Aloknag Choudhary vs State of M.P.

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence dated 25.9.1990 passed by Sessions Judge, Balaghat in Sessions Trial No. 46/1990 convicting the appellant u/s 302 and 324 of Indian Penal Code (hereinafter referred to as ''IPC'') directing appellant to suffer rigorous imprisonment of life and one year rigorous imprisonment respectively, he has preferred this appeal u/s 374(2) of the Code of Criminal Procedure.

In brief the case of prosecution is that appellant was having very cordial relations with Mohd. Sharif (hereinafter referred to as ''the deceased'') 3-4 months prior to the incident. The members of both the families were visiting to the house of each other frequently, however, 3-4 months prior to the incident all of a sudden the relations became strained and the bitterness extended upto the extent that deceased and appellant were not liking each other and they happened to hurl the abuses. On the fateful day i.e. 2.12.1989 on account of the marriage of one Bhatia''s son, the dinner was arranged in which the deceased, his wife Sahebunisha, Dilip Patel and Smita Patel went to attend the dinner party. It is said that all these persons went in a jeep which was being driven by Mohd. Saeed. The jeep was parked nearby the berm of the road and all these persons went inside to attend the marriage party while Mohd. Saeed who was the driver of the jeep remained outside and along with one person, namely, Karim @ Maqbool was enjoying the heat of fire as the night was shivering cold. At near about 10-10.15 p.m. deceased, his wife Sahebunisha, Dilip Patel, Smita Patel and one Mr. Khatrikar came out from the house of Bhatia and behind these persons, the appellant, acquitted co-accused person, Smt. Meeta Nag Choudhary who is the wife of appellant also came out. The deceased was going towards his jeep along with wife Sahebunisha, Dilip Patel etc. and appellant proceeded towards his motorcycle along with his wife. The decreased opened the gate of jeep and directed the persons to sit inside, accordingly Smita Patel entered in the jeep and sat. The decreased and other persons were standing nearby the jeep, at that juncture, the appellant started his motor-cycle and drove it up to some distance and thereafter made it stationary near the electric pole. According to the prosecution, the distance of the jeep and motorcycle was near about 5-7 paces. It is said that acquitted co-accused Meeta Nag Choudhary opened the Dickey of motorcycle and took out a ''Gupti'' and handed over it to appellant. As soon as Gupti was handed over by Meeta Nag Choudhary to her husband (appellant), he rushed towards the deceased, who was standing near by the left gate of the jeep and inflicted a blow of Gupti on his back, as a result of which the deceased turned and thereafter on the front side again he was assaulted by the appellant and the blow landed on his chest. It is said that appellant gave further two more blows on the decreased which landed on his chest and rib region. Appellant was intending to give further more blows, however, Sahebunisha the wife of the deceased came forward and tried to intervene, as a result of which she sustained injury on her hand by the ''Gupti''. The incident has been witnessed by Sahebunisha, Mohd. Saeed, Maqbool, Khatrikar, Dilip Patel, Smita Patel and Harshad. The appellant thereafter returned and fled on motorcycle along with his wife.

The deceased on account of injury sustained to him fell on the ground. Witness Mohd. Saeed and some other persons uplifted him and with the help of Harshad, Khatrikar and Dilip Patel put him in a jeep of one Sardar Ji and brought the decreased at Balaghat hospital and thereafter, Sahebunisha, the wife of the deceased, was dropped at her house.

It is said that in the night about at 11.30, witness Saeed again went to the hospital Balaghat, where he was informed that the deceased has passed away. Dr. Mukesh Shrivastava who was on duty at the relevant point of time examined the deceased as soon as he was brought to the hospital and found him to be dead at 10.25 p.m. as a result of which the doctor sent a memo to Station Officer Incharge, Balaghat and eventually ASI Shri Rangari registered Marg No. 79/89. The Station Officer Incharge Shri Omkarnath Shrivastava on coming to know that deceased had died, came to hospital and examined the dead-body of the deceased. Thereafter on 3.12.1989 at 0.16 hours, he registered the case u/s 302 IPC. Mst. Sahebunisha who is the wife of deceased also came again to hospital, as she was having injury of Gupti on her hand, Section 324 IPC was also added. On 3.12.1989 at 3.00 a.m. on being produced by Mst. Sahebunisha from her house a woolen shawl and red sare(sic) was seized. The investigating officer on 4.12.1989 arrested acquitted co-accused Smt. Meeta Nag Choudhary, since the appellant was absconding he could not be arrested, however, he surrendered himself on 9.12.1989 before the Chief Judicial Magistrate and his arrest was made at 13.20 hours. It is pertinent to mention here that though appellant was arrested on 9.12.1989 at 13.20 hours, however, no recovery was made from him and it is only on 10.12.1989 memorandum u/s 27 of the Indian Evidence Act was prepared. The appellant made discovery in regard to motor-cycle and Gupti. In pursuance to his memorandum, Gupti, which was used as weapon in the commission of offence was recovered at his instance near the bank of Ban Ganga which was found to be hidden under leaves etc. Thereafter, at his instance a motorcycle was seized from his house having a dickey. The seized articles were sent for chemical examination.

