JUDGMENT
Sushma Shrivastava, J.
1. Feeling aggrieved by the order of their conviction and sentence passed by Fourth Additional Sessions Judge, Bhopal in S.T. No. 36/94, decided on 7.10.1996, appellants have preferred this appeal.
2. Appellants have been convicted under Section 302/34, 307/34 and 324/34 of I.P.C. and sentenced to imprisonment for life, rigorous imprisonment for seven years and one year for the respective offences by the impugned judgment. All the sentences were to run concurrently.
3. According to prosecution, on 24.10.93, at about 4’O’ Clock in the evening at village Dewalkheda, district Bhopal, complainant Bapoolal had gone to ‘Chunniwala Khet’ to see his crop of soyabean. His two sons, namely, Parwat Singh and Hari Singh and brother Ram Singh had also followed him to the field and were at the distance of one field. When complainant reached his field, he saw that appellant Ghasiram had collected some of his soyabean crop in his custody. When the complainant objected to it, appellants Ghasiram, Khushilal, Bharat Singh and Nanibai, all armed with axe, pipe and karpa (a spear like weapon), surrounded him and attacked him. Appellant Khushilal gave a pipe blow on the scalp of the complainant. When complainant fell down, appellant Bharat Singh assaulted him with Karpa. Appellants Ghasilal and Nanibai assaulted him with axe and chopped of his legs. When complainant’s brother Ram Singh and sons Parwat Singh and Hari Singh rushed to his rescue, all the appellants turned at Parwat Singh to kill him and appellant Bharat Singh assaulted him with wooden side of Karpa on his scalp and Parwat Singh fell down. Appellants Ghasiram and Nanibai chopped of his legs by axe. Appellant Khushilal also assaulted him and Ram Singh with the iron pipe and other appellants also assaulted Ram Singh as well as Hari Singh. Complainant’s wife Pyaribai, who was coming towards the field, also witnessed the incident. Complainant’s son Parwat Singh died on the spot as a result of assaults made on him by the appellants. Complainant Bapoolal and his brother Ram Singh and son Hari Singh also sustained injuries in the incident.
4. The FIR of the incident was lodged by Bapoolal, which was recorded in the form of Dehati Nalishi in the village itself by Sub-Inspector C.R. Meena. Merg intimation was also recorded at the instance of complainant Bapoolal. On the basis of Dehati Nalishi, the offence was registered at Police Station, Berasiya against the appellants and was investigated. The dead body of deceased Parwat Singh was sent for post mortem examination. Injured Bapoolal, Ram Singh and Hari Singh were also sent for medical examination. On the arrest of the appellants, the weapons used in the commission of the offence were seized at their instance and their blood stained clothes were also seized. The seized articles were sent for forensic examination. After due investigation, appellants were prosecuted under Section 302, 307, 324/34 of I.P.C. and were put to trial.
5. Appellants denied the various charges framed against them and pleaded false implication. According to appellants, the complainant party had attacked them in order to grab their land and falsely implicated them.
6. The learned Additional Sessions Judge upon appreciation of the evidence adduced in the case, found the appellants guilty under Section 302/34, 307/34 and 324/34 of I.P.C. for committing murder of Parwat Singh and attempt to commit murder of Bapoolal and causing hurt to Ram Singh by sharp weapon and convicted and sentenced them as aforesaid. Hence, this appeal.
7. Arguments of both the sides were heard. Impugned judgment and record perused.
8. The conviction of the appellants is founded mainly on the testimony of three eye witnesses, namely, Pyari Bai (PW-13), Bapoolal (PW-17) and Ram Singh (PW-19) coupled with other corroborative evidence. Learned Counsel for the appellants submitted that the trial court gravely erred in placing implicit reliance on the inconsistent and unreliable testimony of the interested and related witnesses. Learned Counsel for the appellants also submitted that the trial court did not properly appreciate the defence evidence and failed to consider that khasra entries and the judgment of the civil court indicated that appellant Ghasiram was in settled possession of his land. Learned Counsel for the appellants further submitted that the trial court also failed to consider that the appellants had also sustained injuries in the incident and they had acted in the exercise of the right of private defence.
9. Learned Counsel for State, on the other hand, supported and justified the impugned judgment and submitted that the judgment of civil court was passed much after the incident and had no bearing on the occurrence.
