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2008 DIGILAW 154 (MP)

DURGA PRASAD v. STATE OF M. P.

2008-01-29

S.K.KULSHRESTHA

body2008
Judgment S.K.Kulshrestha, J. ( 1. ) The appellant has filed this appeal against the judgment dated 11th March, 1995, passed by the learned 1st A.S.J., Shajapur in S.T. No.62/1993, whereby, while acquitting co - accused Mahesh Kumar and Ramchancra, the appellant has been convicted for an offence under Section 304, Part - II of the I.RC. and sentenced to R.I. for three years and fine of Rs.5,000/ - . In case of default in payment of fine, the judgment directs him to suffer additional R.I. for one year. ( 2. ) The accused was tried along with two acquitted co - accused for offence punishable under, Section 302 read with Section 34 of the I.P.C. The prosecution had alleged that on 19/11/1992, the appellant and two accused persons, in furtherance of their common intention, assaulted Kailash and caused his death. The report(Ex - P/12) of the incident was lodged by Manoharlal(P.W.7). It was stated by Manoharlal(P.W.7) that there was a crowd gathered in front of the house of Chogmal and when he went to see as to what was happening, Mahesh picked up a "Tocha"(awl) and accused Durgaprasad assaulted the deceased with the said instrument. Kailash also assaulted appellant Durgaprasad and caused injuries, and on intervention, the witnesses Manoharlal(P.W.7) and his brother Bhojraj(P.W.8) also sustained injuries. Kailash was given milk to drink, but by that time he became cold and died. ( 3. ) The matter was investigated and after collecting the evidence and recording the statement of witnesses under Section 161, the charge - sheet was filed. ( 4. ) The accused abjured their guilt and stated that they were innocent. The learned A.S.J., however, on trial, while acquitting co - accused Mahesh and Ramchandra, both sons of the appellant, convicted the appellant Durgaprasad for an offence punishable under Part - II of Section 304 of the I.P.C. It is this conviction of the appellant that this appeal has been filed assailing its legality and propriety. ( 5. ) Learned Senior counsel has invited attention to the testimony of Manoharlal(P.W.7) and Bhojraj(P.W.8) in order to emphasize that although these witnesses have sustained severe injuries and their presence at the time of the incident cannot, therefore, be doubted, the injuries received by Durgaprasad on the thoracic as deposed to by Dr. Ms. ( 5. ) Learned Senior counsel has invited attention to the testimony of Manoharlal(P.W.7) and Bhojraj(P.W.8) in order to emphasize that although these witnesses have sustained severe injuries and their presence at the time of the incident cannot, therefore, be doubted, the injuries received by Durgaprasad on the thoracic as deposed to by Dr. Ms. Sudha Rajawat(P.W.l) and the injuries received by Mahesh and Ramchandra both sons of the accused, having not been explained, the single injury caused by the appellant not by any conventional weapon but by a tocha(pointed instrument for making hole in the paper) cannot be said to have been in excess of the right of private defence available to the appellant on account of the injury inflicted to the appellant and his two sons. ( 6. ) The learned Dy. A.G. has, however, controverted the statement of the learned counsel and stated that the injuries found on the person of the accused and the two acquitted accused were not of any serious nature requiring the prosecution to explain the said injuries, with the result, the accused cannot claim benefit on the ground that their injuries have not been explained. ( 7. ) I have heard learned counsel for the parties and perused the record. In - so - far as the injuries caused to deceased is concerned, Dr. Dubey(P.W.9) has stated that it was a triangular injury having depth of three inches. The postmortem report(Ex - P/17) shows that the deceased had a small penetrating wound on his back 3/4" away towards left at the level of thoracic 3rd and 4th vertebra triangular in shape and measuring 1/4". In his opinion, the medical expert has stated that the deceased died on account of shock and haemorrhage as a result of injury to vital organs and excessive bleeding. ( 8. ) Dr. Ms. Sudha Rajawat(P.W.l) examined