The dead body of the deceased was subjected to autopsy and Dr. P.S. Gour on 3.12.1989 at 12.00 hours performed the post-mortem. According to Doctor, the deceased breathed his last on account of first injury which was caused on the chest region. The Doctor opined that the injury sustained by deceased could have been caused by sharp and pointed weapon like Gupti or knife. The post-mortem report is Ex. P/3.

After completion of investigation, a charge-sheet was submitted in the competent Court, which, on its turn, committed the case to the Court of Session where the same was tried. The learned trial Judge, after going through the charge-sheet framed charges punishable u/s 302 and 324 I.P.C. against the appellant and acquitted co-accused Smt. Meeta Nag Chaudhary who was charged u/s 302 read with section 34 I.P.C. The accused persons abjured their guilt and pleaded complete innocence as well as maladroit implication.

In order to prove the charges the prosecution examined as many as 12 witnesses and placed Ex.P/1 to Ex.P/20 the documents on record. The defence of the appellant is that the deceased often visited his house in his absence and was sexually harassing his wife which was objected by him and one day he expressed his displeasure in high tone and scolded the deceased. On the fateful day i.e. 2.12.1989 he and his wife joined the reception ceremony at the house of Mr. Bhatia, after eating the meals they came nearby the motor-cycle, Deceased, Sahebunisha, Dilip Patel, Smita Patel and Khatrikar were coming behind them. The deceased hurled lewd words in order to outrage the modesty of his wife that (What is the rate of Bangalan of today''s night). The accused warned him to speak proper language otherwise his tongue would be chopped off, as a result of which the deceased rushed towards him and scuffled and thereafter he (deceased) took out automatic knife from his pocket which was opened automatically during the scuffling. The deceased was throttling his neck and was saying that he will kill him today. The accused in order to rescue himself and just to escape from the grip of the deceased snatched and brandished the knife to the deceased, as a result of which it struck his chest.

In his defence, the appellant examined three witnesses they are G.P. Nishad (D.W.I), Daulat Jawahar (D.W. 2) and Jitendra Kumar Yadav (DW3).

The learned trial judge on the basis of evidence placed on record categorically held and decided that the implication of accused Smt. Meeta Nag Chaudhary is false and she did not commit any offence. The prosecution was not able to prove any charge against her and eventually acquitted her from the charge punishable u/s 302 read with section 34 IPC. However, on the basis of same evidence, found the charges to be proved against the appellant and thus convicted him u/s 302 and 324 IPC and passed the sentence which we have mentioned hereinabove. Hence, this appeal by the appellant. The State has not preferred any appeal against the judgment of acquittal of co-accused Smt. Meeta Nag.

In this appeal Shri Rajendra Singh, Senior Advocate assisted by Shri S.C. Dwivedi, submitted that the story put forth by the prosecution that Smt. Meeta Nag Chaudhary (acquitted co-accused) took out the Gupti from the dickey of motor-cycle and passed it to the accused was found to be belied and not proved by the trial Court as such the trial Court erred in convicting the appellant. According to him, as per the case of the prosecution 3-4 months earlier to the incident, the accused and the deceased were close friends and they happened to visit to the houses of each other. However, 3-4 months prior to the incident as it has been stated by the witnesses of the prosecution, the relations between them became bitter and the bitterness reached upto high degree and both these persons used to hurl the abuses to each other. According to the learned counsel none of the prosecution witness, even the wife of the deceased had not stated that why the relations became strained, indeed, all of them concealed this fact that on account of sexual harassment to the wife of the appellant by the deceased, the bitterness was created. According to learned counsel, on the date of incident the deceased hurled abuses outraging the modesty of the appellant''s wife which was refrained by him, as a result of which the scuffling took place in which the deceased took out automatic knife from his pocket which became open on account of scuffling and he sustained injuries by knife. Thus, even if it is held that appellant caused the injuries, it was in self defence.

