Holding

The Court held that the prosecution is not bound to explain the accused’s injuries when its case is otherwise proved beyond reasonable doubt, and that conviction under Section 34 IPC requires proof of an overt act in furtherance of the common intention, which was lacking for certain appellants.

Summary

The case involved a murder at Sadar Hospital where Hare Krishna Singh and six others were alleged to have fired upon the deceased Jitendra Choudhary, resulting in his death. The appellants challenged their convictions on several grounds, including the prosecution’s failure to explain injuries sustained by Hare Krishna Singh, the lack of overt acts linking some accused to the shooting, and the inability to positively identify Paras Singh of Birampur. The Supreme Court held that the prosecution is not obliged to explain an accused’s injuries when its case is otherwise proved beyond reasonable doubt, and that conviction under Section 34 IPC requires proof of an overt act in furtherance of the common intention, which was absent for certain appellants. Consequently, the convictions of Hare Krishna Singh and Paras Singh of Dhobaha were upheld, while the convictions of Sheo Narain Sharma, Ram Kumar Upadhyaya and Paras Singh of Birampur were set aside and the appellants acquitted.

Issues considered

The prosecution must explain injuries sustained by an accused in the same occurrence or its case is undermined
Whether lack of explanation of the accused's injuries creates reasonable doubt sufficient to overturn conviction
Whether common intention under Section 34 IPC can be imputed without proof of an overt act by the accused
Whether identification of Paras Singh of Birampur was properly established through the test identification parade
The validity of the self‑defence claim of Hare Krishna Singh in light of the injuries claimed

Legislation cited

Arms Acts. 27
Code of Criminal Procedure, 1973s. 313, s. 342
Indian Evidence Act, 1872s. 9
Indian Penal Code, 1860s. 100, s. 302, s. 34, s. 379, s. 96

Subjects

common intentionSection 34 IPCburden of proofinjury of accusedidentification paradeself-defencejoint liabilityArms Actcriminal law

Judgment

HARE KRISHNA SINGH & ORS. ETC.
A
v.
STATE OF BIHAR

FEBRUARY 24, 1988

[MURARI MOHON DUTT AND B
K. JAGANNATHA SHETTY, JJ.]

Sections 34, 96, 100, 302 and 379---Common intention is not by
itself an offence-It creates a joint and constructive liability for the
crime committed in furtherance of such common intention-Guilt of
accused-Burden of proof is on prosecution-Not necessary for pro- C
secution to explain how and in what circumstances injuries inflicted on
person of accused.

Indian Evidence ·Act, 1872: Section 9-Test Identification
parade-Failure to identify accused by P. W. effect of on case of
prosecution. D

The prosecution case as appearing from the Fardbeyan or the FIR
lodged by P.W. 3, a social worker was that on 12.12.1987 at about 7.00
A.M. he was going to his brother-in-law and just as he reached the
main gate of the Sadar Hospital, he saw seven persons: ( l) Hare
Krishna Singh, (2) Sheo Narain Sharma, (3) Ram Kumar Upadhyaya, E
(4) Jagdish. Singh's nephew-Paras Singh of Birampur, (5) Hare
Krishna Singh's brother-in-law, Paras Nath Singh of Dhobaha, the
appellants and two more whom he could not identify. All these persons
were armed with rifle, gun. and pistol and were standing near the
northern side of the eastern gate, of the Hospital. At that time two
Rickshaws were coming from the eastern side. In the front rickshaw the F
deceased-Jitendra Choudhary, was sitting along with anothe1· person
and in the rear rickshaw were his two sisters, PW l and PW 2. As the
rickshaw of the deceased came close to these seven persons, Hare
Krishna Singh fired at the deceased from his gun, whereupon the latter
fell down from the rickshaw with the rifle which·he was carrying. The
other persons also fired upon the deceased as a result of which he died. G
After that Hare Krishna Singh picked up the rifle of the deceased and
took to his heels. After investigation by PW 9, the charge sheet was
submitted against all the appellants and they were put up for trial.

The prosecution examined as many as 9 witnesses of whom PWs.
· 1, 2, 3 and 8 were eye witnesses. The defence of the appellant-Hare H
1
2 SUPREME COURT REPORTS [1988] 3 S.C.R. '·

Krishna Singh was that while he was going to Patna along with appel-
A
Iant-Ram Kumar. Upadhyaya and one Madan Singh in a rickshaw,
and that when the rickshaw in which the deceased was travelling came
close to him, the deceased fired at him and that he sustained injuries.
He examined five witnesses DWs. l to 5, to prove the nature of injury
sustained by him. The defence of Paras Singh of Dhobaha was that he
B had not visited the village for the last fifteen years, while the defence of
the other remaining appellants was a denial of their complicity in the
crime.

The Additional Sessions Judge accepted the prosecution case, and
convicted and sentenced the appellants to various periods of imprison-
~·· -
ment.
c
On appeal by the appellants the High Court affirmed the convic-
tions and sentences.

