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Madhya Pradesh High Court · body

2009 DIGILAW 1319 (MP)

Ram Niwas v. State of M. P.

2009-11-27

S.S.DWIVEDI

body2009
ORDER 1. The appellants have preferred this appeal under section 374 (2) Cr.P.C. aggrieved by the impugned judgment of conviction and sentence dated 20.6.2000 passed by Second Additional Sessions Judge, Morena, in Sessions Trial No. 272/1990, whereby held both the appellants and co-appellant Ajab Singh (who died during pendency of this appeal) guilty for the offence punishable under section 304 part I read with section 34 and 326 read with section 34 of IPC and sentenced each of them to ten years RI with a fine of Rs. 5000/-; and three years RI with a fine of Rs. 2000/-. Appellant Ramniwas has also been found guilty for the offence punishable under section 323 IPC and sentenced to three months RI with a fine of Rs. 500/- and appellant Mahavir Singh has been found guilty for the offence punishable under section 324 of IPC and sentenced to one year RI with a fine of Rs. 2000/-. All the four sentences are ordered to run concurrently. 2. Brief stated the facts of the case are, on 3.11.1990 at village Gadora some hot talk took place in between the appellant Ramniwas and the injured/ complainant Gangaram with regard to the right of way of bullock cart on the field of Ramniwas. Thereafter, on 4.11.1990 when the complainant Gangaram was coming to Morena trom Gadora on a bicycle, at that time it is alleged that appellant/accused Ramniwas came there armed with a lathi and started beating the complainant Gangaram by means of lathi and caused two injuries on the legs of Gangaram. On hearing the cry of complainant Gangaram, his father Shrikrishna (deceased) came there to intervene in the incident, at that time it is further alleged that co-accused/appellant No.2 Mahavir Singh armed with an iron rod came there and caused an injury by means of iron rod on the head of deceased Shrikrishna, by which he sustained injury on the head and fell down. Thereafter, the other co-accused Ajab Singh and Jairam also caused injuries to deceased Shrikrishna by means oflathi. Thereafter, the other co-accused Ajab Singh and Jairam also caused injuries to deceased Shrikrishna by means oflathi. Thereafter, one Parasram, Samunder Singh, Mehtab and Gabbar Singh also came there to intervene in the incident then appellant/accused Mahavir Singh had also caused injuries to Parasram by means of iron rod, Ajab Singh, Ramniwas and Jairam had also caused injuries to Gabbarby means of lathi, Mahavir Singh/appellant had also caused injury to Mehtab by means of iron rod and Ajab Singh had also caused injury to Samunder Singh by means of lathi. Thereafter, witnesses Badan Singh and Gambhir Singh came there. On seeing them the accused persons ran away from the spot. The matter has been reported by the injured Gangaram at the police station Saraichhola, on which basis the police had registered the case under section 307, 34 IPC; sent the injured/complainant Gangaram and other injured persons for medical examination to the Government Hospital. On examination the concerning doctor found the injured Shrikrishna dead. An inquest panchnama had also been prepared by the Investigating Officer and a requisition for post-mortem examination has been issued. The other injured Parasram, Gabbar Singh, Mehtab and Samunder Singh had also been examined by the concerning doctor, who proved the injury reports Exts. P/18, P/21, P/27, P/29 and P/33. In the same incident the appellants/accused Ajab Singh (since dead), Mahavir Singh, Ramniwas and Jairam also sustained injuries and the injury reports are proved as Exts. D/6, Dill, D/13 and D/18 by the examining doctor. Post-mortem of the dead body of Shrikrishna had been performed by Dr. Y.K. Deewan (PW 6) who proved the post-mortem report Ex. P/15. During investigation the accused persons had been arrested, the weapons used by them in this incident had also been seized by the Investigating Officer, the spot map had also been prepared and after due investigation the charge sheet has been filed. 3. All the appellants/accused persons abjured the guilt and their defence is of false implication in this case. P/15. During investigation the accused persons had been arrested, the weapons used by them in this incident had also been seized by the Investigating Officer, the spot map had also been prepared and after due investigation the charge sheet has been filed. 3. All the appellants/accused persons abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record by the impugned judgment acquitted the appellants from the charge under section 302 IPC but held them guilty for the offence under section 304 part I of IPC and also under section 326 read with sections 34, 324 and 323 of IPC and sentenced them as stated herein above; aggrieved by which the appellants have preferred this appeal. 4. Having heard the learned counsel for the appellants as well as Panel Lawyer for the State and perused the record. 