Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 435 (MP)

JAGGU ALIAS JAGGA ALIAS JAGDISH v. STATE OF M P

2006-03-23

S.K.KULSHRESTHA, S.S.DWIVEDI

body2006
Judgment ( 1. ) THESE appeals are directed against the judgment dated 31-10-2002 of the learned Special Judge, Jhabua, in Special Criminal Case No. 3/2002 by which, while acquitting co-accused Mannubai w/o Rama, Narayan s/o Nanuram and raju s/o Hiralal, appellants Jaggu @ Jagga @ Jagdish and Rama have been convicted for offence punishable under Section 302 read with Section 34 of the indian Penal Code and each sentenced to imprisonment for life and fine of rs. 1,000/ -. In default of payment of fine, the judgment directs the accused to suffer further simple imprisonment for three months. ( 2. ) ACCORDING to the case of the prosecution, Ramesh (PW 5) had gone to village Amlidund with Durgadas and after meeting Ramlibai (Sarpanch), while they were returning to village Motapada, accused Jaggu Gurjar was noticed near the Canal. Deceased Bharat was surprised to see water in the Canal which was closed for past 8-9 years. They, therefore, proceeded towards the canal and found accused Jaggu, Rama and Ramas wife sitting nearby. Deceased Bharat inquired from accused Jaggu as to how the water being diverted to which Jaggu replied that he had become the Chowkidar and had become available just for a 10/- rupee note. Bharat retorted that in his field he was not getting any water and how was it that he had got the water diverted and his brother Rama (accused) said that they would tell him how the water came to their field. Both of them started assaulting him with Dharia. It was alleged that the acquitted accused Mannubai also assaulted with a danda (stick ). Bharat sustained injuries on various parts of his body and fell down and when Ramesh and Durgadas tried to save him, the accused persons rushed at them with the result they had to run for their life. On reaching the village, the incident was narrated to Nandu, Dita, Ratan and others and persons were brought from the village to the place of the incident from where Bharat was carried to the Police station and Report (Ex. P/1) was lodged at 02. 30, by Ramesh (PW 5) on the night intervening 3rd and 4th of December, 2001. Bharat was sent for medical examination but within half an hour, he succumbed to the injuries. The offence was registered at Police Station, Petlawad and the injured was sent to Hospital where Dr. P/1) was lodged at 02. 30, by Ramesh (PW 5) on the night intervening 3rd and 4th of December, 2001. Bharat was sent for medical examination but within half an hour, he succumbed to the injuries. The offence was registered at Police Station, Petlawad and the injured was sent to Hospital where Dr. Suresh Chand Sharma (PW12) examined him and gave MLC Report (Ex. P/6-A) in which he recorded the following injuries:- (1) Incised wound mandibular region 15 cm x 16 cm x 1 1/2 cm; (2) Incised wound at maxillary region 15 cm x 5 cm x 2 cm caused by sharp edged weapon; (3) Incised wound 4 cm x 2 cm x bone deep behind right ear; (4) Incised wound 10 cm x 3 cm x bone deep on forehead going towards inside and cutting nose and partietal bone; (5) Incised wound 5 cm x 2 cm x 1 cm on mandible region; (6) Incised wound 2 cm x 1 cm x bone deep, 2 cm x 1 cm caused by sharp edged weapon; (7) Incised wound 3 cm x 1/2 cm x 1/2 cm on right dorsal side; (8) Incised wound left thigh lower 1/3rd 4 cm x 1/2 cm x 1/2 cm; and, (9) Incised wound right leg anterior middle l/3rd 3 cm x 1/2 cm x 1/2 cm. ( 3. ) UPON demise of the patient and on receiving requisition, autopsy was performed vide report Ex. P/23. The injury noticed in the MLC (Ex. P/6-A)were recorded in the post-mortem report Ex. P/23 as well. In the opinion of the doctor, the death occurred on account of haemorrhage and injury to the vital organs. Since the matter related to offence under the provisions of the scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the case was transferred to the Police Station, Adim Jati Kalyan, Jhabua. On receiving the case diary, spot map was prepared, samples of blood stained and plain earth were seized, articles lying on the spot such as shoes, broken teeth were also seized. Accused Rama and Mannubai were arrested and on the disclosure made by Rama, a Dharia was seized from him. Likewise, a Dharia was seized from Jaggu. The other accused were also arrested and after completion of the investigation, the accused were prosecuted. ( 4. Accused Rama and Mannubai were arrested and on the disclosure made by Rama, a Dharia was seized from him. Likewise, a Dharia was seized from Jaggu. The other accused were also arrested