In the appeals by certificate to this Court it was contended:
D (a) On behalf of Hare Krishna Singh, appellant in Crl. A. No. 690/82
that the prosecution having failed to explain the injury sustained .by
Hare Krishna Singh in the same occurrence, such injury being a serious
one, the prosecution witnesses should be disbelieved, and that in such
circumstances <it should be held that the plea of the appellant of self-
defence shall be probabilised and that the prosecution 111ust have with-
E held the true facts as to the genesis and origin of the occurrence, mid
that in any event a great doubt had been cast on the prosecution case
and the benefifof that doubt should go to the appellant. "

(b) On behalf of Paras Singh of Birampur, the nephew of Jagdish
Singh, the sole appellant in Cr. A. No. 616/82 that in the FIR his name j-
F . was not mentioned, that PW J.failed to identify him in the T.I. Parade, •
that PW 8 did not attend the T .I. Parade, and that he was not present at
the time of occurrence.

(c) On behalf of Sheo Narain Sharma the remaining appellant in
Crl. A. No. 690l82 and Ram Kumar Upadhayaya sole appellant in Crl.
G A. No. 615/82, that no specific overt act had been attributed to either of
them and the fact that they were found in the company of Hare KrishDa
Singh and Paras Singh of Dhobaha could not be sufficient to impute
common intention to them.

Dismissing Criminal Appeal No. 690 of 1982 in so far as it relates ·
H to Hare Krishna Singh and Paras Singh of Dhobaha, ·and allowhig it in
H.K. SINGH v. STATE OF BIHAR 3

respect of Sheff Narain Sharma and acquitting hi.m of all the charges; A
and allowing Crl. A. Nos. 615 and 616 of 1982 and setting aside the
convictions and sentences of Ram Kumar Upadhayaya and Paras Singh
of Birampur and acquitting them of all the charges.

HELD: l. It is· not an invariable rule that the prosecution has
to' explain the injuries sustained by the accused in the same occur- B
rence. The burden of proving the guilt of the accused is undoubtedly
on the prosecution. The accused is · not bound to say anything in
defence. The prosecution has to prove the guilt of the accused beyond
all reasonable doubts. If the witnesses examined on behalf of the
prosecution are believed by the court in proof of the guilt of the accused
beyond any reasonable doubt, the question of the obligation of the
prosecution to explain the injuries sustained by the accused will not
c
arise. h2E-F) .

2. When the prosecution comes with a definite case that the
offence has been committed by the ace-Used and proved its case beyond
any reasonable doubt, it becomes hardly necessary for the prosecution D
to again explain how and in what circumstances the injuries have been
inflicted on the person of the accused. II 2G I '·

3. Simply because the accused has received injuries in the same.
occurrence, it cannot be taken for granted that the deceased or
the injured person was the aggressor and consequently, he had to E
defend himself by inflkting injury on the deceased or the injured
person. [13B-C]

·"*· 4. It is not the law or invariable rule that whenever the accused
sustains an injury in the same occurrence the prosecution has to explain
the injuries failure of which will mean that the prosecution has· suppres- F

.
sed the truth and also the origin and genesis of the occurrence. [13D-E]

S. Common intention under section 34 IPC is not by itself an·
offence. But, it creates a joint and constructive liability for the crime
committed in furtherance· of such common intention. [16E-F]
" G
6. As no overt act whatsoever has been attributed to the appel-
lants, Ram Kninar Upadhyaya and Sheo Narain Sharma, it is difficult
to hold, in the facts and circumstances of the case, that they had shared
the common intention with Hare Krishna Singh and Paras Singh of·
Dhobaha. When these two appellants were very much known to the eye
witnesses PW 3 and 8 non-mention of their names in the evidence as to H
'i. ..

4 SUPREME COURT REPORTS [19881 3 S.C.R.

their participation in firing upon the deceased, throws a great doubt as 'f
A
to their sharing of the common intention. The conviction and sentences
of these two appellants cannot therefore be sustained. They are there-
fore acquitted of all the charges. [16F-G I

7. The Additional Sessions Judge has not believed the case of
B Hare Krishna Singh that he had sustained a bullet injury in the same
occurrence and he has given reasons therefor. The High Court has, ,:.:
however, come to the finding that Hare Krishna Singh was admitted in
the hospital in an injured condition immediately after the occurrence.
In the facts and circumstances of the case the prosecution is not obliged
to account for the injury and that the failure of the prosecution to give a
reasonable explanation of the injury would not go against or throw any
x-1-

c doubt on the prosecution case. All the eye witnesses have stated that the
appellant Hare Krishna Singh had fired on Jitendra Choudhary as a
-{
result of which he died. The prosecution witnesses have been believed
by the Additional Sessions Judge and High Court. In these circumstan-
ces it cannot be thought that the materials on record including the state-
D ment of Hare Krishna Singh under section 313 Cr. P.C. probablise any
case of self defence or that the deceased had inflicted on him the injury
by firing at him from his rifle. The appellant Hare Krishna Singh has
therefore, been rightly convicted and sentenced. I UE-G; 148-C, Fl

