Where the evidence is clear, cogent and              F
creditworthy; and where the court can distinguish the
truth from falsehood, the mere fact that the injuries on the
person of the accused are not explained by the
prosecution cannot, by itself, be a sole basis to reject the
testimony of the prosecution witnesses and                     G
consequ~ntly, the .whole case of the prosecution. PW4
had clearly noticed that injury on the person of the
deceased, his father and brother were all caused by a
blunt weapon. He had specifically observed that the
injuries were sufficient, in the ordinary course of time, to   H
    696    SUPREME COURT REPORTS              [2012] 3 S.C.R.

A   cause death and had, in fact, resulted in the death of the
    deceased. [Paras 29, 30, 31] [716-D-H; 717-A-C]

         Rajender·Singh & Ors. v. State of Bihar (2000) 4 SCC
    298: 2000 (2) SCR 1073; Ram Sunder Yadav & Ors. v. State
B   of Bihar (1998) 7 SCC 365; Vijayee Singh v. Stateo of UP.
    (1990) 3 sec 190: 1990 (2) SCR 573 - relied on.

        6. The High Court and the trial court recorded
   reasons for returning the concurrent finding of guilt. The
   appellant argued that one of the accused, 'RD' who is
C now dead had in his statement under Section 313 CRPC
   stated that the land in between the house of the parties
   was his and that despite his protest, the villagers were
   putting earth on that land and when he objected all of
   them ran after him and started beating him and in view
D of this stand the other accused cannot be said to have
   been involved in the commission of crim. This argument
 • is self serving submission. All the accused were related
   to ·each other. Once the plea of self-defence is
   disbelieved,- then a statement of a co-accused under
E Section 313 CrPC cannot be of any advantage to the co-
   accused, as the prosecution has been able to establish
   its case beyond any reasonable doubt. In the instant
   case, in the chain of events, nowhere does the plea of
   self-defence as sought to be raised by the appellant-
F accused or other accused, fit in. The defence miserably
   failed to prove any fact or any need for resorting to
   commission of the offence in self-defence. The police had
   charged this accused for an offence under Section 302
   read with Section 149 and 323 of the IPC. However, two
G of the accused were acquitted by the trial court and the
   remaining were convicted of an offence under the said
   Sections 302/34 and 323/34, IPC. The High Court
   acquitted all the accused of offence under Section 302/
   34 IPC and unfortunately, 'RD' died during the pendency
H
       MANO DUTT & ANR. v. STATE OF U.P.              697


of that appeal. Because the alleged number of accused A
had become less than five, nature of the offences were
changed from offence under Section 149 to Section 34,
IPC. In face of the acquittal of the two accused, which
was not assailed by the State, it must be taken that they
were not present. Then remain three accused, 'TD' and B
the appellants. Thus, in the circumstances of the case, the
possibility of presence of all other persons in the
appellants' party cannot be excluded. It is also not quite
possible that the accused have deposed incorrectly
before the Court in regard to the number of persons and c
their participation. Even where there are' less than five
persons who are accused, but the facts and the evidence
of the case is convincing as in the instant case, where
the accused had returned to the place of occurrence with
complete preparedness and after giving /a/kar had 0
attacked the deceased there, they have to be held liable
for commission of the crime. It cannot be ignored that the
extent of participation, even in a case of common
intention covered under Section 34 IPC would not depend
on the extent of overt act. If all the accused have
committed the offence with common intention and E
inflicted injuries upon the deceased in a pre-planned
manner, the provisions of Section 34 would be applicable
to all. [Para 32] [717-D-H; 718-A-H; 719-A]

      7. It was not a dispute which arose at the spur of the F
moment as the evidence clearly showed that the accused
had gone again to the site in question with a common
intention and with the preparedness to assault and even
kill the deceased. Even the site plan clearly showed that
all these places, i.e. the land on which the deceased was G
putting the earth, the house of the accused and that of
the deceased were all nearby. This was even fully
corroborated by the oral evidence. Thus, on the basis of
the documentary and ocular evidence, the prosecution
was able to prove its case beyond reasonable doubt and H
    698      SUPREME COURT REPORTS                [2012] 3 S.C.R.


A   has brought home the guilt of the accused under Section
    302 read with Section 34, IPC~ [Paras 33] [719-C-E]

       Karlar Singh v. State of Punjab AIR 1961 SC 1787: 1962
    SCR 395 - relied on.

B       Marimuthu & Ors. v. State of Tamil Nadu (2008) 3 SCC
    205: 2008 (1) SCR 547 - Distinguished .

       . Yunis @ Kariya v. State of M.P. (2003) 1 SCC 425 - held
    inapplicable.
c                        Case Law Refererice:
          2007 (3) SCR 939        relied on         Para 19
          2009 (3) SCR 406        relied on         Para 20
D         2010 (6) SCR 764        relied on         Para 21, 24
          2010 (13) SCR 3         relied on         Para 23
       . 1993 (2) SCR 389         relied on         Para1 26
          1962·SCR 395            relied on         Para 28
E
          2000 (2) SCR 1073       relied on         Para 30
          (1998) 1 sec 365        relied on         Para 30
          1990 (2) SCR 573        relied on         Para 30
F
          (2003) 1 sec 425        held inapplicable Para 32
          2008 (1) SCR 547        Distinguished     Para 33
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
G No. 77 of 2007.

        From the Judgment & Order dated 21.03.2006 of the High
    Court of Judicature at Allahabad at Lucknow in Criminai Appeal
    No. 19 of 1982.