and after completion of the investigation, the accused were prosecuted. ( 4. ) ON being charged with the offences under Section 302/34 of the ipc and Section 3 (2) (v) of the SC/st (Prevention of Atrocities) Act, the accused pleaded that they were innocent and that they have not committed any offence. Accused Mannubai and Rama took the plea that Ramesh and durgadas had assaulted them and they had gone to the Police Station to report the matter. According to Jaggu, he was not on the spot and had gone to the house of Ramlibai. According to Narayan and Raju, they had been falsely implicated. The learned Sessions Judge, on trial, while acquitting co-accused mannubai, Narayan and Raju, convicted appellants Rama and Jaggu and sentenced them as hereinabove stated. It is against the said conviction that the appellants have preferred the above two appeals. Both the appeals being from the same judgment, are being disposed of by this common order. ( 5. ) LEARNED Counsel for the appellants has submitted that as per the defence evidence and the document (Ex. D/4), Mannubai had sustained serious injuries which the prosecution, though obliged, failed to explain, with the result, the right of private defence of body asserted by them became probable and the learned Sessions Judge, therefore, ought to have acquitted all the accused persons as the right extends also to defending the person of others and does not remain confined to defending oneself. His further contention is that testimony of Ramesh (PW 5) and Durgadas (PW 6) is replete with contradiction and improbabilities and failure on their part to explain the injuries of one of the accused further makes their version unreliable. Learned counsel, therefore, contends that under these circumstances, the conviction based on the testimony of these two witnesses deserves to be set aside. Learned State Counsel, per contra, has referred to the testimony of the eye-witnesses and of Dr. Suresh Chand Sharma (PW 12) and the other contemporaneous circumstances in supporting the judgment of the court below. ( 6. ) THERE is no dispute that Bharat sustained injuries to which he succumbed and, therefore, his death was homicidal. Learned State Counsel, per contra, has referred to the testimony of the eye-witnesses and of Dr. Suresh Chand Sharma (PW 12) and the other contemporaneous circumstances in supporting the judgment of the court below. ( 6. ) THERE is no dispute that Bharat sustained injuries to which he succumbed and, therefore, his death was homicidal. Ramesh (PW 5) and durgadas (PW 6) have deposed to he having been assaulted by the appellants and the medical evidence adduced through Dr. Suresh Chand Sharma (PW 12) further confirms that he had succumbed to the injuries. The only question that falls for determination in this appeal is whether the appellants were responsible for the injuries which led to the death of Bharat and if so, what is the offence committed by them. ( 7. ) THOUGH the prosecution has examined twelve witnesses, in view of the fact that the controversy has narrowed down on account of the submissions of the parties before us, witnesses relevant for determination of the above question are only the eye-witnesses Ramesh (PW 5) and Durgadas (PW 6) and the medical evidence of Dr. Suresh Chand Sharma (PW 12 ). ( 8. ) RAMESH (PW 5) has deposed that on the date of the incident when they had gone to the Canal to drink water, they found Jaggu in his field. Though it was their turn to draw water from the Canal, since Jaggu was drawing water, they inquired from him as to why the water was being drawn by him. Jaggu replied that he had become Chowkidar and, therefore, he could draw the water whenever he liked. He further stated that he could be purchased for 10/- rupees. When deceased Bharat said that it was their turn, Jaggu said that yes it was his and that he would give the water and he picked up a Dharia and started assaulting him. Stones were also pelted with the result they tried to run away but rama also assaulted Bharat with a Dharia. His wife had a staff. Bharat sustained injuries on his head and teeth. Bharat fell down on the spot. They rushed to the village and informed Nandu, Ditiya and Ratan who returned with him and saw that Bharat was lying unconscious. He was taken in a Tractor to the Police station. Bharat died in the Hospital. Evidence of Durgadas (PW 6) is on similar lines. Bharat sustained injuries on his head and teeth. Bharat fell down on the spot. They rushed to the village and informed Nandu, Ditiya and Ratan who returned with him and saw that Bharat was lying unconscious. He was taken in a Tractor to the Police station. Bharat