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2004 DIGILAW 145 (MP)

Bhil Singh v. State of M. P.

2004-02-11

ASHOK KUMAR TIWARI, S.L.KOCHAR

body2004
Judgment ( 1. ) THE appellant has filed this appeal against the Judgment of conviction delivered on 14th March, 1996 rendered in ST No. 666/95 by learned 1st Additional Sessions Judge, Alirajpur, Whereby he convicted the appellant for the offence under Section 302, IPC and sentenced him rigorous imprisonment for life. ( 2. ) THE prosecution case Mul Tum in Purbo is that on 14th February, 1995, in village Bawadi falia, daughter of one Vesta had died. The villagers, along with deceased Raisingh, appellant Bhilsingh, witnesses Raqsingh, Amarsingh went to cremation ground for performing her funeral. Deceased Raisingh was the brother of Amarsingh (P. W. 3 ). When they were returning after performing the funeral, they had also consumed some liquor and thereafter, on account of some previous enmity, dispute arose between the appellant and deceased Raisingh. Appellant dealt two axe blows, one on the left parietal region and second on the left shoulder to Raisingh. The deceased Raisingh while crying, fell on the ground having falia in his hand (sharp edged weapon having one blunt edge ). Thereafter the appellant picked up falia and also caused injuries to deceased Raisingh on his neck and fled away from the scene of occurrence. The incident was witnessed by so many persons. The First Information Report was lodged by Raqsingh (P. W. 2), on the information given to him by eye witness Amarsingh brother of the deceased. First Information Report was recorded by Jiledarsingh Yadav (PW. 9) ASI. After preparation of inquest, dead body was sent for Post Mortem Examination. An autopsy was conducted by Dr. M. L. Dangi (P. W. 1), who found four incised injuries on the person of the deceased. Post Mortem Report is Ex. P-2. On the same day, the appellant also got medically examined by Dr. M. L. Dangi (P. W. 1), who found as many as three injuries on his person, two lacerated wounds on the head and one abrasion on the nose, MLC Report is Ex. P-3. ( 3. ) AFTER usual investigation, chargesheet was filed for the aforesaid offence against the appellant. The appellant abjured his guilt. According to the suggestion given to the eye witness Amarsingh (P. W. 3), the appellant acted in the right of self defence of his person. Learned Trial Court, after examining the prosecution witnesses convicted the appellant and sentenced him as indicated above. ( 4. The appellant abjured his guilt. According to the suggestion given to the eye witness Amarsingh (P. W. 3), the appellant acted in the right of self defence of his person. Learned Trial Court, after examining the prosecution witnesses convicted the appellant and sentenced him as indicated above. ( 4. ) WE have heard learned Counsel for the parties and perused the entire record carefully. ( 5. ) THE contention of the learned Counsel for the appellant is that the conviction is mainly based on the testimony of solitary eye witness Amarsingh (P. W. 3) who is the brother of the deceased. Looking to the prosecution evidence itself, the appellant has acted in the right of self defence of his person. The appellant sustained injuries in the same incident and the same have not been explained by the prosecution. On the other hand, learned Deputy Advocate General, Mr. Girish Desai, has supported the judgment and finding arrived at by the Trial Court. ( 6. ) THE conviction of the appellant is mainly based on the evidence of Amarsingh (P. W. 3), Raqsingh (P. W. 2), who has lodged First Information Report, Khajurbai (P. W. 8) wife of the deceased to whom Amarsingh (P. W 3) informed about the incident and the statement of Investigating Officer, Jitedarsingh Yadav (P. W. 9), who seized an axe and Falia vide seizure memo (Ex. P-12) from the spot and also conducted other investigation. ( 7. ) WE have gone through First Information Report, Medical Report, Statement of witnesses and found that thrust of the case is whether the appellant acted in right of self defence of his person or not. For this purpose, if we look to the First Information Report (Ex. P-4) as also the statement of Amarsingh (P. W. 3) who stated that at the time of incident, deceased was having Falia in his hand and the appellant possessed an axe. When they were returning from the cremation ground, some verbal quarrel took place between the appellant and deceased on account of previous enmity. This evidence is clearly showing that the deceased was not unarmed but possessing a dangerous weapon viz. falia. The appellant has stated in his accused statement recorded under Section 313 Cr. P. C. that he was assaulted by the