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Madhya Pradesh High Court · body

2000 DIGILAW 732 (MP)

Narayan Singh v. State of M. P.

2000-07-31

R.D.VYAS, SHAMHHOO SINGH

body2000
JUDGMENT Singh, J. -- 1. This judgment, shall govern the disposal of Cr.A. No. 623/94 & Cr.A. No. 78/95. 2. Accused persons Narayansingh and Badrilal have filed Cr.A. No. 623/94 against the judgment and order dated 30.8.94 passed by 1st A.S.J. Shajapur in S.T. No. 89/91 whereby the appellants were convicted for offences u/Ss, 302/149, 324/149 & 323 read with Section 149 IPC and sentenced to life imprisonment and to pay fine of Rs. 3,000/-. in default of payment of line 3 years RI each u/s 302/149 IPC and to pay fine of Rs, 500/-. in default or payment of fine 5 months RI on each count u/Ss, 324/149 & 323/149 IPC and State has filed CA No. 78/95 against the acquittal of accused persons Mansingh. Roopsingh. Narayansingh. Ladsingh. Shankerlal. Bapulal. Sarjusingh and Siddhulal. 3. The prosecution case, in brief was that there arose some dispute about then of Tuwar between the appellants' party and the complainant party. Members of both parties arc resident of village Bilodapal. On 12.1.91 at 8 p.m. the appellants Badrilal and Naryansingh armed with axe and farsi and acquitted co-accused Ladsingh, Mansingh, Roopsingh, Siddhulal, Shankerlal Bapulal and Surajsingh armed with lathis, had gathered and formed unlawful assembly in front of the house or Daulatsingh with common object/intention to heat and teach him a lesson. When Daulat Singh came out or his house the appellant Badrilal gave him axe-blow which landed on his head. He made alarm and cried 'save.' All the accused persons shouted 'kill him, kill him'. Hearing this, Daulat Singh brother deceased Kalu rushed there to save him. The appellant Naryansingh dealt one Farsi blow which struck his head. Thereafter, all the accused persons assaulted Kalu singh with their respective weapons. In the meantime, Chandersingh (PW 2) Bhanwarlal (PW 9). Suratsingh, Amarsingh and Balusingh etc. came there to save Kalu Singh and Daulat Singh. The appellants also gave them healing and Thereafter ran away form the spot. Daulatsingh. Kalusingh. Chander Singh. Suratsingh and Amarsingh went to police station Sarangpur where on 13.1.91 at 1.30 am. Daulat Singh lodged FIR. Ex. P/1. Which was recorded by .A.K. Agarwal. S.I. (PW 6). He sent Kalusingh. Daulatsingh and other injured persons for medical examination. Dr. R.K. Sharma (PW 10) examined them and found as under: Kalusingh 1. Incised wound on the mid or the head 2"x 1/4" x 1/4". 2. Daulat Singh lodged FIR. Ex. P/1. Which was recorded by .A.K. Agarwal. S.I. (PW 6). He sent Kalusingh. Daulatsingh and other injured persons for medical examination. Dr. R.K. Sharma (PW 10) examined them and found as under: Kalusingh 1. Incised wound on the mid or the head 2"x 1/4" x 1/4". 2. Lacerated wound on occipital region 1" x 1/4" x 1/4". 3. Tenderness on left and right side or chest. (report Ex. P/21-A). Daulatsingh. Small lacerated wound on mid of the head 1/2" x 1/4" x 1/8". 2. Lacerated wound on occipital region 1/2" x 1/4" x l/8". 3.Bruise on hack 4" x 1". (Report Ex. P. 16-A) Chander Singh 1. Incised wound on the right Side of the head 2-1/2" x 1/2" x 1/4. (Report Lx. P. 17-A.) Suraj Singh Abrasion on left index ringer 1/2" x 1/4" x 5cm deep. (Report Ex. P. 18-A.) Amar Singh One bruise mark on right thigh at lateral surface 3-1/2x1". (Report Ex. P. 20-A) Balu Singh One bruise mark on hack of right shoulder 4" x 1" (Report Ex P.20-A) 4. Dr. R.K. Sharma opined that incised wounds were caused by sharp object and other injuries were caused by hard object. Next day Dr. B.S. Patidar (PW 7) x-rayed the head of the deceased and found fracture in occipital region vide report Ex. P. 22. The deceased Kalusingh was shined to M.Y. hospital where he died on 25.1.91. Head constable Hopchand (PW 11) held inquest on the dead-body of Kalusingh and prepared report Ex. P. 2-A and sent the dead-body for post-mortem examination. Dr. R. K. Singh (PW 8) performed post -mortem examination un the dead-body of Kalu Singh and found the following: 1. Abrasion at 1, 3 plain O.5cm lateral to mid line hack right side. verticle 4cm x 1 cm. 2. Surgical stiched wound on right parietal and temporal region 4cm posterior to prominence. 