H
        MANO DUTT & ANR. v. STATE OF U.P.                   699


     P.N. Misra, K.K. Tyagi, lftekhar Ahmad, P. Narasimhan for      A
the Appellants.

    R.K. Gupta, Rajeev Dubey, Kamlendra Mishra for the
Respondent.

    The Judgment of the Court was delivered by                      B

     SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment and order dated 21st March,
2006 of the High Court of Judicature at Allahabad, Lucknow
Bench, which had partially accepted the appeal by acquitting        c
the accused persons of the offence under Section 323 read
with Section 34 of the Indian Penal Code, 1860 (hereafter,
'IPC'), but affirmed the imposition of life imprisonment for the
offence under Section 302 read with Section 34, IPC as
awarded by the learned trial court vide its judgment dated 6th      D
January, 1982. The trial court had found the four accused Ram
Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain
guilty of an offence under Section 302, read with Section 34,
IPC and also offence under Section 323, read with Section 34,
IPC and had awarded them life imprisonment for the first            E
offence and a fine of Rs.1,000/- for the second, in default of
which, to undergo rigorous imprisonment for three months.

     2. This is a case where the incident, on 22nd October,
1977, which resulted in the death of Siya Ram, is admitted
between the parties. The primary question that falls for            F
determination is, as to which of the parties was the aggressor,
besides determining the merits of the contentions raised on
behalf of the appellant. Before noticing the prosecution version,
we may notice that in the present case, six accused were
charged and tried for an offence under Sections 302 and 323,        G
both read with Section 34 IPC. Learned trial court, vide its
judgment dated 6th January, 1982 had acquitted accused Sher
Bahadur and Jagdish, while it convicted Ram Dutt, Thakur
Prasad, Mano Dutt and Ram Narain for both the afore-stated
offences. During the pendency of the appeal before the High         H
    700     SUPREME COURT REPORTS                  [2012) 3 S.C.R.


A   Court, Ram Dutt died and the Court convicted the other accused
    vide its judgment under appeal.

       3. Thakur Prasad had filed a separate appeal challenging·
  the said judgment of the High Court, being SLP (Crl.) No.3929
  of 2006 titled Thakur Prasad v. State of UP. which came to
8
  be dismissed by order of this Court dated 18th August, 2006.
  In other words, the conviction of the accused Thakur Prasad
  under Section 302 read with Section 34 IPC attained finality.
  However, vide the same order, this Court granted leave to
  appeal in the case of Mano Dutt and Ram Narain. This is how
C the present appeal has come up for final hearing before us.

          4. The case of the prosecution is that Mano Dutt, Ram
    Narain and Jagdish are real brothers while Ram Dutt and
    Thakur Prasad are their cousins. On 22nd October, 1977 during
D   day time, Siya Ram was doing earth filling in front of his sariya
    (a place of tethering cattle). The four accused, namely, Ram
    Dutt, Thakur Prasad, Ram Narain and Mano Dutt out of the six
    named accused had come there and asked Siya Ram not to
    do earth filling. Siya Ram told them that it was his land and he
E   would not stop the work of land filling. Thereupon, Siya Ram
    called certain villagers. The matter was discussed with the
    villagers, all of whom said that the land was that of Siya Ram
    and he could carry on with land filling on his own land. After
    deciding this, the villagers went away and Siya Ram resumed
F   the filling of the earth. Accused Ram Dutt, Thakur Prasad, Mano
    Dutt, Ram Narain, Jagdish and Sher Bahadur, armed with
    lathis, came there and chased Siya Ram. They said that they
    would finish Siya Ram. Siya Ram was able to run for a short
    distance away, whereafter all the accused surrounded him in
    front of the house of one Fateh Mohmad. Accused Ram Dutt,
G   Thakur Prasad, Mano Dutt and Ram Narain started beating
    Siya Ram with their lathis. The father of Siya Ram, Nankoo and
    brother Salik Ram rushed towards Siya Ram to rescue him.
    Accused Sher Bahadur and Jagdish intercepted them in front
    of one Chiddan's door and beat them with their lathis. Siya
H
        MANO DUTT & ANR. v. STATE OF U.P.                      701
            [SWATANTER KUMAR, J.]
Ram fell down after getting the lathi blows. Siya Ram rai.sed          A
alarm, but still these accused persons continued to beat him
and in the meanwhile, Smt. Sangam Devi, Bhurey and Pradhan
came there. The Pradhan snatched the /athis of the four
accused, who then fled away from the scene. Siya Ram
sustained serious injuries. Nankoo and Salik Ram also                  B
sustained injuries. Pradhan and the other villagers took the
injured to the Police Station.

     5. The incident was narrated in the form of a report of
occurrence, by the deceased Siya Ram, who was in an injured            C
state at that time. The same was transcribed by Panna Lal
Pandey, PW3 and submitted to the Police Station, where a
First Information Report (hereafter, 'FIR') Exhibit Ka7 was
prepared.

     6. On this statement, the officer present at the police station   D
had registered a case under Section 308, IPC and the
investigation was taken over by C.R. Malviya. During
investigation, C.R. Malviya recorded the statements of a
number of witnesses as well as sent Siya R'am to the hospital.
Siya Ram succumbed to his injuries on 24th October, 1977 at            E
about 8.00 a.m. in the District Hospital, Faizabad. Upon his
death, the offence was converted to one under Section 302,
IPC. The Investigating Officer visited the spot, recovered blood-
stained earth, Ex. Ka-8 and prepared the site plan, Ext. Ka-9
and examined various witnesses. After completion of the                F
investigation, the charge sheet was filed before the court of
competent jurisdiction. The trial Court vide its order dated 30th
July, 1980 charged the accused with offences under Sections
147, 304/149 and 323/149. However, subsequently, the charge
was amended and all the accused 'were charged with offences            G
under Sections 302/149-147 and 323/149, IPC. The accused
pleaded not guilty and faced trial before the Court of Sessions.
As already noticed, out of the six accused, four were convicted
by the trial court. One accused, namely Ram Dutt, died during
pendency of the appeal before the High Court and all the other         H
    702         SUPREME COURT REPORTS               [2012] 3 S.C.R.


