Input:
: Criminal Appeal No. 90 of 1981.
From the Judgment and order Dated 7th August 1980 of the High Court of Punjab and Haryana at Chandigarh in Crl.
Appeal No. 909 of 1979.
Prem Malhotra for the Appellant.
K.G. Bhagat and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
The question for consideration in this appeal by special leave is whether a person under 16 years of age and accused of an offence under section 302, Penal Code can get the benefit of the Haryana Children Act, 1974 (hereinafter 'the Act ').
The undisputed facts are that the appellant along with three others was convicted of the offence of murder and sentenced to imprisonment of life by the Sessions Judge.
The appeal was dismissed by the High Court.
The appellant then filed an application for special leave to appeal under Article 136 of the Constitution.
Leave was 688 granted confined to the question of the applicability of the Act to his case.
It is also not disputed that the appellant was less than 16 years at the time he first appeared before the Trial Court.
He was thus a 'child ' within the meaning of that term under clause (d) of section 2 of the Act.
Mr. Prem Malhotra, learned counsel appearing for the appellant, submitted that in view of Section 5 of Criminal Procedure Code, 1973 (hereinafter called 'the Code '), the appellant would get the benefit of the Act; while on the other hand, Mr. Bhagat appearing for the State, relying on section 27 of the Code submitted that an offence punishable with death or imprisonment for life would not be triable under the Act.
There is a decision of this Court on the point in the case of Rohtas vs State of Haryana reported in ; , that held the trial of a child under the provisions of the Act was not barred.
In that case, however, it appears, section 27 of the Code was not brought to the notice of the Court.
In that view of the matter, the Bench consisting of two members including one of us (Baharul Islam, J.) before whom this appeal came up for hearing referred it to a larger Bench, in order to avoid possible conflict of decisions.
This is how this appeal came up for hearinbefore this Bench consisting of three members.
Mr. Malhotra submits that section 5 of the Code leaves special and local laws unaffected by the provisions of the Code and that, therefore, the Act remains wholly intact.
On the other hand, Mr. Bhagat 's submission is that all offences are triable under the Act by reason of the provision of section 27 of the Code so long as they fall within the category of offences "not punishable with death or imprisonment for life.
In the Act, 'child ' has been defined as meaning a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 'Delinquent child ' has been defined as meaning a child who has been found to have committed an offence.
Apart from procedural differences in the Act and the Code, for the trial of a child for murder, the outstanding difference is that the trial of the child under the Code may end in the sentence of death or imprisonment for life while a child cannot be sentenced to death or imprisonment for life under the Act.
In order to better appre 689 ciate the differences, it is necessary to refer to some of the salient A provisions of the Act.
Sub section (1) of section 4 provides for the constitution of a children 's court.
It provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (hereinafter the 'Old Code '), the State Government may constitute one or more children 's courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent children under the Act.
Sub section (3) of section 5 provides that a person may be appointed as a member of the Board or as a magistrate in the children 's court only where he has in the opinion of the State Government, knowledge of child psychology and child welfare.
Sub section (1) of section 6 of the Act provides that where a Board or a children 's court has been constituted for any area, such Board or court shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in the Act, have power to deal exclusively with all proceedings under the Act relating to neglected children or delinquent children, as the case may be.
Section 8 provides for establishment of children 's homes, section 9 for Special Schools, section 10 for observation Homes and section 11 for the establishment of Aftercare organisations.
Section 17 provides for the bail and custody of delinquent children.
It provides that a child accused of any non bailable offence, notwithstanding anything contained in the old Code or in any other law for the time being in force be released on bail with or without surety unless such release defeats the purpose of the Act.
Section 19 provides that the children 's court shall hold an inquiry against the child charged with an offence in accordance with the provisions of section 37 of the Act and may, subject to the provisions of the Act, make such order in relation to the child as it deems fit.
Section 20, inter alia, provides that where a children 's court is satisfied on inquiry that a child has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the children 's court may, if it thinks fit, (a) allow the child to go home after advice or admonition; (b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian, or other fit person on his 690 executing a bond with or without surety as the court may require for the good behaviour and well being of the child for any period not exceeding three years; and (c) make an order directing the child to be sent to a special school.
Section 21 is important.
It prohibits passing of certain orders against delinquent children.
It provides, inter alia, that notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security.
Section 23 bars the joint trial of a delinquent child with any other person who is not a child.
Sub section (2) of section 23 enjoins separation of trials of a delinquent child and a person who is not a child, when they are sent up in the same case.
Sub section (1) of section 65 which is important is in the following terms: "The (Central Act 8 of 1897), and sections 29B and 399 of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), shall cease to apply to any area in which this Act has been brought into force.
" Section 29B of the old Code is equivalent to section 27 of the Code.
Section 399 of the old Code provided for confinement of the delinquent children in reformatories after conviction instead of sending them to prison.
It may be mentioned that there are similar provisions in the central (Act LX of 1960) which is applicable to the Union Territories only.
Section 22 of this Act is in pari materia with section 21 of the Haryana .
A perusal of the above and other provisions of the Act and those of the central shows that the procedure for trial, conviction and sentence under the Children Acts are simple, humane and by courts manned with persons with knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898 and 1973.
The intention of the State Legislature of Haryana and of the 691 Parliament in enacting the Children Acts was to make provisions for trial of delinquent children and dealing with them in accordance with such procedures, so that the delinquent children do not come in contact with accused persons who are not children and but are hardened criminals.
The purpose undoubtedly was to reclaim delinquent children and rehabilitate them in such a way that they become useful citizens later in life.
It may be mentioned at this stage that the Act came into force on March 1, 1974 while the Code of Criminal Procedure, 1973 came into force on April 1, 1974.
If there be any conflict between any provisions of the Act and the Code, in view of Article 254(1) of the Constitution, the provision of the Act repugnant to any provision of the Code will be void to the extent of repugnancy.
It was not the contention of Mr. Bhagat appearing for the State that the Act was bad for lack of legislative competence of the State Assembly or for any other reason.
The sheet anchor of his submission was section 27 of the Code of 1973.
Let us now set out the relevant provisions of the Code of Criminal Procedure Code, 1973 with which we are directly concerned.
