Kalimullah Khan, J.
1. This criminal appeal u/s 378 Cr.P.C. has been filed by State of U.P. against respondents 1. Dildar Singh, 2. Baldev Singh, 3, Veer Singh, all sons of Gian Singh, resident of village Athkona, P.S. Madhotanda, District Pilibhit, 4. Darshan Singh, 5. Gian Singh, sons of Basawa Singh, 6. Subba Singh, son of Mangal Singh and 7. Jhanda Singh, son of Subba Singh, resident of village Safda, P.S. Madhotanda, District Pilibhit, against the impugned judgment and order dated 16.5.1983, passed by learned Sessions Judge, Pilibhit in S.T. No. 176 of 1982 State v. Didar Singh and six others (Crime No. 88 of 1982, under sections 147, 148, 302/149, 326/149, 324/149 and 323/149 IPC, P.S. Madhotanda, District Pilibhit, whereby he has acquitted all the aforesaid respondents from the charges framed under the aforesaid sections of IPC. The impugned judgment and order has been challenged on the ground that it is against the law and facts of the case, which has resulted in miscarriage of justice.
2. The prosecution case, in nutshell is that Hajara Singh, hereinafter called the deceased has a Jhala in village Athkona, P.S. Madhotanda, District Pilibhit adjacent to this Jhala towards north, the agricultural field of accused respondent Didar Singh exists. Parallel to it, towards north the agricultural field of Hajara Singh exists. The tubewell Nali flows in north-south direction at the western end of aforesaid agricultural fields of Didar Singh and deceased. It is said that at about 4:00 P.M. on 30.6.1982, the day of incident, Didar Singh had broken part of the bank of said Nali which ensued some hot altercation and marpeet in between Didar Singh and Jaswant Singh (P.W. 1), the son of the deceased. Ultimately, Didar Singh left the scene after extending threats to the first informant to teach him a lesson and to take revenge. At about 9:00 P.M. on the same day accused respondent Didar Singh, Bira Singh and Jhanda Singh armed with swords, Subba Singh armed with Ballam while Baldev Singh and Gyan Singh armed with lathis reached on the Jhala of Hajara Singh where he was sitting alongwith his son Jawant Singh (P.W. I), daughter Darsan Kaur (P.W. 2), Raj Kaur, Boby and wife of Sarjeet Kaur. A guest Pritam Singh was also there sitting in the Sahan. Didar Singh hurled abuses. Hajara Singh asked them to desist from there. At this stage, all the aforesaid accused attacked Hajara Singh. Jaswant Singh, Darsan Kaur, Boby and Pritam Singh tried to intervene whereupon all those persons were also inflicted injuries. Hajara Singh picked up his sword and his son Jaswant Singh picked up lathi and they exercised their right of self defence. However, after sustaining injuries, Hajara Singh fell down and died at spot. Accused persons picked up the dead body of Hajara Singh and carried it towards their house. However, on hue
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and cry Guljar Singh and another the relations of deceased shouted and rushed up towards accused whereupon accused left the dead body in the vacant field of the deceased lying towards north of field of Didar Singh and managed their escape. The dead body of deceased, according to prosecution, was kept on a cot and was brought to the Jhala of the deceased from his field. Jaswant Singh, Darsan Kaur and Pritam Singh went to P.S. Madhotanda on a Dunlop Cart. Jaswant Singh got written report Exhibit Ka-1 scribed by the Pond Moharrir and handed it over to the police. On the basis of the aforesaid written report Exhibit Ka-1 Athar Hussain, constable clerk (P.W. 4) drew the chik report Exhibit Ka-4 and registered the case in the General Diary at 12:15 A.M. 3 in the night of the incident, copy of the G.D. entry is Exhibit Ka-5.
3. S.I. Gajraj Singh (P.W. 5), S.O., P.S. Madhotanda is the Investigating Officer who investigated the case; sent the injured persons for medical examination; prepared Panchnama Exhibit Ka-6 and other relevant papers Exhibits Ka-7 & 8 and sent the dead body to mortuary for post-mortem examination. He prepared site plan, recovered blood stained and plain earth, broken comb and hair of the deceased; arrested accused Didar Singh and Subba Singh who were medically examined; on the pointing out of accused Didar Singh a sword was recovered from the field as detailed in the Lower Court judgment. After completing the investigation, I.O. submitted the charge-sheet Exhibit Ka-14 against all the accused on 30.7.1982.