A accused were acquitted of the offences under Section 323/34
  IPC, but convicted for offences under Section 302/34 IPC. For
  the reasons afore-recorded in the present appeal, we are only
  concerned with the two accused, namely Mano- Dutt, and Ram
  Narain.
B
       7. The prosecution had examined Smt. Sangam Devi, PW-
  1 (wife of the deceased), Salik Ram, PW-2 (injured witness).
  Panna Lal Pandey, PW-3 (scribe of Siya Ram's statement) and
  two doctors, Dr. S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh
C (P.W. 5), besides examining the formal witnesses.

        8. Dr. Surya Bhan Singh, PW-5 had examined Salik Ram
  when he was brought to the hospital on the evening of 22nd
  October, 1977 at about 4.30 p.m. He had noticed lacerated
  bone-deep wound, 3 cm x 0.5 cm, on the frontal region of the
D scalp, from which blood was oozing. The doctor described the
  injuries on the body of the deceased as follows:-

          "(1)    Lacerated wound mark 3 cm x 0.5 cm on the left
                  side of head on the parietal region.
E         (2)     Bruise 9 cm x 1.5 cm in the left scapula region.

          (3)    Bruise 12 cm x 1.5 cm in the right scapula region
                 of scalp.

          (4)    Bruise 9 cm x 2 cm in the right scapular region of
F
                 scalp.

          (5)    Bruise 19 cm x 2 cm in the right scapular region of
                 scalp."
G      9: This very doctor had examined Salik Ram, son of
  Nankoo and had noticed as many as five injuries on his body.
  He had also examined Nankoo and noticed four injuries on his ·
  person. The injuries on the bodies of Nankoo and Salik Ram
  both were found to be simple injuries and were caused with blunt
H object like lathi, while Siya Ram was· transferred to the
       MANO DUTI & ANR. v. STATE OF U.P.                    703
           [SWATANTER ~UMAR, J.]
specialist for obtaining expert opinions on his injuries and for   A
his treatment

     10. After the death of Siya Ram on 24th October, 1977,
the post-mortem on the body of the deceased was performed
by Dr. S.N. Rai, PW-4, who noticed four ante-mortem injuries
                                                                   8
as follows:-

      "(1)   Lacerated wound 2.5 cm x % cm x bone deep, on
             Rt. side head, 6.5 cm above the eyebrow of right
             eye.
                                                                   c
      (2)    Lacerated wound 2.5 cm x 1 cm x bone deep
             injures 1-2 cm on the left side of the head.

      (3)    Contusion 6 cm x 4 cm in the right side of the face
             involving whole orbital area.
                                                                   D
      (4)    Diffused, swelling on the Rt. Side of head parietal
             region."

     11. Upon internal examination of the body of the deceased,
he also found the following internal injuries:- ·                  E

      "1.    Comminuted fracture in the area of 11.5 cm x 10
             cm on the right Parietal Region of the skull.

      2.     Comminuted fracture in the area of 6.5 cm x 6.5 cm
             in the frontal Bone was found.                        F

      3.     Com minuted fracture in the area of 10 cm x 4 cm
             on the left side of temporo parietal Region was
             found.

     4.      Large quantity of blood was accumulated on the        G
             right side of head between skin and bone."

     12. The doctor stated that, in his opinion, the cause of
death was a shock due to ante-mortem injuries and loss of
blood. He specifically stated that all the injuries are possible   H
     704     SUPREME COURT REPORTS                   [2012] 3 S.C.R.


.\   by blows of lathis. In his cross-examination, he clearly stated
     thatthese injuries are ordinarily sufficient to cause death.

          13. It needs to be noticed that one of the appellants, namely
     Ram Dutt, had also allegedly lodged a report against the
     deceased Siya Ram, injured Nankoo, and two other sons of
8
     Nankoo, i.e., Salik Ram and Ram Dhiraj. After registering the
     FIR, the Investigating Officer in his report had also stated that
     the accused Ram Dutt had sustained some injuries on his
     person.

C         14. The conviction of the accused and the impugned
     judgment have been challenged inter alia, but primarily, on the
     following grounds:-

        (i) The prosecution did not examine the material witnesses
D like the investigating officer as well as other witne~ses who, as
  per the case of the prosecution, were actually present at the
  time of occurrence of the incident.

      . (ii) According to the prosecution, PW-1 and PW-2 both are
  eye~witnesses but they are the widow and brother of the
E deceased, and therefore, are interested witnesses and their
  statement cannot be relied upon by the Court. ·

       (iii) The accused persons themselves had lodged a
  counter report against the deceased, PW-2 and other relations
F of the deceased, alleging attack/aggression. This was not a
  counter blast but a true ·and correct happening of events as
  reported by the accused, against the complainants, in which the
  accused Ram Dutt had suffered injuries. For these reasons, the
  accused should be entitled to the benefit of doubt and
G consequently, to an order of acquittal.