On the other hand, Shri S.K. Gangrade, learned counsel for respondent argued in support of the impugned judgment.

In order to prove the charges, the prosecution placed reliance on three eye withnesses and examined them they are (P.W.I) Mohd. Saeed Khan who is an employee of the deceased, (P.W.2) Sahebunisha who is wife of the deceased and (P.W.10) Karim alias Makbool. Apart from these witnesses, according to the prosecution''s own case there were several other independent eye witnesses and they are Mr. Khatrikar, Dilip Patel, Smt. Smita Patel and Harshad, but the prosecution failed to examine any of them. Eye witnesses who are examined are either closely related or interested, they were having inimical terms with the appellant. But the law is quite clear like a mirror that merely because the eye witnesses are interested or related to the deceased or were having inimical terms with the accused their evidence can not be thrown in a dust bin like a waste paper but should be scrutinized cautiously with a great care. Thus, we have to scrutinize the evidence of these three eyve witnesses by keeping in mind the said principle.

Before we examine the evidence of the eye witnesses, one very important factor which can not be marginalized or blinked away is that why independent witnesses names of which we have mentioned hereinabove and who had seen the incident right from very beginning were not examined. Though it is not necessary for the prosecution to examine each and every eye witness who is present at the spot but in the peculiar facts and circumstances of the case, specially when the eye witnesses who have been examined by the prosecution are closely related to the deceased and were having inimical terms with the accused, the non-examination of independent eye witnesses poses a big question mark on the story of the prosecution. This is more so, when the story proponed by the prosecution has been belied and was not found to be proved and the evidence of the three eye witnesses was not found to be trustworthy by the trial Court up to the extent that acquitted co-accused Smt. Meeta Nag Chaudhary took out Gupti from the dickey of the motor-cycle and handed over it to the appellant and thereafter he dealt the blows on the person of the deceased.

All the eye witnesses examined by the prosecution in their singular voice admit that 3-4 months earlier of the incident the relations of the accused and deceased were quite cordial, they were good friends and they used to visit the houses of each other. However, 3-4 months earlier to the incident, their relations became strained and they started disliking each other. It has also come in the evidence of the eye-witnesses that they happen to hurl the abuses to each other. PW-2, Sahebunisha, who is the wife of the deceased, has categorically stated in her testimony that accused and deceased were friends for a quite long time, according to her, they were friends for years together. Each of them and their family members were visiting to the house of each other, Later on, she came to know that all of a sudden the relations between them became strained but she could not say why bitterness has been developed in the relations. She also did not ask her husband in that regard. Strange enough, when the relationship was quite cordial and friendly and all of a sudden, they became bitter, according to us, as a natural human conduct, the wife would definitely ask from her husband the cause of it. According to us, the cause was known to this witness but she is trying to cloth it though she expressed her inability to say that deceased use to visit in the house of appellant''s wife in his absence. This lady did not even bother to enquire the cause of bitterness and she did not go to the house of the appellant to enquire in that regard. According to us, when the relations were quite cordial and friendly and all of a sudden they became bitter, she must have gone to enquire or she was knowing the cause of bitterness, but deliberately not disclosing it. At this juncture, we may state here that the defence of the accused is probable and plausible that in absence of the appellant, deceased visited to his house and sexually harassed his wife which was highly objected by him. As a result of which, the relations became bitter. According to us, it was incumbent upon the prosecution to have examined at least one witness out of four other independent witnesses which were present on the spot; they are Mr. Khatrikar, Dilip Patel, Smt. Smita Patel and Harshad.