5. It is submitted by the counsel for the appellants that the incident had taken place all of a sudden due to some previous dispute of right of way on the field belonging to the appellant/accused Ramniwas and on the date of incident it is also on record that both the parties sustained injuries in the same incident, for which a cross-case had also been registered on the report lodged by the appellant/accused Ramniwas. The injuries sustained to the accused Ramniwas, Mahavir Singh and Jairam have been proved by Dr. R.D. Bhargava (DW 3) who examined these accused persons on 4.11.1990 itself and the prosecution has utterly failed to give explanation with regard to the injuries sustained to the accused persons in the same incident and if the prosecution has suppressed or failed to explain about the injuries sustained to the accused persons then certainly it should be presumed that the injuries if any caused by the accused persons may be due to the right of private defence available to them and for those injuries the appellants/accused cannot be held guilty for any offence and the learned trial Court has wrongly held the appellants guilty for the aforesaid offence. Therefore, on this ground itself prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. Therefore, on this ground itself prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. In reply, learned Panel Lawyer for the State supported the impugned judgment of conviction and sentence passed by the trial Court and prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellants it is not in dispute that in this incident one Shrikrishna died due to the head injury sustained to him. This fact has also been proved by the prosecution on the basis of statements of Gangaram (PW2)/Complainant, Samunder Singh (PW 3), Parasram (PW 4), Mehtab (PW 5). All these witnesses specifically stated that Shrikrishna sustained injuries on the head due to which he died on the spot. This fact has got further support by the statement of the medical witness Dr. Y.K. Deewan (PW 6), who performed the post -mortem examination of deceased Shrikrishna S/o Madho Singh, aged 50 years, r/o village Gajora Police Station Saraichhola, Morena, who found a stitched wound on the right parietal region, one contusion on the right shoulder, one contusion on the left parietal region, one stitched wound on the index finger of the left hand and one stitched wound on the middle finger of the right hand; or internal examination found depressed fracture of the frontal and parietal bone and opined that due to the head injury resulting excessive hemorrhage the aforesaid Shrikrishna died in this incident, his death is found to be homicidal in nature and proved the post-mortem report Ex. P/15. 8. Now the question arises for consideration is whether any of the appellants/accused can be held guilty for causing the aforesaid injuries to the deceased Shirkrishna. 9. Witness Gangaram/Complainant (PW 2) has stated that the incident had taken place when the appellant/accused Ramniwas came to him and stopped his bicycle and thereafter accused Mahavir, Jairam and Ajab Singh also came there and started beating Shrikrishna and other persons. Mahavir Singh had caused an injury by means of iron rod on the head. In cross-examination he specified that the appellant/accused Ramniwas was having a lathi with him wherein some iron ring was also attached but this fact has not been stated by him in the report Ex. PIS and the statement recorded under section 161 Cr.P.C. which is Ex. D11. In cross-examination he specified that the appellant/accused Ramniwas was having a lathi with him wherein some iron ring was also attached but this fact has not been stated by him in the report Ex. PIS and the statement recorded under section 161 Cr.P.C. which is Ex. D11. In cross-examination he has also not stated anything that in the same incident the accused persons had also sustained any injury. Meaning thereby, he has suppressed the fact that a free fight took place in between both the parties wherein the persons from both the sides have sustained injuries. He had also denied that the complainant party was aggressor and stared quarreling with the accused persons and also caused injuries to them. 10. Similar is the statement of another injured Samunder Singh (PW 3), Parasram (PW 4), Mehtab (PW 5) also. They are also injured in the same incident, but all these persons have denied about the fact that the accused persons also sustained injuries in the same incident and tried to suppress wilfully the aforesaid fact about the injuries whereas a cross-case had been registered on the report of the accused party against the complainant party and they also faced the trial for the same incident. 11. The injuries sustained to the accused persons have been proved by the defence witness Dr. R.D. Bhargava (DW 3), who proved the injury sustained to accused Jairam Singh, which is a contusion on the ankle of the left leg caused by hard and blunt object and proved the report Ex. D/19. Similarly, the injury sustained to the accused Ajab Singh (since dead) is proved by the prosecution witness Dr. Rajendra Singh Sikarwar (PW 9) and proved near about eight injuries, out of which four injuries are found to be the incised wounds caused by some sharp object, and proved the injury report EX.DI7. He also proved that on x-ray examination of the right hand of accused Ajab Singh, he found the fracture of proximal phalanx of right ring finger of right hand and proved the x-ray report Ex. D/8. 12. Similarly, the same witness Dr. R.S. Sikarwar (PW 9) also examined the third accused Mahavir Singh and found one incised wound on the right parietal region and three contusions and two abrasions on vaious parts of his body and proved the injury report Ex. D/12. D/8. 12. Similarly, the same witness Dr. R.S. Sikarwar (PW 9) also examined the third accused Mahavir Singh and found one incised wound on the right parietal region and three contusions and two abrasions on vaious parts of his body and proved the injury report Ex. D/12. Similarly, he also examined fourth accused Ramniwas S/o. Ajab Singh and found two incised injuries and two contusions on various parts of his body and proved the report Ex. D/14. 