Explain and illustrate the effect of non examination by the prosecution of the injuries sustained by the accused at the time of occurrence.

Question: Explain and illustrate the effect of non examination by the prosecution of the injuries sustained by the accused at the time of occurrence. [D.J.S. 1991]

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Answer

Where the prosecution fails to explain the injuries on the accused, two results follow as held in the case of Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394:

1. That the evidence of the prosecution witnesses is untrue; and
2. that the injuries probabilise the plea taken by the accused.

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 as observed in Mohar Rai v. State of Bihar, (1968) 3 SCR 525:

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 that explains the Injuries on the person of the accused, It is rendered probable so as to throw doubt on the prosecution case.

The failure of the prosecution to explain the injuries on the person of the accused in the same occurrence ipso facto does not warrant jettisoning away the prosecution version. Non-explanation of injuries, which are major, assumes significance when the evidence consists of interested or partisan witnesses or where the defence offers a version that competes in probability with that of the prosecution.

A useful reference, in this context, can be made to a Three-Judge Bench Judgment of the Supreme Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors [(2001) 6 SCC 145] Wherein the principles were summarized as under:

“The first question which arises for consideration is: what is the effect of non-explanation of injuries sustained by the accused persons.

In Rajendra Singh & Ors. v. State of Bihar, (2000) 4 SCC 298 all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained 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 non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions:

1. that the injury on the person of the accused was of a serious nature; and
2. that such injuries must have been caused at the time of the occurrence in question.

Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version that competes in probability with that of the prosecution.

Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.”

In Onkarnath Singh v. State of U.P., (1975) 3 SCC 276: (AIR 1974 SC 1550), the Hon’ble Supreme Court has observed that that the entire prosecution case cannot be thrown over-board simply because the prosecution witnesses do not explain the injuries on the person of the accused. Such non-explanation, however, is a factor that is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinize their evidence with care. Each case presents its own features.

In some cases, the failure of the prosecution to account for the injuries 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 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 law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party.

For instance, where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises”

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
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8. Law of Evidence Mains Questions Series Part-VIII
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