We shall now examine the testimony of three eye witnesses further. The most important and star witness is P.W.2 Sahebunisha who is wife of the deceased. She in para 2 of her testimony, has categorically stated that she could not state the reason why the relationship became strained. She admitted the presence of other independent witnesses namely Dilip Patel, Smt. Smita Patel and Khatrikar. According to her, after attending the marriage party, she was with her husband and these independent witnesses, reached near by the Jeep, according to her, appellant and his wife were going ahead them. When they reached near by the Jeep the deceased opened the gate of the Jeep and directed her and other persons to sit inside it, at that juncture, appellant started his motorcycle and made it stationary. Meanwhile, the wife of Dilip Patel sat inside the Jeep and other persons were standing, the deceased was standing near the gate of the Jeep and she was standing at a distance of two paces from him, the other eye witness Mohd. Saeed (P.W.1) was also standing there. According to this witness, she saw acquitted co-accused took out a Gupti from the dickey and passed it to the appellant and thereafter appellant rushed towards deceased, at that time deceased was facing towards the Jeep and his back was facing towards the accused, accused came and dealt first blow on the back of her husband as a result of which he turned and thereafter appellant dealt 2-3 more blows of Gupti which landed on the chest and rib region of her husband and when she tried to intervene, one blow of Gupti struck her hand and another blow was also landed near by the first injury. Thereafter appellant by carrying the Gupti fled away from the spot on the motorcycle, his wife was sitting as pillion rider. On account of the injuries the deceased fell near by the Jeep. Thereafter Dilip Patel, Khatrikar, Mohd. Saeed, Harshad Patel uplifted the deceased and kept him in the Jeep of one Satpal Sardarji and thereafter he was carried to Balaghat Hospital and after it Satpal Sardarji, Dilip Patel and Mohd. Saeed dropped her to her house. She was informed that her husband is unconscious and treatment was going on. However, in the late night at 2.30 a.m. the police persons came to her house and made certain enquiries and at that time she came to know that her husband is no more in the world. In para 9 she has specifically stated that she is unable to express the reason why the appellant has killed her husband.

During her cross-examination suggestion was put to her that before the blows of Gupti were dealt to her husband the deceased and appellant quarreled, however, she put her inability in that regard.

This witness has seen the incident right from very beginning and on being asked specifically in respect to the quarrel between deceased and appellant either she should have denied or accepted, but a vague reply to the suggestion expressing her inability to state that whether any quarrel took place, is nothing but indicates that she is concealing the reality that some altercation took place which we have mentioned hereinabove between accused and deceased as the deceased expressed her lascivious activity and passed lewd words aiming the wife of the appellant. She has admitted that the appellant is having high reputation in the society.

The other eye witness is P.W.1 Mohd. Saeed Khan, who is an employee of the deceased and was serving in his garage. According to him, after attending the party first of all the deceased, his wife Sahebunisha, Dilip Patel his wife Smita Patel and Khatrikar came out from the house of Bhatiya and thereafter appellant and his wife came out, though it has been stated by Sahebunisha that appellant and his wife were going ahead and they were behind them but this is a minor discrepancy. This witness has also narrated the story that how the incident took place in the same voice as Sahebunisha has said. According to this witness, accused Smt. Meeta Nag took out Gupti from dickey or the motorcycle and passed it to the appellant. Thereafter appellant rushed towards the deceased who was standing near the gate of the Jeep and inflicted a Gupti blow on his back thereafter he pulled the Gupti from the back, meanwhile, deceased turned and appellant again dealt the blows and this time the blows were dealt on his chest and rib region. Thereafter accused ran away from the spot on his motorcycle along with his wife. The deceased fell on the ground near by the Jeep and thereafter he along with other persons uplifted the deceased and put him in a Jeep of one Sardarji and carried him to Balaghat hospital. According to this witness, Sahebunisha also accompanied to the hospital and at the hospital the deceased was handed over to the doctor and they cam back and dropped Sahebunisha to her house. This witness also admits that relationship between the accused and deceased were quite condial earlier and they were quite friends but 3-4 months prior to the incident the relation between them became strained. In the cross-examination, this witness expressed his inability on being suggested to him that deceased in absence of appellant often goes to his house and happens to meet his wife and this was the cause why the relations became strained.

We would like to discuss the evidence of so called third eye witness P. W.10 Karim @ Maqbool lateron, presently, we are saying that he is not an eye witness and the reason we would assign hereinafter. On careful examination of these two eye witnesses namely Sahebunisha and Mohd. Saeed, the picture which has been formed is that acquitted co-accused Smt. Mita Nag opened the dickey, took out Gupti from it, passed it over to her husband and thereafter he rushed towards the deceased and with great force stabbed the Gupti on his back. According to P.W.1 Mohd. Saeed after stabbing the Gupti on the back the appellant pulled the Gupti. If this version is accepted to be true, then naturally fatal grievous injury ought to have been sustained by the deceased on his back, but according to the Autopsy Surgeon Dr. P.S. Gaur (P. W.3) injury sustained on back is 2cm.x1cm.x1cm. which is a simple injury.