       (iv) Even if the entire prosecution story is assumed to be
  correct, even then it does not constitute an offence under
  Section 302, IPC. In the facts and circumstances of the case,
  at the worst, the accused could be held guilty of an offence
H punishable under Section 304, Part-I, IPC.
        MANO DUTI & ANR. v. STATE OF U.P. .                  705
            [SWATANTER KUMAR, J.]
     (v) The deceased had only three injuries, therefore, OA the    A
one hand, the story that six accused had assaulted him with
lathis even when he was lying on the gr9und is not physically
possible and on the other hand, the prosecution has failed to
explain the injuries suffered by Ram Dutt, accused. Thus, it
creates a specific doubt in the story of the prosecution.           B

     (vi) Lastly, it is contended that the dismissal of the other
Special Leave Petition filed by Thakur Prasad does not have
any bearing on the fate of the present appeal, inasmuch as the
Court is vested with wide powers in terms of Section 38, IPC,       C
to deal with the case of the present appellants on distinct and
different footing. Even if Thakur Prasad's conviction for an
offence under Section 302 read with Section 34 IPC has
attained finality, the appellants may still be acquitted.

      15. We have already noticed that the incident in question D
is admitted. According to the accused, the fight was started by .
the deceased and his relations and they had exercised their
right of private self-defence, to protect themselves. To the
contrary, according to the witnesses of the prosecution as well
as according to the version given by the deceased, the E
accused were aggressive and had attacked the deceased and
his family members after deliberately planning to assault and
kill them. It is not a case where the circumstances, even
remotely, can be construed to have satisfied the ingredients of
self-defence. We may examine few of the circumstances in this F
case. From the record, it appears that Ram Dutt had lodged a
complaint of the incident that took place on 22nd October, 1977
at about 12.00 p.m. According to this report the accused in that
complaint (i.e., the deceased and his family members) had
been putting earth on Ram Dutt's sariya, which he had forbade. G
There was verbal altercation between the parties and then the
accused in that complaint (i.e., the deceased herein) started
assaulting him with lathis and it was only by raising an alarm
that the people of the village came to the place of occurrence
and his life was saved. According to this complaint, he had
suffered injuries on his head.                                    H
    706      SUPREME COURT REPORTS                   [2012] 3 S.C.R.


A         ·16. Firstly, this complaint had not been proved by Ram
    Dutt during the trial. Accordingly, the concurrent view taken by
    the courts below, that this document cannot be relied in
    evidence, cannot be faulted with. Furthermore, Ram Dutt did
    not examine a single witness in his defence to prove that he
8   was attacked by the deceased and his family members or that
    they were putting earth at the door of Ram Dutt's sariya. No
    doubt, Ram Dutt was subjected to medical e~amination by the
    Medical Officer vide Ex.Kha 1. It was noticed that he had
    suffered lacerated wounds on the central and other regions of
C   skull, and had complained of pain in left leg. This would show
    that Ram Dutt had suffered some injuries but where and how
    these injuries were suffered, was for him to establish,
    particularly when he had taken a specific stand that the
    deceased and his family members were at fault and were
    aggressive. He claims that they had caused serious injuries to
D   his person and this incident happened in the presence of the
    villagers. It is a settled canon of evidence jurisprudence that one
    who alleges a fact must prove the same. It is also his case that
    the prosecution has not explained the injuries on his person and,
    therefore, the argument impressed upon the Court is that the
E   attack with lathis was in exercise of self-defence and the failure
    of the prosecution to explain injuries on the person of Ram Dutt
    is a circumstance which creates a serious doubt in the story of
    the prosecution. We are not impressed with this contention
    primarily for the above reasons and also because of the fact
F   that if the police was not investigating into the complaint, Ram
    Dutt was not helpless or remediless in law. He could have filed
    an application before the concerned Magistrate in accordance
    with the provisions of Code of Criminal Procedure, 1973
    (Cr.P.C.) for directing the police to investigate and even to
G   summon the accused in that complaint. But none of the
    accused, including Ram Dutt, took any of the steps available
    to them in law. When a person claims exercise of private self-
    defence, the onus lies on him to show that there were
    circumstances and occasions for exercising such a right. In
H   other words, these basic facts must be established by the
         MANO DUTT & ANR. v. STATE OF U.P.                      707
             [SWATANTER KUMAR, J.]
 accused. Just because one circumstance exists amongst the              A
 various factors, which appears to favour the person claiming
 right of self-defence, does not mean that he gets the right to
 cause the death of the other person. Even the right of self-
 defence has to be exercised directly in proportion to the extent
 of aggression.                                                         B

        17. As per the medical report, the injuries on the body of
  Ram Dutt were found to be 'simple in nature'. On the other hand,
  we have a complete version of the prosecution, duly supported
  by witnesses, out of which PW1 and PW2 are eye-witnesses
  to the occurrence. The bone of contention between the parties         C
  was the statement of the deceased, that he was filling the earth
  over some land, which he claimed to be his land; according to
  the accused, the earth-filling was carried out in front of the door
  of Ram Dutt. According to both the parties, the villagers came
  to the spot. Out of the two versions, the one put forward by the      D
  prosecution and the other in the defence of the accused, the
  version of the prosecution, as has been disclosed by the eye-
  witnesses, is trustworthy, reliable and entirely plausible in the
· facts and circumstances of the case. The mere fact that the
  Investigating Officer has not been produced, or that there is no      E
  specific explanation on record as to how Ram Dutt suffered
  these injuries, would not vitiate the trial or the case of the
  prosecution in its entirety. These claims of the accused would
  have been relevant considerations, provided the accused had
  been able to establish the other facts alleged by them. It is not     F
  always mandatory for the prosecution to examine the
  Investigating Officer, provided it can establish its case beyond
  reasonable doubt even in his absence. The present case
  certainly falls in the latter class. Where the accused lead no
  defence, they cannot take benefit of the fact that the prosecution    G
  did not examine any independent witnesses. The accused
  would be deemed to have been aware of the consequences
  in law whentlley gave a statement admitting the occurrence but
  attributing ag~~ssion and default to the deceased and his
  family members.                                                       H
    708      SUPREME COURT REPORTS                   [2012] 3 S.C.R.


