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Madhya Pradesh High Court · body

2007 DIGILAW 1005 (MP)

Jagdish v. State Of M. P.

2007-09-18

K.S.CHAUHAN

body2007
JUDGMENT : This criminal appeal has been preferred under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 27-4-1993 passed by III Additional Sessions Judge, Rewa in Sessions Trial No. 112/90 whereby the appellants have been convicted under section 304 of Indian Penal Code and sentenced to 7 years R.I. with fine of Rs. 2,000/- each in default 6 months S.I and also convicted under section 325 of Indian Penal Code and sentenced to 2 years RI with fine of Rs. 500/- each in default 6 months S.I. and sentences to run concurrently. 2. The prosecution case in brief is that the incident is of 23-2-1990 at about 12 noon of village Naraini, police station Naigadhi, District Rewa. Manbodh lodged the report on the same day at 3:00 p.m. at police station Naigadhi wherein it was stated that land bearing Khasra No. 221 area 45 decimal was purchased by him in the year 1973 from Baijnath Somwanshi and was in the joint possession of him and his brother Radhe. In some portion, the houses were constructed and in remaining the crops of Arhar and Lady's finger were sown. Adjacent to it the land is of Mohan and he was also sown the same crops. At 12 noon Mohan, his wife and daughter were harvesting his crop. He prevented them but Mohan told that he is harvesting his land. Some altercation took place. Other appellants also reached there. Mohan inflicted Lathi blow in his head. He fell down and cried for help. Radhe and Jamuna rushed. Jagdish inflicted the knife blow in his shoulder. The appellants caused the marpeet of his brother Radhe and Jamuna by inflicting knife and Lathi blows. Consequently, they sustained the injuries in hand, leg and head. Badri, Ramavtar, Kedar and Mathura came there, the appellants ran away. On this information, the Crime No. 23/90 was registered at police station Naigadhi. The injured persons were sent for medical examination. Subsequently, Radhe died. The Panchnama of his dead body was prepared on 24-2-1990. His dead body was sent for post-mortem examination which was conducted on the same day. X-ray of Jamuna was done. The spot map was prepared. The blood stained, controlled soil and the pieces of bricks were seized from the spot. The appellants were arrested. Their memorandum statements were recorded. Consequently, the offences of weapon were recovered. His dead body was sent for post-mortem examination which was conducted on the same day. X-ray of Jamuna was done. The spot map was prepared. The blood stained, controlled soil and the pieces of bricks were seized from the spot. The appellants were arrested. Their memorandum statements were recorded. Consequently, the offences of weapon were recovered. The statements under section 161 of Criminal Procedure Code were recorded. After completing the investigation, the charge-sheet was filed in the concerned Court under section 302/307/34 Indian Penal Code wherein Criminal Case was registered and committed to Sessions Court on 26-7-1990. 3. The appellants were charged under section 302 and 307 of Indian Penal Code that on 23-2-1990 at 12 noon at Village Naraini they committed murder by intentionally or (knowingly) causing the death of Radhe and thereby committed an offence punishable under section 302 of Indian Penal Code. They were further charged that on the same date, time and place they inflicted the injuries to Manbodh and Jamuna with such intention or knowledge and under such circumstances that if by that act they had caused their death they would have been guilty of murder and thereby committed an offence punishable under section 307 of Indian Penal Code . 4. The appellants abjured the guilt and claimed to be tried contending that they have been falsely implicated. Mohan was harvesting the crops of his own field. Complainant party carried his crop forcibly and caused marpeet of the appellants. Manbodh, Jamuna and Radhe received the injuries in scuffle. 5. After considering the evidence adduced on record, the trial Court found that the offence under sections 304 and 325 of Indian Penal Code has been proved against the appellants, convicted and sentenced thereunder as mentioned in para 1 of this judgment. Being aggrieved by the judgment, finding and sentence the appellants have preferred the appeal under section 374(2) of the Code of Criminal Procedure on the grounds mentioned in the memo of appeal. 