8. As regards Paras Singh of Dhobaha he was found with the .
E accused persons including Hare Krishna Singh. It is not disputed that >--
he is the brother-in-law of Hare Krishna Singh as has been described in
the FIR. It is the categorical evidence of PWs. 1, 2, 3 and 8 that Paras
-.
Singh of Dhobaha had fired at the deceased. He has been identified by
PWI in the T.I. Parade. In these circumstances there is no reason to
interfere with the order of conviction and sentence passed by the Courts
F below. [J4F-GI
' '
9. The prosecution has not been able to identify the appellant
Paras Singh of Birampur with the description of Jagdish Singh's
*
nephew as given in the FIR. PW. 3 failed to identify the appellant in the
T.I. Parade. PW. 8 did not attend the T.I. Parade; In such circum-
G stances, the High Court was not justified and committed an errilr of law
in relying upon the statements of PWs 3 and 8 made before the police·
mentioning the names of Paras Singh of Birampur. The prosecution has, }--
failed to prove the complicity of Paras Singh of Birampur in the crime
and that he was present at the time of occurrence. His conviction _and
sentence cannot therefore be sustained and are set aside. He is acquitted
H of all the charges.[ ISC-FJ

t~
H.K. SINGH v. STAIB OF BIHAR (DlJIT, J.] 5

Bhaba Nanda Sharma v, State of Assam, (1977) 4 SCC 396;
Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881; Onkamath Singh A
v. State of U.P., (1975) 3 SCC 276; Bankey Lal v. State of U.P., (1971)
3 SCC 184 and Bhagwan Tana Patil v. State of Maharashtra, (1974) 3
sec 536, relied on.
-,,._ v:
Lakshmi Singh State of Bihar, (1976) 4 SCC 394; Mohar Rai v. B
State of Bihar; [1968] 3 SCR 525; Jagdish v. State of Rajasthan, (1979] 3
SCR 428; Munshi Ram ·v. Delhi Administration and State of Gujarat v.
Bai Fatima, [1975) 3 SCR 993, distinguished.

CRIMINAL APPELLA1E JURISDICTION: Criminal Appeal
No. 690 of 1982 etc. c

From the Judgment and Order dated 20.5.1982 of the Patna
High Court in Criminal Appeal No. 329 of 1980. ·
D
R.K. Garg, R.K. Jain, Rajendra Singh, S.N. Jha, R.P. Singh,
Rakesh Khanna, Md. Israeli and Ranjit Kumar for the Appellants;

Pramod Swaroop and Mrs. G.S. Misra for the Respondents.
~\ . B.B. Singh (Not Present) for the Respondents. E
A.K. Panda for the Complainant in all the appeals .

. The Judgment of the Court was delivered by

DUTT, J. These appeals are directed against the judgment of F
the Patna High Court affirming the order of the First Additional
Sessions Judge, Arrah, convicting all the appellants under sections
302/34 IPC and section 27 of the Arms Act and sentencing each of
them to rigorous imprisonment for life and rigorous imprisonment for
three years respectively and further convicting the appellant Hare
Krishna Singh under section 379 IPC and sentencing him to rigorous G
r
i~
imprisonment for three years; all the sentences are to run concurren-
tly. The accused included two persons having the same name Paras
Singh, one of Village Dhobaha, brother-in-law of Hare KrisJma
Singh, one of the appellants in Criminal Appeal No. 690 of 1982, and
the other of Village Birampur and nephew of Jagdish Singh, the appel-
lant in Criminal Appeal No. 616 of 1982. We shall hereinafter refer to H
6 SUPREME COURT REPORTS · [1988] 3 S.C.R.

A the said two persons as 'Paras Singh of Dhobaha' and 'Paras Singh of
Birampur,' respectively. ··•