died in the Hospital. Evidence of Durgadas (PW 6) is on similar lines. When they had taken Bharat to Hospital, he was examined by Dr. Suresh chand Sharma (PW 12) who had noticed nine incised wounds on the body of bharat s/o Kalu and conducted autopsy after he had expired. From the evidence of the eye-witnesses, it is clear that the incident, as described by the prosecution, had taken place in which Bharat had sustained the injuries recorded by Dr. Suresh Chand Sharma (PW 12), to which Bharat had succumbed. ( 9. ) LEARNED Counsel for the appellants has, however, submitted that the prosecution has not placed the facts squarely before the Court. Mannubai had also sustained the injuries which have been proved by the defence by examining Dr. K. D. Mandloi (DW 2 ). As a matter of fact, Rama had also sustained injury. Rama was examined by him on 4-12-2004 and he had a contusion 3 cm x 3 cm on his right shoulder caused by some hard and blunt object which he recorded in the report Ex. D/3. Likewise, his wife Mannubai had sustained a lacerated wound 4 cm x 1 cm x 1 cm on the parietal region on which there was clotted blood, she had also a wound of the size 4 cm x 1 cm x 1 cm on the left side of parietal bone. She had an abrasion 4 cmx4 cm on the lower l/3rd of the forearm. All these injuries had been caused by hard and blunt object. In fact, the accused party had also lodged a report (Ex. D/5) on the basis whereof offence vide Crime No. 174/2001 was registered by the Police, as deposed to by padam Singh Baghel (DW 3 ). ( 10. ) LEARNED Counsel contends that on account of the suppression of the material fact and non-explanation of the injuries of the accused, the prosecution has suppressed the genesis of the incident and, therefore, it is not clear as to which of the two parties was the aggressor. ( 10. ) LEARNED Counsel contends that on account of the suppression of the material fact and non-explanation of the injuries of the accused, the prosecution has suppressed the genesis of the incident and, therefore, it is not clear as to which of the two parties was the aggressor. His further contention is that since the complainant party was aggrieved on account of the unauthorised drawing of water by the accused, it was not unlikely that in order to chastise the accused persons, the deceased had assaulted the accused persons and caused the injuries. In any case, in view of the ratio of Lakshmi Singh Vs. State of Bihar ( AIR 1976 SC 2263 ), the right asserted by the accused is rendered probable on account of the said non- explanation. ( 11. ) THOUGH it is clear from the evidence itself that accused Rama and his wife Mannubai (acquitted accused) did receive injuries in the same transaction, the injuries caused to the deceased were far in excess of the harm permitted to be caused in exercise of the right of private defence. The two appellants caused as many as nine injuries to the deceased by means of Farci, while the appellant Rama had only a slight injury though the acquitted accused mannubai had a lacerated wound on parietal region as also an incised wound. It, therefore, clearly appears that while exercising their right of private defence, they exceeded the limit prescribed by law. We are conscious of the fact that in exercise of the right a person is entitled to make sure that the apprehension of harm to him or to the person for whom he is exercising the right, is brought to an end, but, at the same time, more harm than what is necessary for the exercise of such right, cannot be caused. The right cannot, however, be weighed in golden scales but in the present case, as against the harm caused, the two appellants caused more harm to the deceased than was necessary for the exercise of the right of private defence. Even otherwise, the said incident took place all of a sudden and it was not in contemplation of any of the parties. Even otherwise, the said incident took place all of a sudden and it was not in contemplation of any of the parties. Under these circumstances, the act being without any premeditation and in a sudden fight in the heat of passion upon a sudden quarrel would be covered by Exception IV to Section 300 of the IPC and, therefore, it would not amount to murder. Thus, the two appellants would be guilty only under Section 304 Part I of the IPC. ( 12. ) IN the result, the above appeals are partly allowed. The conviction of the appellants under Section 302/34 and the sentence awarded thereunder is set aside and, in stead, they are convicted under Section 304 Part I read with section 34 of the IPC and sentenced to rigorous imprisonment for 10 (ten) years. Criminal Appeals partly allowed.