6. The learned counsel of the appellants has submitted that appellant Mohan was harvesting the crop of his own field, the complainant came there and resisted. He has further submitted that the incident took place on the land belonging to the appellants and the complainant party was aggressor. The appellants exercised their right of private defence of person and property. The appellants have also sustained the injuries which have not been satisfactorily explained. He has further submitted that the incident took place on the land belonging to the appellants and the complainant party was aggressor. The appellants exercised their right of private defence of person and property. The appellants have also sustained the injuries which have not been satisfactorily explained. No offence under sections 304 and 325 Indian Penal Code has been proved against them. No independent witness has been examined on behalf of the prosecution. He has further submitted that after this incident one Civil Suit No. 46-A/98 was filed for declaration and injunction with respect to disputed land which was decided on 9-2-2000. The suit was partly allowed against which the Civil Appeal No. 40-A/07 was filed which has been decided on 3-3-2007. The appeal has been allowed. The complainants were not found in possession and owner of disputed land. Thus, the finding of Civil Court is binding upon the Criminal Court hence the appellants are entitled for acquittal. 7. On the other hand, Shri G. S. Thakur, learned P.L. appearing on behalf of the respondent/State submitted that the ample evidence has been adduced in the record regarding the possession of complainant party over the disputed land. The appellants have caused the serious injuries to injured persons Manbodh and Jamuna and also committed the murder of Radhe. The ocular evidence is supported by the medical evidence. The trial Court has rightly convicted the appellants and sentenced thereunder hence it does not call for any interference. 8. The main point for consideration in this appeal is that whether the trial Court committed any illegality in convicting and sentencing the appellants under section 304 and 325 of Indian Penal Code. 9. I have perused the entire case and evidence recorded therein. 10. Manbodh (PW-1) is the complainant and injured person. He has deposed that on 23-2-1990 at 12 noon Mohan, his wife and daughter were harvesting the crops which were sown by him and his brother Radhe. 11. He refused to Mohan not to harvest the crop but he did not adhere to and tried to carry the harvested crop to which he prevented. On this appellant Mohan inflicted Lathi blow. The other appellants also came there and assaulted him with Lathi by which he sustained the injuries. He cried to save himself, his brother Radhe and Jamuna came there but the appellants also assaulted them with Lathi and caused injuries. On this appellant Mohan inflicted Lathi blow. The other appellants also came there and assaulted him with Lathi by which he sustained the injuries. He cried to save himself, his brother Radhe and Jamuna came there but the appellants also assaulted them with Lathi and caused injuries. Appellant Jagdish also inflicted knife blow on the head of his brother Radhe and he also assaulted knife blow on the shoulder of the informant. All three brothers fell down on account of the beating given to them by the appellants and Rajmani. Then they were carried to Police Station Naigadhi where he lodged the report Ex.P/1 which was recorded by Mevalal Dwivdei (PW-15) and were sent for medical examination. His brother Radhe died in the night. 12. This witness in the cross-examination has stated that the disputed land was purchased by Radhe on 16-7-1973 in the consideration of Rs. 1,500/- from Baijnath Singh. The mutation of his brother was also effected but in consolidation proceedings the number of the land was changed and the Consolidation Officer again mutated this land in favour of original landholder. Again it was mutated in his favour in the year 1989. He has admitted that the appeal has been filed by the appellant Mohan against the order of mutation. He was unaware of the fact whether some portion of this land was sold to Chandrashekhar and Heeralal sons of appellant Mohan in the year 1989 in consideration of Rs. 2,250/- by Vijay Bahadur Singh. He has clearly stated that the entire land is in his possession. He has denied that appellant Mohan was harvesting the crop of his field. He and his brothers did not go there and cause the marpeet of the appellants. 13. Thus, this witness has stated that Mohan was harvesting the crops of his field. He prevented him. On this Mohan as well as other appellants along with Rajmani assaulted him and his brothers Jamuna and Radhe. They sustained the injuries in this incident. Subsequently, Radhe died. He has clearly denied the suggestive questions put to him regarding the defence. 14. Jamuna Prasad Kushwaha (PW-10) is also the injured person. He has stated that on hearing the cries he reached at the spot and saw that the appellants were assaulting Radhe by Lathi. They were also assaulting Manbodh. The appellant Jagdish inflicted knife blow at the head of Radhe. 14. Jamuna Prasad Kushwaha (PW-10) is also the injured person. He has stated that on hearing the cries he reached at the spot and saw that the appellants were assaulting Radhe by Lathi. They were also assaulting Manbodh. The appellant Jagdish inflicted knife blow at the head of Radhe. The appellants also caused marpeet to him. Consequently, he sustained the fracture in his forearm and left hand. He fell down. He has denied the suggestion that he reached at the spot having Lathi with him and caused marpeet to appellant Mohan and Jagdish. 