Section 4 reads: "(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
" Section 5 reads: "Nothing contained in this Code shall, in the absence of a special provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
" 692 Section 27 reads: "Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the , or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders." Putting emphasis on the expressions, "in the absence of any specific provisions to the contrary", occurring in section 5, Mr. Bharat submits that section 27 is the specific provision to the contrary and as such this provision shall affect the Haryana which is a local law for the time being in force.
We are unable to accept the submission.
As it has been pointed out above, the purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana and the Central (Act LX of 1960) respectively was to give separate treatment to delinquent children in trial, conviction and punishment for offences including offences punishable with death or imprisonment for life.
In our opinion, section 27 is not 'a specific provision to the contrary ' within the meaning of section 5 of the Act; the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as section 27 does not contain any expression to the effect "notwithstanding anything contained in any passed by any State Legislature".
Parliament certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central coming into force nearly fourteen years earlier.
What section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any court specially empowered under the .
It is an enabling provision, and, hl our opinion, has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life.
Criminal Procedure appears in Item 2 of the Concurrent List of the Seventh Schedule of the Constitution.
One of the circumstances under which repugnancy between the law made by the State and the law made by the Parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List 693 are fully inconsistent and are absolutely irreconcilable.
In the A case in hand as we have shown that the relevant provisions of the Code and the Act can co exist.
Their spheres of operation are different.
Mr. Bhagat in support of his contention has relied on a Full Bench decision of the Madhya Pradesh High Court reported in The Full Bench of three judges considered the jurisdiction of the Madhya Pradesh Bal Adhiniyam, 1970 (15 of 1970) to try a juvenile offender for offences punishable with death or imprisonment for life.
There was a difference of opinion.
The view of the majority was that the juvenile courts constituted under the Madhya Pradesh Bal Adhiniyam has exclusive jurisdiction to try a delinquent child (a person under 16 years of age for all offences except those punishable with death or imprisonment for life even after the commencement of the Code of Criminal Procedure, 1973 (Act 2 of 1974), while the minority view of Verma J. was to the contrary.
With respect, the majority view is erroneous.
Verma J. has observed as follows: "The only question before us is whether the provisions of the New Code have brought about any change in this position.
There can be no doubt that if there is an irreconcilable conflict between the provisions of the New Code and those of the Bal Adhiniyam, then the New Code being the later Central enactment it will supersede Bal Adhiniyam the earlier State enactment to the extent of repugnancy by virtue of Cl.
(1) of article 254 of the Constitution.
The real question, therefore, is whether there is any such repugnancy between the two enactments so as to attract article 254.
It is equally clear that in case there is no such repugnancy and the relevant provisions of the two enactments are capable of co existence, then article 254 would not be attracted, and the provisions of the Bal Adhiniyam conferring exclusive jurisdiction on the Juvenile Courts to try all offences including those punishable with life imprisonment or death would continue to operate.
Such a conclusion is supported also by the fact that the Bal Adhiniyam is a special local Act while the New Code is a general enactment applicable throughout the country on account of which the special Local Act would apply within this State in preference to the general law on the subject.
It is in this light that the question has to be examined with a view 694 to determine whether there is any such irreconcilable conflict so as to attract article 254 of the Constitution.
This is the real question for decision." He has held: "Applying the tests indicated by the settled principles.
I have no hesitation in holding that there is no real conflict between the provisions of the New Code, particularly section 27 thereof, and the provisions of the Bal Adhiniyam.
In short, the provisions of the New Code clearly save any special or local law like the Bal Adhiniyam and section 27 of the New Code is merely an enabling provision which does not express any contrary intention to undo the saving provided in section 5 of the New Code.
There being thus no conflict or repugnancy, the question of article 254 of the Constitution being attracted does not arise.
" With respect, Verma J. has expressed the correct opinion.
As a result of the foregoing discussions, we allow the appeal, set aside the conviction and sentence imposed upon the appellant and quash the entire trial of the appellant.
We direct that the appellant shall be dealt with in accordance with the provisions of the Haryana .
It is a pity that the point urged before us was not urged in any of the Courts below.
S.R. Appeal allowed.

Output:
Allowing the appeal, the Court.
^ HELD: 1.
The trial of a chid under the provisions of the Haryana Children Act, 1974 for the offence of murder was not barred.
The appellant here was a child within the meaning of that term under clause (d) of section 2 of the Act.
[689 A, C] 2.
A perusal of section 22 of the Central (Act LX of 1960) which is in pari materia with section 21 of the Haryana and other provisions of the State and Central Children Acts shows that the procedure for trial, conviction and sentence under the Children Acts are simple humane and by Courts manned with persons with knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898 and 1973.
The intention of the State Legislature of Haryana and of the Parliament in enacting the Children Acts was to make provisions for trial of delinquent children and dealing with them in accordance with such procedure so that the delinquent children do not come in contact with accused persons who are not children and but are hardened criminals.
The purpose undoubtedly was to reclaim delinquent children and rehabilitate them in such a way that they become useful citizens later in life.
[691 G H, 692 A B] 3:1.
The purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana and the Central respectively was to give separate treatment to delinquent children in trial, conviction and punishment for offences including offences punishable with death or imprisonment for life [693 C D] 3:2.
Section 27 of the Criminal Procedure Code, 1973 is not 'a specific provision to the contrary ' within the meaning of section S of the Code the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as section 27 does not contain any expression to the effect "notwithstanding anything contained in any passed by any State Legislature".
Parliament 687 certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central coming into force nearly fourteen years earlier.
What section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any court specially empowered under the .
It is an enabling provision and has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life.
[693 C, D G] 4:1.
If there be any conflict between any provisions of the Act and the Criminal Procedure Act, in view of Article 254(1) of the Constitution, the provision of the Haryana repugnant to any provision of the Criminal Procedure Code will be void to the extent of repugnancy [692 B C] 4:2.
Criminal Procedure appears in Item 2 of the Concurrent List of the Seventh Schedule of the Constitution.
One of the circumstances under 'which repugnancy between the law made by the State and the law made by the Parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable.
In the case in hand the relevant provisions of the Criminal Procedure Code and the Haryana can co exist.
Their spheres of operation are different.
[693 G H, 694 A] Dev Singh and 2 Ors.
vs State of Madhya Pradesh, Madhya Pradesh, overruled.


Input:
minal Appeal No. 827 of 1981.