22cms. long, having 17 intact stiches from Zygpmatic process right side middle part going posteriorly upto 4cms. posterior to parietal prominence. Scalp in whole thickness repaired. Scalp Hemotoma present on right tempo-frontoparietal region in size 18 x 6cm scalp hemotoma present. There is a depressed comminuted fracture un right tempo-parieto region extending from plain to posterior 11 cm x 7cm sagital area. There are 4 bore holes each 1 cm diameter. Extra dural hemotoma present at this region 0.5cm thick. 3. Scalp in whole thickness repaired. Scalp Hemotoma present on right tempo-frontoparietal region in size 18 x 6cm scalp hemotoma present. There is a depressed comminuted fracture un right tempo-parieto region extending from plain to posterior 11 cm x 7cm sagital area. There are 4 bore holes each 1 cm diameter. Extra dural hemotoma present at this region 0.5cm thick. 3. Healing wound on left parietal region 4cm x 0.5cm (Report Ex. P. 24). 4. According to Dr. Singh these injuries were caused by hard and blunt object and the head injury was sufficient to cause death in ordinary course of nature. Dr. Singh opined that cause of death was cardio respiratory failure as a result of head injury and its complications. 5. On the same day i.e. 13.1.1991 at about 2:30 p.m. the acquired accused Roorsingh lodged FIR Ex. D. 2 at P.S. Sarangrur. Roopsingh and Suratsingh were sent for medical examination. The Doctor examined them and found as under: Roop Singh 1. Incised wound on head on left parietal region 1" x 1/4" x 1/5". 2. Bruise mark on hack side 4" x 1". (Report Ex. D. 5-A). Surat Singh Bruise mark on right hand 3" x 1". (Report Ex. D. 6). 6. The appellants and acquitted co-accused persons were arrested on 25.1.91. Acquitted co-accused persons produced Lathis which were seized by the Investigating Officer -- R.S. Yadav (PW 12). The appellant Naryan Singh and Badrilal produced axe and farsi which were seized vide seizure memo Ex. P/9 and P/10. After completion or investigation challan was filed for offences u/s 302/149, 307/149, 323/149 and 324/149 IPC. The accused persons pleaded not guilty and false implication. Their defence is that the complainant party attacked them when they were sitting in the temple. On their report, the complainant party is facing Sessions Trial in Ujjain. The learned Trial Judge acquitted all the accused persons including the appellants or all the offences u/Ss 302/149, 307/149, 323/149 and 324/149 IPC However, the appellants were convicted for offences u/Ss 302/34, 323/34 and 324/34 or the IPC and they have filed Criminal Appeal No. 623/94. The State also filed Criminal Appeal No. 78/95 against acquittal, leave to appeal was granted only against the appellants and Lad Singh. Siddhulal, Mansingh and Rup Singh. During the pendency of this appeal accused Lad Singh expired. 7. Some arguments were advanced by Shri J.P. Gupta. The State also filed Criminal Appeal No. 78/95 against acquittal, leave to appeal was granted only against the appellants and Lad Singh. Siddhulal, Mansingh and Rup Singh. During the pendency of this appeal accused Lad Singh expired. 7. Some arguments were advanced by Shri J.P. Gupta. the learned Senior Counsel and thereafter Shri Abhyankar L/c submitted his arguments for the accused appellants. He contended that the appellants have been falsely implicated by the complainant party. This incident did not take place at the house of Daulat Singh as stated by the prosecution. When the accused persons were sitting in the temple and were discussing about the theft of Tuwar, Daulal singh, Kalu Singh, Chandar Singh, Surat Singh, Amar Singh etc. came there and started quarrelling. Daulat Singh gave a swordblow on the head of Rupsingh and other accused persons also caused injuries. He argued that the appellants had right of private defence. Prosecution also failed to explain the injuries sustained by the accused persons. He, therefore, prays for their acquittal, on the other hand Shri Desai supported the impugned judgment and also prayed to convict the other acquitted accused persons. 8. We considered the arguments advanced by Learned Counsel for both sides and perused the record. 