15. Thus, this witness also supports the version of his brother Manbodh regarding assaulting and causing marpeet by the appellants. 16. Ramavtar (PW-7) also reached at the spot after hearing the cries and saw that the appellants were inflicting the Lathi blows to Manbodh, Jamuna and Radhe. They fell down. Jagdish also inflicted the knife blow at the head of Radhe. Manbodh, Radhe and Jamuna received the injuries. They were carried to police station Naigadhi where the report was lodged. He has also stated that there was the dispute regarding harvesting of the crop and this incident occurred due to this reason. He has clearly stated that the land on which quarrel took place belongs to Radhe. 17. This witness also supports the fact regarding causing marpeet of the injured persons by the appellants. 18. Shyamkali (PW-8) is the wife of deceased Radhe. She has also stated that the appellants caused marpeet of her husband thereby he sustained the injuries in his hand, chest and back. However, she has admitted that she was in her house and when she reached at the spot the appellants ran away after causing the marpeet. 19. She has also stated that the crops of Arhar and lady's finger were sown in the disputed land by Manbodh. 20. Pushpraj Kachhi (PW-9) has also supported the version of complainant Manbodh mainly stating that when Manbodh refused to harvest the crop of the land the appellants assaulted him and when his father Radhe went to intervene the appellant also assaulted him. As a result thereof, he fell down. Jamuna was also beaten by them. 21. He has also stated that his father Radhe and Manbodh had sown the crops in the disputed land. 22. Shyamkali (PW-8) has also stated that Manbodh has sown Arhar and lady's fingers crops in the disputed land. 23. As a result thereof, he fell down. Jamuna was also beaten by them. 21. He has also stated that his father Radhe and Manbodh had sown the crops in the disputed land. 22. Shyamkali (PW-8) has also stated that Manbodh has sown Arhar and lady's fingers crops in the disputed land. 23. Laxman Prasad (PW-3) and Malar (PW-4) have stated that bundle of Arhar was seized from the field of Manbodh. 24. By this evidence, the prosecution tried to establish that Manbodh and Radhe sown the crops in the disputed land to which the appellant Mohan was harvesting and the appellants have caused the injuries to Manbodh, Jamuna and Radhe. 25. Dr. Y. Singh (PW-13) has stated that on 23-2-1990 he medically examined Jamuna and found the following injuries : (i) Lacerated wound 1" x "½" x skin deep on right side of scalp on parietal region 3" above from mastoid process. Longitudinally - margin ragged. Clotted blood present. Healing process as yet began. (ii) Fracture left radius and ulna lower part 3" above from styloid process, deformity swelling, loss of movement. These injuries were caused by hard and blunt object within 12 hours of examination. Injury No. 1 was simple and No. 2 was grievous in nature. He advised x-ray of left forearm. Medical report is Ex.P/14 which contains his signature. 26. On the same day, he examined Manbodh Kachhi and found the following injuries on his person : (i) Lacerated wound 1"½" x "½" scalp deep on middle of scalp on right side 5" above from fronto-rasal junction, margin ragged, clotted blood, clotted blood present, slight oozing from wound margin and surfaced fresh. Healing process as yet not began longitudinally placed. (ii) Lacerated wound 1"½" x "½" on lateral part of left orbit upper part including some part of face, oozing from wound, surface red, healing process as yet not began. (iii) Incised wound "½" x "¼" x skin deep on left lower eyelid, transversely placed margin regular, slight oozing from wound healing process as yet not began. (iv) Incised wound 1" x "¼" x "½" on left arm posterior part 4" below from styloid process of ulna. Margin regular, longitudinally placed. (v) Fracture left radius 3" below from olecranon process of ulna, deformity, loss of movements, swelling upper part of left forearm. (iv) Incised wound 1" x "¼" x "½" on left arm posterior part 4" below from styloid process of ulna. Margin regular, longitudinally placed. (v) Fracture left radius 3" below from olecranon process of ulna, deformity, loss of movements, swelling upper part of left forearm. Injuries No. 1, 2 and 5 were caused by hard and blunt object whereas the rest of the injuries were caused by sharp edged weapon. Injury No. 5 was grievous and others were simple. These injuries were caused within 12 hours of the examination. Ex.P/15 is the medical report which contains his signature. 