A      18. Accused Thakur Prasad is also stated to own a sariya
  and was also allegedly using his lathi in self-defence, as
  according to their story, four persons with the deceased and
  his family members had attacked them. Strangely, Thakur
  Prasad suffered no injury. These are the circumstances which,
B examined cumulatively, would provide support to the case of
  prosecution.

          19. Another contention raised on behalf of the accused/
    appellants is that only family members of the deceased were
C   examined as witnesses and they being interested witnesses
     cannot be relied upon. Furthermore, the prosecution did not
    examine any independent witnesses and, therefore, the
    prosecution has failed to establish its case beyond reasonable
    doubt. This argument is again without much substance. Firstly,
    there is no bar in law in examining family members, or any other
D   person, as witnesses. More often than not, in such cases
    involving family members of both sides, it is a member of the
    family or a friend who comes to rescue the injured. Those alone
    are the people who take the risk of sustaining injuries by
    jumping into such a quarrel and trying to defuse the crisis.
E   Besides, when the statement of witnesses, who are relatives,
    or, are parties known to the affected party, is credible, reliable,
    trustworthy, admissible in accordance with the law and
    corroborated by other witnesses or documentary evidence of
    the prosecution, there would hardly be any reason for the Court
F   to reject such evidence merely on the ground that the witness
    was family member or interested witness or person known to
    the affected party. There can be cases where it would be but
    inevitable to examine such witnesses, because, as the events
    occurred, they were the natural or the only eye witness available
G   to give the complete version of the incident. In this regard, we
    may refer to the judgments of this Court, in the case of Namdeo
    v. State of Maharashtra, [(2007) 14 SCC 150]. This Court drew
    a clear distinction between a chance witness and a natural
    witness. Both these witnesses have to be relied upon subject
H   to their evidence being trustworthy and admissible in
        MANO DUTT & ANR. v. STATE OF U.P.                     709
            [SWATANTER KUMAR, J.]
accordance with the law. This Court, in the said judgment, held       A
as under:

    "28. From .the aforesaid discussion, it is clear that Indian
    legal system does not insist on plurality of witnesses.
    Neither the legislature (Section 134 of the Evidence Act,
                                                                      8
    1872) nor the judiciary mandates that there must be
    particular number of witnesses to record an order of
    conviction against the accused. Our legal system has
    always laid emphasis on value, weight and quality of
    evidence rather than on quantity, multiplicity or plurality       C
    of witnesses. It is, therefore, open to a competent court to
    fully and completely rely on a solitary witness and record
    conviction. Conversely, it may acquit the accused in spite
    of testimony of several witnesses if it is not satisfied about
    the quality of evidence. The bald contention that no
    conviction can be recorded in case of a solitary                  D
    eyewitness, therefore, has no force and must be
    negatived.

    29. It was then col)tended that the only eyewitness, PW 6
    Sopan was none other than the son of the deceased. He             E
    was, therefore, "highly interested" witness and his
    deposition should, therefore, be discarded as it has not
    been corroborated in material particulars by other
    witnesses. We are unable to uphold the contention. In our
    judgment, a witness who is a relative of the deceased or          F
    victim of a crime cannot be characterised as "interested".
    The term "interested" postulates that the witness has some
    direct or indirect "interest" in having the accused somehow
    or the other convicted due to animus or for some other
    oblique motive."                                                  G

      20. It will be useful to make a reference of another judgment
of this Court, in the case of Satbir Singh & Ors. v. State of Uttar
Pradesh, ((2009) 13 SCC 790], where this Court held as under:
           "26. It is now a well-settled principle of law that only   H
    710       SUPREME COURT REPORTS                [2012] 3 S.C.R.

A         because the witnesses are not independent ones may not
          by itself be a ground to discard the prosecution case. If
          the prosecution case has been supported by the witnesses
          and no cogent reason has been shown to discredit their
          statements, a judgment of conviction can certainly be
B         based thereupon. Furthermore, as noticed hereinbefore,
          at least Dhum Singh (PW 7) is an independent witness.
          He had no animus against the accused. False implication
          of the accused at his hand had not been suggested, far
          less established."
c      21. Again in a very recent judgment in the case of Balraje
  @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], this
  Court stated that when the eye-witnesses are stated to be
  interested and inimically disposed towards the accused, it has
  to be noted that it would not be proper to conclude that they
D would shield the real culprit and rope in innocent persons. The
  truth or otherwise of the evidence has to be weighed
  pragmatically. The Court would be required to analyse the
  evidence of related witnesses and those witnesses who are
  inimically disposed towards the accused. But if after careful
E analysis and scrutiny of their evidence, the version given by the
  witnesses appears to be clear, cogent and credible, there is
  no reason to discard the same.

        22. As per PWS, Dr. Surya Bhan Singh, he had examined
F Salik Ram Yadav as well as Nankoo on 22nd October, 1977
  itself and noticed as many as five injuries on Salik Ram and
  four injuries upon the person of Nankoo. He stated. that the
  deceased was the son of Nankoo, while Salik Ram was his
  brother. These injuries were suffered by them from a blunt
G object. Salik Ram was examined as PW2 and his statement
  is cogent, coherent, reliable and fully supports the case of the
  prosecution. However, tne other injured witness, Nankoo, was
  not examined.