From the Judgment and Order dated 22.7.81 of the Allahabad High Court in Government Appeal No. 1861 of 1975.
P.K. Dey, Rakesh Goswami and Ms.
Rani Jethmalani (N.P.) for the Appellant.
R.C. Verma for the Respondent.
The Judgment of the Court was delivered by N.P. SINGH, J.
The appellant was acquitted of the charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court.
On appeal being filed on behalf of the State of Uttar Pradesh he has been convicted under section 302 of the Penal Code by the High Court and sentenced to undergo rigorous imprisonment for life.
It is the case of the prosecution that on 25.2.1974 at about 6.00 P.M. Chandrapal (PW 2) along with Jagdish (hereinafter referred to as "the deceased") were returning after answering the call of nature.
It is said that at that time this appellant along with co accussed Ramesh came from the side of the village; seeing Chandrapal (PW 2) and the deceased, the appellant and Ramesh rushed towards them with knives.
After some chase the appellant gave a knife blow on the chest of the victim.
The co accused Ramesh gave a knife blow to Chandrapal (PW 2).
Thereafter the appellant and Ramesh fled away.
The victim while being taken to Debai, died on the way, Chandrapal (PW 2) lodged the first information report at the Police Station Debai at about 11.30 P.M. the same night.
75 The motive of the occurrence, according to the prosecution, is that about 10 or 12 days before the date of the aforesaid occurrence, there was some altercation between Chandrapal (PW 2) and the deceased on the one side and this appellant on the other, in which the appellant is said to have abused them.
Chandrapal (P.W 2) and the deceased had given two/three slaps to the appellant.
The defence of the appellant was that the prosecution has suppressed the real manner of occurrence.
According to the appellant,.
for last two days prior to the date of occurrence the crop of his grand father Sohan Lal was being damaged.
Because of that he was keeping a watch on the said field.
During night Chandrapal (PW 2) and the deceased came to the field.
The appellant raised an alarm chor chor.
Thereafter Chandrapal (PW 2) and the deceased started running.
The appellant chased them to catch them.
But soon they turned back and started assaulting the appellant with lathies.
To save his life the appellant attacked with a 'ballam ' (spear).
The injuries on the person of the appellant were examined the next morning.
He also filed an application before the Superintendent of Police, giving his version of the occurrence in which he admitted that when he was being assaulted by Chandrapal (PW 2) and the deceased, he bad used a ballam.
A case was registered by the Police at about 10.25 A.M. on 26.2.1974, on the basis of the petition filed on behalf of the appellant.
The injuries on the person of the appellant were examined by Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on 26.2.1974.
He found the following injuries on his person: "(1) Faint contusion 2 cm x 1/2 cm back of left shoulder upper part.
(2) Faint contusion 10 cm x 2 cm on outer side left back at the lower angle of scapula.
(3) Faint contusion 4 1/2 cm x 1 cm on back of upper part 1/3rd left forearm.
(4) Faint contusion 12 cm x 1 cm on the back and inner aspect left forearm upper 1/3rd.
" During the post mortem examination of the deceased which was also held on 26.2.1974, the following injury was found on his person: 76 "Stab wound 1" x 1/2" x 1.3/4".
On probing, on left side front of chest, 2.1/2" inner to left nipple at 10 O ' clock position pointing the onwards and downwards.
" The Doctor (PW 1), who held the post mortem examination, ad mitted that the aforesaid injury could be caused by ballam.
So far Chandrapal (PW 2) is concerned, the Doctor noted the following injury on 26.2.1974: "Abrasion 1 1/2 x 1/3" on the left side front of chest, horizontally with shallow edge, medically, 7" below ancillary pit.
The wound was not bleeding afresh, but had got clotted blood over it.
" The Doctor in Court stated that possibility of self infliction of that injury could not be ruled out.
According to the State, even if the version disclosed by the appellant is accepted, it will amount to a case of free fight between the prosecution party and the accused, both being armed and when there is a free fight there is no question of right of private defence accruing to any side.
A free fight is that when both sides mean to fight a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party.
In such cases of mutual fights, both sides can be convicted for their individual acts.
This position has been settled by this Court in the cases of Gajanand vs State of Uttar Pradesh, AIR 1954 SC 695; Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219; Puran vs State of Rajasthan, AIR 1976 SC 912 and Vishvas Aba Kurane vs State of Maharashtra, AIR 1978 SC 414.
As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.
But so far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight.
According to the appellant, the crops of the field of his grand father were being damaged for last two days prior to the date of the occurrence; because of that appellant claims that he was watching the said field.
During the night the 77 deceased and Chandrapal (PW 2) came to the same field and the appellant chased them.
But soon they turned back and started assaulting the appellant with lathies.
At this stage the appellant wielded his ballam (spear) which caused an injury to the deceased which ultimately proved fatal.
It is an admitted position that the appellant filed a petition before the Superintendent of Police giving his version of the occurrence in the morning of 'basis of that a case was registered at about 10.25 A.M. on 26.2.1974, the occurrence having taken place during the night of 25.2.1974.
This fact has been admitted by Shri Manohar Singh (PW 6) who has proved the first information report lodged on behalf of the prosecution.
On the examination, Dr. R.P. Rastogi (PW 3) of the District Hospital, Bullandshahar, did find four injuries including one on the scapula of the appellant.
It is true that injuries were simple in nature.
But even on the deceased only one injury 1" x 1/2 1.3/4" was found on the left side front of the chest, which according to the Doctor who held the post mortem examination, could have been caused by a weapon like ballam (spear).
In the statement under section 313 of the Code of Criminal Procedure (hereinafter referred to as "the Code") given by the appellant, it was stated by the appellant in detail as to how the standing crops on the land of his grand father were being damaged and on the night of the occurrence he was guarding the field when he saw the deceased and Chandrapal (PW 2) destroying the crops in the field.
He also stated that he shouted chor chor and then chased them to catch them.
But soon they turned round and started giving lathies blows and in self defence the appellant used a ballam.
It appears that all this happened in the aforesaid field which the apppellant was guarding.
From time to time this Court has pointed out that merely because some injuries are found on the accused, which have not been explained by the prosecution, by itself shall not be a ground for rejecting the whole prosecution case.
It will depend on facts of each case what inference should be drawn by the Court.