4. Accused were charged for the offence punishable under sections 147, 148, 302/149, 326/149, 324/149 and 323/149, I.P.C. Accused denied the charge and claimed their trial.
5. In order to prove its case, prosecution examined six witnesses viz. Jawant Singh (P.W. 1), Darsan Kaur (P.W. 2), Bachan Singh (P.W. 3). Athar Hussain (P.W. 4) is the police constable, who has drawn the chik report and registered the case in the General Diary. S.I., Gajraj Singh (P.W. 5) is the I.O. and Dr. V.P. Agrawal (P.W. 6) is the Medical Officer. On facts, only two witnesses have been examined by prosecution who were P.W. 1 & P.W. 2. Apart from it, documentary evidence were also adduced as detailed in the Lower Court judgment.
6. Jaswant Singh (P.W. 1) and Darsan Kaur (P.W. 2) are the eye-witness of the incident who deposed on facts and supported the prosecution case as embedded in the F.I.R.
7. Accused were examined u/s 313 Cr.P.C. All the accused denied the prosecution allegation and evidence.
8. Didar Singh stated that he was ploughing his field which lies adjacent to the Jhala of the deceased who wanted to grab his field. When he was returning to his field on 30.6.1982 at about 7:30 P.M. alongwith Subba Singh they were attacked by Hajara Singh (deceased), Jaswant Singh and Pritam Singh with their sword, ballam and lathi respectively. Accused made hue and cry whereupon Baldev Singh came with his sword. Both the accused and Baldev Singh exercised their right of private defence as a result of which deceased and rest injured witness of prosecution received injuries.
9. Similar statement has been given by accused Subba Singh and Baldev Singh, however, they have not adduced any evidence in their defence.
10. Dr. S.C. Gupta, Medical Officer, P.H.C. Madhotanda have examined Pritam Singh at 1.30 a.m. on 1.7.1982 and he found the following injuries in his body:--
1. Incised wound 10 c.ms. x 1 c.m. x bone deep, bone seems to be cut over left side of head horizontally beginning from 1.5 c.m. Above left ear pinna, directed backward, tailing on both ends with clean and well defined margins, bleeding on touching, semi-clotted blood, kept under observation, advised X-ray at District Hospital, Pilibhit, edges reverted.
2. Incised wound 4.5 c.m. x 0.5 c.m. x bone deep over front of scalp on right side with clean cut well defined margins 7 c.m. Above right eyebrow vertical.
3. Two incised wound over back of left palm 0.5 c.m. Apart (a) 1 c.m. x .2 c.m. x skin deep, 1.5 c.m. Above root of left index finger, clotted blood present.
4. Abrasion with contusion 7 c.m. x 1 c.m. over right side of back at iliac crest, 3 c.m. right to middle, reddish.
5. Abrasion and I.W. 2 c.m. x .5 c.m. x muscle deep followed by linear abrasion of 12 c.m. over left side of back, 2.5 c.m. left with mid lines and at iliac crest. Clotted blood present.
6. Abrasion with contusion 8 c.m. x 5 c.m. over upper side of left shoulder. Reddish beginning from chromium end of left shoulder.
He advised X-ray for injuries Nos. 1 and 2 and in his opinion, injuries Nos. 3 to 6 are simple. Injuries 1, 2 and 3 were caused by sharp edged weapon and injury No. 5 by sharp pointed object and injury No. 6 was caused by blunt hard object or friction.
11. He examined Jaswant Singh at 2.00 a.m. on 1.7.1982 and found the following injuries on his body:--
1. Linear abrasion 2 c.m. on back of left fore arm, 6 c.m. above left wrist.
2. Linear abrasion with slit opening over its upper end 2 c.m. in length x 17 c.m. beginning from 8 c.m. above the left knee bad, directed upwards.
