DHARMINDER versus STATE OF HIMACHAL PRADESH

Citation: [2002] SUPP. 2 S.C.R. 16 · Decided: 03-09-2002 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

Judgment (excerpt)

A 
B 
DHARMINDER 
1'. 
STATE OF HIMACHAL PRADESH 
SEPTEMBER 3. 2002 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
Penal Code, 1860-Ss. 302134. 307134, 323134-Conviction under-
Deceased fired gun shot injuring accused lo save his son-Plea of self defence 
C by accused alleging aggression on the part of the deceased-'-On appeal, 
held-The facts of the case prove prosecution case-Plea of accused not 
proved even on the test of pre-ponderance of prob.abilities-Hence judgment 
of Courts below justified 
Penal Code, 18601 Evidence Act, 1872-Chapter IV I Section 105-
D Right to self defence of accused-Onus of proof-Held, onus to establish the 
right of self-defence is not as onerous as that of the prosecution to prove its 
case-Where facts and circumstances lead to pre-ponderance of probabilities 
in favour of defence, it would be enough to discharge the burden 10 prove the 
case of self defence. 
E 
Criminal Trial-Non-explanation of injuries on the accused-Effect of-
He/d. cannot by itself be a sole basis to reject the testimon_F of the prosecution 
where it is clear, cogent and creditworthy and where Court can distinguish 
the truth fi"om falsehood. 
Six accused including the two appellants, were tried for having 
F committed murder ofa person, attempt to commit murder of his son and 
for causing simple injuries to his wife. 
According to the prosecution, deceased left his village and property 
and remained away therefrom for about 20 to 22 years and came back to 
G the village on being pursuaded by his son. On the day of the incident, wife 
of the deceased saw appellants-accused cutting tree and ploughing field 
of the deceased. She was about to go to inform her son, but before that 
all the accused assaulted her. She raised alarm, and when her son came 
to her rescue, all the accused started beating him causing multiple injuries 
on him. On seeing the assault on his son, deceased, finding him helpless, 
H 
16 
DHARMINDER ,. STATE OF HIMACHAL PRADESH 
17 
to save his son tired from his gun from a distance of 20 metres to scare A 
away the assailants which caused injuries on the lower parts of the body 
.of accused 'ON'. Accused persons then snatched the gun of the deceased 
and gave blows causing multiple fractures on his head resulting in 
instantaneous death. 
PW 14, in her statement under Section 161 Cr.P.C. had mentioned B 
that the deceased injured the appellant-accused 'DN' because of 
murderous assault on his son. But in her statement before the court she 
stated that appellant-accused 'D' fired the gun shot. Defence case was that 
the deceased in order to get his property back came armed with gun and 
assaulted appellant-accused 'DN' who was alone. Accused 'DN' also filed C 
FIR against the deceased, which was closed in view of death of the 
deceased. Defence claimed right to private defence. DWI supported the 
defence case to the extent that he had seen the accused injured, but DW2 
did not support the case. Appellant-accused 'D' and another accused in 
their written statement, stated that they were not present at the time of 
actual incident nor did they participate in the fight. Still another accused D 
in his written statement stated that on hearing the gun shot when he 
reached the spot he saw fight between appellant-accused 'DN' on one side 
and deceased and his son on the other side. 
Trial Court convicted the appellants under sections 302/34, 307/34, 
323/34 IPC and acquitted the rest of the accused. The judgment of the E 
trial Court was upheld by High Court. Hence these cross appeals by the 
accused-appellants and the State. Dismissing the appeals, the Court 
HELD: I. Court of Sessions as well as the High Court committed no 
error in recording the conviction of the accused-appellants. In so far as F 
the question of suppression of the injuries of the accused by the prosecution 
is concerned, factually it does not appear to be so. It is true that FIR does 
not mention about the injuries of the accused but the fact cannot be lost 
sight of that the FIR was lodged by PW6 who was not an eye-witness to 
the incident. But PW14 in her statement under Section 161 Cr.P.C. had 
come out with the fact that the deceased had fired gun shot injuring G 
accused 'DN' because of murderous assault on his son by the accused 
persons. Thus it cannot be said that there was any suppression as such of 
the injuries of accused 'DN'. It was disclosed at the first opportunity to 
the investigating agency in the statement under Section 

Excerpt shown. Read the full judgment & AI analysis in Lexace.