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Madhya Pradesh High Court · body

2010 DIGILAW 167 (MP)

Champalal v. State of M. P.

2010-02-09

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT S.K. Seth, J. (1) Twelve persons were placed before the 8th Additional Sessions Judge, Ujjain to take their trial under Sections 148; 149,302,149:307 IPC and Sections 25,27 of the Arms Act. Seven of these persons have been acquitted and we are not concerned with them any longer but the remaining five have been found guilty, details of offences; convictions and sentences are as under :- Section 302/149 R.I. for life with fine of Rs. 1000/- to each with default stipulation; Section 148 IPC one year rigorous imprisonment with fine of Rs.500/- with default stipulation to each; Section 326 IPC 3 years' R.I. with fine of Rs. 1000/- with default stipulation to A-1 and A-3 for causing grievous hurt to Nanuram; Section 25 r/w 27 of the Arms Act two years' R.I. and fine of Rs, 1000/- with default stipulation to A-1 Champalal and A-4 Shobharam. Section 324 IPC six months' RI and fine of Rs. 500/- with default stipulation to A-l Champalal for causing simple hurt to Pappu. The sentences have been ordered to run concurrently. Against their convictions and sentences, the five appellants have appealed to this Court. (2) The occurrence took place at about 9-10 pm on July 17th 1997 in the village Mitikhedi, a small village under Police Station Badnagar in District Ujjain. Admitted facts at this stage are as under. Deceased Ramchander and the acquitted accused Mangilal are nephew and uncle respectively. There was long pending dispute between them about one Bigha agriculture land leading to civil litigation and acrimonious relationship. A ready and heady mix for homicidal results. It also appears that accused party had filed a counter-case against the complaint party alleging that they were victims of an attack by Ramchander (Deceased) and his henchmen. This is mentioned in paragraph 47 of the impugned judgment and from the memo of appeal it appears that the counter case was registered as S.T.No. 289/97 and both were tried by the Fast Track Court presided in by 8th ASJ, Ujjain and the counter-case resulted in conviction of Pappu (PW6) and other co-accused under Section 326 IPC. Surprisingly the certified copy of that judgment has not been placed on record of this appeal. (3) The case of the prosecution in brief is as follows: dispute relating to above land forms the motive which led to the fight between complainant party and assailants. Surprisingly the certified copy of that judgment has not been placed on record of this appeal. (3) The case of the prosecution in brief is as follows: dispute relating to above land forms the motive which led to the fight between complainant party and assailants. Assailants as many twelve came variously armed and attacked the victim party at their house in the village at about 9.30 pm: at that time Ramchander, his son Pappu,(PW6), Ramchander's Brother Nannuram(PW5), wife Suganbai(PW-9) and Dhanaji (PW-10) co-brother-in-law of Ramchander were sleeping in the Parchi. FIR (Ex.P-23) was lodged by Suganbai at about 2 am in the early morning of 18.7.1997 at PS Badnagar. Injured eye witnesses (PW5) Nanuram,(PW6) Pappu; (PW10) Dhanaji and Ramchader were examined by Dr. S.K.Shrivastava(PW8) at Badnagar: their MLC reports are Ex. P-15 to Ex. P-17: Same doctor also examined injuries sustained by some of the assailants, and their MLC are Ex.D-4 (A-3 Gulcbslngh); Ex D-9(A-4 Shobharam) and Ex.D-10 (A-5 Bhagwansingh)Fx.D-13 is the medical report of A-5 Bhgawansingh showing compound fracture distal end of 4th and 5th metacarpal of left hand. Ex.D-14 is the X-ray report of A-4 Shobhram. Dying declaration (Ex.P.-13) of Ramchander was recorded by Tehsildar Bhagwan Singh Pekra(PW4). (4) Dr. Shrivastava referred Ramchander to the District Hospital, Ujjain, but he died on his way to Ujjain from Badnagar. At Ujjain autopsy was performed by Dr. C.S.Bhargava (PW1) and the post-mortem report is Ex.P.-2 wherein cause of death was shock due to grievous injuries. After completing investigation, Police filed charge sheet indicting twelve persons as mentioned above. Appellants denied the charges, hence they were put to trial which led to their conviction and various sentences, and hence they are in appeal before us. The other seven accused were acquitted of all the charges. (5) In criminal cases the cardinal rule of law is that the prosecution has to prove its case in full and beyond any shadow of doubt. If the accused or any of them have suffered any injury, it is the bounden duty of the prosecution to explain it in a satisfactory manner. If this is not done, the natural consequence is to put a question mark on the credibility of the entire prosecution story. With this in mind, let us examine the injuries suffered by some of the appellants and whether these injuries stand explained by the prosecution. If this is not done, the natural consequence is to put a question mark on the credibility of the entire prosecution story. With this in mind, let us examine the injuries suffered by some of the appellants and whether these injuries stand explained by the prosecution. (6) EX.D-4 is the medical report of A-3 Gulabsingh showing three abrasions. These