13. Thus, on the basis of aforesaid medical evidence on record, it is proved that in the same incident the accused/appellants Mahavir, Ramniwas and Ajab Singh (since dead) also sustained the injuries, out of which some injuries are caused by sharp cutting object. 14. The learned trial Court in detailed discussion came to the conclusion that it is proved on the basis of the evidence on record that in the same incident the accused persons also sustained injuries but came to the conclusion that the appellant/accused failed to prove the fact that they have got the right of private defence for causing any injury to the complainant party. This approach and appreciation by the learned trial Court appears to be erroneous. The appellants/ accused are not duty bound to prove the right of private defence beyond reasonable doubt whereas on the basis of the evidence if it is proved that a free fight took place wherein both the parites sustained injuries then certainly one party cannot be held to be aggressor for causing injuries to the other party and the appellants/accused are not duty bound to prove their defence beyond reasonable doubt. It is the duty casted upon the prosecution to prove the fact that the appellants/accused are the aggressor and are not having right of private defence. 15. If the prosecution has failed to explain the injuries sustained to the accused party then certainly the statements of the prosecution witnesses are not found to be believable. For this proposition, reliance can be placed on the decision of the apex Court in State of Rajasthan v. Rajendra Singh, reported in 1998 (II) MPWN 153=1998 SCC (Cri) 1605, wherein the Hon' ble apex Court has held hereas under: - "8. All the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. All the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. But the evidence establishes that the respondent had two contused lacerated wounds; one on his face and one on his head. The injuries were bleeding injuries and visible and yet the witnesses stated that they had not seen any injury on the person of the respondent. That would mean that neither the family members of Harveer nor the two independent witnesses were willing to give a true version and had tried to suppress the part played by some of them which had resulted in causing injuries to the respondent. The High Court was therefore, justified in not placing reliance on their evidence." 16. Similarly, in another decision of the apex Court in Bhagwan Swaroop v. State of Madhya Pradesh, reported in 1992 (I) Vidhi Bhasvar 241 = AIR 1992 SC 675 , wherein it is held here asunder :- "9. We do not agree with the Courts below. It is established on the record that Ram Swaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop 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 reasonable 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 hold that Bhagwan Swaroop fired the gun-shot to defend the person of his father." 17. In view of the aforesaid decisions of the apex Court, while applying the principle in the present case it is apparent that a free fight had taken place in between the parties wherein four accused persons and 4-5 persons of the complainant party sustained injuries. In view of the aforesaid decisions of the apex Court, while applying the principle in the present case it is apparent that a free fight had taken place in between the parties wherein four accused persons and 4-5 persons of the complainant party sustained injuries. The injuries sustained to the accused party are also found to be grievous in nature and in such circumstances, when it is not proved that as to which party is aggressor then certainly the accused persons cannot be held guilty for causing any injury to the deceased Shrikrishna and other complainants as the injuries sustained to the accused party have not been explained by the statements of the prosecution witnesses. 18. The accused persons had also examined themselves in their defence, namely, Ramniwas (DWI )/appellant No.l, who clearly stated that the complainant came there and started quarrelling with them; complainant Gangaram and Parasram had first caused injury to his father Ajab Singh by means of farsa and thereafter the complainant Gabbar Singh, Shrikrishna and Samunder Singh also caused injuries by means of lathi. Same is the statement of Mahavir, second appellant as DW2. These statements cannot be disbelieved only on the ground that they are the accused in this case. The accused himself can be a witness in his defence and his statement cannot be disbelieved on this ground itself. 19. Thus, on overall re-appreciation of the entire evidence on record, in my considered opinion, as the accused persons also sustained grievous injuries in this incident and the prosecution has failed to explain about the injuries sustained to the accused persons and in such circumstances, the accused persons cannot be held liable for causing any injury to the complainant party, namely, Shrikrishna (deceased) and other injured persons namely Parasram, Gabbar Singh, Gangaram, Mehtab and Samunder Singh. Thus, the learned trial Court has wrongly held the appellants guilty for the aforesaid offence. 20. Resultantly, the appeal preferred by the appellants succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside and the appellants/accused are acquitted from all the charges. The fine amount if any deposited by the appellants be refunded to them. The appellants are on bail, their bail bonds stand discharged forth with.