· The prosecution case as appearing from the Fardbeyan or tlie
·. FIR lodged by one Sarabjit Tiwary (P.W. 3), a social worker, on
12.12.1987 in the Arrah Sadar Police Station, was that on that day at
B about 7.00 A.M. he was going to his brother-in-law Raghubir Mishra
and just he reached near the main gate of the Sadar Hospital, he saw
seven persons, namely, "(1) Hare Krishna Singh, resident of Dhan-
pura; (2) Sheo Narain Sharma, resident of Berkhembe Gali; (3) Ram.
Kumar Upadhyaya, resident of village Dumaria; (4) Jagdish Singh's
nephew of Birainpur in military service; (5) brother-in-law of Hare
C Krishna Singh of Dhobaha in military service" and two more persons
whom he could not identify. All the said persons were armed with
rifle, gun and pistol, and were standing near northern side of the
·!
eastern gate of the hospital. At that time, two Rickshaws were coming
from the eastern side. In the front Rickshaw, Jitendra Choudhary and
another person· named Lallan Rai, Resident of village Maniya, were
D sitting and in the rear Rickshaw there were two girls. As the Rickshaw
of Jitendra Choudhary came near the persons mentioned above, all of
a sudden, Hare Krishna Singh fired at Jitendra Choudhary from his
gun, whereupon the Iatier fell down from the Rickshaw with the rifle
which he was carrying with him. The other persons also fired upon
Jitendra Choudhary along with Hare Krishna Singh, as a result of
E which he died. After that Hare Krishna Singh picked up the rifle of
Jitendra Choudhary and touching his body said, "He is dead, let us
take to our heels".It may be mentioned here that the two girls referred
to in the Fardbeyan or FIR are Premlata Choudhary (P.W. 1) and
Sobha Choudhary (P.W. 2), sisters of the deceased Jitendra
Choudhary.
F
After· investigation by P.W. 9; the chargesheet was submitted
against all the appeliants and they were put up for trial. The prosecu-
tion examined as many as 9 witnesses, of whom P.Ws.· 1, 2, 3 and 8
were eye witnesses. The defence of Hare Krishna Singh was that he
was going to Patna along with the ap?ellant Ram Kumar Upadhyaya
G ·and one Madan Singh in a Rickshaw and when the Rickshaw reached
near the shop of Sita Ram, he received a bullet from behind and fell
· , _ down. He looked back and saw that one Dipu Prasad and Ram Lal
were firing. He also saw the deceased Jitendra Choudhary, Chhatu
Choudhary and Lallan Rai (P.W. 8) firing from the eastern gate of the
Hospital. He examined five witnesses, D.Ws. 1 to 5, to prove the
H nature of injury sustained by him.
H.K. SINGH v. STATE OF BIHAR [DUTT, J.] 7
-r·, The defence of Paras Singh of Dhobaha was that he had not
A
visited .the village Dhanpura for the last fifteen years. The defence of
other appellants is also a denial of their complicity in the crime.

The learned Additional Sessions Judge, after an elaborate dis-
cussion and analysis of the evidence adduced on behalf of the parties,
accepted the prosecution case and convicted and sentenced the appel- B
lants as mentioned above. Regarding the injury sustained by Hare
Krishna Singh, the learned Additional Sessions Judge was of the view
that such injury had been deliberately introduced by him and held that
he was not injured in the occurrence. On appeal by the appellants, the
High Court affirmed their convictions and sentences. Hence these
appeals be special leave.
) I
c
It is contended by Mr. Garg, learned Counsel appearing on be-
half of Hare Krishna Singh, one of the appellants in Criminal Appeal
No. 690 of 1982, that the prosecution having failed to explain the
injury sustained by the appellant in the same occurrence, such injury
being a serious one, the prosecution witnesses should be disbelieved. D
Counsd submits that in such circurnstances, it should be held that the
plea of the appellant of self-defence has been probabilised, and that
the prosecution must have withheld the true facts as to the genesis and
origin of the occurrence. Further, it is submitted that 'in any event, it
has cast a great doubt on the prosecution case and the benefit of that
doubt should go to the appellant. E

The question, however, is whether it is an invariable rule that
whenever an accused sustains an injury in the same occurrence, the
prosecution is obliged to explain the injury and on the failure of the
prosecution to do so, the prosecution case should be disbelieved.
Before answering the question we may refer to a few decisions of this F
Court cited at the Bar. Mr. Garg has placed much reliance upon the
decision of this Court in Lakshmi Singh v. State of Bihar, I 1976] 4 SCC
394. In that case, the accused sustained injuries in the same occur-
rence. Fazal Ali, J., who delivered the judgment of the Court,
observed that no independent witness had been examined by the pro-
secution to support the participation of the appellant in the assault. G
Further, it was observed that the evidence of P.Ws. 1 to 4 clearly
showed that they gave graphic description of the assault with regard to
the order, the manner and the parts of the body with absolute con-
sistency which gave an impression that they had given a parrot-like
version acting under a conspiracy to depose to one set of facts and one
set of facts only. In view of the nature of evidence of P.Ws. 1to4, this H
8 SUPREME COURT REPORTS [1988] 3 S.C.R.

Court·accepted the contention made on behalf of the accused, particu-
A
larly taking the entire picture of the narrative given by the witnesses,
that P. Ws. 1 to 4 had combined together to implicate the accused
falsely because of the long-standing litigation between them and the
said witnesses. Thereafter, the Court considered the injuries that were
inflicted on the person of the accused Dasrath Singh and laid down
B that where the prosecution fails to explain the injuries on the accused,
two results follow: (1) that the evidence of the prosecution witness is
untrue; and (2) that the injuries probabilise the plea taken by the
appellants. The principle of law laid down in the earlier decision of this
Court in Mohar Rai v. State of Bihar, [1968] 3 SCR 525 was followed.
X·'
In Mohar Rai's case it has been laid down that in a murder case,
c the non-explanation of the injuries sustained by the accused at about
the time of the occurrence or in the case of altercation is a very im-
portant circumstance from which the court can draw the following
inferences: ( 1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true version;
D (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.

