JUDGMENT
M.C. Jain, J.
1. Ramsi, Kalloo, Bhagirath and Nunni alias Munni were tried in Sessions Trial No. 91 of 1981 before the Sessions Judge, Hamirpur for triple murder of Bhaggu, Shiv Charan and Jageshwar and also for causing injuries to Radha Rani wife of Bhaggu and Ram Charan son of Bhaggu. By the impugned judgment dated 6.3.1982, they came to be convicted under Section 302 read with Section 34 I.P.C. and under Section 323 read with Section 34 I.P.C. Life imprisonment has been awarded to each of them for the former offence and one year’s rigorous imprisonment for the latter.
2. A resume of the relevant facts may be given. The incident occurred on 18.5.1980 in noon time in village Makarbai, P.S. Kavrai, District Hamirpur and the F.I.R. was lodged by Ramrati wife of Jageshwar by oral narration the same day at 3.15 P.M. The distance of the police station from the place of occurrence was about three miles. The deceased Shiv Charan was the son of deceased Bhaggu whereas the third deceased Jageshwar was the husband of Ramrati who was daughter of Bhaggu. At about mid-day on 18.5.1980, Anandi (another son of Bhaggu) and Ragghu son of the accused Bhagirath had grappled with each other. The accused Kalloo and others soon thereafter went to make a complaint to Sri Jagmohan Paliwal (Judge) at his residence. Sri Jagmohan Paliwal (Judge) called for Bhaggu and his son to his house. While Bhaggu and his son Shiv Charan were proceeding to the house of Sri Jagmohan Paliwal (Judge), they came across accused Ramsi and his three sons–Kalloo, Bhagirath and Nunni alias Munni. They were armed with lathi, pharsa, axe and spear respectively. These four armed accused appellants surrounded Bhaggu and his son Shiv Charan and started assaulting them. The alarm raised by them attracted Bhaggu’s daughter Ramrati and his wife Radha Rani (injured) to the scene of occurrence. Ram Charan another son of Bhaggu and Jageshwar husband of Ram Rati also came there. When Ramrati, Radha Rani, Ram Charan and Jageshwar tried to come to the rescue of Bhaggu and Shiv Charan, they were also assaulted by the accused persons. Bhaggu and Shiv Charan succumbed to their injuries at the spot and Jageshwar died at Kavrai police station the same day where he was taken at the time of the lodging of the F.I.R. The occurrence took place near the house of Gulab in the lane, leading to the house of Sri Jagmohan Paliwal (Judge).
3. Consequent upon the lodging of the F.I.R., a case was registered. The investigation followed as usual. S.I. Jagdish Prasad PW 3 held inquest on the dead body of Jageshwar who had died at the Police Station Kavrai. After necessary formalities was sealed and sent for post mortem to Mahoba. S.I. Shiv Charan Singh PW 4 was present at the police station when the F.I.R. was lodged. He went to the place of incident and himself prepared the inquests relating to the dead bodies of Bhaggu and Shiv Charan. The dead bodies were sent for post mortem on being sealed. The site was inspected by him and site plan prepared. The investigation came to be completed by his successor Shyam Pal who submitted chargesheet.
4. It should be related here that it was Dr Ghan Shyam Pandey PW 5 who conducted post mortem over the dead bodies of three deceased.
5. Bhaggu’s post mortem was conducted on 19.5.1980 at about 1.40 PM. He was aged about 55 years and one day had passed since he died. He had received 8 incised wounds, one abraded contusion and one lacerated wound. Four incised wounds were on the head and one was at the junction of nose. The cause of death was shock and haemorrhage as a result of injury No. 1–incised wound on the skull in dimension of 17 cm x 2 cm on right side of skull.
6. The post mortem over the dead body of Shiv Charan was conducted by the same Doctor on 19.5.1980 at 3 PM. He was aged about 24 years and one day had passed since he died. Ante mortem injuries were in the form of seven incised wounds and two multiple contusions. One of the incised wounds was at the base of the neck which caused death. Incised wounds were also on the forehead and face. Nasal bones were found cut and fractured.
7. The dead body of third deceased Jageshwar was subjected to post mortem by the same Doctor and same day at 3.50 PM. He was aged about 26 years and one day had passed since he died. He had received one incised wound, two abrasions and two multiple contusions. The incised wound was on the skull–right region. The multiple contusions were also there on the head. The cause of death was the head injuries.