          23. In our view, non-examination of Nankoo, to which the
H
        MANO DUTT & ANR. v. STATE OF U.P.                     711
            [SWATANTER KUMAR, J.]
accused raised the objection, would not materially affect the         A
case of the prosecution. Normally, an injured witness would
enjoy greater credibility because he is the sufferer himself and
ttius, there will be no occasion for such a person to state an
incorrect version of the occurrence, or to involve anybody falsely
and in the bargain, protect the real culprit. We need not discuss     B
more elaborately the weightage that should be attached by the
Court to the testimony of an injured witness. In fact, this aspect
of criminal jurisprudence is no more res integra, as has been
consistently stated by this Court in uniform language. We may
merely refer to the case of Abdul Sayeed v. State of Madhya           c
Pradesh [(2010) 10 SCC 259], where this Court held as under:

           "28. The question of the weight to be attached to the
     evidence of a witness that was himself injured in the course
     of the occurrence has been extensively discussed by this
     Court. Where a witness to the occurrence has himself             D
     been injured in the incident, the testimony of such a witness
     is generally considered to be very reliable, as he is a
     witness that comes with a built-in guarantee of his
     presence at the scene of the crime and is unlikely to spare
     his actual assailant(s) in order to falsely implicate someone.   E
     "Convincing evidence is required to discredit an injured
     witness." [Vide Ram/agan Singh v. State of Bihar,
     Ma/khan Singh v. State of UP., Machhi Singh v. State
     of Punjab, Appabhai v. State of Gujarat, Bonkya v. State
     of Maharashtra, Bhag Singh, Mohar v. State of U.P.               F
     (SCC p. 606b-c), Oinesh Kumar v. State of Rajasthan,
     Vishnu v. State of Rajasthan, Annareddy Sambasiva
     Reddy v. State of A.P. and Balraje v. State of
     Maharashtra.]
                                                                      G
            29. While deciding this issue, a similar view was
     taken in Jarnail Singh v. State of Punjab, where this Court
     reiterated the special evidentiary st~tus accorded to the
     testimony of an injured accused and relying on its earlier
     judgments held as under: (SCC pp. 726-27, paras 28-29)
                                                                      H
    712   SUPREME COURT REPORTS                    [2012] 3 S.C.R.

A             "28. Darshan Singh (PW 4) was an injured witness.
              He had been examined by the doctor. His testimony
              could not be brushed aside lightly. He had given full
              details of the incident as he was present at the time
              when the assailants reached the tubewell. In
B             Shivalingappa Kallayanappa v. State of
              Kamataka this Court has held that the deposition
              of the injured witness should be relied upon unless
              there are strong grounds for rejection of his
              evidence on the basis of major contradictions and
c             discrepancies, for the reason that his presence on
              the scene stands established in case it is proved
              that he suffered the injury during the said incident.

              29. In State of UP. v. Kishan Chanda similar view
              has been reiterated observing that the testimony of
D             a stamped witness has its own relevance and
              efficacy. The fact that the witness sustained injuries
              at the time and place of occurrence, lends support
              to his testimony that he was present during the
              occurrence. In case the injured witness is subjected
E             to lengthy cross-examination and nothing can be
              elicited to discard his testimony, it should be relied
              upon (vide Krishan v. State of Haryana). Thus, we
              are of the considered opinion that evidence of
              Darshan Singh (PW 4) has rightly been relied upon
F             by the courts below."

        30. The law on the point can be summarised to the effect
        that the testimony of the injured witness is accorded a
      · special status in law. This is as a consequence of the fact
        that the injury to the witness is an inbuilt guarantee of his
G
        presence at the scene of the crime and because the
        witness will not want to let his actual assailant go
        unpunished merely to falsely implicate a third party for the
        commission of 'the offence. Thus, the deposition of the
        injured witness should be relied upon unless there are
H
        MANO DUTT & ANR. v. STATE OF U.P.                     713
            [SWATANTER KUMAR, J.]
    strong grounds for rejection of his evidence on the basis         A
    of major contradictions and discrepancies therein."

    24. To the similar effect is the judgment of this Court in the
case of Balraje @ Trimbak (supra).

     25. Another argument with regard to appreciation of              8
evidence is that the material witness having not been examined
and the entire prosecution story being based upon the
statements of PW1 and PW2, who are the interested witnesses,
the entire prosecution evidence suffers from a patent infirmity
in law.                                                               C

     26. Again, we are not impressed by this contention,
primarily for the reasons afore-recorded. Furthermore, it may
also be noticed that non-examination of any independent
witness, in the facts of the present case, is not fatal to the case   o
of the prosecution. The Court can convict an accused on the
statement of a sole witness, even if he was a relative of the
deceased and thus, an interested party. The condition
precedent to such an order is that the statement of such witness
should satisfy the legal parameters stated by this Court in a
                                                                      E
catena of judgments. Once those parameters are satisfied and
the statement of the witness is trustworthy, cogent and
corroborated by other evidence produced by the prosecution,
oral or documentary, then the Court would not fall in error of law
in relying upon the stateme~ts of such witness. It is only when
the Courts find that the single eye-witness is a wholly unreliable
witness that his testimony is discarded in toto and no amount
of corroboration can cure its defect. Reference in this regard
can be made to the judgment of this Court, in the case of Anil
Phukan v. State of Assam ((1993) 3 SCC 282].
                                                                      G
     27. Now we may examine as to the place and manner in
which the incident occurred. It is a very important aspect of this
case that the FIR itself was lodged by the deceased along with
PW3 Panna Lal Pandey who transcribed the same at the police
station itself. The deceased was seriously injured, but was fully     H
    714      SUPREME COURT REPORTS                 [2012] 3 S.C.R.