10. We have carefully scanned the evidence on record. Complainant Bapoolal (PW-17) and Ram Singh(PW-19) are the injured eye witnesses and their presence on the place of occurrence cannot be doubted. The FIR of the incident in the form of Dehati Nalishi (Ex.P-27) was also recorded at the instance of complainant Bapoolal (PW-17) at the place of occurrence itself by Sub Inspector C.R. Meena (PW-16) shortly after the incident on 24.10.93.
11. Complainant Bapoolal (PW-17) categorically deposed in his evidence that at the relevant time at about 3 ‘O’clock in the noon he had gone to his field to see his soyabean crop and his brother Ram Singh and sons Parvat Singh and Hari Singh were also behind him. On reaching the field, complainant Bapoolal (PW-17) noticed that appellants were collecting his soyabean crop, to which he objected. Thereupon, appellants began assaulting him. Appellant Ghasiram and Nani Bai assaulted him with axe and appellant Khushilal assaulted him with iron pipe on his scalp, whereas appellant Bharat Singh gave him 3 Cr.A. 1983/96 ‘karpa’ blow. Complainant Bapoolal fell down and was badly injured. When his son Parvant Singh came to rescue him appellants also assaulted his son Parvat Singh, who fell down and died on the spot. When Ram Singh, the brother of complainant Bapoolal, tried to intervene, appellants assaulted him as well and also ran after Hari Singh to kill him.
12. PW-19 Ram Singh also substantially corroborated the aforesaid version and deposed that as soon as he reached ‘Chunniwala Khet’, he noticed that all the four appellants had attacked his brother and when he and Parvat Singh rushed to rescue him, appellant Bharat Singh gave a spear blow on the scalp of Parvat Singh (deceased); appellants Ghasiram and Nani Bai also chopped off his both legs. Other appellant Khusilal had also turned at Ram Singh and injured him and the other appellants also assaulted him with axe and spear.
13. PW-13 Pyari Bai, the wife of complainant Bapoolal also deposed in her evidence that all the four appellants had assaulted her husband Bapoolal at ‘Chunniwala Khet’ by means of axe, spear and iron pipe and when his brother Ram Singh and sons Parvat Singh and Hari Singh tried to rescue him, appellant Bharat Singh first of all gave a blow to her son Parvat Singh on his scalp by means of wooden side of the spear with the result that Parvat Singh fell down; then appellants Ghasiram and Nani Bai gave axe blows on his both legs, while appellant Khushilal assaulted him with an iron pipe and they thrashed him to death. Pyari Bai (PW-13) also deposed that the appellants had also assaulted her brother-in-law Ram Singh.
14. It is also evident from the testimony of Dr. R.K. Sharma (PW-10), who conducted the autopsy on the body of deceased Parvat Singh that deceased Parvat Singh died as a result of several injuries found on his body and met a homicidal death. Dr. R.K. Sharma (PW-10) found following antemortem injuries on the body of the deceased:
1. Incised wound over right leg, 6 cm x 2 cm x 4 cm bone deep. Tibia cut from anterior aspect below knee joint.
2. Incised wound over right leg posteriorly near popliteal fossa, 8 cm x 3cm x bone deep 4 Cr.A. 1983/96 3cm. Tibia cut posteriorly popliteal and posterior tibial artery cut.
3. Incised wound over left leg 9 cm x 3 cm x bone deep. Tibia cut from anterior aspect below knee joint. Anterior tibial artery cut.
4. Incised wound 9 cm x 3 cm x 3 cm bone deep over left leg laterally. Muscles and bone fibula cut.
5. Incised wound over left popliteal fossa 9 cm x 4 cm x bone deep (joint cut) popliteal artery and vein cut. Profused clotted blood deposited around all wounds.
6. Incised wound over right parietal region. Taper at one end 5 cm x 1 cm x scalp deep.
7. Incised wound over occipital region 5 cm x 1 cm x scalp deep.
8. Red contusion 12 cm x 3 cm over left 6th ICS.
9. Bluish red contusion 5 cm x 4 cm right upper arm.
10. Red contusion 10 cm x 3 cm over right 4th ICS.
15. According to Dr. R.K. Sharma (PW-10), injuries No. 1 to 7 were caused by hard and sharp object, while injuries No. 8, 9 and 10 were caused by hard and blunt object and the death of deceased Parvat Singh had occurred due to hypovolumic shock (syncope) as a result of excessive bleeding through wounds. The postmortem report of the deceased (Ex.P-25) prepared and signed by Dr. R.K. Sharma is also placed on record.
