THAKARDA JENAJI BAJAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) * * * *

(2.) Before coming to the evidence of Bai Santok who is the only eye-witness in this case we will like to make it clear that the learned Judge with due respect to him entirely misconceived the position of law with regard to the duty of the prosecution to explain the injuries on the person of one of the accused persons when the evidence shows that that accused person had in all probabilities suffered injuries in the course of the same incident. We say that the learned Judge has misconceived the position of law because of his observation in para 18 of the judgment which reads:- It is well settled that it is not the duty of the prosecution to cogently explain how the accused sustained injuries. Probably the learned Judge was reproducing the observations of the Division Bench of this High Court in the State v. Hira Bhaga and others. reported in I G.L.R. 157 Raju J. (as he then was) speaking for the Bench observed that it was not the duty of the prosecution to cogently explain how the accused sustained injuries and that no general rule can be laid down in such cases that merely because some of the prosecution witnesses have not satisfactorily explained the injuries on the accused in all cases their evidence must be rejected and the prosecution must totally fail. The learned Judge further observed that the existence of injuries on the person of the accused does not entitle them to get the benefit of the right of private defence and that in a mutual determined fight between two rival factions right of private defence is not available to either side. These observations were made in the context of the peculiar facts of that case. In that case the incident resulting in injuries to the accused and the deceased (a man named Bhagwan) took place first near Panchayat office and then near the Chora. The learned trial Judge in that case had found that in the first incident near the Panchayat office one of the four accused persons named Kana had opened the attack on the deceased and therefore the deceased had stabbed Kana with a dagger. The learned trial Judge further found that after this stabbing the deceased went ahead and was followed by accused No. 1 Hira who was armed with a spear and a dagger and accused No 3 Govind who was armed with a hatchet and that at the Chora there was a fight between the deceased and the four accused in the course of which the deceased could inflict sword injuries on the accused before he fell down as a result of a spear injury inflicted on him by accused No. 1 Hira. The learned Judge further found that the sword and dagger of the deceased were then picked up by accused No. 2 Kana. In the opinion of the learned trial Judge if any one had the right of private defence in that case it was the deceased and not the accused. In spite of these findings the learned trial Judge acquitted all the accused of the charge of murder and convicted them only under sec. 324 of I. P. C. Against this conviction the accused and against the acquittal under sec. 302 of Indian Penal Code the State came in appeal to this High Court. The learned trial Judge had acquitted the accused under sec. 302 of the I. P. C. by following certain observations of the Travancore-Cochin High Court in Sabastian David and another v. Sirkar Prosecutor A.I.R. 1950 Travancore Cochin page 9. In following those observations the learned trial Judge observed that the three eye-witnesses had suppressed the simple and obvious fact that it was the deceased Bhagwan who had caused injuries to the three accused the possibility that the accused were acting in the right of private defence cannot be denied. Then the learned trial Judge proceeded to observe that he felt reasonably certain that in fact the case before him was a case of mutual free determined fight between the rival factions.

(3.) Raju J. speaking for the division Bench having referred to these observations of the learned trial Judge pointed out that the findings and the reasons given by the learned trial Judge were inconsistent and illogical. He also pointed out that no question of right of private defence would arise in view of the finding of the learned trial Judge that this was a case of a mutual free and determined fight between rival factions. In our opinion in such a case no order of acquittal could have been based on the observations of the Travancore-Cochin High Court. To do so would be to ignore the principle that in case of a free determined mutual fight no question of right of self-defence would arise. In these peculiar facts all that this High Court did was to disapprove of the sweeping nature of the observations of the Travancore-Cochin High Court which are reproduced at printed page 160 of the report. They read:-