In the case of The State of Gujarat vs Bai Fatima; , , it was said that when the prosecution fails to explain the injuries 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.
78 (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 aforesaid three inferences drawn on basis of the nature of injuries were reiterated in the case of Lakshmi Singh vs State of Bihar, AIR 1976 SC 2263, and it was further observed: "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 suppressed 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 prosecution one.
" A three Judge Bench in yet another case of Bliaba Nanda Sarma vs The State of Assam, ; , said: "The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances.
This is not the law.
It all depends upon the facts and 79 circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.
" In the case of Hare Krishna Singh vs State of Bihar, ; , it was said: "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 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 accused.
" But in the case of State of Rajasthan vs Madho, AIR 1991 SC 1065, it was held: "If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident.
It gives the impression that the witnesses are suppressing some part of the incident.
The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt." As first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above.
But on proper reading with reference to the facts of each case, there is no basic difference and according to us this Court rightly in the case of The State of Gujarat vs Bai Fatima (supra) put in three categories the result which may follow from the facts of each case.
It is well known that guilt of the 80 accused is to be judged on the basis of the facts and circumstances of the particular case.
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution.
In other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the prompt ness with which the first information report was lodged on behalf of the prosecution.
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay; the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.
It is well known that accused pleading the right of private defence need not prove it beyond reasonable doubt.
It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable.
There are not two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence.
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable.
The onus of the accused under section 105 of the Evidence Act has been examined by this Court in the cases of Partap vs The State of U.P., ; ; Mohan Singh vs State of Punjab, AIR 1975 SC 2161; Seriyal Udayar vs State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh vs State of U.P., ; and Buta Singh vs State of Punjab, So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal.
But those injuries can certainly be taken into consideration 81 while judging whether the defence version of the accused is probable.
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable.
Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on the person of the victim by the appellant instead of an injury 1" x 1/2 x 1 3/4".
The prosecution case regarding assault by Ramesh with a knife on Chandrapal (PW 2) has been disbelieved by the Trial Court as well as the High Court.
The delay in lodging the first information report by Chandrapal (PW 2) has not at all been explained.
The occurrence according to prosecution took place at 6.00 P.M. in the evening.
The victim while being taken to Debai which is at a distance of five kilometers expired on the way.
Then why first information report was lodged at 11.30 P.M., there is no explanation.
On the other hand the appellant 's case is that the occurrence did not take place at 6.00 P.M. in the evening but at later part in the night.
That appears to be more probable.
The appellant appeared before the Superintendent of Police, the next morning and disclosed his version of the occurrence on basis of which a case was registered.
His injuries were also examined only the next morning.
He also took a firm stand during his statement under section 313 that he give a ballam blow when the deceased and Chandrapal (PW 2) started assaulting him with lathies.
Out of the four injuries one was on the scapula,.
The doctor has not opined that they were manufactured or self inflicted.
Those injuries, according to the doctor, had been caused by a blunt weapon which is consistent with the defence version of the occurrence.
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife.
But it is consistent with the defence version that soon the deceased and Chandrapal (PW 2) returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased.
If the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased.
The High Court has not disbelieved 'the version disclosed by the appellant.
The High Court on consideration of the evidence and the circumstances of the case has observed: "It is true that this respondent gave a different time of the occurrence and his version of the occurrence was also 82 different and it has been disbelieved by the learned Sessions Judge, obviously on cogent grounds.
But this cannot wash out the effect of his clear stand all through that there was a marpit between him and the informant and the deceased in which he had wielded a spear on them.
This part of this respondent 's version was clearly severable from the rest of his version and it was not at all necessary that if the learned Sessions Judge disbelieved his version regarding the manner of the occurrence, he was bound to rule out of consideration this admission of the respondent which was clearly separate and severable from the rest of his story.
" The High Court has used a part of the statement of the appellant as an admission.
According to us, that part of the statement made by the accused under section 313 of the Code cannot be used as an admission, supporting the prosecution case.
It is well known that an admission has to be taken as a whole.
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant.
In the case of Hanumant Govind Nargunadkar vs State of Madhya Pradesh, AIR 1952 SC 343.
it was said: "It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
" The High Court should have taken the whole statement made by the appellant as an admission and then should have examined what shall be the effect thereof on the prosecution case.
According to us, taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable.
The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish.
While accepting the plea of right of private defence it has been said that if the right is available, while judging the question whether the accused has exceeded such right, should not be weighed in a golden scale.
But the right of private defence 83 does not extend to infliction of more harm than is necessary for the purpose of defence.
When the appellant caused the injury with a ballam (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence.
Accordingly, the conviction of the appellant under section 302 of the Penal Code is set aside.
But the appellant is convicted under section 304, Part 1, and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice.
The appeal is allowed in part to the extent indicated above.
V.P.R. Appeal allowed partly.

Output:
The prosecution 's case was that on the date of occurrence, the pw.2 and the deceased were returning after answering the call of nature at about 6 P.M.
At that time the appellant along with co accused came there.
Seeing the p.w.2 and the deceased the accused came rushed towards them with knives.
Appellant chased the deceased and gave a knife blow on his chest.
The P.W.2 received a knife blow from the co accused.
Thereafter the accused fled away.
The victim died on the way while he was being taken to Debai.
The P.W. 2. lodged the first information report on the same night at about 11.30 P.M.
The motive for the occurrence was that about 10 or 12 days before the date of occurrence, the appellant abused the P.W.2 and the deceased.
They gave two/three slaps to the appellant The appellant accused 's case was that for last two days prior to the date of occurrence the crop of his grand father was being damaged.
Therefore, he was keeping a watch on the field.
During night the P.W.2 and the deceased came to the field.
Seeing them, the appellant raised an alarm Chor Chor.
They started running.
The appellant chased them to catch 71 them.
But they turned back and started assaulting the appellant with lathies.
The appellant attacked them with a 'ballam ' to save his life.
The injuries on the person of the appellant were examined, in the next morning.
He filed an application before the Superintendent of Police and a case was registered at about 10.25 A.M. on the next day of the date of occurrence on the basis of appellant 's petition.
The trial Court acquitted the appellant of the charges under sections 302 and 307 read with section 34 of the penal Code.
The State 's appeal was allowed by the High Court and the present appellant was convicted under section 302 of the Penal Code and was sentenced to undergo rigorous imprisonment for life.