8. It was also Dr G.S. Pandey PW 5 who had examined injuries of Radha Rani PW 2 on 19.5.1980 at 2 AM. Two lacerated wounds (one on forehead and the other on head) and two contusions were found on her person. The injuries were simple and caused by blunt object. They were about half day old. Ram Charan another son of Bhaggu was also examined by the same Doctor on 19.5.1980 at 1.15 PM. Two lacerated wounds, one on the skull and the other on right forearm had been suffered by him through blunt object and they were about one day old.
9. The accused also got proved the injuries of Ramsi accused who was examined by the same Doctor at 11.30 AM on 19.5.1980. There was traumatic swelling 8 cm x 5 cm in dorsum of right palm and wrist. He was advised X-ray which was not got done. On the same day at 11.50 AM, he examined Bhagirath accused and found an abrasion scabbed 5 cm x 5 cm in dorsum of left middle finger at the junction of 2nd and 3rd phalanx. The injury was simple and could be caused by fraction against hard and uneven surface. At 12.10 PM on 19.5.1980 he examined accused Nunni alias Munni. There were two lacerated wounds on his person. Both injuries were simple and caused by some blunt object. The injuries of Kalloo were examined at 12.30 PM. the same day. Two lacerated wounds and two abrasions were found on his person which were simple in nature. Lacerated wounds were caused by some blunt weapon and abrasions by friction.
10. The defence was that on the day of incident, Ragghu son of accused Bhagirath had gone to his field with his cattle where he had had a quarrel with the deceased Shiv Charan. Shiv Charan had given a spear blow at the leg of Ragghu. Ragghu came to his house and narrated the incident. Thereafter all the four accused went to the house of Jagmohan Paliwal (Judge) to make a complaint and when they were returning home the accused Ramsi was attacked by Jageshwar. Ram Charan, Shiv Charan and Bhaggu who assaulted him with lathis. They (accused) also caused injuries to the opposite side in defence of Ramsi.
11. The prosecution examined Ramrati PW 1 and Radha Rani PW 2 as eyewitnesses of the incident. Rest of the evidence was more or less of formal nature inclusive of Doctor and investigating part. No witness was examined by the accused in their defence. Finding the case to be proved, the trial Judge recorded the impugned judgment which has been assailed by the accused appellants before this Court by means of this appeal.
12. We have heard Sri G.S. Chaturvedi, learned Senior Advocate for the appellants and Sri Amar Jeet Singh, learned A.G.A. During the pendency of the appeal, appellant Ramsi has died and appeal as regards him has abated under order dated 23.7.2005. Presently, the Court is concerned with the remaining three appellants.
13. The argument of Sri Chaturvedi is that none of the prosecution side sustained any piercing injury capable of being caused by Ballam imputed to have been used by the appellant Nunni alias Munni. According to him, he had obviously been implicated falsely. He also urged that the accused appellants had also received injuries, and actually they acted in exercise of right of private defence. On the other hand, the learned A.G.A., from the side of the State, urged that the case was fully established through the testimony of eyewitnesses out of whom one was herself injured and further that the eyewitness account was in conformity with the medical evidence. He, accordingly, supported the finding of guilt arrived at by the trial judge and the sentences passed by him against the accused appellants.
14. We have carefully gone through the evidence on record in the light of the arguments advanced at the Bar. The incident is an admitted fact. The pertinent question, therefore, for decision is as to which party was the aggressor. It would clinch the issue whether the accused persons were justified in inflicting injuries on the deceased Bhaggu, Shiv Charan and Jageshwer as also on injured Radha Rani and Ram Charan on the prosecution side, in exercise of right of private defence as claimed by them. It is also to be assessed as to whether the trial court was justified on proper appraisal of the evidence to hold that all the four accused appellants including (deceased Ramsi) participated in the crime. We recall that the accused appellant Nunni alias Munni was allegedly armed with Ballam, but the fact is that neither the two injured (Radha Rani and Ram Charan) nor any of the three deceased Bhaggu, Shiv Charan and Jageshwar received any Ballam injury. Needless to say, Ballam would ordinarily cause a piercing wound. Two injured on the prosecution side sustained blunt weapon injuries and three deceased sustained blunt weapon injuries as also incised wounds. As per the prosecution case and evidence, it was Ramsi accused appellant (now dead) who wielded lathi. Kalloo wielded pharsa and Bhagirath made use of an axe. To be short, the injuries of two injured on the prosecution side and three deceased were such as could be caused by lathi, pharsa and axe, but not by Ballam allegedly wielded by Nunni alias Munni. It goes without saying that a weapon shall ordinarily be put to its natural use. It was a day light incident and had Nunni alias Munni participated in the incident, he could cause some piercing injury either on the persons of the injured or three deceased on the prosecution side. He could not miss in doing so in broad daylight, particularly when there was no obstruction in wielding his weapon, the deceased and injured on the prosecution side being unarmed. Therefore, the participation of the accused Nunni alias Munni in the incident is doubtful and he should be afforded benefit of doubt. We agree with the learned Counsel for the accused appellants to this extent.