9, The fact of homicidal death or Kalu Singh is not disputed before us and rightly so as it is amply proved from ocular evidence as well as medical evidence and inquest report. Ex. P/2. Under such circumstances the learned Trial Judge rightly held that the deceased Kalu Singh met with homicidal death. 10. Now the question that arises for consideration is whether the appellants formed common intention to cause tile death or Kalu Singh and killed him. 11. Prosecution has examined Dolat Singh (PW 1). Chander Singh (PW 2) Balu Singh (PW 3) and Bhanwarlal (PW 9) as eye-witnesses. 11-A It has come in the evidence of Dolat Singh that on the date or incident at about 8 p.m. accused Siddhu came to him in Ids house and told him that Bapu Singh was calling him. when he came out of his house he saw that the appellants Badrilal. Naryan and acquitted accused Lad Singh, Siddhu Singh, Rup Singh, Shankerlal, Suraj Singh, Rupsingh and Mansingh had gathered near file stairs of his house. when he came out of his house he saw that the appellants Badrilal. Naryan and acquitted accused Lad Singh, Siddhu Singh, Rup Singh, Shankerlal, Suraj Singh, Rupsingh and Mansingh had gathered near file stairs of his house. The appellant Badri was armed with axe and Narain Singh was armed with farsi and other accused were having Lathis in their hands. When Daulal Singh came out Badri gave him axe blow which struck his head. He shouted for help. hearing which his brother Kalu Singh came there. The Appellant Naryan Singh gave him Farsi blow which landed on his head. Thereafter Naryan Singh inflicted Farsi blow on his (Daulat Singh) head. Thereafter all the accused persons gave heating to Kalu Singh. When this quarrel was going on Daulatsingh's uncle Chander Singh came there, he was heat en with Farsi by Naryan Singh. Thereafter Suraj Singh. Balu Singh and Amarsingh came to save him. they were also assaulted. The evidence of Chander is that he saw the appellant Badri inflicting axe blow to Daulat Singh and appellant Narain Singh giving Farsi blow to Kalu Singh which landed on his hand. He stated that when he tried to save them, he was given Farsi blow by Narain Singh which struck his head. Siddhu Singh gave a lathi blow to Kalu Singh which landed on his chest. Bhawar lal (PW 9) deposed that the appellants Narain Singh. Badri Lal, Rupsingh and Siddhu gave lathi - Farsi blows to Kalu Singh. The evidence of Balu Singh (PW 3) is that when he reached the spot he saw Kalu Singh. Chander Singh and Daulat Singh injured. When he attempted to save them, he was attacked by Man Singh with lathi. 12. When we scrutinise the evidence of these witnesses, we and that Bhanwarlal had improved his evidence. He did not mention in his Police statement. Ex. D/3 that he saw the appellants causing injuries to Kalu Singh and Daulat Singh. According to his police statement he saw the Members of both the parties abusing each other. He asked them not to quarrel hut they gave heating to each other. The evidence of these witnesses and the site plan. Ex. Ex. D/3 that he saw the appellants causing injuries to Kalu Singh and Daulat Singh. According to his police statement he saw the Members of both the parties abusing each other. He asked them not to quarrel hut they gave heating to each other. The evidence of these witnesses and the site plan. Ex. P/3 show that the house of Kalu Singh is adjacent to the house or Daulat Singh and the house of Balu Singh is abutted to the house or Kalu Singh and then comes the house or Bhawar Lal. Daulat Singh clearly admitted that the place or occurrence is not visible from the house or Bhanwarlal. It is thus clear that he could not see the marpit done with Daulat Singh and Kalu Singh. Balu Singh clearly admitted that he did not see Daulat Singh and Kalu Singh being assaulted. These witnesses came on the spot after the injuries had been caused to Daulat Singh and Kalu Singh. Of course these witnesses establish the presence of the appellants on the spot armed with axe and Farsi. Presence of Daulat Singh and Chander Singh on the spot is proved from the injuries sustained by them. Dr. R.K. Sharma examined Daulat Singh on 13.1.91 and found two lacerated wounds on his head and a bruise on hack vide report Ex. P/16-A. On the same day he found one incised wound on the head or Chandersingh vide report Ex. P/17-A He also round Suraj Singh. Amar Singh and Balu Singh having one injury each. The presence of Daulat