Present appeal was filed by the accused against the High Court 's judgment.
The State contended that if the version of appellant was accepted, it would amount to a case of free fight between the prosecution party and the accused, both being armed and that in a case of free right no party could claim right of private defence.
Partly allowing the appeal, this court, HELD: 1.01.
A free right is that when both sides mean to right a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party.
In such cases of mutual rights, both sides can be convicted for their individual acts, [76E] 1.02.
So far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight.
[76G] 1.03.
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution.
In other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the promptness with 72 which the first information report was lodged on behalf of the prosecution.
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay , the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.
[80B D] 1.04.
So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal.
But those injuries can certainly be taken into consideration while judging whether the defence version of the accused is probable.
[80H] 1.05.
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable.
Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of the deceased, then more injuries would have been caused on the person of the victim by the appellant.
[81B] 1.06.
The delay in lodging the first information report by PW 2 has not at all been explained.
The occurrence according to prosecution took place at 6.00 P.M. in the evening.
The victim while being taken to Debai which is at a distance of five kilometers expired on the way.
Then why first information report was lodged at 11.30 P.M., there is no explanation.
On the other hand the appellant 's case is that the occurrence did not take place at 6.00 P.M. in the evening but at later part in the night.
That appears to be more probable.
[81C] 1.07.
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife.
But it is consistent with the defence version that soon the deceased and PW.2 returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased.
If the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased.
[81F] 73 1.08.
Taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable.
[82G] Gajanandv.
State of Uttar Pradesh, AIR1954SC 695;Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219; Puran vs State of Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane vs State of Maharashtra, AIR 1978 SC 414; The State of Gujarat vs Bai Fatima, ; ; Lakshman Singh vs State of Bihar, AIR 1976 SC 2263; Bhaba Nanda Sarma vs The State of Assam, ; ; Hare Krishna Singh vs State of Bihar, ; and State of Rajasthan vs Madho, AIR 1991 SC 1065, referred to.
[76F] 2.01.
Once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.
[76G] 2.02.
Accused pleading the right of private defence need not prove it beyond reasonable doubt.
It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable.
[80E] 2.03.
There are no two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence.
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable.
[80E F] 2.04.
If the right of private defence is available.
While judging the question whether the accused has exceeded such right, should not be weighed in a golden scale.
But the right of private defence does not extend to the infliction of more harm than is necessary for the purpose of defence.
When the appellant caused the injury with a ballani (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence.
[82H, 83A] Partap vs )le State of U.P., ; Mohan Singh vs State of Punjab, AIR 1975 SC 2161; Seniyal Udayar vs State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh vs State of U.P.; , and Buta 74 Singh vs State of Punjab, , referred to.
[80G] 3.
An admission has to be taken as a whole.
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant [82D].
Hanumant Govind Nargundkar vs State of Madhya Pradesh, AIR 1952 SC 343, referred to.


Input:
Civil Appeal No. 1455 of 1969 Appeal by Special Leave from the Judgment and Order dated 7 12 1967 of the Punjab and Haryana High Court in F.A.O. No. 10 of 1963.
Hardev Singh and R. section Sodhi for the Appellants.
R. A. Gupta for Respondent No. 1.
V. C. Mahajan, Naunit Lal and Kailash Vasdev for Respondent No. 2.
The Judgment of the Court was delivered by KAILASAM J.
This appeal is by special leave granted by this Court to Bishan Devi widow of late Bhagwan Das and her four children against the judgment and order dated 7th December, 1967 of the High Court of Punjab & Haryana dismissing the Claimants ' F.A.O. No. 10 of 1962 against the award of Punjab Motor Accidents Claims Tribunal, Chandigarh, dismissing their claim.
The appellants filed a petition on 4th September, 1961 before the Chairman, Motor Accidents Claims Tribunal, Punjab, Chandigarh alleging that the husband of the first appellant died by having been run over by a lorry at midnight between the 8th and 9th July, 1961, at about a distance of 60 feet from the road.
It was alleged that the truck was coming from Jullundur and it took a sudden turn and ran over the first appellant 's husband, Shri Bhagwan Das, and that it was being driven in a rash and negligent manner.
The appellants 2 to 5 were the minor children of the first appellant, all of them being below 11 years 303 of age on the date of the filing of the petition.
It was alleged that the monthly income of the deceased was Rs. 109/ per month and a claim was made for Rs. 50,000 as compensation.
The respondents to the petition were (1) Sirbaksh Singh and (2) The Motor Owners ' Mutual Insurance Co. Ltd., Belgaum the insurer.
The written plea was filed by the second respondent, the insurer, on 10th October, 1961.
Some of the pleas are noteworthy and it is necessary to set them out in some detail.
In para 4 the insurer pleaded that the "truck was stolen by somebody while it was standing.
A report to the police was made to this effect.
Whoever made this accident, if any, drove the truck without the consent of the owner, and, therefore, the respondents are not liable".
In its reply parawise in paragraph 1 it reiterated "This truck did not meet with any accident nor was any intimation sent to the replying respondent".
In paragraph 2 it was again reiterated "No accident took place as alleged.
Somebody stole away the truck without the knowledge of the owner or driver.
The respondents are not liable to pay any compensation.
The person liable is the person who was driving the truck at the relevant time and not the owner.
" In paragraph 11 it was pleaded "that the replying respondent is, in any case, absolved from any possible liability in connection with the alleged accident under the provisions of Sections 95 and 96(2) of the ".
In paragraph 12 it was stated that the "offending vehicle was being driven at the relevant time by a driver who had no driving licence and was not even an authorised driver of respondent No. 1, as he had stolen the truck and the owner is therefore not liable".
Again in paragraph 13 the insurer pleaded that the "truck at the time of the accident was being unauthorisedly used and driven without the permission or authority of the owner.
As the truck was being used without the authority of the owner, therefore, the owner is not vicariously liable for the tort.
The replying respondent is, therefore, also not liable." The first respondent, the owner of the vehicle filed his written statement on 16th November, 1961.
In his statement he stated while dealing with the merits in paragraph 1 that "this truck did not meet with any accident nor was any intimation sent to the replying respondent".
In paragraph 2 he stated that "No such accident occurred as alleged in which the husband of the applicant may have been killed due to the negligence of the driver of respondent No. 1.