27. He has also examined Radhe on the same day and found the following injuries : (i) Lacerated wound 1"½" x "½" x scalp deep, 3" above from lateral third of upper orbital margin, on right side of scalp of slight oozing from wound, healing process as yet not began longitudinally placed. (ii) Abrasion "½"x"¼" on lower part of chest left side anteriorily "½" lateral from ziphold process surface red in colour no dust particle no crust. (iii) Bruise 3"x2" on left scapular region middle part deep red in colour transversely placed. These injuries were caused by hard and blunt object. Injury No. 1 was dangerous to life (causing cerebral) and others were simple. He advised x-ray of skull. Since the condition of Radhe was not normal, therefore, he was referred to Medical College, Rewa for further treatment. Radhe died on 24-2-1990. Panchnama of his dead body Ex.P/11 was prepared. The post-mortem was conducted by Head of the Department, Forensic Medicine, S.S. Medical College, Rewa. He found the injuries as described in post-mortem report Ex.D/2. According to this report, the cause of his death was head injury leading to Coma and within 6 to 12 hours of the examination. This document has been admitted by the appellants under section 294 of Criminal Procedure Code on 24-5-1992. 28. Thus, from the perusal of post-mortem report, Radhe died on account of the head injury. 29. The x-ray report of Jamuna has also been admitted by the appellants which is Ex.D/3. On perusal of x-ray report there is communited fracture of lower third of radius in left side. 30. The ocular evidence adduced regarding causing the marpeet has been further corroborated by medical evidence. 31. The prosecution has also adduced the circumstantial evidence against the appellants. The x-ray report of Jamuna has also been admitted by the appellants which is Ex.D/3. On perusal of x-ray report there is communited fracture of lower third of radius in left side. 30. The ocular evidence adduced regarding causing the marpeet has been further corroborated by medical evidence. 31. The prosecution has also adduced the circumstantial evidence against the appellants. J.D. Bhonsale (PW-16) prepared the spot map Ex.P/12 and seized the bundle of Arhar vide Ex.P/9 and P/10 and also seized the pieces of bricks from the spot vide Ex.P/13. He also recorded the disclosure statement of the appellants and in consequence thereof recovered the offences of weapon such as knife, lathi etc. The seized articles were sent for chemical examination from where report was received. 32. Thus, by this evidence, the prosecution has tried to establish that the offences of weapon were seized from the appellants at their instance. 33. As stated earlier, the main defence of the appellants is that Mohan was harvesting the crops of his field to which the complainant party resisted and caused marpeet, therefore, they exercised the right of private defence of person and property. 34. The defence has examined Vijay Bahadur Singh (DW-2) and Baijnath Singh (DW-3). They have stated that 45 decimal land was of Baijnath Singh out of which 30 decimal was given to Radhe and 15 to Mohan. They have denied that the entire land was given to Radhe. 35. Vijay Bahadur Singh (DW-2) has himself admitted that he was not present at that time when Baijnath Singh (DW-3) gave this land to Radhe. Both these witnesses have stated that the land was given before 20 to 25 years back. The appellants have produced registered sale deed (Ex.D/4) according to which 0.15 decimal land has been purchased on 23-8-1988 from Vijay Bahadur Singh. It appears that the entire land 0.45 decimal was given to Radhe prior to 20 to 25 years back but when the land was again mutated in the favour of original holder then he sold 0.15 decimal to the sons of appellant Mohanlal. 36. The appellants have not adduced any evidence that they had sown the crop in this field. On the contrary, the prosecution has adduced the evidence that the crops in this field was sown by the complainant party. 36. The appellants have not adduced any evidence that they had sown the crop in this field. On the contrary, the prosecution has adduced the evidence that the crops in this field was sown by the complainant party. They have also adduced the evidence that the appellant Mohan was harvesting the crop of field belonging to Manbodh and Radhe. The bundles of harvested Arhar were seized from their field. Therefore, the evidence of prosecution appears to be convincing and more reliable. In these circumstances, no right of private defence of property appears to have been accrued in favour of the appellants and if at all it has exceeded its limit. 37. Section 103 of Indian Penal Code runs as follows :- "The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely :- First. - Robbery; Secondly.- House-breaking by night; Thirdly. - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly. - Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." 38. Since none of the elements exist in this case, therefore, there was no any occasion to exercise the right of private defence of the property. 39. Now the point for consideration is that whether there were circumstances to exercise the right of private defence of person. 