Singh in his house was natural. The same is the case with Chander Singh. Balu Singh etc. The evidence of Daulat Singh has further been corroborated by FIR Ex. P/1 which was lodged at 1.30 a.m. in the night i.e. after 4 hours or the incident. The distance or Police Station Sarangpur from the Village Pal Baloda is 8 Kms. and it was a night time and many persons were injured under such circumstances it must have taken time to reach the police station. Therefore, there was no delay in lodging FIR. 13. It has come in the evidence or Daulat Singh, Chander Singh and Balu Singh that electric bulb was switched on at the house of Daulat Singh. and it was a night time and many persons were injured under such circumstances it must have taken time to reach the police station. Therefore, there was no delay in lodging FIR. 13. It has come in the evidence or Daulat Singh, Chander Singh and Balu Singh that electric bulb was switched on at the house of Daulat Singh. Therefore, these witnesses were in a position to clearly identify the appellants who arc resident or the same village in the light of the bulb, 14. From the evidence of Daulat Singh and Chander Singh it is clear that the appellant Narayan Singh caused Farsi-blow to Kalusingh which landed on his head. It is true that Daulat Singh also stated that all the accused persons assaulted Kalusingh. But it was an omnibus statement. He did not tell, which accused caused which injuries. According to Chandersingh only appellant Narayansingh had caused Farsi injury to the deceased Kalusingh. He did not slate that Badrilal also gave him axe-blow. Dr. R.K. Sharma round one incised wound on the head of the deceased and one lacerated wound on the occipital region. In this way, medical evidence also supported his version. Dr. R.K. Singh who conducted postmortem examination on tile dead-body or Kalusingh opined that the cause or death was head injury. It is thus clear that The appellant Narayansingh killed Kalusingh. 15. The evidence of above eye-witness cannot he brushed aside on the ground that they were near relations of the deceased. Near relations are the last persons to allow real culprit escape and falsely implicate innocent persons. It is true that witness Amarsingh, Kalusingh etc. have not been examined. But on this ground no adverse inference can he drawn against the prosecution. These witnesses came on the spot after the attack having been made on Daulat Singh and Kalusingh. 16. As stated earlier, the defence or the appellants was that the complainant party was aggressor. The Members of this party - Daulalsingh, Chandersingh, Balu Singh etc. came in the temple where the accused persons were sitting and discussing about the theft of Tuwar from the field of Shivnarayam. Police had apprehended Gordhan and Shivsingh and Daulatsingh was prompting them to involve the appellant Badri and Siddhu in this theft case. On being unquestioned by Roopsingh as to why he (Daulat Singh) was falsely implication Badri and Siddhu. Police had apprehended Gordhan and Shivsingh and Daulatsingh was prompting them to involve the appellant Badri and Siddhu in this theft case. On being unquestioned by Roopsingh as to why he (Daulat Singh) was falsely implication Badri and Siddhu. Daulat Singh Brought sword for his house and gave sword-blow to him which struck his head. In the meantime. Kalusingh gave lathi-blow to Bapulal which landed n his hand and Manisingh. Daulatsingh, Suraj Singh. Chandersingh etc. Started breathing them. They lodged FIR Ex. D.2 at 2:30 a.m. on 13.1.91. Dr. R.K. Sharma. (PW 10) examined Roopsingh and found one incised would (1" x ¼" 8") on his head and one bruise (4" x 1") on his back vide report Ex. D.5 and found one bruise (3" x 1") on Suratsingh vide report Ex. D.6. It is true that in FIR Ex. D.2. It was mentioned that accused persons were sitting in the temple and the complainant party attacked them there. But no evidence has been produced by the appellants in this regard. Even the defence did not give suggestion to the prosecution witnesses in their cross-examination that they assaulted the accused persons in the temple. On the contrary, the defence gave suggestion to Chandersingh in para 6 of his cross-examination that this incident took place in between the houses of Daulatsingh and Hansraj. It has come