MANO DUTT & Anr. v. STATE OF U.P

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. 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 '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. E G F 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 B 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. · 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] C

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, '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 E

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 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 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 the prosecution witnesses and G 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]