E The principles that have been laid down in Lakshmi Singh's case
have to be read in the context of the facts of that case. It has been
already pointed out that the prosecution witnesses have been dis-
believed by this Court before it considered the question of failure of
the prosecution to explain the injuries sustained by one of the accused.
If the prosecution witnesses had been believed in that case, the non-
F explanation of the injuries sustained by the accused would not have
affected the prosecution case. Indeed, it has been laid down in
Lakshmi Singh's case that the non-explanation of the injuries by the
prosecution will not affect the prosecution case where injuries
sustained by the accused are minor and superficial or where the evi-
dence is so: clear and cogent, so independent and disinterested, so
G probable, consistent and creditworthy, that it far outweighs the effect
of the omission on the part of the prosecution to explain the injuries.

In Mohar Rai's case (supra), the first appellant Mohar Rai was
convicted under section 324 IPC for shooting and injuring P.W.' 1 at
the instigation of the second appellant Bharat Rai, who was himself
H convicted of an offence under section 324 read with section 109 IPC.
H.K. SINGH v. STATE OF BIHAR [DUTT, J.[ 9

_-r The prosecution proceeded on the basis that the revolver (Ex. III),
A
which was recovered from Mohar Rai, was the weapon that was used
by him in the commission of the offence. The ballistic expert, who was
examined as D.W. 1, was positive that the seized empties as well as the
misfired cartridge could not have been fired from Ex. III. The evi-
dence of D. W. 1 was. accepted both by the trial court as well as by the
High Court. This Court rejected the prosecution case that Mohar Rai B
:t had fired three shots from Ex. III. This Court held that once it was
proved that the empties recovered from the scene could not have been
fired from Ex. III, the prosecution case that those empties were fired
from Ex. III by Mohar Rai stood falsified. Thereafter, the injuries
~. sustained by the two appellants, Mohar Rai and Bharath Rai, were
considered by the Court and it held that the prosecution had failed to
" explain the injuries sustained by the appellants and observed that the c
)·
failure of the prosecution to offer any explanation in that regard
showed that the evidence of prosecution witnesses relating to the inci-
dent was not true or, at any rate, not wholly true. Thus, in this case
also the question of non-explanation of the injuries on the accused was
considered by the Court after it had rejected, on a consideration of D
evidence, the prosecution case that Mohar Rai had fired from the
revolver (Ex. III). In other words, if the prosecution case had been
believed that the appellant Mohar Rai had fired from Ex. III injuring
P.W. 1, the non-tixplanation of the injuries sustained by the accused
would not have affected the prosecution case.
-·"' On the other hand, in Bhaba Nanda Shanna v. State of Assam,
E

-- [ 1977] 4 SCC 396 it has been categorically laid down by this Court that
the prosecution is not obliged to explain the injuries on the person of
the accused in all cases and in all circumstances. It depends upon the

--. facts and circumstances of each case whether the prosecution case
becomes reasonably-.doubtful for its failure to explain the injuries on F
the accused. In Ramlagan Singh v. State of Bihar, 11973] 3 SCC 881 this
Court again examined the question and it has be~n laid down that the
prosecution is not called upon in all cases to explain the injuries
received by the accused persons. It is for the defence to put questions
to the prosecution. witnesses regarding the injuries of the accused
persons. When that is not done, there is no occasion for the prosecu- G
tion witnesses to explain the injuries on the person of the accused. In
,.I.:, t~e instant case also, the injury sustained by the appellant Hare
Krishna Singh, has not been put to the prosecution witnesses and so
they had no occasion to explain the same. In such circumstances, as
laid down in Ram/agan Singh's case, the non-mention of the injuries
on the person of the appellant in the prosecution evidence would not H

~!
10 SUPREME COURT REPORTS [1988] 3 S.C.R.
'y
affect the prosecution case, which has been accepted by the courts i
A
below.

In Onkarnath Singh v. State of U.P., [1975] 3 SCC 276 this Court
has reiterated its view as expressed in Bankey Lal v. State of UP.,
[ 1971] 3 SCC 184 and Bhagwan Tana Patil v. State of Maharashtra,
B I 1974] 3 sec 536 that the entire prosecution case cannot be thrown
overboard simply because the prosecution witnesses do not explain the ~
in juries on the person of the accused. Thereafter, it was observed as
follows:
"Such non-explanation, however, is a factor which is to be . '
taken into account in judging the veracity of the prosecu-
><:
c tion witnesses, and the court will scrutinise their evidence '
with care. Each case presents its own features. In some -~
case, the failure of the prosecution to account for the in-
juries of the accused may undermine· its evidence to the '
core and falsify the.substratum of its story, while in others
it may have little or no adverse effect on the prosecution
D
case. It may also, in a given case, strengthen the plea of
private defence set up by the accused. But it cannot be laid
down as an invariable proposition of !_aw of universal appli-
cation that as soon as it is found that the accused had
received in juries in the same transaction in which the com-
E
plainant party was assaulted, the plea of private defence
would stand prima facie established and the burden would
~
shift on to the prosecution to prove that those injuries were
caused to the accused in self--<lefence by the complainant
party. For instance where two parties come armed with a
--
determination to measure their strength and to settle a dis-