the injuries of Manoharlal (P.W.7), who had abrasions on head, hands and forearm and also examined Bhojraj(P.W.8) who had an incised wound measuring 1" x 1/4" x 1/4" in the left arm. ( 9. ) Before adverting to the injuries of the witnesses and the deceased, it would be advantageous to refer to the injuries received by the appellant and his two sons acquitted Mahesh and Ramchandra. ( 9. ) Before adverting to the injuries of the witnesses and the deceased, it would be advantageous to refer to the injuries received by the appellant and his two sons acquitted Mahesh and Ramchandra. The certificate issued by the Doctor(Ex - D/2) indicates that appellant Durgaprasad had sustained an incised penetrating wound over back of chest 2" below the inferior angle of left scapula measuring Va" x Va" x upto thoracic cavity. There was fresh oozing of blood with slight swelling around the wound. In addition, there was an abrasion on the dorsal aspect of right index finger base measuring 1/4" x 1/4", tenderness over middle part of left leg and tenderness over lateral aspect of left arm. ( 10. ) The injuries received by acquitted accused Mahesh vide Ex - D/3 indicates that there was a lacerated wound over scapula with fresh clotted blood. The wound was at 2 O clock position measuring 2" x 1/4" x 1/4", at 5 0 clock position measuring 1" x 1/4" x 1/4" , at 8 O clock position measuring 2" x 1/4" x 1/4 " as also at 11 0 clock position measuring 21/2" x 1/2" x 1/4" . In addition, he had sustained injuries which had caused tenderness with slight swelling over the left arm, tenderness over left lateral side of chest with contusion 3" x 1 1/2" and tenderness on the right side of front of chest 1 1/2 below the right nipple. ( 11. ) I may also at this stage, refer to Exhibit - D/4 in which the injuries of Ramchandra have been recorded by the doctor. Ramchandra had sustained abrasion over left elbow 1 cm x 1/2 cm, abrasion over left scapula region posteriorly 1 cm x 1/2 cm with clotted blood, abrasion over right scapular region posteriorly over back 1 1/2 cm x 1/2 cm. with clotted blood present and contusion over left leg just 2" below the knee joint. ( 12. ) Since the learned A.S.J,., has considered it a case of individual liability without arriving to any conclusion of free fight between two fractions, it is necessary to examine the testimony of P.W.7 Manoharlal and P.W.8. Bhojraj. ( 13. ) Manoharlal(P.W.7) in his deposition has stated that he was in his house when he heard the shouts outside. ( 12. ) Since the learned A.S.J,., has considered it a case of individual liability without arriving to any conclusion of free fight between two fractions, it is necessary to examine the testimony of P.W.7 Manoharlal and P.W.8. Bhojraj. ( 13. ) Manoharlal(P.W.7) in his deposition has stated that he was in his house when he heard the shouts outside. When he rushed towards the shop of Mahesh, he met his brother Bhojraj and then both of them proceeded towards the shop and saw that Mahesh, Durgaprasad and Ramchandra were assaulting Kailash. Durgaprasad had a tocha, Mahesh was armed with a screw driver and Ramchandra wielded lathi. Durgaprasad stabbed Kailash with the tocha and when this witness tried to intervene, Mahesh assaulted him resulting in injury on his left arm. He also stated that one lathi blow was struck by Ramchandra over his head. He has confirmed having lodged F.I.R.(Ex - P/12) and having been sent to the hospital for examination of his injuries. This witness has denied the suggestion that injuries were caused by the accused persons after they had assaulted the accused and his sons. P.W.8 Bhojraj is also an injured witness. He has stated that when he rushed to the shop of Durgaprasad where the incident was taking place, he saw that Kailash was being assaulted by the appellant and two co - accused, who were slapping him. Thereafter, they brought a farsi(axe) and Mahesh assaulted him with a screw driver and Kailash was assaulted by Durgaprasad with a tocha, which caused injury on the back of the deceased. It is significant that no attempt has been made by the prosecution to explain the injuries of the accused persons. ( 14. ) While it cannot be disputed that prosecution is not obliged to explain the injuries of the