3. Reddish contusion .5 c.m. x 1 c.m. over left calf muscle 3 c.m. below left knee.
In his opinion, injuries Nos. 1 and 2 were caused by friction against penetrating object and injury No. 3 was caused by blunt object.
13. He examined Boby at 2.20 a.m. on 1.7.1982 and found the following injuries on her person:-
1. L.W. 1.2 c.m. x .25 c.m. over left side of scalp, skin deep. Clotted blood present, 8 c.m. above left eyebrow.
2. Contusion with laceration 5 c.m. x 1 c.m. over front of left arm extending outwards, 6 c.m. above left elbow bed.
3. L.W. 1 c.m. x .25 c.m. skin deep on medial side of left middle finger. 1.5 c.m. below tip of left middle finger.
4. L.W. .5 c.m. x .25 c.m. x skin deep over outer side of left thumb, 1.5 c.m. below top of right thumb.
5. Abrasion 7 c.m. x 1 c.m. over left side of the back of chest 2 c.m. below lower angle of left scapula.
In his opinion, all the injuries were simple. Injuries 1 to 4 were caused by blunt object and injury No. 5 by friction.
14. He examined Darsan Kaur at 2.30 a.m. on 1.7.1982 and found the following injuries on her person:--
1. Contusion reddish 7 c.m. x 5 c.m. left eye.
2. Reddish contusion 15 c.m. x 1 c.m. over and on right shoulder joint.
3. Reddish contusion 1 c.m. x 1 c.m. over right side of the head, knee above right ear pinna.
12. In his opinion, all the injuries were simple and were caused by blunt object.
13. The injuries of all, in his opinion were fresh. The injury reports prepared by him are Ext. Ka-11 to 19, genuineness of which was admitted on behalf of the accused.
14. Dr. S.C. Gupta has examined Subba Singh accused at 5.10 p.m. On 1.7.1982 and found the following injuries on his body:--
1. Penetrating wound with clean and well defined margins tailing both side over outer side left hip joint 10 c.m. below anterior superior iliac spine. Size 5 c.m. x 1 c.m. x bone deep.
He advised X-ray and in his opinion, the injury was caused by sharp edged penetrating object and was about one day old.
15. He also examined Didar Singh accused at 5.30 p.m. On 1.7.1982. That very day and found the following injuries on his person:-
1. L.W. 5 c.m. x 1 c.m. into bone deep over left side of scalp 7.5 c.m. above left ear line upper part. Clotted blood present.
2. Traumatic swelling over middle of right upper arm, encircling right arm beginning from 7 c.m. below right shoulder joint, size 16 c.m. x 6 c.m. Kept under observation. Advised X-ray at district hospital Pilibhit. Cracking sounds present, doubtful fracture.
3. Abrasion 5 c.m. x 1 c.m. over front left hip joint.
4. Linear abrasion 9 c.m. long over left side of back of chest 1.5 c.m. above iliac crest.
In his opinion, injuries 1, 3 and 4 were simple and X-ray was advised for injury No. 2 and in his opinion, injury Nos. 1 and 2 were caused by blunt object, injury No. 3 by friction and injury No. 4 also by friction and they were about one day old.
The injury reports are Ext. Ka-20 and 21 the genuineness of which was also admitted on behalf of the accused.
16. Dr. V.P. Agrawal P.W. 6, Medical Officer, Civil Hospital, Pilibhit had conducted post-mortem on the dead body of Hazara Singh on 2.7.82 at 1.00 O'clock in the day. He found the following ante-mortem injuries on his body:-- Ante-mortem injuries
1. Incised wound 16 c.m. x 2.5 c.m. x brain cavity deep with clean cut bone underneath in which extent of wound and the cerebral hemisphere (left) clean cut with meninges clean cut, extending 3 c.m. above left ear and anteriorly and posteriorly placed.