16. It is also borne out from the evidence of Dr. Rajendra Khullar (PW-7) that various injuries were also found on the person of complainant Bapoolal (PW-17), Ram Singh (PW-19) as also on the person of Hari Singh. Dr. Rajendra Khullar (PW-7) on examining injured Bapoolal (PW-17) on 24.10.93 found following injuries on his body:
(i) Lacerated wound 4 cm x 1 cm scalp deep on the vertex of head.
(ii) Lacerated wound 4 cm x 1 cm x scalp deep on the left parietal region of head.
(iii) Lacerated wound 1.5 cm x 0.5 cm x scalp deep near injury No. 1.
(iv) Lacerated wound 3.5 cm x 1 cm. X scalp deep on the right parietal region of head.
(v) Incised wound 6.5 cm x 2.5 cm x muscle cut on the left thigh and seen protruding out of the wound. Clotted blood present.
(vi) Incised wound 5 cm x 3 cm x muscle cut and protruding out of the wound; clotted blood present.
(vii) Incised wound 5 cm. X 2.5 cm. X muscle cut on the left leg, posterior aspect; clotted blood present.
(viii) Incised wound 3 cm x 2.5 cm x muscle deep on the right leg, near the knee joint. Clotted blood present.
(ix) Diffuse swelling left ankle, tenderness present.
(x) Diffuse swelling left hand approx 3 cm x 3 cmdorsumtenderness present.
(xi) Diffuse swelling left forearm approax 3cm x 5 cm, posteriorly-tenderness present
17. According to Dr. Rajendra Khullar (PW-7) injuries No. 1, 2, 3, 4, 9, 10 and 11 were caused by hard and blunt object, while injuries No. 5, 6, 7 and 8 were caused by sharp and hard object and the patient was referred for X-ray and further management to Hamidia Hospital, Bhopal. The M.L.C. report (Ex.P-19) of injured Bapoolal written and signed by Dr. Rajendra Khullar (PW-7) is also placed on record.
18. Dr. Rajendra Khullar (PW-7) on the medical examination of injured Ram Singh
(i) …
(ii) …
(iii) …
(PW-19) found following injuries on his body:
Incised wound 5 cm x 1.5 x scalp deep on the right side of forehead, clotted blood present, swelling present, ecchymosis on the right eye -black eye.
Incised wound 12 cm x 3 cm x muscle deep, clotted blood present on the left thigh lower end, medially.
Incised wound 2.5 cm x 1.5 cm. X muscle deep on the left thigh, just above the knee joint.
19. In the opinion of Dr. Rajendra Khullar (PW-7), all the three injuries found on the body of injured Ram Singh were caused by hard and sharp object and were of six hours duration. The patient was referred for x-ray and further management to the Hamidia Hospital, Bhopal. The M.L.C. report (Ex. P-20) of injured Ram Singh (PW-19) is also on record.
19. Although, complainant Bapoolal (PW-17) and the other eye witnesses, namely, Pyari Bai (PW-13) and Ram Singh (PW-19) 6 were cross-examined at length, there is virtually no cross-examination or challenge to the number and location of the wounds found on the body of deceased Parvat Singh by Dr. Sharma (PW-10) as well as to the number, location or nature of wounds found respectively on the body of Bapoolal (PW-17) and Ram Singh (PW-19). There are also no cogent reasons to discard or disagree with the aforesaid medical evidence as given by Dr. Sharma (PW-10) and Dr. Rajendra Khullar (PW-7).
20. It was thus aptly clear that deceased Parvat Singh met a homicidal death. It was also clear that both Bapoolal (PW-17) and Ram Singh (PW-19) are the injured eye witnesses. They were also found lying wounded besides the dead body of deceased Parvat Singh by Sub Inspector C.R. Meena (PW-16) when he reached the place of occurrence after the incident. Thus, presence of complainant Bapoolal (PW-17) and Ram Singh (PW-19) cannot be viewed with suspicion. Similarly, there are no reasons to doubt that PW-13 Pyari Bai also witnessed the incident from a distance, whose presence is also reflected in the Dehati Nalishi (Ex. P-27) recorded on the same day soon after the incident. There is no such suggestion that Dehati Nalishi (Ex. P-27) was anti dated or anti timed or was a manipulated document.
21. Despite roving cross-examination of the aforesaid three eye witness, there are no cogent reasons to doubt their statements that all the four appellants were actively involved in assaulting deceased Parvat Singh as well as complainant Bapoolal and Hari Singh by means of deadly weapons like axe, iron pipe and spear like weapon (karpa). There is also no such suggestion in the cross-examination of any of the aforesaid eye-witnesses that either of the appellants were not present on the scene of occurrence. Although, there is some discrepancy in the evidence as to use of ‘karpa’ or ‘spear’ (ballam), but it has come in the evidence that ‘karpa’ is also a spear like weapon; therefore that hardly creates any doubt as to the ocular evidence.