need not detain us because of their insignificance. Another medical Report EX.D.5 needs no discussion as it deals with acquitted accused Nathulal and speaks of two abrasions. We then come to EX.D-9 medical report of A-4 Shobharam proved by Dr. S.K.Shrivastava (PW8). This document shows that apart from other injuries, this appellant suffered loss of the right arm below the elbow. He also suffered an incised wound on chest and another incised on the parietal region. We then come to A-5 Bhgawansingh. EX.D-10 is the medical report while the X-Ray Report is EX.D-13 showing compound fracture distal end of 4th and 5th metacarpal of left hand. None of the prosecution eye witnesses examined has attempted to explain the injuries suffered by A-4 Shobaram and A-5 Bhagwansingh as described above. The eye witnesses examined by the prosecution further are partisan and closely related to the deceased Ramchander This further makes their story suspect. (7) The eye-witnesses examined by the prosecution are PW 3 Paannalal who offers no explanation touching injuries suffered by A-4 Shobaram and A-5 Bhagwansingh. The same remark applies to Nanuram (PW5), real brother of the deceased. Pappu (PW 6) son of deceased denies that that their party was assailants. Kindly see paragraph 8 of his cross examination. He thus also fails to explain the injuries to A-4 and A-5 above. The eye-witness Sugnabai(PW9) also comes in the category of her son Pappu(PW6) Last eye-witness is Dhanaji(PW10) the co-brother-in-law of the deceased and he states in paragraph 13 of his cross- examination that he had not seen A-4 Shobaram and A-5 Bhagwansingh receiving any injury at the time they were allegedly attacking Ramchander and party. He also denies that A-4 Shobaram lost an arm at the time of incident. (8) In view of what has been discussed above, it is clear that the prosecution story cannot be accepted as wholly reliable. He also denies that A-4 Shobaram lost an arm at the time of incident. (8) In view of what has been discussed above, it is clear that the prosecution story cannot be accepted as wholly reliable. The possibility of the defense version that they or some of them were attacked while returning from a hand-pump bath and in self defense, retaliation took place, cannot be dismissed out of hand. In this connection examination of A-3 Gulabsingh, A-4 Shobaram and A-5 Bhagwansing under Section 313 of the Cr.P.C may be seen. In cases of self defense the following observations of the Supreme Court are apposite "An accused pleading the right of self-defence need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defence acceptable. In any event, the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused. See Mohan Singh v. State of Punjab AIR 1975 S.C. 2161 . (9) In the result, the appeal deserves to be allowed and is hereby allowed giving benefit of doubt to the appellants regarding major charge under Section 302 read with constructive liability sections. (10) But there is also the charge under Sections 25 and 27 of Arms Act, 1959 and conviction there under against A-1 Champalal and A-4 Shobaram as stated above. Both were armed with swords. The prosecution evidence proves Ex.P-40 which is statement of A-1 Champalal leading to 'discovery' of a sword and its subsequent seizure vide Ex.P-41 seizure memo. Similarly there is Section 27 Evidence Act statement of A-4 Shobaram (Ex.P-5)leading to 'discovery' of sword and its subsequent seizure per memo Ex.P-8. Both appellants in their examination under Section 313 Cr.P.C were content with bald denial of this part of the prosecution story hence it appears that only this part of the prosecution is worthy of credence and acceptance. Similarly there is Section 27 Evidence Act statement of A-4 Shobaram (Ex.P-5)leading to 'discovery' of sword and its subsequent seizure per memo Ex.P-8. Both appellants in their examination under Section 313 Cr.P.C were content with bald denial of this part of the prosecution story hence it appears that only this part of the prosecution is worthy of credence and acceptance. But the question still remains whether both the said appellants can be convicted either under Section 25 or Section 27 of the Arms Act,1959(hereafter mentioned as the Act.) It seems to us that the two swords in question would come within the definition of "Arms" given in Section 2(c) of the Act. The mere possession and use of these swords while exercising the right of self defense would not attract the mischief under Section 25 or Section 27 of the Act. Hence the convictions and sentences under Section 25 and 27 of the Act as against the said appellants are unsustainable and are hereby set aside. Fine if recovered be refunded. (11) In the final result, this appeal deserves to be and is hereby allowed. The conviction and sentence of the appellants passed by the trial Court are hereby set aside and the appellants 1 to 5 are hereby acquitted of all the charges leveled against them. Appellant No.1 Champalal and appellant No.3 Gulab Singh, who are in jail, are directed to be released forthwith if not required in any other criminal case. Appellants No.2, 4 and 5 are on bail. Their bail bonds shall stand discharged. Office is directed to send a copy of this judgment along with the record to the trial Court immediately. Appeal allowed.