deceased from the blunt side of the falia and thereafter he fell on the ground. This evidence is clearly showing that the deceased was not unarmed but possessing a dangerous weapon viz. falia. The appellant has stated in his accused statement recorded under Section 313 Cr. P. C. that he was assaulted by the deceased from the blunt side of the falia and thereafter he fell on the ground. Of course, he has not explained the injury sustained by the deceased but the same is the situation with the prosecution. The solitary eye witness of the prosecution Amarsingh (P. W. 3) has also not explained injuries sustained by the appellant in the incident. He was given positive suggestion in his cross- examination in paras 3 and 4 that the dispute aggravated when Raisingh tried to assault appellant by falia and appellant to save himself, made an attack on Raisingh. With this evidence, we have to visualize and appreciate the evidence adduced by the prosecution whether the appellant acted in right of self defence of his person or not. ( 8. ) TO resolve this controversy, we have to see on the basis of the material available on record, who was the aggressor and whether the appellant was having apprehension of grievous hurt or death by the act of deceased. The First Information Report (Ex. P-4) as well as statement of Amarsingh (P. W. 3) are clearly revealing the fact that the deceased was having falia in his hand and the appellant an axe. When the verbal quarrel took place between them and during the course of quarrel, if the appellant was aggressor and caused injuries, as stated by Amarsingh (P. W. 3) on the head and left shoulder, after receiving the such injuries, deceased fell on the ground, therefore, he could not cause injury to the appellant. The appellant suffered two lacerated wounds on his head and both were on the vital part of the body. According to the appellant, same were caused by blunt side of falia. The appellant also suffered one abrasion on the nose, therefore, his medical report and the circumstance are clearly establishing the fact that the appellant had received injuries first in time by the hands of the deceased and only thereafter the appellant had used axe for causing injuries. According to the appellant, same were caused by blunt side of falia. The appellant also suffered one abrasion on the nose, therefore, his medical report and the circumstance are clearly establishing the fact that the appellant had received injuries first in time by the hands of the deceased and only thereafter the appellant had used axe for causing injuries. Further evidence has come on record that when the deceased fell on the ground the appellant took the falia of the deceased and again dealt blow at his neck and chest. Learned Trial Court has not considered this aspect and held that since injuries sustained by the appellant were simple in nature, the same need not to be explained by the prosecution. In the opinion of this Court it is not the established principle of law. Whether the prosecution is required to explain injuries on the person of the appellant, depends upon the facts and circumstance of each case. If both sides are not explaining the injuries and the appellant had suffered insignificant and minor abrasion and contusions on the non vital part of the body and for his active participation and for establishing the fact that the appellant was aggressor, there is sufficient evidence on record in such circumstances of the case, if the prosecution does not explain injuries on the person of the appellant, the same would not be fatal to the prosecution case. It will also not affect to the prosecution when the appellant does not take the plea of self defence. In the present case, the facts are as clear as day light that at the time of incident, the deceased was having falia, a dangerous weapon whereas the appellant was having axe. The injuries sustained on the person of the deceased which said to have been caused by the appellant by an axe on his head and shoulder and thereafter he fell on the ground, establishes that after falling on the ground and after receiving such injuries, deceased could not cause injuries to the appellant. Therefore, only inevitable inference would be that the appellant was assaulted by blunt side of falia by the deceased first in time and the appellant suffered two lacerated wound on the head. It was his luck that the same could not prove fatal. Therefore, only inevitable inference would be that the appellant was assaulted by blunt side of falia by the deceased first in time and the appellant suffered two lacerated wound on the head. It was his luck that the same could not prove fatal. It is also very difficult to accept when the