22. Upon close scrutiny of the evidence of the aforesaid three eye witnesses, no such material inconsistency is found in their evidence so as to doubt their basic version that all the four appellants had first assaulted complainant Bapoolal (PW-17) and when his son Parvat Singh and brother rushed to rescue him, they were also attacked and assaulted by the four appellants resulting into the instant death of Parvat Singh and various injuries on the body of complainant Bapoolal (PW-17) and Ram Singh (PW-19). The evidence of the aforesaid witnesses cannot be rejected merely on the ground, as also reiterated by the Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh reported in 2006 AIR SCW page 4143, that they are interested or related witnesses. Similarly, their evidence cannot be discarded merely for want of any independent corroboration, particularly when their evidence stood substantially corroborated from the medical evidence.
23. The main thrust of the submission on behalf of the appellants has been that it was the deceased and complainant party, who were the aggressors and who intermeddled in the settled possession of the land of appellant Ghasiram, which resulted into incident causing serious injuries to the appellants as well and that the appellants acted in the exercise of right of private defence.
24. Learned Counsel for the appellants also submitted that it was manifest from the evidence of Sub Inspector C.R. Meena (PW-16) that there was also a counter case against the complainant party in respect of the same incident on the basis of report lodged by appellant Ghasiram and that all the appellants also sustained injuries by the deadly weapons, which remained unexplained by the prosecution, which was enough to indicate that appellants had acted in exercise of right of private defence. Learned Counsel for the appellants further submitted that the evidence of appellant Ghasiram, who examined himself as a defence witness (DW-2), also revealed that the land or field known as ‘Chunniwala khet’ was in possession of appellant Ghasiram, and it was the complainant party who committed criminal trespass there and initiated the assault.
25. Now Investigating Officer C.R. Meena (PW-16) was not the proper person to prove the injuries, if any, sustained by the appellants or to prove that injuries to the appellants were caused by deadly weapons. More so, it was evident from the testimony of C.R. Meena (PW-16) that only a case under Section 324/34 of IPC i.e. case relating to the causing simple hurt was registered against the complainant on the basis of report lodged by the appellant Ghasiram.
Though, there has been a suggestion in the cross-examination of Dr. Rajendra Khullar (PW-7) that on 24.10.93, that he had examined appellant Ghasiram, Nani Bai and Khushilal, but nothing has been elicited in his cross-examination so as to suggest that these appellants sustained any grievous injury. Dr. R.K. Bisariya (DW-1), examined as a defence witness, had also conducted some surgery and treated appellant Bharat Singh much after the incident on 2.7.96, while the incident of the case occurred on 24.10.93. Moreover, there is no such direct evidence on record that the injuries sustained by the appellant Bharat Singh was caused by complainant party. Complainant Bapoolal (PW-17) as well as Ram Singh (PW-19) and Pyari Bai (PW-13) have denied the suggestion that injuries to appellant Bharat Singh was caused by them by spear. On the other hand, it had come in their evidence that appellant Bharat Singh had himself sustained the injury in the scuffle. The aforesaid three witnesses have categorically denied the suggestion given in their cross-examination that they were the aggressors and the complainant party had gone to the field with planning of attack and assaulting the appellants with deadly weapons. Had it been so, complainant Bapoolal (PW-17) himself and his son deceased Parvat Singh would not have received so many injuries as were found on their body. Had it been so, the appellant party would have received much more severe and grievous injury than alleged by them.
26. It is also significant to point out that there is no such direct evidence on record that the deceased or complainant party were the aggressors and they had initiated the assault. No weapon of assault was found or seized from the spot itself, when the three members of the complainant party including the deceased were found lying injured at the place of occurrence by Sub Inspector C.R. Meena (PW-16). If the deceased or complainant party were the aggressors, their weapons of offence should have been found lying at the place of occurrence after they fell down in injured condition. As also pointed out by the learned trial judge, even appellant Ghasiram, though he appeared in the witness box, nowhere stated that deceased or complainant party were the aggressors or they had initiated the assault or committed criminal trespass over the land in his settled possession.
27. There is also no such substantial evidence on record that the deceased or complainant party were armed with deadly weapons or appellants had any apprehension of any deadly assault or grievous hurt so as to occasion the exercise of right of private defence extending to causing of death of deceased Parvat Singh. There is also no any such substantial evidence on record that appellants sustained any grievous injury in the incident at the hands of deceased or complainant party, which in any way occasioned the exercise of right of private defence on the part of the appellants.