We have carefully scrutinized with great caution the evidence of above said eye-witnesses and after marshalling it, we are of the opinion, that they are concealing the reality and for this reason, we have to draw the adverse inference against the prosecution for not examining independent eye-witnesses. Learned Trial Judge has also arrived a categorical finding in paras 26 to 39, after x-raying the evidence of the eye-witnesses that reality has been concealed by them. In this context, it shall be fruitful to rely the decision of the Apex Court in the case of Bir Singh and Others Vs. State of Uttar Pradesh, , we may re-write that part of judgment and the opinion expressed by the Apex Court in para 9 thus :

It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eyewitnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstance that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. was ante-timed and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that by itself as held by this Court is not a sufficient ground for reversing an order of acquittal.

(Emphasis supplied)

Similar view was expressed by the Apex Court in another decision in the case of State of Karnataka Vs. Babu and others, . In the case of Sawal Das Vs. State of Bihar, the murder took place in presence of maid-servant who was present in the Verandah outside the room but she was not examined. In that situation, the Apex Court by placing reliance on Section 114 illustration (g) of Indian Evidence Act drew adverse inference against the prosecution. The Apex Court also placed reliance on the decision of Privy Council in Stephen Seneviratne v. the King, AIR 1936 PC 289. In a recent decision of the Apex Court in Jang Singh and Others Vs. State of Rajasthan, , the murder took place at the bus-stop, it was held by Apex Court that non-examination of any outsider witness or passenger travelling in bus was a serious lapse on the part of the prosecution.

In the case of Devi Lal and Another Vs. The State of Rajasthan, , the Apex Court while dealing the point when pivot of the prosecution is not accepted a new prosecution case cannot be made to imperil defence. We would like to quote that portion from para 13 which is as under:

If the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence. In the present case, two of the accused are held both by the trial Court and by the High Court not to have been anywhere near the scene of occurrence. The entire prosecution case was that those two persons pointed to the enemies, namely, Motaram and his son and nephew. The further prosecution case was that those two persons gave the order to the accused to attack them. Those two persons opened the gun fire. Therefore when those two persons are found both by the Sessions Court and the High Court not to have been present the whole prosecution case changes color and becomes unworthy of belief.

The case of Devilal (Supra) throws sufficient light to the point in hand. In the present case also, as the story implicating Meeta Nag and her act in passing the Gupti to appellant was not found proved, rather it was belied, thus the entire case of the prosecution becomes doubtful.

For the fair trial and particularly when specific defence of the accused is that deceased passed lewd words outraging the modesty of the appellant''s wife and then the incident took place, according to our considered view, examining of the independent witnesses was quite essential specially when eye-witnesses keep enmity with the appellant and they are closely related to the deceased. The story and scenario can be looked from other spectrum. When eye-witnesses are highly interested and closely related to the deceased, their behavior and conduct should be natural before any credence could be given to them. Since all the eye witnesses who have been examined by the prosecution have tried to conceal the reality that why the relationship of the accused and deceased became bitter, when they were otherwise quite cordial and friendly 3-4 months earlier to the incident, according to us, the defence of the appellant appears to be probable and plausible that on account of lascivious activity of the deceased and by passing lewd words to outrage the modesty of the appellant''s wife by saying that ''what would be today''s rate of this Bangalan for one night'', the appellant refrained him and thereafter there was scuffling between them.

The specific case of the prosecution is that appellant and his wife came nearby the motor-cycle, at the juncture the deceased who was standing on the left gate of the jeep and was facing his back towards the appellant, acquitted co-accused Smt. Meeta Nag Choudhary took out the Gupti from dickey of the motorcycle and handed it over to the appellant and thereafter he caused injuries to the deceased by the said Gupti. The Trial Court, on the basis of evidence placed on record rightly held the story put forth by the prosecution involving and implicating Smt. Meeta Nag Choudhary in the crime by taking out the Gupti and handing it to the appellant, to be totally false and there is no other alternative case of the prosecution. The question would come thus that it the first part of the story has been totally belied by the Trial Court on the basis of material placed before it, the second part of the story of causing injury by Gupti which is so much inter linked and is having nexus with the first part, in the present factual scenario cannot be relied for the following reasons :

