Satyen Vaidya, Judge

1. By way of instant appeal, appellant has assailed the judgment dated 28.07.2018 read with sentence order dated 31.07.2018, passed by learned Additional Sessions Judge, (II), Mandi, District Mandi,

2. The appellant faced the charges as under:-

“That on 09.02.2014, at about 9:00, pm, at place near Primary School Katuar, you wrongfully restrained Bahadur Singh at the spot and caused simple injury to him with blunt weapon and thereby committed an offence punishable under Section 341 and 323 of IPC and within the cognizance of this Court.

Secondly, on the date, time and place mentioned above, you accused, caused simple injury to Bahadur Singh with sharp edged weapon, which is an offence punishable under Section 324 of IPC and within the cognizance of this Court.

Lastly, on the aforesaid date, time and place, you committed murder of Bahadur Singh, which is an offence punishable under Section 302 of IPC and within the cognizance of this Court.”

3. Prosecution examined total twenty-four witnesses, besides proving on record various documents. The appellant was examined under Section 313 of Cr.P.C. The appellant examined six witnesses in defence and also placed on record various documents. Learned trial court has convicted the appellant for offences as noticed above after holding him to be an aggressor in a fight which had taken place between him and the deceased.

4. Learned Counsel for appellant has assailed the impugned judgment on the ground that the prosecution evidence had fallen much short of required standard and to convict a person on such evidence that too for offence under section 302 IPC was nothing but a travesty. He further contended that learned trial court had erred in painting the appellant as an aggressor having intent to cause the death of deceased. The impugned judgment has also been alleged to be the result of misreading and misappreciation of evidence on record.

5. We have heard learned counsel for parties and have also minutely gone through the records.

6. As per prosecution case, on 09.02.2014 at about 9:30 PM telephonic information was received at Police Station Padhar, District Mandi, HP from CHC Padhar to the effect that a person with history of assault had been brought in injured condition for treatment. The information was recorded vide DDR No. 32(A) (Ext. PW19/A). The police officials reached CHC Padhar and recorded the statement (Ext. PW21/A) of Bahadur Singh, S/o Sh. Satu Ram, aged about 62 years (now deceased) under Section 154 of Cr.P.C. The case was formally registered vide FIR No. 15/2014(Ext. PW22/J).

7. The injured Bahadur Singh was referred to Zonal Hospital Mandi, where he breathed his last at about 7.40 AM on 10.2.2014.

8. While going through the evidence on record we have come across as many as four different versions regarding the manner in which the incident had taken place.

9. The first version is available from the statement of Bahadur Singh (Ex PW-21/A) recorded by the police under section 154 Cr.P.C. It was alleged that at about 9 PM when Bahadur Singh was proceedings towards his home in his car bearing No. HP-66-1483 he was intercepted by his nephew Sohan Singh @ Sohnu (appellant) and another unknown person near Katuar Primary School. Bahadur Singh came out from the vehicle and asked Sohan Singh the reason for obstructing his way. On this, Sohan Singh inflicted blows on Bahadur Singh with an iron rod. Bahadur Singh was saved by Jai Singh Rana, Biri Singh and Pawan Kumar who also brought Bahadur Singh to Padhar Hospital for treatment. Bahadur Singh had received injuries on his arms, legs and other part of the body.