28. Although, it is reflected from the evidence on record that the appellants also sustained injuries in the incident, but as reiterated by the Apex Court in the case of Naveen Chandra v. State of Uttranchal , it cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. The burden is on the accused to show that he had the right of private defence.
29. It has been further observed by the Apex Court in the case of Naveen Chandra (supra) that right of private defence is essentially a defensive right circumscribed by the governing statue i.e. I.P.C., available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure.
30. Needless to repeat that in the instant case, it has not been established that the deceased or complainant party were the aggressors and the appellants acted in exercise of the right of private defence of their body.
31. As regards the non-explanation of the injuries sustained by the appellants, it has been reiterated by the Apex Court in three judges’ Bench decision rendered in the case of Takhaji Hiraji v. Thakore Kubersingh Chamansingh and Ors. that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.
32. As regards the plea of exercise of right of private defence of property, the learned trial judge rightly held that Ex.D-16 was not an authentic document and not being a certified copy of khasra entries it could not be acted upon to hold that the field known as ‘Chunniwalal khet’, where the incident occurred, was recorded in the name of appellant Ghasiram or land bearing Khasra No. 41 was ‘Chunniwala Khet’. It was also rightly pointed out by learned Counsel for the State that the judgment of the civil court (Ex. D-20) in favour of the appellant Ghansiram was passed subsequently after the occurrence, and there was no document on record to indicate that there was an order of temporary injunction in favour of appellant Ghasiram in force at the time of occurrence and that deceased or complainant had virtually interfered in the possession of his land. On the other hand, it transpires from the overall evidence on record that dispute over the land existed between the complainant party and the appellants, who are inter-se closely related and that complainant party also claimed and asserted its right over the land.
33. Be that as it may, there is no such evidence on record, nor appellant Ghasiram (DW-2) ever stated so in his evidence that the deceased or complainant had trespassed over the land in his settled possession or tried to do away with his crop and attempted or committed any such offence so as to occasion the exercise of the right of private defence of property.
34. Thus, it was also not established that the appellants acted in the exercise of right of private defence of their property.
35. On the other hand, it was duly established from the evidence of the three eye witnesses, namely, Pyari Bai (PW-13), Bapoolal (PW-17) and Ram Singh (PW-19) coupled with the medical evidence that the four appellants attacked and assaulted complainant Bapoolal (PW-17) conjointly with deadly weapons and caused as many as eleven injuries to him and they also attacked deceased Parvat Singh with the same weapons, when he tried to intervene and save his father and thereby caused several injuries resulting into his instant death. It was also established that injured Ram Singh (PW-19) was also assaulted by the four appellants with the same weapons.
36. Learned Counsel for appellants submitted that there was no premeditation or any intention on the part of the appellants to cause the death of Parvat Singh or complainant Bapoolal. However, the submission of the learned Counsel for the appellants has no force. The large number of injuries including the injuries on the vital parts found on the body of deceased Parvat Singh as well as of complainant Bapoolal (PW-17) caused by the appellants with sharp edged weapons ipso facto indicated that the appellants attacked and gave repeated blows to both of them with an intention to cause their death. Needless to say that intention or common intention can well be developed on the spur of the moment. It was thus quite obvious from the evidence available on record that the appellants had acted in furtherance of their common intention to cause the death of Parvat Singh and complainant Bapoolal and to cause injuries to Ram Singh (PW-19) and pursuant to their common intention they acted, assaulted and thereby intentionally caused the death of Parvat Singh and attempted to cause the death of complainant Bapoolal and also caused the injuries to Ram Singh (PW -19) by lethal weapons.
37. In the wake of aforesaid, we are of the considered opinion that the trial court committed no error in finding the appellants guilty under Section 302/34, 307/34 and 324/34 of IPC.
38. The citations referred by learned Counsel for the appellants State of Bihar v. Nathu Pandey and Ors. Ranbaj Singh v. State of Punjab have turned on different facts and are of no avail to the appellants in the instant case.
39. Consequently, the conviction of the appellants under Section 302/34, 307/34 and 324/34 of IPC recorded by the trial court and the various sentences awarded to them for the aforesaid offences do not warrant any interference in appeal.
40. Appeal, therefore, fails and is dismissed.
41. Appellant No. 3 Khushilal and appellant No. 4 Bharat Singh are on bail. They shall surrender to their bail bonds to serve out the remaining part of their sentence.