in the evidence that the house of Hansraj and Daulatsingh are situated in front of each other. It is true that the Investigating Officer R.S. Yadav (PW 12) admitted that he did not find blood on the spot, but in our opinion, non-find of blood on the spot is not sufficient to hold that prosecution case is false. As stated earlier, members of complainant party and accused persons were present on the spot and due to trampling the blood could not have seen by the Investigating officer, In view of this, the evidence of Daulatsingh. Chandersingh. Balusingh and Bhavarlal clearly proved that this incident took place in front or the house or Daulatsingh and they assaulted Kalusingh and Daulatsingh. The burden or proving right or private defence lay on the appellants, or course, they arc not expected to prove it he yond reasonable doubt as the prosecution is required to do so. It is sufficient they show preponderance or probability in their favour. But they miserably failed to do so. The burden or proving right or private defence lay on the appellants, or course, they arc not expected to prove it he yond reasonable doubt as the prosecution is required to do so. It is sufficient they show preponderance or probability in their favour. But they miserably failed to do so. It is clear from the evidence that Kalusingh came do the spot all along. No suggestion was given that he was armed with any weapon and he was going to cause death or greivous hurt to the Members of the accused party. He was not having any arm with him. Therefore, the appellants had no apprehension that he would cause death or grevious hurt. We, therefore, hold that the appellants had no right of private defence. 17. It is true, as stated above that the acquitted accused Roopsingh had two injuries -- one incised wound on his head and one bruise on his hack and Suratsingh had one bruise and the prosecution did not explain these injuries. But these injuries were minor and under such circumstances non-explanation of these injuries does not make the prosecution case doubtful. (See 3 Judge Bench decision reported in AIR 1998 SC 3117 . Ram Sunder Yadav v. State of Bihar. 18. The evidence shows that after injuries having been caused to Daulatsingh and Kalusingh. Members or the complainant party-Chamdersingh, Balusingh etc. came on the Spot and free light began between these two groups. in which Chandersingh (PW 2). Surajsingh, Amarsingh, Balusingh and the accused persons Roopsingh and Surat Singh sustained injuries. Under these circumstances, each accused is responsible for his own act. 19. Now the question is as to what offence was made out against Narayansingh, from the evidence of Chander Singh it is clear that Narayansingh gave only one farsi-him to the deceased Kalusingn. He did not take advantage of his helplessness and did not repeat the blow. It clearly shows that he had no intention to kill kalusingh. Kalusingh died after 12 days. Under such circumstances, it cannot be held that he committed murder of Kalusingh However, looking to the fact that he caused injury on head with deadly weapon like farsi. therefore, it can be held that he (the appellant Narayan to cause death of Kalusingh. Therefore, the offence made out against the appellant Narayansingh is culpable homicide not amounting to murder punishable u/s 304-II IPC. 20. therefore, it can be held that he (the appellant Narayan to cause death of Kalusingh. Therefore, the offence made out against the appellant Narayansingh is culpable homicide not amounting to murder punishable u/s 304-II IPC. 20. It is true that separate alternative charge u/s 302 IPC was not framed. But no prejudice has been caused to the appellant. It is clearly written in the charge that the appellant caused the death or Kalusingh. 