(i) The appellant who is admittedly was serving on the post of Deputy Ranger is having high status in the society and having his own reputation would not come forward to kill the deceased openly and that too at a place where dinner of marriage party is being organized. At this juncture, we may place reliance on the decision of the Apex Court in the case of Lakshman Prasad Vs. State of Bihar, which was placed before the Trial Court but which was not followed by it. In the case of Lakshman Prasad (supra), it was held by the Apex Court that the accused who was a next door neighbor of complainant and man of means for participation in dacoity in complainant''s house, evidence showing possibility of false implication of accused and raising suspicion regarding complicity of accused in dacoity, conviction was set aside. In this case, there was dispute between complainant and accused for passage near the house and there was enmity between them and, therefore, in those circumstances the Apex Court held that the accused who was next door neighbor of the complainant and was having inimical terms with him has been falsely implicated. In the present case also as pointed out hereinabove there were quite bitter relations between the parties and, therefore, the implication of the appellant inserting false story of ''Gupti'', cannot be ruled out;

(ii) why appellant would choose to kill the deceased at place where a big party is organized in which several persons are present and to expose him openly;

(iii) according to the witness the length of the blade of ''Gupti'' was near about the length of one palm, i.e. 6" and width 1/2". As a matter of common parlance the description which is given is of knife and not of a Gupti. The Gupti is a sharp edged weapon having a long blade more than 12";

(iv) If the size of Gupti was quite small the same could have been kept in the pocket of the trousers, but, according to the eye witnesses, the Gupti was taken out by the appellant''s wife from the dickey of the motor-cycle which would mean that the weapon was having a quite big size;

(v) the recovery and seizure of Gupti is from the bank of a river. The appellant is quite literate person and was serving on the post of Dy. Ranger why he would hid the Gupti near the bank of the river in order to connect him with the crime;

(vi) If he would have used the alleged Gupti in the commission of the offence naturally he would have thrown it in the river and would not have hidden in near the bank of the river;

(vii) the memorandum of Section 27 of the Evidence Act and the seizure memo of Gupti has not been signed by the appellant, it has been said that his counsel instructed him not to sign these papers. We have failed to understand that if the counsel has tutored him not to sign the memo, why he will allow him to make any recovery of Gupti;

(viii) the Gupti was said to have been buried in the ground and yet there is no mention of dirt and dust found on it;

(ix) the Gupti on being examined by serologist the alleged blood stains were found to be disintegrated and hence it is not proved that alleged blood stains were of human blood;

(x) the description of the weapon given by PW-7, Marvi, the witness of seizure tally with the knife and not with the Gupti, The autopsy surgeon, Dr. P.S. Gour (P.W. 3) has also stated that the injuries sustained to the deceased could have been caused by knife also. The Doctor further says that on account of scuffling injuries 2, 3 and 4 could have been sustained;

If the first part of the story is separated from the prosecution''s case then a big vacuum is created that how and in what manner and under which circumstances the deceased sustained injuries becomes doubtful. The evidence of prosecution is totally silent and do not throw any light in that regard, and it would be highly unsafe to read in between the lines which is not there or to put some hypothetical story in that vacuum that anyhow the deceased obtained the Gupti and he inflicted its blows. At this juncture the defence which has been put forth by the appellant appears to be quite plausible and fit in the slot of the vacuum that, as a matter of fact, when the appellant and his wife came out from the marriage party, deceased passed lewd words penetrating the deep dent on the modesty of the appellant''s wife which was refrained by him and thereafter deceased scuffled with him and took out automatic knife and during scuffling it was opened and deceased received injuries.

All the three eye witnesses examined by the prosecution in the same tone are saying that acquitted co-accused Smt. Meeta Nag Chaudhary took out the Gupti and handed it to the appellant. None of any witness has said that appellant was having a knife and, therefore, when the story of taking out the Gupti and handing it over to the appellant by Smt. Meeta Nag Chaudhary has been totally found to be false by the trial Court then how and on the basis of which evidence we should hold in order to say that the appellant inflicted the Gupti blows. None of the eye witness examined by the prosecution did say that appellant was having a Gupti with him and or he himself took out the Gupti from the dickey and then inflicted injuries to the deceased. Thus, to hold that appellant was having Gupti or he took out from dickey of the motor-cycle and then inflicted it to the deceased is amount to putting altogether a hypothetical story having no bearing on the facts and circumstances of the case, and, therefore, we are constrained to accept the defence version, which we have discussed hereinabove that how the knife came in the picture. One should not forget the fundamental principle which we may say a cardinal rule of law that the incriminating circumstances which are being relied upon by the prosecution which must unfailingly point to the complicity of the accused and it should exclude each and every possible hypothesis of his innocence. If this principle is tested on the touch stone of the facts of the present case this fact should be fully established that before commission of the offence the Gupti was passed over to the deceased or he took out the Gupti from the dickey of the motor-cycle (because the size of the Gupti is long and can not be hidden in pocket) and then inflicted its blows to the deceased or the appellant had an occasion to have possession of the Gupti with him. Since all these circumstances have not been proved by any evidence and the trial Court also disbelieved story of the prosecution and found it to be false on this count, therefore, according to us, it raises a serious doubt against the appellant. There is no finding of the trial Court that how and in what manner the appellant came in possession of the Gupti.