Allegation of negligence on the part of the driver is denied as incorrect.
" On these pleadings parties went to trial.
The claimants examined 5 witnesses AWs 1 to AWs 5.
AW. 1 is Bachan Singh.
He was sleeping on the night of occurrence on the roof of the Trade Union Office.
The witness and others heard hue and cry at night when the offending truck 304 ran over the deceased.
Bachan Singh and others came down and extricated the deceased and two other persons from underneath the truck.
The deceased died at the spot and two other injured were removed to the Civil Hospital, Jullundur.
AW. 2 is Darshan Singh.
He stated that he was sleeping in his truck on the night of the accident.
He on hearing the alarm got up and saw the two constables where the accident had taken place.
Bhagwan Das was extricated from underneath the truck with two other injured persons.
Bhagwan Das died at the spot.
According to the witness the accident took place at 2 A.M. and the deceased was carried in the same offending truck to the hospital.
AW. 3 is not a material witness as he does not speak of the incident but only saw the dead body and identified it.
AW. 4 is Shiv Charan Das.
He and another constable were on patrol duty on the night of the occurrence.
At 1 a.m. the truck came from Jullundur side at a fast speed and turned towards the adda of the Union.
Three persons including the deceased were sleeping on the kacha on cot which were run over.
The deceased was injured seriously.
He along with others were removed to the Civil Hospital, Jullundur, in the same truck.
The witness lodged the F.I.R. with the A.S.I. who came at the spot from Kartarpur.
In cross examination the witness stated "So far as I remember Anoop Singh had no driving licence." AW. 5 was on patrol duty along with AW. 4 and at about 1 a.m. he saw the truck coming from Jullundur side with registration No. PNJ 6430 at a fast speed.
The truck turned to its left and overran the three cots on which three persons were sleeping and struck against the door of union office.
The sleepers on the cots were injured and Bhagwan Das had died subsequently.
According to the witness one Anoop Singh was driving the truck.
In cross examination he stated "I do not know if Anoop Singh possessed the driving licence".
On the side of the respondents three witnesses RWs.
1 to 3 were examined.
1 is the owner of the vehicle.
He stated that on the night of the occurrence they drove the truck from Jullundur to Jallowal, his village, and parked it at 11.30 p.m. on the roadside.
They left the truck and slept in their houses.
They were informed by one Ishar Singh that the truck was missing.
They left in search of the truck at about 1 a.m. at Bhogpur.
At Bhogpur they learnt at 1.30 a.m. that the said truck was involved in an accident.
He did not know who removed the truck.
Though he went to report the loss of the truck to the police, as he learnt that the truck was caught in an accident he did not go to the police station and lodge the report about the theft of the vehicle.
He denied that Anoop Singh was driving the truck and caused the accident.
2 is Anoop Singh.
He stated that he did not know driving 305 and had not driven the truck in question nor did he cause any accident.
The evidence of RW.
3 is not material.
On the pleadings and the evidence referred to the Motor Accidents Claims Tribunal came to the conclusion that the claimants had failed to establish the identity of the driver and that the claimants were not even aware of the name of the driver who had driven the offending truck.
Thus the applicants had failed in proving their case.
In view of this finding the Claims Tribunal observed that it had no other alternative but to decide the issue against the applicants.
Because of this finding it felt it was not necessary to discuss the other issues.
The appeal by the claimants was rejected by the High Court.
The High Court agreed with the finding of the Claims Tribunal and observed that "There is no doubt that the evidence on record is not enough to show that Anup Singh or any other person directly or tacitly authorised by Sirbaksh was driving the truck at the time of accident.
Anup Singh as is evident from the material on the record did not possess the driving licence.
It is difficult to believe that Sirbaksh Singh could have allowed him to drive his truck without a driving licence.
" Holding that the truck was stolen by some irresponsible person who did not know driving and caused the accident by his reckless driving the High Court found that the owner of the truck cannot be held to be responsible.
It is distressing to note that neither the Claims Tribunal nor the High Court considered the relevant evidence in the case.
The claim was rejected by the Tribunal on the ground that the identity of the driver had not been established and by the High Court on the ground that "It is evident that Anoop Singh did not possess a driving licence and that the truck was stolen by some irresponsible person who did not know driving and that the owner cannot be held to be responsible".
We cannot help observing that the plea put forward by the insurer is on the face of it frivolous and totally unacceptable.
According to the insurer by his written statement which was filed on 10th October, 1961 a month before the written statement of the owner was filed, it was pleaded that somebody stole away the truck without the knowledge of the owner or the driver.
It was further contended that the vehicle was being driven at the relevant time by a person who had no driving licence and was not even an authorised driver of respondent No. 1 as he had stolen the truck.
The plea of the owner in his written statement which was filed on 16th November, 1961 more than a month thereafter is that "This truck did not meet with any accident nor was any intimation sent to the replying respondent".
It may be noted that in this written statement which was filed after a fairly long interval there is no allegation by the owner that the truck was stolen.
We do not know 306 on what basis the insurer about a month before the written statement was filed by the owner alleged that the truck was stolen without the knowledge of the owner or the driver.
While the owner did not complain about any theft of the vehicle the insurer professes further knowledge that the vehicle was driven by somebody who had no driving licence without the authorisation of the owner.
The F.I.R. was lodged at the police station at 4 30 a.m. at Kartarpur which is 12 miles from the scene of occurrence.
The occurrence took place at about 2 a.m.
In the F.I.R. which was lodged without any delay, Shivcharan Das Constable, who is examined as AW. 4 stated that he was on patrol duty along with Joginder Nath and when they reached the pucca road near Truck Stop Union Bhogpur the truck No. 6430/PNJ which was being driven by Anoop Singh driver at a very fast speed and carelessly, came and turned to the left below the road towards Truck Union.
The truck overran the three cots and collided against the doors of the room of Truck Union Office and stopped.
All the three cots were smashed and the three persons sleeping over them were seriously injured.
He further stated that Anoop Singh ran away leaving the truck.
The injured along with the deceased were taken to the Civil Hospital Bhogpur for treatment.
As the doctor was not present the two injured were taken to Jullundur in the same truck.
The F.I.R. was immediately registered.