15. Learned State counsel argued that Nunni alias Munni accused himself claimed to have received injuries in the same incident and, therefore, his presence was established. He reasoned that it showed his participation in the incident. The argument is not at all convincing. It is significant to point out that Ramrati PW 1 wife of deceased Jageshwar stated that there were two lanes going straight to the house of Sri Jagmohan Paliwal (where Bhaggu and Shiv Charan were going on his call on a complaint having been made by the accused Kalloo and others about the quarrel of mid-day between Anandi son of Bhaggu and Ragghu son of accused Bhagirath). It would be recalled that the prosecution case was that the accused persons assaulted them when they were in the way. She also stated that in either route, the house of the accused was to be crossed to reach the house of Sri Jagmohan Paliwal, Judge. The house of the accused was after intervention of seven houses from the house of Bhaggu. S.I. Sheo Charan Singh PW 4 had visited the spot and prepared a site plan showing places where the dead bodies of Bhaggu and Shiv Charan were found. The site plan indicated that the dead bodies of Bhaggu and Shiv Charan were found at points A and B respectively in the lane running east-west and that house of the deceased persons was towards north-east of the spot where the dead bodies were lying. Further, the house of the accused persons was towards north-west of that spot. The statement of Ramrati PW 1 had not been challenged in her cross-examination that if one starts from her house for the house of Sri Paliwal by any of the two routes, the house of the accused persons was to fall in the way. The incident took place in the way in between the houses of the deceased persons and the accused persons. The house of Sri Paliwal, Judge did not lie in between the two houses. Possibility is very much there that Ramsi, Kalloo and Bhagirath waylaid Bhaggu and Shiv Charan when they were passing in front of their house and Nunni alias Munni was simply there, though he did not participate in the incident of assaulting Bhaggu and Shiv Charan and thereafter Jageshwar, Radha Rani and Ram Charan who came to their rescue on shouts being raised. Therefore, mere presence of Nunni alias Munni at the time of incident does not prove his participation in the incident. Absence of any Ballam injury having been suffered either by any of the three deceased or by any of the injured on the prosecution side did create doubt about his participation in the incident. Therefore, as we said earlier, the benefit of doubt is to be afforded to him.
16. Let us now examine the argument that the accused acted in self defence. The learned Counsel for the accused appellants argued with great vehemence that the injuries of the accused were not explained by the prosecution. We should point out that it is settled principle of law that where the injuries are superficial in nature, the prosecution cannot be required to explain them. In the case of Jagdish v. State of Rajasthan 1979 SCC (Crl) page 436, it has been laid down that the burden on prosecution to explain injuries of the accused arises only when they are not superficial and are shown to have been caused at the time of occurrence. In the present case, the injuries suffered by the accused were simple and almost all of them were superficial in nature. Therefore, the prosecution was not at all obliged to explain them. Further, as provided by Section 105 of the Indian Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances-bringing the case within any of the General Expectations in the I.P.C. is upon him. In the present case, the accused utterly failed to so prove. In this case, three persons were murdered on the prosecution side out of whom two, namely, Bhaggu and Shiv Charan died at the spot and third (Jageshwar) at the police station where he had been taken in injured condition. Three deceased sustained a number of incised wounds and blunt weapon injuries. Two injured Radha Rani wife of Bhaggu and Ram Charan son of Bhaggu also received blunt weapon injuries. Lathi was wielded by Ramsi (deceased accused) and Kalloo and Bhagirath wielded pharsa and axe respectively. The testimony of Ramrati PW 1 and Radha Rani PW 2 was perfectly believable to the extent that Ramsi, Kalloo and Bhagirath wielded weapons as aforesaid. Out of these two witnesses, Radha Rani was an injured, too, who received injuries in the same incident. Ram Charan (another son of Bhaggu) had also received blunt weapon injuries in the same incident. The testimony of Ramrati PW 1 and Radha Rani PW 2 could not be rejected on the premise that they were closely related to the deceased. The incident took place in the immediate neighbourhood of their house and their reaching at the outcry was quite natural.