If the first version which has been put forth by the prosecution is not correct, the second version stated by defence, according to us, should be accepted because there is no other version on the record. In the case of Sawal Das (supra), the Apex Court while discussing with the scope of Sections 103 and 106 of the Indian Evidence Act, came to hold that the burden of proving a plea specifically set up by an accused certainly lies upon him. But neither Section 103 nor section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, then the question arises of considering facts of which the burden of proof may lie upon the accused.

In the case of Seriyal Udayar Vs. State of Tamil Nadu, , while dealing with the case of defence, the Apex Court held that where though the right of private defence of the accused appellant was not established still the material produced in cross examination and circumstances indicated that the incident might have happened in a manner in which it was suggested by the accused appellant, then it can not be said that the prosecution had established the offence against the appellant beyond reasonable doubt and therefore he was entitled to be acquitted. Their Lordships of the Apex Court reversed the decision of the Madras High Court. We think it proper to quote that passage of the Apex Court which reads as under:

In view of this situation, in our opinion, the High Court was not right in interfering in this appeal against acquittal. Even if on the basis of material as it stands, the right of private defence of the accused appellant is not established still the material produced in cross-examination and circumstances discussed above do indicate that the incident might have happened in a manner in which it was suggested by the accused-appellant and in this view of the matter it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt.

(Emphasis supplied)

2y. The above said case of Seriyal Udayar (Supra) of the Apex Court has been followed by the Division Bench of this Court in the case of Dheer Singh and another v. State of Madhya Pradesh, 1988 M.P.L.J. 241, paragraphs 11 and 12 of the said decision are quite relevant and we would like to reproduce those paragraphs as under:

Now, we come to a very important and vital aspect of the whole case which has been altogether ignored by the trial Court. In his examination u/s 313 of the Code, appellant Bishambhar Singh has explained what had happened. According to him, he was sleeping in the room housing the machinery of his tube-well, which was near the place of occurrence. There was a noise of gunfiring. He came out of his room to see what it was all about. The gunshot pellets struck him and he was injured. He went back to the room. Hearing the hue and cry, his brother Surendra had come to his rescue and from a top the room his brother Surendra had fired from his 12-bore gun. About 25 to 30 persons had surrounded the room and all of them were armed with guns and other weapons. Deceased Dataram had a 12-bore gun. Angad (PW 6) had a mouser gun and he was also firing, Shriram (PW1) also had a 12-bore gun and he was also firing. He (appellant Bishambhar Singh) went to the Police station and lodged the report, and thereafter he was taken by the Police to the hospital for medical examination. Investigating Officer Abhai Singh Kushwah (PW8) being inimical to him and his family, had him called back from the hospital without being examined. He got the pellets extracted from his body privately. He was illegally detained for 18-20 days. He has still some pellets embedded in his body.

The above statement of the appellant Bishambhar Singh does raise the plea of self-defence. The law is well settled, as held in Seriyal Udayar Vs. State of Tamil Nadu, that if there are materials and circumstances appearing on the record which, though not sufficient to establish the right of private defence of the accused, indicated that the incident might have happened in the manner in which it was suggested by the accused, then the case of the prosecution can not be said to have been proved beyond reasonable doubt and the benefit would go to the accused and he would be entitled to acquittal.

In the present case also the appellant has taken the plea of self defence and in his statement recorded u/s 313 Cr.P.C. he has categorically stated that how the incident occurred. The Division Bench in the case of Dheer Singh (Supra) by placing reliance of Seriyal Udayar''s case (Supra) held that if there is material and circumstances appearing on the record which, though not sufficient to establish the right of private defence of the accused, indicate that the incident might have happened in the manner in which it was suggested by the accused and, therefore, he would be entitled for acquittal. In our considered view, the cases of Seriyal Udayar and Dheer Singh (Supra) squarely cover the present point in hand. Though the trial Court did not disbelieve the stand put forth by the appellant in his statement recorded us/313 Cr.P.C. However, even if it is assumed that statement u/s 313 Cr.P.C. made by appellant is false, the inference there from can not be made the basis for conviction and the charge has to be proved by the evidence of the prosecution.