 A aware of what he was doing and he had no reason to falsely
   implicate any person. His father and brother had also been
   injured in the occurrence. It is specifically recorded in the
   statement of these witnesses that when the appellant Mano Dutt
   and other accused came for the second time, to the place
 B where the deceased was filling the earth at the sariya, they gave
   a lalkar 'Maro sale ko' and then assaulted him with /athis.
   When he tried to run away, he fell to the ground near the house
   of one Fateh Mohd. The blood-stained earth was collected from
   the front of Fateh Mohd. doors by the Investigating Officer vide
 C Ext. Ka-8. Thereafter, the villagers had come and taken the
   /athis away from the accused persons. The deceased was
   taken to the police station and then to the hospital, where he
   died on 24th October, 1977. It is evident that all the accused
   persons had come prepared, mentally and physically, to assault
 D the deceased and in furtherance to their common intention, had
   even given a /alkar to kill the deceased. This incident was
   witnessed by natural witnesses Nankoo and PW2 Salik Ram,
   as well as PW1 Smt. Sangam Devi. Nankoo and Yadav even
   intervened and tried to protect their son/brother, but in the
   process, they also received number of injuries, as is clear from
 E the medical evidence produced on record. During the course
   of argument, the learned counsel for the appellant tried to take
   advantage of the fact that the deceased ought to have suffered
   a number of injuries, if six people had, at the same time,
   attacked him with lathis, but he had actually received only three
.F injuries. Thus, the story of the prosecution was improbable.

       28. We have no hesitation in rejecting this argument,
  primarily for the reason that, as per the medical report and
  statement of PW5 Dr. Surya Bhan Singh, the deceased had
G suffered a number of injuries and not only three. The collection
  of the bloodstained earth itself is a relevant piece of evidence
  and provides the link in the commission and the place of crime.
  In the case of Kartar Singh v. State of Punjab [AIR 1961 SC
  1787] this Court took the fcillowing view:
H
   MANO DUTT & ANR. v. STATE OF U.P.                      715
       [SWATANTER KUMAR, J.]
      "13. It follows therefore that the finding of the courts   A
below that the appellant's party formed an unlawful
assembly and that the appellant is constructively liable of
the offences under ss. 302 and 307 IPC, in view of Section
149, is correct.
                                                                 B
       14. The second contention that in a free fight each
is liable for an individual act cannot be accepted in view
of the decision of this Court in Gore Lal v. State of U.P.
This Court said in that case:

       "In any event, on the finding of the court of first       C
       instance and of the High Court that both the parties
       had prepared themselves for a free fight and had
       armed themselves for that purpose, the question as
       to who attacks and who defends is wholly
       immaterial,"                                              D

and confirmed the conviction under Section 307 read with
Section 149 IPC It may, however, be noted that it does not
appear to have been urged in that case that each appellant
could be convicted for the individual act committed by him.      E.
When it is held that the appellant's party was prepared for
a fight and to have had no right of private defence, it must
follow that their intention to fight and cause injuries to the
other party amounted to their having a common object to
commit an offence and, therefore, constituted them into an       F
unlawful assembly. The injuries they caused to the other
party are caused in furtherance of their common object.
There is then no good reason why they be not held liable,
constructively, for the acts of the other persons of the
unlawful assembly, in circumstances which makes s. 149
IPC, applicable to them.                                         G

      15. Even if the finding that there were more than five
persons in the appellant's party be wrong, we are of
opinion that the facts found that the appellant and his
companions who were convicted had gone from the village          H
        I I




    ' 716      SUPREME COURT REPORTS                [2012] 3 S.C.R ..


A        armed and determined to fight, amply justified the
         conclusion that they had the common intention to attack the
         other party and to cause such injuries which may result in
         death. Darshan had two incised wounds and' one
         punctured wound. Nand Lal had two incised wounds and
B        one punctured wound and two abrasions. The mere fact
         that Kartar Singh was not connected with the dispute about
         the plot of land is not sufficient to hold that he could not
         have formed a common intention with the others, when he
        ,went with them armed. The conviction under ss. 302 and
c        307 read withs. 149, can be converted ir:ito one under ss.
         302 and 307 read with s. 34 IPC

                 16. We, therefore, see no force in this appeal and
            accordingly dismiss it."

D       29. The question, raised before this Court for its
  consideration, is with respect to the effect of non-explanation
  of injuries sustained by the accused persons. In this regard, this
  Court has taken a consistent view that the normal rule is that
  whenever the accused sustains injury in the same occurrence
E in which the complainant suffered the injury, the prosecution
  should explain the injury upon the accused. But, it is not a rule
  without exception that if the prosecution fails to give
  explanation, the prosecution case must fail. Before the non-
  explanation of the injuries on the pers·on of the accused, by the
F prosecution witnesses, may be held to affect the prosecution
  case, the Court has to be satisfied of the existence of two
  conditions:

            (i)   that the injuries on the person of the accused were
            also of a serious nature; and
G
            (ii) that such injuries must have been caused at the time
            of the occurrence in question.