10. The second version came from the defence raised by appellant. In defence, the plea of the appellant was that he had suffered grievous injuries as result of blows inflicted on his person by deceased Bahadur Singh with a steel ‘Chopper/Tokka’. The appellant had also reported the matter to the police and on its basis FIR No.16/14 (Ext. PW14/A) had been registered. The investigation in the said FIR could not be completed as the named accused therein i.e. Bahadur Singh had died. FIR, Ext. PW14/A was, accordingly, decided as untraced case. Sohan Singh (appellant) had alleged that on 09.02.2014 he was proceeding towards his house in village ‘Kachor Dhar’ in vehicle No. HP-76-1251. At about 8:30 PM, when he reached near the shop of Sanjay Kumar (PW-1), he met Pawan Kumar and his uncle Bahadur Singh (deceased) there. Sohan Singh parked his vehicle and demanded Rs.5,600/- from Pawan Kumar, which were payable by said Pawan Kumar to the appellant as tariff of vehicle. Pawan Kumar promised that the appellant would get his amount in short while and thereafter the said Pawan Kumar and Bahadur Singh (deceased) proceeded towards Diana Park. After some time Jai Singh Rana, Pawan Kumar and Bahadur Singh (deceased) came back. Jai Singh Rana caught hold of appellant from neck and inquired about his problem. Appellant explained that he had no problem and had only demanded a sum of Rs. 5,600/- from Pawan Kumar. On this Pawan Kumar caught hold of appellant from right arm. Jai Singh Rana caught hold of the neck of appellant and Bahadur Singh (deceased) inflicted a blow on his head with some sharp edged weapon. The appellant had to inflicted blows on the legs of Bahadur Singh (deceased) in his self defence. He was saved by Biri Singh, Sanjay Kumar and Narender. In the meanwhile, his elder brother Mohinder Singh also reached the spot and thereafter he visited CHC, Padhar, for his treatment, but had found the treatment of Bahadur Singh (deceased) under way. The appellant, at about 9:45 PM reached Zonal Hospital Mandi, for treatment with his brother. He became unconscious and gained consciousness at about 5:00 AM in the morning. He received injuries on the right wrist and head as a result of blows inflicted by Jai Singh Rana, Pawan Kumar and Bahadur Singh (deceased).

11. The deceased and the appellant though had furnished their respective versions to the Police, yet both had shown presence and involvement of Jai Singh Rana, Pawan Kumar and Biri Singh in one or the other way.

12. Jai Singh Rana and Pawan Kumar have been examined as witnesses by the prosecution. Thus, their version is available on record as third version as to the manner in which the incident had taken place.

13. These witnesses materially differed in their version from the description rendered by Bahadur Singh vide statement Ext. PW21/A and the one rendered by Sohan Singh vide Ext.DW1/A. PW-12 deposed that on 09.02.2014, he had received a phone call from Jagdish Chand (PW-3) and was informed that Sohan Singh was not allowing to load the forest produce of PW-12 in the vehicle of Jagdish Chand (PW-3), hired for the purpose. He further stated that when he reached the shop of PW-1Sanjay Kumar, he found said Sanjay Kumar alongwith Biri Singh (DW-2) and Pawan Kumar (PW-13) sitting around a bonfire. Appellant Sohan Singh, was also standing in the ‘verandah’ of the shop. He had just started talking to Sohan Singh and in the meanwhile, deceased Bahadur Singh also arrived there. On being asked by him as to the reason for not allowing the vehicle to be loaded with forest produce, the appellant had replied that he had no grudge with PW-12, rather, had some dispute with the owner of the vehicle. Deceased Bahadur Singh also inquired from the appellant in the same terms, which resulted in exchange of hot words between the appellant and the deceased. Thereafter, deceased and appellant proceeded on the road and started altercation. PW-12 alongwith PW-13 went near the appellant and deceased and found their clothes stained with blood. Thereafter, the appellant and deceased were made to disburse. Appellant went towards the direction of village Triamli in his vehicle. PW-12 and PW-13 alongwith DW-2, Biri Singh also proceeded towards village Triamli in the vehicle of PW-12. The deceased had expressed his intent to come by his own vehicle. After travelling some distance, they found appellant coming back. When they further reached near the house of the deceased, they found that the deceased had not reached home. Apprehending further clash between the deceased and the appellant they returned back towards the shop of PW-1, Sanjay Kumar. On way, they found the vehicle of deceased stranded on the road in damaged condition. The deceased was lying on the ground in an injured condition with a pool of blood around him and appellant was found with blood stained iron rod in his hand. PW-12 had also noticed an injury on the head of the appellant from which the blood was visibly oozing out. In the meanwhile, the brother of the appellant had reached the spot, who accompanied appellant for treatment to the hospital. The deceased was taken to CHC Padhar by PW-12, PW-13 and DW-2, for treatment.