If we examine the scope of section 313 of the Code of Criminal Procedure and its applicability in the trial it would reveal that the statement of accused recorded under this section is being recorded with a view to enable him and to give any explanation by him in respect to the evidence led by the prosecution witnesses examined. If we analyse this section it is gathered that no oath is being administered to the accused before he is examined by the Court under sub-section (1) of this section; accused can not be punished if he refuses to answer and answers given by the accused may be taken into consideration for or against him. It we go in deep in regard to the scope of this section we can very well say that this provision is intended to secure the accused and an opportunity is being provided to him to explain the prosecution evidence which has been adduced accusing him and, therefore just to provide benefit to him and not to operate as to his detriment. The statement of the accused recorded under this section can not be used to fill up the gaps or put some hypothetical story in the prosecution case. We have hereinabove discussed in detail at despite there being explanation by the accused, the burden to prove its case still lies on the prosecution and no adverse inference can be drawn against the accused if he fails to explain his utterance. In this context we are enlightened by the decision of the Apex Court in the case of Shri Ram Vs. The State of U.P., . We may further add that real aim and object of this section is that the Court is duty bound to express facts and circumstances appearing against the accused in the evidence led by the prosecution so that he may satisfactorily explain those circumstances which have been used by the prosecution against him, in order to show his innocence.

Out of three eye withnesses one is the wife Sahebunisha (PW 2), another is servant of the deceased and third witness is Karim alia Makbool (P.W.10) who can not be said to be an eye witness. According to us, his evidence has been manufactured and has been created for the best reason known to the prosecution. This person has been presented as an eye witness but he can not be said to be an eye witness because according to him, he was deputed at the spot by the proprietor of Jawaher Electric Shop, Daulat Jawaher (DW 2) to carry out the electric decoration work at Bhatia''s house, but Daulat Jawahar had stated that he never asked Karim alias Makbool to carry out the said work, Karim alias Makbool justified his presence under the pretext that he installed the electric connection and decoration in the marriage of Mr. Bhatia but during cross-examination he specifically admits that the contract of electric decoration was given to Jawahar lights and he is not employed in the company of Jawahar Lights. Later on, he says that Jawahar borrowed his services to complete the electric decoration work. Jawahar was examined by accused as D.W.2 and he specifically denies that Karim alias Makbool did not join his hands to carry out the work of electric decoration in the marriage of Mr. Bhatia. This defence witness categorically states that he had not even taken the services from this man. Thus, the presence of this third eye witness becomes highly doubtful. Merely some suggestion has been put to this defence witness that Maqbool might have remained present on the date of the incident, would not suffice and can not take place of strict proof of his presence for the simple reason that according to Karim alias Makbool (P.W.10) he was present because Jawahar (DW 2) took his services in carrying out electric decoration work, but this fact has been emphatically denied by Jawahar (DW 2).

So far as two simple injuries sustained by Sahebunisha (PW 2) for which the appellant has been convicted u/s 324 IPC is concerned, both the injuries were found to be very superficial injuries and could not have been sustained in the manner in which it has been suggested by P.W.2 Sahebunisha because P.W.11 Dr. Mukesh Shrivastava has stated that both the injuries could be said to be self inflicted and they were quite fresh. It is to be noted that Sahebunisha was medically examined by the witness in late night at 2 A.M. and it was found by him that the injuries sustained by her were quite fresh. The incident had taken place near about 10 p.m. It has also come in the evidence that this injured Sahebunisha first went to the hospital along with the deceased and the deceased was handed over to the Doctors and thereafter she came back to home and when she again went to hospital at 2 A.M. at that time she was examined. If she had sustained the injuries in the incident why she came back to her home and did not examine herself at the hospital at the earlier point of time and was examined at 2 a.m. in the odd hours when she sustained injuries quite earlier to it. This again raises a serious doubt in respect to injuries caused by appellant to her.

On the basis of the aforesaid analysis we extend our benefit of doubt to the appellant it is well settled in law that the doubt however strong it may be, can not take place of strict proof.

In the result, the appeal succeeds and is hereby allowed. The conviction of the appellant u/ss. 302 and 324 IPC is hereby set aside. The appellant is on bail, his bail bonds are hereby discharged.