accused unless the injuries are of serious nature, in the present case, the injuries found on Durgaprasad was of the size 1/4" x 1/4" and on thoracic cavity. The evidence also shows that the accused persons had sustained bleeding injury with the result, their injuries could not have gone unnoticed by the prosecution witnesses. The eye witnesses have, therefore, not unfolded the correct genesis of the incident and have ascribed that in the quarrel the injuries were inflicted. ( 15. The evidence also shows that the accused persons had sustained bleeding injury with the result, their injuries could not have gone unnoticed by the prosecution witnesses. The eye witnesses have, therefore, not unfolded the correct genesis of the incident and have ascribed that in the quarrel the injuries were inflicted. ( 15. ) The learned A.S.J., in paragraph 39 of its judgment has stated that there was a quarrel and, therefore, these persons were liable for their overt acts. I may record, unless it was a case of free fight, the right of private defence could not have been denied to the accused persons if it was available to them on the basis of the material on record. ( 16. ) The learned A.S. J., has also observed that even assuming that right of private defence accrued in favour of Durgaprasad, he had clearly exceeded the same and. therefore, he was guilty under Section 304, part - II. From the evidence on record, I am unable to subscribe to the view expressed by the learned A.S.J. The injuries of Durgaprasad(Ex - D/2), co - accused Mahesh and Ramchandra have already been referred to above and assuming that the injuries of Ramchandra even not measured, there cannot be any doubt that injuries of Durgaprasad measuring 1/4" x 1/4" on thoracic and accused Mahesh, who had two bleeding lacerated wounds could have gone unnoticed by the prosecution witnesses. The right of private defence accrued in favour of the appellant having been conceded by the learned A.S.J., then the nature of the injuries caused to Durgaprasad as per its dimension and sizes clearly indicates that Durgaprasad did not exceed the right. It cannot be denied that Durgaprasad assaulted the deceased once as against injuries received by him on thoracic and his sons Mahesh and Ramchandra. Under these circumstances, the learned A.S.J., erred in holding that Durgaprasad exceeded right of private defence. In fact in the facts and circumstances of the case, Durgaprasad had inflicted a single injury and none of the accused persons were carrying any conventional weapon, Durgaprasad clearly acted in the right of private defence and did not exceed the said right. ( 17. ) The Supreme Court in Laxmisingh Vs. In fact in the facts and circumstances of the case, Durgaprasad had inflicted a single injury and none of the accused persons were carrying any conventional weapon, Durgaprasad clearly acted in the right of private defence and did not exceed the said right. ( 17. ) The Supreme Court in Laxmisingh Vs. State of Bihar 1976 S.C. 2263 has observed that on failure of the prosecution to explain the injuries of the accused, the consequences that ensue that prosecution has suppressed the genesis of the case and if the accused takes the plea of having acted in his defence, the said plea is rendered probable. In the present case, genesis of the incident is shrouded in mystery and even otherwise the facts clearly gives an indication that accused Durgaprasad had acted in right of private defence. It is trite that in exercise of right of private defence, a person exercising the right cannot take advantage of the situation and cause more harm than is necessary but at the same time, one cannot be oblivious of the fact that same cannot be weighed in golden scale. The person exercising the right has to make sure that the danger and the apprehension has abated. A single injury in the facts and circumstances of the case, therefore, could not lead to any assumption that right was exceeded. ( 18. ) In the result, this appeal succeeds and is allowed. The conviction of the appellant Durgaprasad and the sentence awarded to him, are set aside and he is acquitted of the charge against him. The appellant Durgaprasad is on bail. His bail bond shall stand discharged. Appeal allowed.