      30. Where the evidence is clear, cogent and creditworthy;
H and where the court can distinguish the truth from falsehood,
         MANO DUTT & ANR. v. STATE OF U.P.                   717
             [SWATANTER KUMAR, J.]
the mere fact that the injuries on the person of the accused are    A
not explained by the prosecution cannot, by itself, be a sole
basis to reject the testimony of the prosecution witnesses and
consequently, the whole case of the prosecution. Reference in
this regard can be made to Rajender Singh & Ors. v. State of
Bihar, [(2000) 4 SCC 298], Ram Sunder Yadav & Ors. v. State         B
of Bihar, [(1998) 7 SCC 365, and Vijayee Singh v. Stateo of
u.P. [(1990) 3 sec 190].
     31. PW4 had clearly noticed that injury on the person of
the deceased, Salik Ram Yadav and Nankoo were all caused            C
by a blunt weapon. He had specifically observed that the injuries
were sufficient, in the ordinary course of time, to cause death
and had, in fact, resulted in the death of the deceased.

     32. The High Court and the trial court have recorded
reasons for returning the concurrent finding of guilt. The learned D
counsel for the appellant strenuously argued that one of the
accused, namely Ram Dutt, who is now dead, had in his
statement under Section 313 Cr.P.C., stated that the land in
between the house of the parties was his and that despite his
protest, Salik Ram, Siya Ram, Ram Dhiraj and Nankoo were E
putting earth on that land when he again objected, all of them
ran after him, rounded him up at the door of Fateh Mohd. and
started beating him. Thakur Prasad, cousin of Ram Dutt, came
and in response, wielded the /athi in his defence. To similar
effect is the statement of Thakur Prasad. In view of this stand, F
the other accused cannot be said to have been involved in the
commission of the crime. This argument is a self-serving
submission. All the accused are related to each other. Once -
the plea of self-defence is disbelieved, then a statement of a
co-accused under Section 313 CrPC cannot be of any G
advantage to the co-accused, as the prosecution has been able
to establish its case beyond any reasonable doubt. In the
present case, in the chain of events, nowhere does the plea of
self-defence as sought to be raised by the appellant-accused
or other accused, fit in. The defence has miserably failed to H
    718     SUPREME COURT REPORTS                  (2012] 3 S.C.R.


A prove any fact or any need for resorting to commission of the
  offence in self-defence. To begin with, the police had charged
  this accused for an offence under Section 302 read with
  Section 149 and 323 of the IPC. However, two of the accused
  were acquitted by the trial court and the remaining were
B convicted of an offence under the said Sections 302/34 and
  323/34, IPC. The High Court acquitted all the accused of
  offence under Section 302/34 IPC and unfortunately, Ram Dutt
  died during the pen.dency of that appeal. Because the alleged
  number of accused had become less than five, nature of the
c offences were changed from offence under Section 149 to
  Section 34, IPC. In face of the acquittal of the two accused,
  which was not assailed by the State, it must be taken that they
  were not present. Then remain three accused, Thakur Dass and
  the present appellants. Thus, in the circumstances of the case,
D the possibility of presence of all other persons in the appellants'
  party cannot be excluded. It is also not quite possible that the
  accused have deposed incorrectly before the Court in regard
  to the number of persons and their participation. Even where
  there are less than five persons who are accused, but the facts
E and the evidence of the case is convincing as in the present
  case, where the accused had returned to the place of
  occurrence with complete preparedness and after giving la/kar
  had attacked the deceased there, they have to be held liable
  for commission of the crime (Refer : Karlar Singh vs. State of
  Punjab, AIR 1961 SC 1787). The learned counsel for the
F respondent-State also relied upon the judgment in the Yunis @
  Kariya v. State of M.P. ((2003) 1 SCC 425] to contend that an
  overt act on the part of one of the accused is immaterial when
  his presence, as part of the unlawful assembly, is established.
  This case was for an offence under Section 302/149 IPC and,
G therefore, would not squarely apply to the present case as it has
  been held by the Court that the accused was not constituting
  an unlawful assembly of five or more persons. However, it
  cannot be ignored that the extent of participation, even in a case
  of common intention covered under Section 34 IPC would not
H depend on the extent of overt act. If all the accused have
        MANO DUTT & ANR. v. STATE OF U.P.                    719
            [SWATANTER KUMAR, J.]
committed the offence with common intention and inflicted           A
injuries upon the deceased in a pre-planned manner, the
provisions of Section 34 would be applicable to all.

     33. The learned counsel had also relied upon the judgment
of this Court in Marimuthu & Ors. v. State of Tamil Nadu
                                                                    8
[(200&) 3 sec 205] to contend that this was a fight at the spur
of the moment and the conviction of the appellants could be
converted into that under Section 304, Part I of the IPC. This
judgment is distinguishable on facts and has no application to
the present case. It was not a dispute which arose at the spur      C
of the moment as the evidence clearly shows that the accused
had gone again to the site in question with a common intention
and with the preparedness to assault and even kill the
deceased. Even the site plan, Ex.Ka9 clearly shows that all
these places, i.e. the land on which the deceased was putting
the earth, 'the house of Fateh Mohd., the house of the accused      D
and that of the deceased were all nearby. This is even fully
corroborated by the oral evidence. Thus, on the basis of the
documentary and ocular evidence, we are fully satisfied that the
prosecution has been able to prove its case beyond reasonable
doubt and has brought home the guilt of the accused under           E
Section 302 read with. Section 34, IPC.

     34. Having come to the above finding, we do not consider
it necessary to dwell on the question as to what is the effect in
law of dismissal of Thakur Prasad's Special Leave Petition by       F
this Court, vide Order dated 18th August, 2006.

     35. What shall be the correct interpretation of Section 34
with reference to Section 38 IPC, in view of the facts of the
present case, or even otherwise, is left undecided.
                                                                    G
    36. For the reasons afore-recorded, this appeal is
dismissed.                                ·

D.G.                                        Appeal dismissed.
                                                                    H