2. Incised wound 5 c.m. x 1.5 c.m. x muscle on the right side of chin.
3. Incised wound 5 c.m. x 1.5 c.m. x muscle deep on the left side neck at the root.
4. Incised wound 3.5 c.m. x 1 c.m. x muscle deep on the left side neck upper part.
5. Linear abrasion 25 c.m. x 0.1 c.m. x skin on the left side of chest.
6. Contusion 6 c.m. x 3 c.m. on the back of left shoulder.
7. Incised wound 1 c.m. x .8 c.m. x muscle on the right side back of chest and scapular region.
17. On internal examination, he found large intestines full of fecal matter and in his opinion, death was caused due to shock and haemorrhage as a result of injuries. Ex. Ka-15 is the postmortem report prepared by him.
18. Ext. Ka-22 is the report of the Chemical Examiner who had found blood on the sword, earth, comb, shirt, lungi, kara of Hazara Singh and Ext. Ka-23 is the report of the serologist who found human blood on them and 'B' group blood was found on blood stained earth on open shirt of Pritam Singh. The group of other bloods could not be determined. Ext. Ka-24 is the affidavit of the constable who had taken these articles to the Chemical Examiner.
19. Ext. Ka-25 is the copy of bail application moved by the accused in the Court of Session Judge, Pilibhit and Ext. Ka-26 is the application of surrender moved by the other 4 accused in the Court. They have been filed to show the stands taken up by the accused at that stage.
20. On the basis of the evidence on record and considering the submissions made by learned Counsel for the parties, learned Trial Court, vide judgment and order dated 16.5.1983 held that accused were not found guilty and accordingly, he acquitted all of them of the offences with which they were charged.
21. Feeling aggrieved, this Government Appeal was filed by State of U.P. on the ground that the judgment is based on conjecture and surmises which is against the weight of evidence on record; place of occurrence is the Jhala of the informant which has been fully proved by the evidence of P.W. 1, P.W. 2 and I.O. of the case but the learned Trial Court has ignored the aforesaid fact and wrongly held that the incident took place in the field of deceased Hajara Singh which lies a distance from the Jhala of the informant. The aforesaid finding of the learned Trial Court is bad in law because it is definite case of the prosecution that Hajara Singh was assaulted by accused at his Jhala and when he fell down, treating him to be dead, accused picked him up and started taking him towards their house but in the meanwhile on hearing the hue and cry, persons of the neighbourhood attracted and they made alarm that they were coming whereupon accused persons dropped Hajara Singh in his field and ran away. Therefore, at both the places bloods were found but the learned Trial Court still arbitrarily held that incident had not taken place at the Jhala of Hajara Singh and accordingly, he held Hajara Singh and others to be aggressor and extended the benefit of doubt to accused which was unwarranted and it has resulted in miscarriage of justice. He has further submitted that motive in this case has been mentioned in the F.I.R. itself but the learned Trial Court has wrongly held that the motive alleged was not sufficient for accused to commit such a ghostly murder of Hajara Singh after an interval of 4-5 hours from the first altercation which took place in the field on the point of cutting of Med of the Nali through which informant was irrigating his field. He has further submitted that non-examination of any independent witness or rest of the injured witness except P.W. 1 and P.W. 2 is not fatal to the prosecution case. The law requires quality of evidence and not the quantity of evidence. The first informant and his sister P.W. 1 and P.W. 2 respectively are the injured witnesses and informant P.W. 1 Jaswant Singh's evidence is corroborated by F.I.R., medical evidence and also by the evidence of P.W. 2, his sister which should not have been ignored at all especially when there is no defence witness examined in this case and no F.I.R. whatsoever was ever lodged by accused persons challenging the mode and manner of assault and place of incident as mentioned in the F.I.R.
22. Per contra, learned Counsel for the respondent has submitted that learned Trial Court has decided the case after making appraisal of evidence in accordance with the settled principle of law as held in case law Rishi Kesh Singh and Others Vs. The State, , which was approved by Hon'ble Apex Court in Partap Vs. The State of Uttar Pradesh, , and the finding of acquittal recorded by learned Trial Court is just and proper and it needs no interference by the Appellate Court.
23. We have heard learned A.G.A., learned Counsel for the accused respondent and perused the record keeping in view the settled proposition of law on the point of exercise of right of private defence.