14. PW-13 has also made deposition to the same effect except that he did not make any mention of having noticed any injury on the person of the appellant.

15. The third person named by both appellant and deceased is Biri Singh, whose statement is available on record as DW-2. This provides us with the fourth version regarding incident.

16. According to Biri Singh (DW-2), he alongwith PW-1 Sanjay Kumar was present outside the shop of Sanjay Kumar on 09.02.2014. Some laborers were also around. Appellant, Sohan Singh arrived there and was followed by deceased Bahadur Singh and PW-13 Pawan Kumar, in the car of the deceased. Appellant demanded his money from PW-13. Deceased Bahadur Singh and PW-13 Pawan Kumar went towards Diana Park. After about 15-20 minutes, PW-12 Jai Singh Rana reached there and was followed by deceased Bahadur Singh and Pawan Kumar. PW-12, Jai Singh caught appellant from his chest and started asking about the reason for not allowing the loading of the vehicle. The scuffle started between PW-12 and appellant. PW-13, Pawan Kumar and deceased Bahadur Singh also started manhandling the appellant. In the scuffle they went ahead on the road. Deceased Bahadur Singh inflicted a blow with ‘Chopper/Tokka’ on the arm of the appellant. Parties had been made to disburse. DW-2 also narrated the facts regarding their return on not finding deceased Bahadur Singh in his house. He stated that while going towards village Triamli, they met appellant returning towards shop of PW-1 Sanjay Kumar and on being asked appellant had stated that he was going towards hospital for treatment. He further differed substantially from the versions of PWs-12 and 13 when he narrated that on finding deceased Bahadur Singh and appellant at the same place, he saw Bahadur Singh inflicting a blow on the head of the appellant with ‘Chopper/Tokka’. Another blow was brandished by the deceased but he could not see whether any injury was caused with said blow to the appellant. Thereafter, the appellant took out an iron rod from the vehicle and inflicted 5-6 blows on the person of deceased Bahadur Singh. The deceased became unconscious. The deceased Bahadur Singh was taken by PW-12 and PW-13 from the spot.

17. In addition, the statement of PW-1 Kashmir Singh @ Sanjay Kumar is worth noticing at this stage. As per this witness, he alongwith Biri Singh DW-2 and Pawan Kumar PW-13 were sitting outside his shop on 09.02.2014. They were sitting around bonfire after closing the shop. At about 8:00 pm, appellant reached there. Thereafter, PW-12 Jai Singh Rana came in his car and inquired from the appellant the reason for not allowing the loading of the vehicle. Appellant disclosed that he had no grudge with PW-12. In the meanwhile, deceased Bahadur Singh also arrived in his own vehicle. Bahadur Singh also made same inquiry from the appellant. Both of them started exchanging hot words. PW-12 and PW-13 followed them and prevented the scuffle. Deceased Bahadur Singh and appellant further went ahead on the road. Noises of quarrel and falling down were heard. PW-12 and PW-13 had again proceeded towards the direction where the appellant and deceased had gone. Both of them were disbursed.

18. Thus, despite discrepancies in all above noticed versions, one fact stands established on record beyond any pale of doubt that on 9.2.2014 between 8 PM and 9 PM the appellant and deceased had physical fights with each other and deceased had suffered injuries as result thereof.

19. Bahadur Singh (deceased) was medically examined by Dr. Umang Thakur (PW-6) at CHC Padhar. MLC Ext. PW6/D was issued. The patient was referred to the Zonal Hospital, Mandi for further treatment. The following injuries were noticed on the person of Bahadur Singh (deceased) by PW-6: -

“Injury No.1:- Deep lacerated wound on left leg of approximately 6 cm x 3 cm of size. Bleeding present. I advised X-ray of left leg PA view and referred to orthopedic and surgical department for further management.

Injury No.2:- Multiple lacerated cum incised wound on left hand. Bleeding present Edema and tenderness and palpable, crepts present.

Injury No.3:- Lacerated wound on right thigh near knee. Bleeding, Edema and tenderness present.

Injury No.4:- Bleeding from gums present.

Injury No.5:- Abrasion on forehead, Edema present.”