*
pute by force of arms and in the ensuing fight both sides
F · r~ceive injuries, no question of private defence arises. ....
Much reliance has been placed by Mr. Garg on the following
observ~tion of Fazal Ali, J. in Jagdish v. State of Rajasthan, 11979] 3
SCR428:
G "It is true that where serious injuries are found on the
person of the accused, as a principle. of appreciation of
evidence, it beqomes obligatory on the prosecution to }·
explain the injuries, so as to satisfy the Court as to the
circumstances under which the occurrence originated. But
before this obligation is placed on the prosecution two con-
H ditions must be satisfied;
I
'

H.K. SINGH v. STATE OF BIHAR IDUTT, J.J Il

1. that the injuries op the person of the accused must A
be very serious and severe and not superficial;

2. that it must be shown that these injuries must have
been caused at the time of the occurrence in ques-
tion."
B
In Jagdish's case, the High Court believed the prosecution
witnesses and accepted the prosecution case that the injuries found on
the deceased were very severe which resulted in his death and this
Court agreed with .the view taken by the High Court in convicting the
appellant under section 302 IPC.

In regard to this point we may cite two other decisions relating to C
the plea of the accused of private defence. In Munshi Ram v. Delhi
Administration, [1968] 2 SCR 455 it has been held by this Court that
although the accused have not taken the plea of private defence in
their statements under section 342 Cr. P.C.,. necessary basis for that
plea had been laid in the cross-examination of the prosecution witnes- D
ses as well as by adducing defence evidence. It has been observed that
even if an accused does not plead self-defence, it is open to the court
to consider such, plea if the same arises from the material on record.
The burden of eSll>blisl}ipg that plea is on the accused and that burden
can be discharged.by showing preponderance of probabilities in favour
of that plea on the basis of the material on record. E

Munshi Ram's case arises out of a dispute over t4.e possession of
land. The case of .the appellants that their relati<:m was .a tenant of the
disputed la.nd-for over thirty years and that his tenancy was never
terminated, was accepted by this .Court. In other words, the appellants
were found to be in lawful possession of the land in question and that F
P.Ws. 17and 19hadgonetothelandwiththeirfriends,P.W.19being
armed with a deadly weapon, with a view to intimidating the relation
of the appellants, whose tenancy was not terminated. They were held
to be guilty of criminal trespass and of constituting ·an unlawful assem-
bly. In the context of the above facts, this Court made the observation
that it is open to the court to consider the plea of private defence even G
though the same does not find·place in the statement under section.342
.Cr. P.C.

The next case that has been relied upon by Mr. Garg is that of
State of Gujarat v. Bai Fatima, I 1975] 3 SCR 993 in that case, on behalf
of the appellants the decision in Munshi Ram's case (supra) was ~elied H
12 SUPREME COURT REPORTS [1988) 3 S.C.R.

upon in regard to the question of the plea of private defence. In reject-
A
ing the contention of the accused, this Court pointed out that not only
the plea of private defence was not taken by the accused in their
statements under section 342 Cr. P .C., but no basis for that plea was
laid in the cross-examination of the prosecution witnesses or by adduc-
ing any defence evidence. As regards the injuries sustained by one of
B the accused, this Court observed as follows:

"In material particulars the evidence of the three eye
witnesses as also the evidence of dying cjeclaration of the
deceased before P. W. Gulamnabi is· so convincing and
natural that no doubt creeps into it for the failure of the
prosecution to explain the injuries on the person of respon-
c dent No. 1. The prosecution case is not shaken at all on that --(,
account." ~,

We have referred to the above decisions in extenso in order to
consider,whether it is an invariable proposition of law that the pro-
D secution'is obliged to explain the injuries sustained by the accused in
the same occurrence and whether failure of the prosecution to so
explain the injuries on the person of the accused would mean that the
prosecution has suppressed the truth and also the genesis or origin of
the occurrence. Upon a conspectus of the decisions mentioned above,
we are of the view that the question as to the obligation of the prosecu-
E tion to explain the injuries sustained by the accused in the same
·>--·
occurrence may not arise in each and every case. In other words, it is
not an invariable rule that the prosecution has to explain the injuries
sustained by the accused in the same occurrence. The burden of prov-
ing the guilt of the accused is undoubtedly on· the prosecution. The
accused is n·ot bound to say anxthing in defence. The prosecution has
F to prove the guilt of the accused beyond all reasonable doubts. If the
witnesses examined on behalf of the prosecution are believed by the
court in proof of the guilt of the accused beyond any reasonable doubt,
the question of the obligation of the prosecution to explain the injuries
sustained by the accused will not arise. When the prosecution comes
with a definite case that the offence has been committed by the
G accused and proves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how and in what '
circumstances injuries have been inflicted on the person of the .A
accused.