24. Section 105, Indian Evidence Act, states:
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
25. On the basis of the definition of the words "proved", "disproved" and "not proved", as contained in section 3 of the Evidence Act, a similar inference can be drawn. The term "proved" is defined as below:--
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
26. When the evidence is of a overwhelming nature and is conclusive, there shall exist no dispute, nor shall there be any doubt and the Court can say that the fact does exist, but in criminal trials, where the accused claims the benefit of the Exception, there cannot be any evidence of such a nature. Very often there is oral evidence which may be equally balanced. In the circumstances, the case of the prosecution or of the defence has to be accepted or rejected on the basis of probabilities. Section 3 of the Evidence Act by itself lays down that a fact is said to be proved when, after considering the matters before it, the Court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is what is meant by the "test of probabilities" or the "preponderance of probabilities." The decision is taken as in a civil proceeding.
27. In case law Rishi Kesh Singh and Others Vs. The State, .
The Full Bench of the Allahabad High Court has defined "preponderance of evidence" in para 60 of the judgment which reads as under:--
Our attention was drawn to the definition of "preponderance of evidence" as in vogue in America. In American Jurisprudence. 2nd Edition, Volume 30, the expression has been defined in Article 1164. In America the term means "the weight, credit and value of the aggregate evidence on either side, and is usually considered to be synonymous with the term greater weight of the evidence", or "greater weight of the credible evidence". It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of "preponderance of evidence".
"The phrase "preponderance of probability" appears to have been taken from Charles R. Cooper v. F.W. Slade (1857-59) 6 HLC 746. The observations made therein make it clear that what "preponderance of probability" means is "more probable and rational view of the case", not necessarily as certain as the pleading should be.
28. In the aforesaid case of Rishi Kesh Singh and Others Vs. The State, .
The question before the Full Bench was:
Whether the dictum of this Court in the case of Parbhoo and Others Vs. Emperor, , to the effect that the accused who puts forward a plea based on a general exception in the Indian Penal Code is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea based on such a general exception) a reasonable doubt is created in the mind of the Court whether the accused person is entitled to the benefit of the said exception is still good law.
After discussing the Court held:
The majority decision in Parbhoo and Others Vs. Emperor, is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused.
29. The aforesaid legal position was approved by Hon'ble Supreme Court in case of Pratap v. State of Uttar Pradesh 1976 Cri. LJ 697.
30. The perusal of the record shows that learned Trial Court has made appraisal of evidence in accordance with the settled proposition of law meant for appraisal of evidence. The learned Trial Court has acquitted the accused on the ground that motive assigned against them was not sufficient and it did not touch all the accused persons. There were five persons who were assaulted by accused out of whom Hajara Singh died and still four injured persons were alive but for the reason best known to prosecution only first informant and his sister Darshan Kaur were examined. Rest injured Boby and Pritam Singh were withheld by prosecution. There is no independent witness to support the prosecution version. The main ground of acquittal which weighed much to the learned Trial Court, as it appears, is the shifting of the place of occurrence from Jhala to the field of deceased Hajara Singh in view of the fact that prosecution failed to establish the place of occurrence at his Jhala.