20. At this stage it is relevant to notice that the appellant has also proved on record the injuries suffered by him in the same altercation. DW-4, Dr. Ritu Sharma, proved following three injuries on the person of the appellant:

"(i) Incised wound on the right wrist, palmar aspect 3 CM long and one CM open with regular margins and presence of bleeding.

(ii) Incised wound on middle of forehead, linear, extending upto frontal region 8 CM long X 1 CM with regular margins and presence of bleeding.

(iii) Incised wound on occipital region (behind left ear) 3 CM X I CM with presence of bleeding."

21. DW-4 has further deposed that on 09.02.2014 the appellant had been brought to Zonal Hospital Mandi, in emergency at about 11:30 pm. After examining the appellant, she had issued MLC Ext. DW1/A. Out of three injuries found on the person of the appellant two were grievous and their duration was within twenty-four hours.

22. Bahadur Singh had died at Zonal Hospital Mandi on 10.2.2014 at about 7.40 AM. Post Mortem was conducted by PW-7 Dr. Puneet Malhotra on the same day. The following injuries had been discovered on the body of deceased by PW-7 :

“1. Contused stitched wound over front of forehead in mid line just above medial end of left upper eye lid, around 2 cm in length.

2. Left black eye present.

3. A lacerated wound, bone deep around 5 cm x 2 cm exposing underling tibia and muscle over anterior aspect of left leg around 8 cm below knee joint.

4. Abrasion of size around 1 x1 cm over lateral aspect of right leg, around 8 cm above medical malleulos brown in colour.

5. Small sutured would of size around 1 x 1 cm over anterior aspect of right thigh, around 7 cam above right knee joint.

6. Multiple parallel contusion present over both buttock and posterior aspect of right thigh, in an area of around 7 cm x 3 cm purple in colour, Parallel contusions are about 2.5. cm apart.

7. Fracture both wounds right forearm, proximal aspect with over lying lacerated wound of size around 3 cm x 1 cm with rugged margins with clotted blood.

8. Fracture nasal bone present with clotted blood in right nostril.

9. Sutured wound of size around 2 x 0.5 cm over left wrist, dorsal aspect.

10. Injuries over head:- On reflecting scalp, a sub gallal hematoma present in an area of around 5 cm x 8 cm in frontal region underlying bond was intact. On opening the brain, it was grossly congested and edematous, brain weight was around 1550 grams, global sub arachnoid hemorrhage was present.”

23. In above factual background, now we proceed to analyse the evidence.

24. Ext. PW14/A is a relevant piece of evidence under Section 32 of the Indian Evidence Act. The deceased had not made any mention about the cause of quarrel. According to him, he was intercepted by appellant and injuries were inflicted upon him by the appellant without any reason. However, it becomes evident from the statement of PW-12 and PW-13 that the appellant had obstructed the loading of forest produce of PW-12 in a vehicle. This part of the statement is corroborated by the version of PW-3, Jagdish Chand, who deposed that PW-12 had hired the vehicle on which PW-3 was employed as driver. Since PW-3 was busy, he had sent his nephew named Abhimanyu for the job and the said Abhimanyu had telephonically informed PW-3 about the conduct of appellant in not allowing the loading of vehicle. PW-3 had informed the fact to PW-12 and had called back his nephew named Abhimanyu alongwith the vehicle.

25. Noticeably, the deceased had also not made any reference to any injury suffered by the appellant in his statement Ext. PW21/A. Nonetheless, reference can be made to statement of PW-12 had mentioned two facts, firstly, that after initial scuffle between deceased and the appellant, he had noticed blood stains on the clothes of both and secondly, he had noticed bleeding injury on the head of the appellant, when he had reached the spot where the appellant and deceased had second round of scuffle. DW-2 Biri Singh also made mention of infliction of blow with ‘Chopper/Tokka’ on the arm of the appellant in the first round of scuffle and having seen the deceased inflicting another blow with ‘Chopper/Tokka’ on the head of the appellant during second round.

