B.L.Yadav - (1.) THIS is an application for bail on behalf of Om Prakash applicant for an offence under sections 302/307/323/34 IPC in Crime No. 122/85, Police Station Bazpur, District Nainital.
(2.) THE prosecution story as contained in the first information report (Annexure-I) is that the informant Ram Charan has a house in village Badwala and has his field close to the south of the house. At one corner of the house he has got a store of cow-dung-cake and adjoining his field to the west is th( field of Om Prakash, the present applicant. As Om Prakash has broken the mend of the informant, hence a complaint was made to him but nevertheless the applicant kept silent. On 14-7-1985 in the morning the wife of the applicant started forcibly taking away the cow-dung-cakes from the store of the informant and wife of the informant, Smt. Rameshwari reprimanded her not to do so. THEreafter the wife of the applicant went home abusing the informant, At about 8 a. m. on the date of the occurrence the applicant came with his double barrel gun and the applicant's son Sanjiv and his wife came armed with lathis and they reached the field of the informant. At that time the informant his elder brother Hardayal, his wife Smt. Rameshwari, his aunt Smt. Bhuri and hi father Bhoop Singh were standing besides the aforesaid store. THE applican without saying anything with an intention to kill the informant and his family members fired twice and one fire hit the informant's elder brother Hardayal and by the other fire the face and head of the aunt of the informant was hit. His brother was also injured. THE son of the applicant also used his lathi inflicting injuries on the informant and his father Bhoop Singh. Rahim Khan and Girdhari Lal have seen the incident. Tne assailants ran away thereafter. Post mortem examination report of the deceased (Annexure-2) contained two gun shot wounds and three lacerated wounds on the deceased. Injuries of Hardayal from the side of the prosecution are to be found in Annexure 'S-l' to the supplementary affidavit and he received one gun shot wound. Injuries of Bhup Singh are in Annexure 'S-2' to the supplementary affidavit and he received two contusions. One lacerated wound, two contusions and one swelling were received by the informant. I have heard Sri D. N. Wali, the learned counsel for the applicant, Sri M. D. Misra, learned counsel for the complainant and Sri Surendra Singh, learned counsel for the State. Mr. D. N. Wali, the learned counsel for the applicant, urged that the injuries were caused by the applicant (?) prosecution in exercise of their right of self defence of persons inasmuch as the applicant Om Prakash has received injuries which are contained in Annexure '4' to the affidavit (Page 14). The injuries of the applicant are one contusion 8.0 x 2.0 cm. situated over posterior surface of left fore-arm the second injury was lacerated wound 2.5 cm. x 0.7 cm. situated over left side of head, bone deep, 15 cm. above left eye brow and the third injury was lacerated wound of 3 cm. x 0.5 cm. situated over the right side of head. Injuries no. 1 and 2 were kept under observation and X-Ray was advised for the injury on the fore-arm and on the skull. Further the applicant's son Sanjiv Kumar has also received one lacerated wound 1.5 cm. x .4 cm. x scalp deep situated over left side of head 9 cm. above the left eye brow. Clotted blood was present and the second injury was that the applicant's son complained pain over both the thighs. These injuries were not explained by the prosecution and no explanation was furnished in the first information report about these injuries of the applicant and his son. The applicant has also lodged a first information report about the defence version. That first information report is Annexure '3 (Page 11) of the affidavit. In that first information report Ram Charan informant, Hardayal, Bhoop Singh and Smt. Rameshwari have been made accused. Sri D. N. Wali further urged that as the injuries from the side of the applicant have not been explained and the first information, report has been lodged from the side of the applicant, the applicant was entitled to bail and even acquittal. He placed reliance on Rishi Kesh Singh v. The State, AIR 1970 All. 51 FB and Prabhoo's case, 1941 AWR (HC) 320 FB.
(3.) SRI M. D. Misra, the learned counsel for the complainant and SRI Surendra Singh, learned counsel for the State urged that the injuries received by the applicant and his son (from the side of the defence) were fabricated and may be self-inflicted and no case for self defence was made out. SRI M. D. Misra placed reliance on Onkarnath Singh v. The State of U. P., AIR 1974 SC 1550 ; Bhaba Nanda Sarma v. The State of Assam, AIR 1977 SC 2252 and Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263. I have heard the learned counsel for the parties. It is clear that the injuries received by the side of the accused, particularly, by the applicant and his son have not been explained by the prosecution. The case of self defence was pleaded by the applicant. This Court by the majority view in Rishi Kesh Singh v. The State, AIR 1970 All. 51 FB (supra) has held as follows :- " The answer of the majority of learned Judges who decided AIR 1941 All. 402 (FB)= 1941 AWR (HC) 320 is still good law. It means that in a case in which, in answer to a prima facie prosecution case, any general exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully established his plea, he will still be entitled to an acquittal, provided that after weighing the evidence as a whole prudently (including the evidence given in support of the plea of the said general exception) the Court reaches the conclusion that, as a consequence of the doubt arising about the existense of the exception, the prosecution has failed to discharge its onus of proving the guilt of the accused beyond reasonable doubt. " It is clear that where a plea of self defence is set up and the injuries have been received by the accused and those injuries have not been explained, even though the defence set up may not be proved to its hilt to the satisfaction of the Court, nevertheless if while considering the injuries of the accused doubt is created in the mind of the Court, nevertheless the accused would be entitled to acquittal. In the instant case the injuries of the accused have not been explained in the first information report. The first information report on behalf of the applicant has also been lodged which is Annexure '3'.;