LexBHAGWAN SAHAI AND ANR. versus STATE OF RAJASTHAN
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[2016] 3 S.C.R. 533 BHAGWAN SAHAI AND ANR. v. STATE OF RAJASTHAN (Criminal Appeal No. 416of2016) JUNE03,2016 [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.) Penal Code, 1860: ss. 308134, 323, 324 - Previous enmity - Prosecution case is that two brothers (appellants) alongwith female family members formed an unlai-1ful assembly and armed with lethal weapons caused injuries to few persons - In the incident.father of the appellants died and one of the appellant received injuries - Trial court gave a finding that there was a free fight between both the parties and therefore convicted the accused for their individual liability - High Court held that since both the parties had withheld the origin and genesis of the occurrence and since it cannot be determined as to which party was the aggressor, the case has to be decided against the accused persons treating it as a case o/ free fight between the parties - On appeal. Held: Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants - Appellants are, therefore, acquitted of all the charges. Allowing the appeal, the Court HELD: The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference ·must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case. [Para 8] [537-A-C) 533 A B c D E F G H 534 SUPREME COURT REPORTS [2016] 3 S.C.R. A Lakshmi Singh and others v. State of Bihar 1976 (4) sec 394 - referred to. Case Law Reference 1976 (4) sec 394 referred to Para 7 B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal c D E F G H No. 416 of2016. From the Judgment and Order dated 14.01.2016 of the High Court of Rajasthan at Jaipur in DBCRA No. 1235 of 2011. Mani sh Kumar, Ansar Ahmad Chaudhary, Advs. for the Appellant. Ms. Ruchi Kohli, Adv. for the Respondent. The Judgment of the Court was delivered by SHIVA KIRTI SINGH, J. 1. Both the appellants have assailed the impugned judgment of the High Court of Judicature for Rajasthan at Jaipur Bench whereby Criminal Appeal No. 1235of2011 was disposed of by the impugned judgment and order dated 14.1.2016. The High Court set aside the conviction of the appellants under Sections 307 and 307/34 of the IPC respectively but found them guilty under section 308/ 34 of the IPC. The High Court also set aside appellant's conviction under Section 326 and 326/34 IPC respectively in view of their being found guilty under Section 308/34 of the IPC but maintained the conviction under Sections 323 and 324 of the IPC. For the offences under Section 308/34 IPC the appellants were inflicted with punishment of two years rigorous imprisonment alongwith a fine ofRs.500/- with a default clause. For offences under Sections 323 and 324 of the IPC, the lesser sentence awarded by the trial court were maintained. 2. In order to appreciate the submissions advanced on behalf of the appellants that even ifthe allegations against them were to be accepted as true, they are entitled to acquittal on the plea of right of private defence of person, it is necessary to notice the prosecution case, the injuries on appellant No. I and his parents, including his father who received serious injuries that proved fatal and whether the prosecution have been able to offer any explanation for the injuries on the side of the accused. 3. According to the prosecution case, two appellants who are brothers alongwith female family members, Guddi Devi, Seema and Guiab Devi formed an unlawful assembly in their village on 4.5.2008 at 10.00 BHAGWAN SAHA! AND ANR. v. STATE OF RAJASTHAN [SHIVA KIRT! SINGH, J.] a.m. Armed with lethal weapons they went near the "Bada" of Jagram and caused injuries to Sa
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