The accused may take the plea of the right of private defence
H which means that he had inflicted injury on the deceased or the injured
H.K. SINGH v. STATE OF BIHAR [DUTT, J.[ 13
\ person in exercise of his right of private defence. In other words, 1!is
A
plea may be that the deceased or the injured person was the aggressor
and inflicted in jury on the accused and in order to defend himself from
being the victim of such aggression, he had inflicted injury on the
aggressor in the exercise of his right of private defence. As has been
held in Munshi Ram's case (supra) the burden of establishing the plea
of private defence is on the accused and the burden can be discharged B
}.
by showing preponderance of probabilities in favour of that plea on
the basis of the material on record. It, therefore, follows that simply
because the accused has received injuries in the same occurrence, it
-);. cannot be taken for granted that the deceased or .the injured person
was the aggressor and consequently, he had to defend himself by in-
flicting injury on the deceased or the injured person.
} c
All the decisions of this Court which have been referred to and
discussed above, show that when the court has believed the prosecu-
ti on witnesses as convincing and trustworthy, the court overruled the
contention of the accused that as the prosecution had failed to explain
the injuries sustained by the accused in the same occurrence, the D
prosecution case should be disbelieved an\i the accused should be
acquitted. Thus, it is not the law or invariable rule that whenever the
accused sustains an injury in the same occurrence, the prosecution has
to explain the injuries failure of which will mean that the prosecution
---\ has suppressed the truth and also the origin and genesis of the
occurrence. E

~
The learned Additional Sessions Judge has not believed the case
'-
of Hare Krishna Singh that he had sustained a bullet injury in the same
occurrence and he has given reasons therefor. The High Court has,

-·· however, come to the finding that Hare Krishna ·Singh was admitted in
the hospital in an injured condition immediately after the occurrence.
We do not propose to.reassess evidence on the question as to whether
Hare Krishna Singh had sustained any injury or not. We may assume
F

that he had sustained a bullet injury in the same occurrence. But, even
then( in the facts and circumstances of the case the prosecution, in our
opinion, is not obliged to account for the injury and that the failure of
the prosecution to give a reasonable explanation of the injury would G
I
_....>: not go against or throw any doubt on the prosecution case.

The in jury that was sustained by Hare Krishna Singh was on the
back. The P.Ws. 1 and 2, the two sisters of the deceased Jitendra
Choudhary, denied the suggestion put to them on behalf of Hare
Krishna Singh that their brother Jitendra Choudhary had been shoot- H
14 SUPREME COURT REPORTS [1988] 3 S.C.R.
y
A ing ·from his rifle. P.W. 3, who is an iiidependent witness and was
present on the scene of occurrence, also denied the suggestion of the
defence that there was firing on Hare Krishna Singh. P. W. 8 Lallan
Rai also denied such suggestion of the defence. Hare Krishna Singh
made a statement under section 313 Cr. P.C. It is·not his case that in
self-defence he· had fired at the deceased Jitendra Choudhary. He
B denied that he had any fire-arms with IJ.im or that he had fired at
Jitendra Choudhary. He also denied that none of the accused had any .-:r.
weapon with him. All the eye-witnesses have stated that the appellant
Hare Krishna Singh had fired on Jitendra Choudhary as a result of
which he died. The prosecution witnesses have been believed by the
learned Additional Sessions Judge and the High Court. In the circum-
stances, we do not think that the materials on record including the
C statement of Hare Krishna Singh under section 313 Cr. P.C., pro-
babilise any case of self-defence or that the deceased had inflicted on
him the in jury by firing at him from his rifle.

It may be that two empties were found by the side of the dead-
D body of the deceased, but the High Court has rightly observed that the
presence of the empties does not necessarily mean that the deceased
had fired. The High Court points out that three live cartridges were
also recovered from the pocket of the deceased at the th-ne of inquest
and observes that keeping of empty cartridges by the side of the body
of the deceased cannot be ruled out. We do not find any infirmity in
E the view expressed by the High Court. It is not at all amenable to
t··
reason that the deceased had started from his house along with his two
sisters with a view to fighting with the accused. In the circumstances,
we are of the view that the appellant Hare Krishna Singh has been
rightly convicted and sentenced as above.

F Now we may deal with the case of Paras Singh of Dhobaha, one
of the appellants in Criminal Appeal No. 690 of 1982. He was found
with the accused persons including Hare Krishna Singh. It is not dis-
puted that he is the brother-in-law of Hare Krishna Singh, as he has
been described in the FIR. It is the categorical evidence of P.Ws. 1, 2,
3 and 8 that Paras Singh of Dhobaha had fired at the deceased
G Jitendra Choudhary. He has been identified by P.W. 1 in the T.I.
\
Parade. In the circumstances, we do not find any reason to interfere ;;-.
with the order of conviction and sentence passed by the courts below.

So far as Paras Singh of Birampur, the nephew of Jagdish Singh
and the sole appellant in Criminal Appeal No. 616 of 1982, is con-
H cerned, his case stands on a different footing. Indeed, Mr. Rajender
H.K. SINGH v. STATE OF BIHAR {DUTT, J.I 15
)
' Singh, the learned Counsel appearing on behalf of the appellant, has A
challenged the very presence of the appellant, Paras Singh of
Birampur, at the time of occurrence.