26. Thus, it stood established that the appellant had received incised wounds. Out of these, two injuries were on the vital part of the body i.e. the head and the third one was on the right wrist. From the statements of PW-12 and DW-2 it is also made out that the injuries suffered by the appellant were also the result of fights between the deceased and appellant.

27. Strangely, the prosecution not only omitted to bring on record such an important fact, it also failed to render any explanation in respect of the injuries suffered by the appellant.

28. Further, none of the witnesses had stated that the appellant was in possession of ‘Chopper/Tokka’ or had used such weapon. Rather, DW-2 Biri Singh had specifically mentioned that the ‘Chopper/Tokka’ was used by deceased for inflicting injuries on the person of the appellant. In fact, police also recovered a ‘Chopper/Tokka’ from the spot where scuffle had taken place. PW-12 and PW-13 had been witnesses to the recovery of said weapon of offence. One fact on which all the prosecution witnesses were consistent was that the appellant had inflicted blows on the deceased with iron rod.

29. The fact remains that the prosecution has failed to explain the injuries found on the person of the appellant. Rather, the probability arising out from the evidence on record goes to show that the said injuries were inflicted by the deceased on the appellant. In such circumstances, it will not be unreasonable for us to infer that the prosecution had either suppressed the genesis of the case or the investigation of the case did not meet the parameters of fairness. In Lakshmi Singh andn Others. Vs. State of Bihar, (1976) 4 SCC 394, [LQ/SC/1976/328] Hon’ble Supreme Court had held as under:-

“12 P.W. 8 Dr. S. P. Jaiswal who had examined Brahmdeo deceased and had conducted the postmortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22. 1966 and found the following injuries on his person:

1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.

2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the late ral part of the left upper arm, near the shoulder joint.

3. Punctured wound 1/2" x 2 m. m., x 4 m. m. on the lateral side of the left thigh about 5 inches below the hip joint.

According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:

The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro- babilised. Under these circumstances the prosecution had a duty to explain those injuries....

In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.”

30. The facts established on record go to show that the appellant and deceased physically scuffled with each other on more than one place within short span of period. In the first instance, the scuffle took place between the two at a short distance from the shop of PW-1, Sanjay Kumar and on the second occasion the site of incident was at some more distance from the said shop. As noticed above, in the first instance of fight, the injury on the right wrist was suffered by the appellant. This injury, vide MLC Ext. DW1/A has been opined to be an incised wound. DW-2 had deposed that such injury was caused by infliction of blow with a ‘Chopper/Tokka’ by deceased. PW-12 had stated in his statement during the trial that when he had reached the spot where the appellant and deceased had quarreled in the first instance, he had seen blood stains on the clothes of the appellant and the deceased.

31. Prosecution evidence also reveals that when PW 12, PW-13 and DW-2 had noticed the appellant and deceased during their scuffle for the second time, both were having injuries. According to DW-2, he had seen the deceased inflicting a blow with a ‘Chopper/Tokka’ on the head of the appellant. He further stated that another blow was inflicted by deceased with ‘Chopper/Tokka’ but he was not sure that it had caused injury to the appellant or not. As per these witnesses, it was thereafter that the appellant had inflicted blows upon the deceased with iron rod. PW-12, though, gave a different version, but he admitted that he had noticed a bleeding injury on the head of the appellant.

32. Referring to the above circumstances, learned counsel for the appellant has contended that the appellant had exercised his right of private defence and was entitled to acquittal. He submitted that after infliction of grievous injuries on the person of the appellant by the deceased with ‘Chopper/Tokka’, it was not unreasonable for appellant to have apprehended immediate fear of death or grievous injury. The appellant had thereafter used the force against the deceased only in order to save his life.

33. In view of the plea of self defence raised on behalf of the appellant, it will be relevant to notice the legal position governing the field before testing the facts of instant case at its touch stone.

34. Section 105 of the Indian Evidence Act, 1872, reads as under:-

“Burden of proving that case of accused comes within exceptions:-

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 (45 of 1860), 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.”