21. As stated earlier. it has come in tile evidence of Daulatsingh and Chandersingh that the appellant Narayansingh gave farsi-blow to chandersingh which landed on his head. Dr. R. K. Sharma found one incised wound on his head. It is thus proved that the appellant Narayan Singh also committed offence u/s 324 of the IPC. 22. So far as Badrilal is concerned. he did not cause any injury to Kalusingh. Accused party had come to the house of Daulatsingh to beat him. Their Common object/intention was to assault Daulat Singh. They had nothing to do with Kalusingh. Badrilal did not cause any injury to Kalusingh and there is no evidence or circumstances on the basis of which it can be inferred that he shared common intention with Narayansingh to cause the death of Kalusingh. It is true that common intention can be formed on the spot itself. But, in this case, as mentioned above, when the appellant Badrilal was causing injuries to Daulat Singh, all of a sudden Kalusingh came there, and the appellant Narayansingh gave him farsi-blow which proved fatal. There is nothing on record to show that the appellant Narayansingh caused farsi-blow to Kalusingh in furtherance of common intention. Therefore, in our opinion, the appellant Badrilal cannot he convicted for the o1lence u/s 304-11 with the aid of Section 34 of the IPC. 23. About Badrilal, Chandersingh and Daulatsingh deposed that Badrilal gave axe-blow to Daulatsingh which landed on his head. Daulatsingh stated that the blunt part of the axe struck his head. His evidence has been corroborated by Dr. R. K. Sharma who found lacerated wounds on his head. His evidence further gets corroboration from the HR Ex.P.1. Under such circumstances, it has been proved that the appellant Badrilal caused injury to Daulatsingh with axe and axe is such a weapon, which, if used as weapon of offence, it is likely to cause death. R. K. Sharma who found lacerated wounds on his head. His evidence further gets corroboration from the HR Ex.P.1. Under such circumstances, it has been proved that the appellant Badrilal caused injury to Daulatsingh with axe and axe is such a weapon, which, if used as weapon of offence, it is likely to cause death. In view of this, Badrilal is found guilty for offence u/s 324 IPC. 24. In view of above, Cr.A. No. 623/94 is partly allowed, Both the appellants-Narayansingh and Badrilal are acquitted of the offences u/Ss. 302/34. 324/34 and 323/34 IPC and instead Narayansingh is convicted for offence u/s 304-11 and 324 of the IPC. He has suffered incarceration of about 6 Years and 24 days. We, therefore, sentence him u/s 304-11 IPC to the period already undergone. He is sentenced to 3 years RI for the offence u/s 324 IPC which he has suffered. Badrilal is acquitted of the offence u/s 302/34, 324/34 and 323/34 IPC. However, he is convicted for offence u/s 324 IPC and sentenced to 3 years RI which he has suffered. The appellants are on hail. Their bail-bonds are discharged. 25. In the result. Cr. Appeal No. 623/94 is partly allowed as indicated above. 26. Cr. Appeal No. 78/95 filed by the prosecution against acquittal of all the accused of the charges under Sections 148, 147, 302/149, 323/149, 324/149 IPC deserves to he dismissed. It could not he proved by the prosecution that the appellants Narayansingh. Badrilal. Ladsingh (who died during the pendency of the appeal), Mansingh, Siddhulal and Roopsingh were Members of an unlawful assembly, therefore, no one can he convicted with the aid of Section 149 IPC and all the accused have been rightly acquitted of the offence u/Ss. 148, 302/149, 324/149 & 323/149 IPC. As mentioned earlier, there was free fight between complainant party and the accused party and where free fight takes place, accused can he convicted for his individual acts only and not on the basis of constructive criminal liability for the acts of others. The learned trial Judge minutely examined the prosecution evidence and concluded that it was not proved that there was unlawful assembly. In appeal against acquittal, the view taken by the trial Judge has to he given due weight as he had an added advantage of watching the demeanour of the prosecution witnesses. The learned trial Judge minutely examined the prosecution evidence and concluded that it was not proved that there was unlawful assembly. In appeal against acquittal, the view taken by the trial Judge has to he given due weight as he had an added advantage of watching the demeanour of the prosecution witnesses. Even if two views are possible, the view adopted by the trial Judge has to he accepted unless material evidence was left from consideration and the conclusions drawn were perverse. We find no reason to disagree with the finding of the learned trial Judge. In view of above Cr. Appeal No. 78/95 filed by the State is dismissed. The respondents bail-bonds are discharged.