In the FIR, his name has not been mentioned, it has only been
stated "Jagdish Singh's newphew who is in military job of Birampur".
).. Jagdish Singh may have more than one nephew. The 1.0. (P.W. 9) in B
his evidence has stated that before the arrest of Paras Singh of
Birampur, he did not know his name and he cannot say how many
nephews Jagdish Singh has. The only distinctive particular for identifi-

1>- cation, as given in the FIR, is that the nephew is in military service.
The prosecution has not adduced any evidence to show that the appel-
!ant is in military service, and that no other nephew of Jagdish Singh is
in such service. Thus, the prosecution has not been able to identify the
c
appellant Paras Singh of Birampur with the description of Jagdish
Singh's nephew as given in the FIR. The most significant fact is that
P.W. 3 failed to identify the appellant in the T.I. Parade. P.W. 8 did
not attend the T.l. Parade. His case is that he was not called to attend
the T.I. Parade. On the other hand, it is the defence case that P.W. 8 D
was called but he did not attend the T.I. Parade. Whatever might have
been the reason, the fact remains that no attempt was made by the
prosecution to have Paras Singh of Birampur identified by P.W. 8. In
such circumstances, the High Court was not justified and committed
--{ an error of law in relying upon the statement of P. Ws. 3 and 8 made
before the police mentioning the name of Paras Singh of Birampur. It E

- is true that P. Ws. 3 and 8 identified Paras Singh of Birampur in court,
but such identification is useless, particularly in the face of the fact that
P. W. 3 had failed to identify him in the T .I. Parade. In the circumstan-
ces, the prosecution has failed to prove the complicity of Paras Singh

•• of Birampur in the crime. Indeed, the prosecution has failed to prove
that Paras Singh of Birampur was present at the time of occurrence. F
His conviction and sentence cannot, therefore, be sustained.

Now we may consider the cases of the remaining two accused,
namely, Sheo Narain Sharma, the remaining ·appellant in Crimin.al
Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appel-
Iant in Criminal Appeal No. 615 of 1982. These two appellants have G
'
-~ been convicted as a consequence of their sharing the common inten-
tion to murder the deceased Jitendra Choudhary. Both of them have
been named in the FIR. It is submitted by the learned Counsel appear-
ing on behalf of these two appellants that no specific overt act has
been attributed to either of them. It may be that they were found in the
company of Hare Krishna Singh and Paras Singh of Dhobaha but, the H

:·f
'<'

16 SUPREME COURT REPORTS [1988] 3 S.C.R.
y
learned Counsel submits, that fact will not be sufficient to impute
A
common intention to them.

So far as the appellant Ram Kumar Upadhaya is concerned,
there is evidence that he went with Hare Krishna Singh, but there is no
evidence that he had also left the place of occurrence with him. It is the
B evidence of all the eye-witnesses, namely, P.Ws. l, 2, 3 and 8 that
Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary,
hitting him in the face and he rolled and fell down from the Rick-
shaw in front of the gate. Thereafter, Paras Singh of Dhobaha also

f
fired at the deceased. After specifically mentioning the names of Hare
Krishna Singh and Paras Singh of Dhobaha as persons who had fired at
the deceased, P. W. 3 stated that thereafter two/three firings took
c place and all the accused went to the shop of Sita Ram in front of the ;

gate on the road from where they also fired upon Jitendra Choudhary.
P. W. 8 in his evidence has also made a general statement that all the
accused started firing upon Jitendra Choudhary. It is not readily un-
derstandable why the witnesses did not specifically mention the names
D of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also
fired at the deceased. Except mentioning that these two appellants
were present, no overt act was attributed to either of them.

The question is whether the crime was committed by Hare
Krishna Singh and Paras Singh of Dhobaha in furtherance of the
E
common intention of these two appellants also. Common intention
under section 34 IPC is not' by itself an offence. But, it creates a joint
and constructive liability for the crime committed in furtherance of
such common intention. As no overt act whatsoever ·has been attri-
buted to the appellants, Ram Kumar Upadhaya and Sheo Narain
Sharma, it is difficult to hold, in the facts and circumstances of the
F
case, that they had shared the common intention with Hare Krishna
Singh and Paras Singh of Dhobaha. When these two appellants were
very much known to the eye witnesses, non-mention of their names in
the evidence as to their participation in firing upon the deceased,
throws a great doubt as to their sharing of the common intention. The
convictions and sentences of these two appellants also cannot, there-
G fore, be sustained.

For the reasons aforesaid, the convictions and sentences of Hare
Krishna Singh and Paras Singh of Dhobaha are affirmed. Criminal
Appeal No. 690 of 1982, in so far as it relates to Hare Krishna Singh
H and Paras Singh of Dhobaha, is dismissed.
H.K. SINGH v. STATE OF BIHAR [DUTT, J.] 17

The conviction and sentence of Sheo Narain Shanna are set aside A
and he is acquitted of all the charges. Criminal Appeal No. 690 of
1982, in·so far as it relates to Sheo Narain Shanna, is allowed.

Criminal Appeal No. 615 of 1982 is allowed. The conviction and
sentence of Ram Kumar Upadhaya are set aside and he is acquitted of B
all the charges.

Criminal Appeal No. 616 of 1982 is allowed. The conviction and
sentence· of Paras Singh of Birampur are set aside and he is acquitted
. of all the charges.

N.V.K.