17. A quarrel had taken place between Anandi son of Bhaggu and Ragghu son of accused Bhagirath in wrestling bout in mid-day. The accused did not lead any evidence to establish their version of the incident. After all, Ragghu was their own man who could be produced. Anyway, since Ragghu son of Bhagirath had received injury at the hands Anandi–one of the members of the family of deceased Bhaggu, it was natural for his family members to have a grudge against Bhaggu and other members of his family. It was admitted to Ramrati PW 1 and Radha Rani PW 2 that after the aforesaid incident, the accused Bhagirath went to the house of one Sri Jagmohan Paliwal, Judge, of their village to bring to his knowledge the aforesaid incident who called Bhaggu and Shiv Charan and they were going to him when the incident occurred in the way on attack being mounted by the accused on them. On shouts, these two witnesses and Jageshwar rushed to their rescue and were also assaulted by the accused. The defence version could not be accepted that the accused were attacked by the prosecution side when they were returning to their home from the house of Sri Paliwal, Judge. As a matter of fact, as pointed out earlier, the house of the accused persons was towards north-west of the place of the incident and the house of the deceased did not lie in between. So, there could hardly be any question of their being attacked by the prosecution side while returning from the house of Sri Paliwal, Judge to their own house. Moreover, if they were returning home from the house of Sri Paliwal, Judge and were allegedly so attacked by the prosecution side, there was no occasion for them to be armed weapons like lathi, pharsa and axe. The correct reflection of the case coming to fore on careful scrutiny of the testimony of the two eyewitnesses and the attending circumstances is that Bhaggu and Shiv Charan were proceeding to the house Sri Paliwal, Judge who had called them and they were attacked by the three accused Ramsi, Kalloo and Bhagirath with lathi, pharsa and axe respectively in the way. The reason was that the accused persons were very much annoyed with the family of the deceased as one of their family, namely, Anandi (son of Bhaggu) had injured Raghhu (son of Bhagirath) a little before the incident in a wrestling bout. It must be believed that Bhaggu and Shiv Charan were unarmed when they were attacked because they were going to meet Sri Paliwal, Judge at his call and there could hardly be any question or reason of their being armed while proceeding there. Two ladies, namely, Ramrati PW 1 and Radha Rani PW 2 as also Jageshwar (deceased) who instantly rushed on the outcries of Bhaggu and Shiv Charan were also unarmed. We are firmly of the opinion that the accused were the aggressors who mounted attack on their adversaries. Presence of the lady witnesses on the scene of occurrence could also not be doubted. They were most natural witnesses. Jageshwar (husband of Ramrati PW 1) became the victim of the wrath of the accused as he had also rushed to the rescue of Bhaggu and Shiv Charan on hearing their shrieks.
18. It is preposterous to suggest that the prosecution side was the aggressor. Had it been so, they would have launched the attack with full preparation. The number and nature of injuries found on the dead bodies of the three deceased indicated that they had been assaulted brutally. There was no provocation from the side of the deceased persons at all. The injuries received by each of the deceased were sufficient to cause death in ordinary course of nature.
19. In net conclusion, for the forgoing discussion, we partly allow this appeal. We set aside the conviction and sentences passed against the accused Nunni alias Munni. He is acquitted. Ramsi accused appellant having died, the appeal on his behalf has abated. The conviction and sentences of the other two other accused appellants Kalloo and Bhagirath under Section 302 read with Section 34 I.P.C. with life imprisonment for triple murder and under Section 323 read with Section 34 I.P.C. with rigorous imprisonment for one year are affirmed. These two accused appellants Kalloo and Bhagirath are on bail. The Chief Judicial Magistrate, Hamirpur/Mahoba shall cause them to be arrested and lodged in jail to serve out the sentences passed against them which shall run concurrently.
20. The judgment be immediately certified to the lower court. Compliance shall be reported by the Chief Judicial Magistrate concerned to this Court within two months from the date of receipt of a copy of this order.