31. I.O. of the case, Sri Gajraj Singh, P.W. 5 has deposed that he found the dead body of Hajara Singh lying in his field and besides him his broken comb and his hairs of the head which were cut in the incident were also lying there which were recovered by the I.O. Recovery memo. of the aforesaid broken comb and hairs was prepared on 1.7.1982 in the presence of prosecution witness Jitendra Singh and Bachan Singh which has been proved by him as Exhibit Ka-12. The perusal of the aforesaid recovery memo. shows that the aforesaid both the things were recovered from the field of Hajara Singh. Even, Darshan Kaur, P.W. 2 has deposed that broken comb and hair of her father were found in the field of his father Hajara Singh from where they were recovered. She has also deposed that broken comb and aforesaid hair had fallen on the ground at the place where her father Hajara Singh had fallen. Learned Trial Court has rightly rejected the submission of learned Counsel for the prosecution that Hajara Singh had fallen at two places during the incident, firstly at Jhala after sustaining injury and thereafter in his field where the accused persons dropped him because dropping of the dead body does not tantamount to his falling there, therefore, the possibility of prosecution argument to patch up the things on this point cannot be ruled out. The finding of disbelieving the theory of incident being committed at Jhala is quite sound which is based on material available on record and it needs no interference and once it is found that incident did not take place at Jhala of Hajara Singh rather it took place in his own field, it goes without saying that the prosecution has failed to prove its case beyond all reasonable doubt and there is substance in the contention of learned Counsel for accused that when they were returning to their house after ploughing their field then the deceased party chased and assaulted them with lathi, sword and spear and in exercise of their right of private defence deceased party sustained injury. It has been specifically pleaded by accused persons in their statements recorded u/s 313 Cr.P.C. as well as specific suggestions to this effect has been made to the prosecution witnesses in their cross-examination that on their hue and cry Baldev Singh reached there along with sword and he as well as accused defended themselves by inflicting injuries upon the deceased and others. The F.I.R. version, evidence of first informant and his sister Darshan Kaur that after the death of deceased in the field they brought the dead body on cot from the field to their Jhala as well as the contents of recovery memo. that dead body was found lying on a cot at the Jhala is belied by the substantive evidence of Investigating Officer who has deposed in the Court that he recovered the dead body of the deceased from his field lying towards north of Jhala after the field of accused Didar Singh. The aforesaid statement of I.O. is unchallenged. There is nothing in the aforesaid finding recorded by the learned Trial Court warranting any kind of interference of this Appellate Court.
32. I.O. claims that Didar Singh was arrested at about 12:30 on 1.7.1982 and at his pointing out a sword was recovered which was concealed underneath the soil in his field. In this respect the evidence of Bachan Singh P.W. 3 and evidence of I.O., P.W. 5 are relevant. None of these prosecution witnesses have deposed that the aforesaid weapon sword was recovered in pursuance of any disclosure statement made by Didar Singh. I.O. does not say that accused Didar Singh had made any disclosure statement for the recovery of the aforesaid sword. The place of recovery of sword is an open place and there appears substance in the contention of learned Counsel for the accused respondents that the possibility of the said sword belonging to Hajara Singh cannot be ruled out in view of the fact that his sword is traceless and no plausible explanation is coming forward by P.W. 1 and P.W. 2. The I.O. has deposed that he asked where about of aforesaid sword but the said sword of Hajara Singh was never handed over to him. Recovery of sword from the field is another circumstance to hold that probably place of occurrence was the field and not the Jhala, as it appears.
33. The settled principle of law is interference with acquittal is justified only in exceptional cases where there are complete circumstances and judgment in appeal is found to be perverse. Presumption of innocence of accused strengthens with Trial Court's order of acquittal. Interference in a routine manner where another view is possible should be avoided, unless there are good reasons for interference. In the present case, such good reasons being absent, the finding of acquittal recorded by learned Trial Court deserves to be upheld.
34. In case of K. Venkateshwarlu Vs. The State of Andhra Pradesh, , it was held that if view taken by Trial Court is a reasonably possible view. High Court cannot set aside and substitute it by its own view merely because that view is also possible on the facts of the case. Presumption of innocence of an accused is strengthened by his acquittal. Unless order of acquittal is perverse, totally against the weight of evidence and rendered incomplete breach of settled principles underlying criminal jurisprudence, no interference is required. Crime may be heinous, morally repulsive and extremely shocking but accused cannot be convicted on moral considerations.
35. Venue of occurrence or place of occurrence is of a cardinal importance in the criminal trial cases. If prosecution fails in establishing the place of occurrence by cogent, clinching and reliable evidence or the place of occurrence is shifted, benefit of doubt must extend to accused.
36. In the case in hand we find that the view taken by learned Trial Court acquitting the respondents is a quite possible view and is in accordance with the weight of evidence on record, therefore, we refrain from interference with the aforesaid finding of acquittal.
37. The gist is that no sufficient ground is there to interfere with the finding of acquittal recorded by the learned Trial Court in view of the fact that the view taken by the learned Trial Court is quite 'possible' and it is neither 'erroneous' nor 'wrong'. For the aforesaid reasons, this criminal appeal is hereby dismissed.