40. It has been brought on record that appellant Mohan inflicted the lathi blows to Manbodh and others also assaulted Manbodh, Jamuna and Radhe. They have caused the serious injuries to them. They were having the weapons with them. On the other hand, deceased Radhe was going to take bath at that time he was wearing only pardhani (dhoti) came there to patch up the matter but was assaulted badly consequently he died. They have caused the serious injuries to them. They were having the weapons with them. On the other hand, deceased Radhe was going to take bath at that time he was wearing only pardhani (dhoti) came there to patch up the matter but was assaulted badly consequently he died. In such circumstances, it can safely be said that the appellants were the aggressors and no right of private defence of body can be claimed by the aggressors in such circumstances. Apart from it, there were no any circumstance compelling them to cause the death of Radhe. The death can only be caused in exercise of such right when the circumstances specified in section 100 of Indian Penal Code are in existence. 41. Section 100 of Indian Penal Code runs as follows :- "The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :- First. - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly. - An assault with the intention of committing rape; Fourthly. - An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly. - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release." 42. Thus, no any circumstance was available to the appellant to cause the death of Radhe. 43. No doubt, appellant Jagdish and Mohan also sustained the injuries as is reflected from the evidence of Dr. Y. Singh (PW-13). He found five bruises on the person of Jagdish as mentioned in medical report Ex.D/2. All injuries were simple in nature likewise he also found six bruises on the person of appellant Mohan as mentioned in medical report Ex.D/3. These injuries were also simple in nature. So it can be said that Dr. Y. Singh also found the simple injuries on the persons of appellants Jagdish and Mohan. All injuries were simple in nature likewise he also found six bruises on the person of appellant Mohan as mentioned in medical report Ex.D/3. These injuries were also simple in nature. So it can be said that Dr. Y. Singh also found the simple injuries on the persons of appellants Jagdish and Mohan. 44. The injuries caused to Manbodh, Jamuna and Radhe were grievous in nature. Consequently, Radhe died as a result of head injury whereas these appellants Jagdish and Mohan sustained simple injuries. There is no obligation on the prosecution to explain such injuries. However, it appears that these injuries appear to have been caused in defending themselves by the injured persons. 45. In the case of Sukumar Roy vs. State of W. B., (2006) 10 SCC 635 , it has been held that minor unexplained injuries sustained by accused party cannot help defence case of exercise of right of self defence. 46. In the case of Raj Pal vs. State of Haryana, (2006) 9 SCC 678 the Apex Court has held thus : "On facts held, merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death - Further held, though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary - In the present case, no evidence much less cogent and credible was adduced in this regard and hence right of private defence has rightly been negated by the High Court." 47. In the case of Triloknath Singh vs. State of U. P., (2005) 13 SCC 323 , the Apex Court has held thus: "The need to act in private defence must not have been created by the conduct of the accused in the immediate context of the incident which was likely or intended to give rise to that need." 48. In the facts and circumstances of the instant case, no right of private defence of person and property accrued in favour of the appellants. They have caused the death of Radhe and also caused the grievous hurt to Manbodh and Jamuna. Their conviction is well founded. It does not require for any interference. 49. In the facts and circumstances of the instant case, no right of private defence of person and property accrued in favour of the appellants. They have caused the death of Radhe and also caused the grievous hurt to Manbodh and Jamuna. Their conviction is well founded. It does not require for any interference. 49. The learned counsel for the appellants has submitted that the appellants have served three years imprisonment hence they be released on the undergone sentence. But keeping in view the entire facts and circumstances of the case, undergone sentence will not meet the ends of justice. The sentence awarded does not appear to be disproportionate to the act of the appellants hence need not require to interfere in the sentence awarded by the trial Court. The appeal is meritless and hence deserves to be dismissed. 50. Consequently, the appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C.J.M., Rewa on 12-10-2007 to serve out the remaining part of the sentence.