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2001 DIGILAW 340 (MP)

Narendra Singh v. State of M. P.

2001-04-17

R.B.DIXIT

body2001
Short Note Feeling aggrieved by the judgment and order of conviction dtd. 20.2.97 passed in ST No. 137/93, by IInd Addl. Judge to Distt. Judge, Shivpuri, thereby convicting appellants under section 307/149, 324/149 and 148 of Indian Penal Code and sentenced to undergo Six months' RI with fine of Rs. 3000/- each in default there of One year RI, One year's RI with fine of Rs. 500/- in. default thereof Six months' RI, and one year's RI each respectively, the appellants have come up in appeal seeking redress praying for setting aside the judgment of conviction passed against them. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass. On 26.10.92, when complainant Amritlal was playing chess and his brothers Ramratan, Ramcharan and Bhagwati were also sitting besides him, the accused persons came there armed with sword, Gandasaw and lathi and assaulted Amritlal and his brother Ramratan, Babulal and Bhagwati. The First Information Report (Ex.P-6), was lodged by Amritlal. In medical examination of Amritlal, he received two incised wounds on right and left parietal region of scalp and four other incised wounds on left arm and right leg. In X-Ray examination, fracture of humorous and tibia bones were detected. Ramratan received six incised wounds on left thumb, left index finger, right and left phalanxial region and two abrasions on volar and left thigh, while Babulal sustained only one abrasion below left lateral malleolus. Bhagwati has also sustained only one abrasion on inter phalanxial area of left bigtoe. The defence of accused persons is that when accused Babulal had gone to purchase material of worship, he met Mahipal. Lalitkumar, Rajkumar, Bhagwati. Rambabu and Amritlal armed with farsa and lathi and started assaulting him. On his raising hue and cry, his brother Badri, Babu and Feran rushed for help they were also assaulted by persons. Babulal had lodged first information report (Ex.D/10). In medical examination of accused Feran (Ex. D/4), he was found sustained with lacerated wounds on left forearm and a contusion of dorsal aspect of left hand. Babulal sustained lacerated wounds over right shoulder. Narendra Singh sustained incised wounds on left parietal region and another lacerated wound on dorsal aspect of left foot. In X-Ray examination of Feran Singh, fracture of second matacarpol bone was also detected. D/4), he was found sustained with lacerated wounds on left forearm and a contusion of dorsal aspect of left hand. Babulal sustained lacerated wounds over right shoulder. Narendra Singh sustained incised wounds on left parietal region and another lacerated wound on dorsal aspect of left foot. In X-Ray examination of Feran Singh, fracture of second matacarpol bone was also detected. It is not disputed that in the counter case, against injured Amritlal, Lalit Kumar, Rajkumar, Bhagwati, Rambabu, Mahipal and Ramratan, were also found guilty and convicted for offence U/S 325 read with section 149 and 324 read with section 149 of IPC. The learned trial Court after recording prosecution evidence, had examined accused persons U/S 313 of IPC, although, came to the conclusion that it was a case of free fight and it is not clear as to which of the party was an aggressor, however, convicted appellants as stated hereinabove. The learned counsel for the appellants has submitted that in so far as section 307 of IPC is concerned, the injury of Amritlal on head was simple in nature and in so far as other injuries of Amritlal, Ramratan, Bhagwati and Babulal are concerned, the finding is that none of the party was found aggressive and there was free fight between both the parties, then appellants are entitled to benefit of doubt on the plea of self defence. Since, in this case, one of the accused Feran Singh has also sustained grievous injury and the injuries of other co-accused Narendra Singh and Babulal are also not superficial in nature, the prosecution is bound to explain the injuries of accused persons. Since, in this case, one of the accused Feran Singh has also sustained grievous injury and the injuries of other co-accused Narendra Singh and Babulal are also not superficial in nature, the prosecution is bound to explain the injuries of accused persons. In a leading case of Laxmi Singh v. State of Bihar reported in AIR 1976 SCC (Cr.) 679, it has been observed that non-explanation of injury sustained by the accused at the time of occurrence or in the course of altercation is a very important circumstance, from which, the Court can draw following inferences: (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus, not presented the true version; (ii) 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; (iii) 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. In case of Rukma v. Jala and others reported 1998 SCC (Cri) 213, the injuries caused on three deceased and other members of complainant's party explained by the accused in their statements u/s 313 of Cr.P.C., however, injuries sustained by accused were not explained by the prosecution witnesses, it was held that merely because accused party received least injuries and the complainant party received very serious injuries resulting in death of three persons, it cannot be said that the accused were aggressors. In case of Shivkaran v. State of Rajasthan reported in 1998 SCC (Cri) 712, no explanation was offered by the prosecution where the injuries sustained by accused person, not found superficial, it was pointed out that in the circumstances of the case the appellants are entitled to the benefit of reasonable doubt. In the case of S. Velayudhan v. Krishnan and Others reported in 1998 SCC (Cri) 906, where eye witnesses were closely related with deceased and they not explaining injury to the accused, it was observed that the defence version was more probable then that of the prosecution witnesses. In the case of S. Velayudhan v. Krishnan and Others reported in 1998 SCC (Cri) 906, where eye witnesses were closely related with deceased and they not explaining injury to the accused, it was observed that the defence version was more probable then that of the prosecution witnesses. In so far as the present case is concerned, where the learned trial Court on the basis of all the evidence on record, came to the conclusion that it was a case of free fight and where it is not possible to draw an inference as to which of the party was first aggressor, the appellants in such situation are entitled to benefit of doubt on the strength of plea of self defence. For the reasons stated hereinabove, this appeal succeeds and is allowed. The conviction and sentence of appellants under section 148,307 and 324 read with section 149 of IPC is set-aside. Fine if deposited, be refunded to the accused.