appellant himself was having an axe and used the same why he should pick up falia from the ground and use the same for causing injuries. There is no evidence on record that he was disarmed by any body or axe fell from his hand, therefore, we are of the opinion that the evidence available on record are clearly spelling out the fact that the deceased was aggressor. Non explanation of injuries on his person by the interested witness Amarsingh (P. W. 3) would prove fatal in the facts and circumstances of this case. ( 9. ) THE Supreme Court in the case of Bhagwan Swaroop v. State of M. P. ( AIR 1992 SC 675 ) in Paragraph 9 has held as under :- "we do not agree with the Courts below. It is established on record that Ramswroop was being given lathi blows by the complainant party and it was at that time that gun shot was fired by Bhagwan Swroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the Courts below on this point and held that Bhagwan Swaroop fired gun shot to defend the person of his father. " ( 10. ) IN the case on hand, the appellant would reasonably apprehend danger His life when deceased gave two falia blows on his head. Learned Trial Court has not correctly appreciated the proposition of law laid down regarding non explanation of injuries on the person of the appellant by the prosecution. " ( 10. ) IN the case on hand, the appellant would reasonably apprehend danger His life when deceased gave two falia blows on his head. Learned Trial Court has not correctly appreciated the proposition of law laid down regarding non explanation of injuries on the person of the appellant by the prosecution. In the case of Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ), the Supreme Court has held that- " 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. " ( 11. ) IN the present case, solitary eye witness Amarsingh (P. W. 3) is interested as well as inimical witness. The appellant, deceased and Amarsingh (P. W. 3) were having animosity on account of murder of father of the appellant for which deceased Raisingh and one Nansingh were prosecuted. The defence has taken specific plea of private defence and given suggestion to Amarsingh (P. W. 3), who has not explained injuries sustained by the appellant. The appellant has two lacerated wounds on his head with clotted blood and the injuries were showing that the blow was given with a force but some how or the other it could not prove fatal. He has also suffered one abrasion on his nose. The suggestion was also given by the defence to eye witness that the appellant assaulted the deceased only when he had apprehension of danger to his life and limb. Under these circumstances, it was incumbent upon the prosecution to explain injuries found on the person of the appellant. The appellant has also stated in his accused statement that he was assaulted by the deceased, of course he has not explained the injuries on the person of the deceased but in the opinion of this Court, the same would not prove fatal to his case since the burden on defence is to prove its case only on preponderance of probability. In the present case, the evidence as discussed above, is clearly establishing that the deceased was aggressor, On the question of law of right of self defence, non-explanation of injuries on the person of the appellant and appreciation of evidence in such a case we may profitably refer to the following judgment of the Supreme Court. (i) Suchcha Singh v. State of Punjab, 2003 (VII) SCC 643. (ii) Kashiram and Ors. v. State of M. P. 2002 (I) SCC 71 ; (iii) Nizar Ahamad v. State of Chhattisgarh, 2003 (II) SCC 661 . ( 12. ) NOW the vital question for consideration before us that whether the appellant has acted within the fore corner of law of right of private defence extending up to causing death of deceased. For this purpose, considering the evidence of Amarsingh (P. W. 3) that the appellant caused two blows after falling the deceased on the ground when the deceased was disable and at that time the appellant was not having any further apprehension of injuries being caused to him by the deceased. Therefore, we are of the opinion that the appellant has exceeded his right of private defence. ( 13. ) IN view of the aforesaid factual and legal discussion, we conclude that the conviction of the appellant under Section 302, IPC is not sustainable and therefore, the same is hereby set aside. Instead, he is convicted for the offence of culpable homicide not amounting to murder falling under Section 300, Exception II punishable under Section 304 (Part I) I. P. C. and sentencing him to undergo rigorous imprisonment for ten years. ( 14. ) CONSEQUENTLY, this appeal stands allowed in part. In the terms indicated above.