This witness in his evidence corroborated what he stated in the F.I.R. The evidence of A.W.4 was also corroborated by the testimony of AW. 5, Joginder Nath, who was on patrol duty along with AW. 4.
He stated that at about 1 a.m. a truck came from Jullundur side with registration No. PNJ 6430 with fast speed.
It turned to its left and overran the three cots in which three persons were sleeping and struck against the door of the Union 's office.
The Motor Accidents Claims Tribunal rejected the evidence of AWs.
4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised the driver.
The evidence of AW. 4 was rejected as he failed to identify Anoop Singh.
5 stated that he knew Anoop Singh and that it was he who was driving the truck and that Anoop Singh ran away after causing the accident.
Neither AW. 4 nor AW. 5 was asked that they would not have been in a position to see the driver as they were about 30 to 40 yards away when the accident took place.
According to AW.
4 the deceased and the other injured were removed to the Bhogpur hospital and from there to the Jullundur hospital in the same truck.
We fail to understand the basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established.
Equally, unacceptable is the conclusion of the High Court that "as suggested by the counsel for the respondents the truck was stolen by some irres 307 ponsible person who did not know the driving and by his reckless act caused the accident.
" There has been practically no discussion of the evidence of AWs.
4 and 5.
There is no reference to the prompt F.I.R. lodged by AW. 4 who was on patrol duty wherein the material particulars about the incident and the driver have been furnished.
The suggestion made by the counsel for the respondents that the truck was stolen, as pointed earlier, was not pleaded by the owner of the vehicle even though he filed his written statement on 16th November, 1961, about a month after the date of the occurrence.
All that the owner stated was that the truck did not meet with any accident.
When he was examined he stated that he parked the truck at 11 30 p.m. on the roadside but when he returned he found the truck missing.
He left in search of the truck at 1 a.m. and learnt at 1 30 a.m. that the truck was involved in an accident.
Though he went to report the loss of the truck as he learnt that it was involved in an accident he did not go to the police station and lodge a report regarding theft.
This statement is directly contrary to what he stated in the written statement that the truck did not meet with any accident.
The insurer who filed his written statement a month before the owner filed the written statement stated that the truck was stolen by somebody and that a report to the police was made to this effect.
No such report was ever made to the police and this statement is clearly false.
Later in the course of the statement the insurer stated that the truck did not meet with any accident.
He further went to the extent of stating that somebody stole away the truck without the knowledge of the owner of the driver, and that if at all it is only the person who was driving the truck who is liable and not the owner.
It is significant to note that no one was examined to substantiate the facts alleged in the written statement of the insurer.
The insurer was not satisfied with the above mentioned false, frivolous and irresponsible allegations.
He proceeded to state that the driver who was driving the vehicle did not have a driving licence and was not the authorised driver of the owner as he had stolen the truck.
Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence.
We are constrained to state that the plea taken by both the owner and the insurer is palpably false and made without any sense of responsibility with a view to somehow escape the liability.
It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner.
There is no finding by the Claims Tribunal that the truck was driven by an unauthorized person.
The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know the driving.
The High Court has stated "Anoop Singh as is 308 evident from the material on record did not possess the driving licence".
The evidence that Anoop Singh was driving the vehicle was given by AWs.
4 and 5, the policemen on patrol duty.
According to AW.
4 the truck was driven by Anoop Singh.
In fact in his F.I.R. he stated that it was Anoop Singh who was driving the truck.
In cross examination the witness stated that the case against Anoop Singh is still pending in the court and as far as he could remember he had no driving licence.
5 when questioned stated: "I do not know if Anoop Singh possessed the driving licence".
According to the owner Anoop Singh was not the driver and it was wrong to say that Anoop Singh was driving the truck and caused the accident.
Anoop Singh when examined as RW.2 stated that he did not know driving and had not driven the truck in question nor did he cause any accident.
As we have pointed out earlier the evidence of the owner of the truck is totally unreliable.
The evidence of RW. 2 is self serving and is made with a view to escape the prosecution that was launched against him.
The only material about Anoop Singh not having a driving licence is the statement of AW. 4 in cross examination that he did not remember whether Anoop Singh had a licence and that of AW. 5 that he did not know whether Anoop Singh possessed the driving licence.
It is surprising that the High Court observed "It is evident from the material on record that Anoop Singh did not possess the driving licence." Under Sec.
96(2) (b) (ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed.
Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed.
The evidence of AWs.
4 and 5 who have been examined clearly establishes that Anoop Singh was driving the vehicle.
The two stray suggestions and the reply given by the two witnesses is not sufficient to establish that Anoop Singh was not licensed to drive a truck.
It is the duty of the insurer to have substantiated his plea.
We have no hesitation in rejecting the insurer 's plea as false especially as the owner who filed the written statement a month later did not support the former 's plea.
The deceased at the time of his death was working as Patwari and was drawing Rs. 109/ p.m. as his salary.
The wife of the deceased Bishan Devi as AW. 6 has deposed that the deceased was drawing a salary of Rs. 109/50 per month out of which he used to handover Rs. 100/ to her for household expenses.
The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased.
In the circumstances we feel that a compensation of Rs. 20,000/ and costs of 309 Rs. 2,500/ in all the courts is payable by the two respondents to her and the four children.
The wife and the four children will take the amount equally.
The amount of Rs. 20,000/ will bear interest at 6% per annum from the date of the claim i.e. from 4th September, 1961.
There will be a joint decree against both the respondents.
The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal.
The victim in this case Bhagwan Das was run over by a Motor vehicle on the night between 8th and 9th July, 1961 leaving behind him his wife Bishan Devi and four minor children.
For Eighteen long years they have been before courts asking for some compensation for the death of their bread winner due to rash and negligent driving of a motor vehicle.
One is tempted to remark that they would have been better of but for their hope of getting some relief in courts.
They not only had to spend their time in courts but to borrow to fight for their rights.
It is common knowledge that such helpless and desperate condition is exploited by unscrupulous persons who manage to get away with the bulk of the compensation money if and when the claimants succeed in getting it.
The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving.
The burden thus placed is very heavy and difficult to discharge by the claimant.
The records of police investigation are not made available to the Tribunal.
The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming to a proper conclusion.
The insurance company in quite a few cases, as in the present one, takes an unreasonable stand and raises all sorts of untenable pleas just to thwart relief to the dependants.
In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law.