35. In Vijayee Singh and Others Vs. State of U.P. (1990) 3 SCC 190, [LQ/SC/1990/266] Hon’ble Supreme Court has observed on the different manifestations of Section 105 of the Indian Evidence Act, as under:-

“26. The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence.in criminal cases. Section 105 places 'burden of proof' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to dis- place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a prepon- derance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the exist- ence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.”

36. In James Martin Vs. State of Kerala, (2004) 2 SCC 203, [LQ/SC/2003/1281 ;] Hon’ble Supreme Court has held as under:-

“13. The Only question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration (AIR 1968 SC 702 [LQ/SC/1967/351] ), State of Gujarat v. Bai Fatima (AIR 1975 SC 1478 [LQ/SC/1975/134 ;] ), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226 [LQ/SC/1977/235] ), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577 [LQ/SC/1978/399] ). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391 [LQ/SC/1978/355] ), runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”

37. Recently in Ex. Captain Mahadev Vs. Director General, Boarder Security Force and Ors., (2022) 8 SCC 502, [LQ/SC/2022/765 ;] the legal exposition has been rendered as under:-

“19. The principles underlying the doctrine of right to private defence have been neatly summed up in the captioned case in the following words :-

“61. The basic principle underlying the doctrine of the right of private de- fence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts on the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.

20. In Raj Singh v. State of Haryana and Others 16, supplementing the view of Justice R. Banumathi, who had authored the decision on behalf of a three Judges Bench, Justice T.S. Thakur had the following to state on the application of the provisions of Exception 2 to Section 300 IPC where an accused sets up the right to private defence :

“32. A conjoint reading of the provisions of Sections 96 to 103 and Exception 2 to Section 300 IPC leaves no manner of doubt that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is in the negative, Exception 2 to Section 300 IPC would be of no assistance. Exception 2 presupposes that the offender had the right of private defence of person or property but he had exceeded such right by causing death. It is only in case answer to the first question is in the affirmative viz. that the offender had the right of defence of person or property, that the next question viz. whether he had exercised that right in good faith and without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence would arise. Should answer to any one of these questions be in the negative, the offender will not be entitled to the benefit of Exception 2 to Section 300 IPC.

33. Absence of good faith in the exercise of the right of private defence, premeditation for the exercise of such right and acts done with the intention of causing more harm than is necessary for the purpose of such defence would deny to the offender the benefit of Exception 2 to Section 300 IPC. The legal position on the subject is fairly well settled by a long line of decisions of this Court to which copious reference has been made 16 (2015) 6 SCC 268 [LQ/SC/2015/629] Civil Appeal No.2606 of 2012 by Banumathi, J. No useful purpose would, therefore, be served by referring to them over again. All that need be said is that whether or not a right of private defence of person or property was available to the offender is the very first question that must be addressed in a case of the present kind while determining the nature of the offence committed by the accused, whether or not a right of private defence was available to an offender is, in turn, a question of fact or at least a mixed question of law and fact to be determined in the facts and circumstances of each individual case that may come up before the court.”

21. To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up Civil Appeal No.2606 of 2012 resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

38. Reverting to the facts of the case, this Court finds no difficulty in holding that the appellant had been able to probabelise his plea of defence on the basis of material placed by him in defence as also oral as well as documentary evidence led by the prosecution. The use of ‘Chopper/Tokka’ has not been attributed to the appellant. The police had recovered the blood stained ‘Chopper/Tokka’ from close proximity of the site of incidence on the very next day in presence of PW-12 and PW-13. DW-2 has categorically attributed the infliction of injuries on the person of the appellant to the use of ‘Chopper/Tokka’ by the deceased.

39. Once, the appellant was hit by ‘Chopper/Tokka’ by the deceased and the fact that he had no one to call upon for help immediately, it was not unreasonable for him to have apprehended danger to his life, especially, when he had already received grievous injury on the vital part of his body.

Even as per prosecution case, the appellant had inflicted blow upon the deceased with an iron rod (Panna). A ‘Panna’ is a tool which is ordinarily available in the vehicle for un-screwing the wheels. Appellant admittedly was along with his vehicle and the presence of ‘panna’ in the vehicle is a normal incidence. Thus, it cannot be said that the appellant had any pre meditated intent to inflict injuries on the deceased with some weapon. He had not used any such weapon except the ‘panna’.