Due to the inordinate delay in disposal of claim petitions before the motor Claims Tribunal the badly needed relief to the claimants is not available for several years.
Further time is taken in appeals.
All along the dependants will have to carry on without any relief.
It has been time and again pointed out by courts that insistence of proof of rash and negligent driving causes considerable hardship on the claimants.
We may point out that repeated suggestions have been made by this Court and several High Courts expressing the desirability of bringing a social insurance which would provide for direct payment to the dependants of the victim.
This Court in Minu B. Mehta and Anr.
vs Balkrishna Ramchandra Nayan and Anr. has referred to the deci 310 sion of the Kerala High Court in Kasavan Nair vs State Insurance Officer where the High Court expressed itself thus: "Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.
" The Madras High Court in M/s. Ruby Insurance Co. Ltd. vs V. Govindaraj and Ors. has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250/ to Rs. 300/ a month.
In a recent decision in the State of Haryana vs Darshan Devi & Ors.
this Court observed: "Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no fault liability and on the spot settlement of claims should become national policy.
" Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today.
It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases.
The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents.
When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained.
The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled.
The insurance companies are now nationalised and the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there.
Regular monthly payment could be made through one of the nationalised banks nearest to the place of residence of the dependants.
Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured.
Ordinarily in arriving at the lump sum payable, the Court takes the figure at about 12 years payment.
Thus in the case of monthly compensation of Rs. 250/ payable, the lump 311 sum arrived at would be between 30,000/ and 35,000/ .
Regular monthly payment of Rs. 250/ can be made from the interest of the lump sum alone and the payment will be restricted only for the period of dependency of the several dependants.
In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation.
It may also be provided that if the dependants are not satisfied with the minimum compensation payable they will be at liberty to pursue their remedies before the Motor Accident Claims Tribunal.
N.V.K. Appeal allowed.

Output:
The appellants in their claim petition, before the Motor Accidents Claims Tribunal, claimed Rs. 50,000/ as compensation alleging that the husband of the first appellant was run over by a truck which was driven in a rash and negligent manner.
Appellants 2 to 5 were the minor children of the first appellant.
The claim was contested by the owner of the truck, Respondent No. 1 and the insurer, Respondent No. 2.
A written plea was filed by the second respondent contending that the truck had been stolen by somebody while it was standing, that a report to the police had been made to this effect and that the truck was driven without the consent of the owner and consequently the respondents were not liable.
It was further pleaded that the replying respondent was absolved from any possible liability in connection with the alleged accident under the provisions of Ss. 95 and 96 (2) of the .
The first respondent in his written statement filed about a month after that of the second respondent, contended that the truck did not meet with any accident nor was any intimation sent to the replying respondent.
The Motor Accident Claims Tribunal, came to the conclusion from the pleadings and evidence that the claimants had failed to establish the identity of the driver and the claimants not even being aware of the name of the driver who had driven the offending truck, had failed to prove their case and rejected the claim.
The appeal of the claimants to the High Court was rejected, the High Court agreeing with the finding of the Claims Tribunal and further holding that the truck was stolen by some irresponsible person who did not know driving and by reckless driving caused the accident and therefore the owner of the truck cannot be held responsible.
Allowing the appeal, ^ HELD: 1.
According to the insurer by his written statement which was filed a month before the written statement of the owner it was pleaded that somebody stole the truck without the knowledge of the owner or the driver.
The plea of the owner in his written statement filed more than a month there after, was that the truck did not meet with any accident.
While the owner did not complain about any theft of the vehicle, the insurer professed further knowledge that the vehicle was driven by somebody who had no driving licence 301 and without the authorisation of the owner.
Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence.
The plea taken by both the owner and insurer is palpably false and made without any sense of responsibility with a view to somehow escape liability.
It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner.
[305 F H, 306B, 307G] 2.
There is no finding by the Claims Tribunal that the truck was driven by an unauthorised person.
The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know driving.
According to AW 4 the truck was driven by RW 2.
In fact in the F.I.R., AW 4 stated that it was RW 2 who was diving the truck.
In cross examination he stated that the case against RW 2 is still pending in the court and as far as he could remember he had no driving licence.
The evidence of the owner of the truck is totally unreliable.
The evidence of RW 2 is self serving and is made with a view to escape the prosecution that was launched against him.
It is therefore surprising that the High Court observed that it is evident from the material on record that RW 2 did not possess the driving licence.
[307H 308D] 3.
Under section 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed.
Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed.
The evidence of AWs.
4 and 5 clearly establishes that R.W. 2 was driving the vehicle.
[308E F] 4.
The Motor Accident Claims Tribunal rejected the evidence of AWs.
4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised R.W. 2 (driver).
The evidence of AW 4 was rejected as he failed to identify RW 2.
AW 5 stated that he knew RW 2 and that it was he who was driving the truck and that he ran away after causing the accident.
The basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established is not acceptable.
Equally unacceptable is the conclusion of the High Court that as suggested by the counsel for the respondents the truck was stolen by some irresponsible person who did not know driving and by his reckless act caused the accident.
There has been no discussion of the evidence of AWs 4 and 5.
[306F G, H 307A] 5.
The deceased at the time of his death was working as a Patwari and was drawing Rs. 109/ per month as his salary, out of which he used to handover Rs. 100/ to Appellant No. 1 for household expenses.
The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased.
Rs. 20,000/ as compensation and Rs. 2,500/ as costs awarded.
[308H 309A] 6.
The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal.
The law as it exists, requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving.
The burden thus placed is very heavy and difficult to discharge by the claimant.
The records of police investigation are not made available to the Tribunal.
The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist it in coming to a proper conclusion.
The insurance company in quite a 302 few cases, takes an unreasonable stand raises all sorts of untenable pleas just to thwart relief to thee dependants.
In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law.
It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases.
[309B, E F, 310E] 7.
The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents.
When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained.
The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled.
The insurance companies being nationalised the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there.
Regular monthly payments could be made through one of the nationalised banks nearest to the place of residence of the dependants.
Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured.
[310E G] Minu B. Mehta & Anr.
vs Balkrishna Ramchandra Nayan & Anr., 1977.
Accidents Claims Journal 118; State of Haryana vs Darshan Devi & Ors., 1979 Accidents Claims Tribunal 205; referred to.