40. It is also decipherable from the evidence that at the time of medico legal examination of the deceased at CHC Padhar the injuries found on his person were on legs, hands, thigh, gums and abrasion on forehead. As per DW-2, the appellant had inflicted blows with ‘panna’ on the legs of deceased. According to PW-12 and PW-13, they had not seen the actual fight. There is no evidence that the abrasive injury on forehead of deceased was also result of blow with the ‘panna’.

41. The post mortem report, Ext. PW7/D, however mentioned as many as ten injuries on the body of the deceased and as per PW-7, Dr. Puneet Malhotra, all these injuries were ante-mortem in nature. Some of these injuries were sutured and stiched wounds. There is no explanation from the prosecution that how the number of injuries increased when only five injuries were found by PW-6 on the person of the deceased at CHC Padhar.

42. Prosecution itself projected the case that the deceased was referred from CHC Padhar to Zonal Hospital Mandi. As per PW-7, deceased had died at 7:40 am, on 10.02.2014, at Zonal Hospital Mandi. The prosecution has not brought any evidence regarding admission and medical record with respect to the treatment given to the deceased at Zonal Hospital Mandi.

43. It is clearly evident from the post mortem report Ext. PW7/D that the cause of death was opined to be cumulative effect of head injury and multiple ante-mortem injuries. Hence, the medical opinion as to the cause of death of the deceased was not very definitive. In this view of the matter, no single injury found on the person of the deceased can be said to be sufficient to have caused his death. Here, the non- production of medical record in respect of the treatment given to the deceased at Zonal Hospital Mandi, becomes relevant. PW-6, Dr. Umang Thakur had nowhere opined that any of the injuries found by her on the person of the deceased at the time of his medical examination at CHC Padhar was grievous or dangerous to life.

44. This leads us to conclude that the prosecution had failed to prove necessary intent or knowledge against the appellant to constitute the offence of murder against him. The attending circumstances which have been proved on record clearly reveal that the blows inflicted by appellant on the deceased were not on the vital parts of the body and hence, there was no evidence to suggest that the appellant had inflicted such blows on the deceased either with the intention to cause his death or to cause such bodily injury that was likely to cause his death.

45. In the aforesaid factual background, we have no hesitation to say that the prosecution had failed to prove the necessary ingredients for commission of offence of murder against appellant. On the other hand, the appellant has been able to probabelise right of private defence. We have not come across any material that may suggest that the appellant had exceeded his right of private defence by inflicting injuries more than what was required.

46. Learned Trial Court has held that since the appellant was aggressor, the offence of murder was proved against him. The reasoning given by learned Trial Court cannot be countenanced. Even on facts learned Trial Court was not right in holding the appellant to be an aggressor. The finding to that effect are without evidence. Learned Trial Court presumed that since the appellant had returned back towards the shop of PW-1 Sanjay Kumar after initial disbursal, he had intent to cause the death of the deceased. The statement of DW-2 that the appellant had disclosed reason for his return as he intended to visit the hospital has completely been ignored. It has also been established on record that CHC, Padhar was also in the same direction towards which the appellant was proceeding. None had seen the initiation of fight between the deceased and the appellant, when they indulged for the second time and thus, the findings as recorded by the learned Trial Court are legally unsustainable.

47. In result, the appeal is allowed. The judgment and sentence order dated 28.07.2018/31.07.2018, passed by learned Additional Sessions Judge, (II), Mandi, District Mandi, H.P. in Session Trial No. 23/15/2014, is set aside. Appellant is acquitted of all the charges. He be set free, if not required in any other case.

48. Necessary release warrants be immediately prepared and sent to the concerned jail authorities without delay.

49. The appellant is directed to furnish personal bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of Registrar(Judicial) of this Court, in terms of provisions of Section 437A of Cr.P.C.

50. The appeal is, accordingly, disposed of, so also the pending miscellaneous application, if any.

51. Records be returned back to the learned Trial Court forthwith.