CASE NO.: Appeal (crl.) 489 of 1996 PETITIONER: State of M.P. RESPONDENT: Mishrilal (dead) & Ors. @ DATE OF JUDGMENT: 02/04/2003 BENCH: Y.K. SABHARWAL & H.K. SEMA JUDGMENT:
SEMA,J.
This appeal by special leave is preferred by the State against the
judgment of the High Court whereby and whereunder the sentences and
convictions imposed by the Trial Court have been set-aside by allowing the
appeal, preferred by the accused.
The accused Mishrilal s/o Balmukund Jaiswal, Madhusudan s/o
Mishrilal, Jamunaprasad s/o Mishrilal, Radhakishan s/o Ganpat Kalal, Vinod
Kumar s/o Babulal Kalal, Hukumchand s/o Shankerlal Kalal, Jagdish s/o
Shankarlal Kalal, Rajendrakumar s/o Babulal Kalal and Ashok Kumar s/o
Mishrilal Kalal were tried in Session Trial No. 73 of 1987 whereby the
Second Addl. Sessions Judge, Devas convicted accused Ashok under
Sections 302, 307 read with Sections 149 and 148 IPC and Section 25 of
Arms Act.; accused Jamunaprasad under Sections 307, 302 read with
Sections 149 and 148 IPC and the remaining accused under Section 302 read
with Sections 149, 307 read with section 149 and section 148 of the IPC and
sentenced all the accused to pay a fine of Rs.250/- each and in default to
undergo imprisonment for one month under Section 148 IPC, sentenced
accused Ashok to suffer imprisonment for life under Section 302 IPC and to
pay a fine of Rs.250/- and in default to suffer three months imprisonment
and to suffer RI for five years under Section 307 read with Section 149 IPC
and to suffer RI for three years and to pay a fine of Rs.200/- and in default to
suffer one month imprisonment under Section 25 of the Arms Act, sentenced
accused Jamnaprasad to suffer RI for five years under Section 307 and
imprisonment for life under Section 302 read with Section 149 IPC and to
pay a fine of Rs.250/- and in default to suffer three months imprisonment
and sentenced remaining 7 accused to suffer imprisonment for life and to
pay a fine of Rs.250/- each and in default to suffer imprisonment for three
months under Section 302 read with Section 149 IPC and to undergo RI for
five years under Section 307 read with Section 149 IPC.
During the pendency of this appeal, accused Mishrilal has expired and
therefore, the appeal qua him stands abated.
The apple of discord, as revealed by the prosecution story, was over a
trivial matter about the passing of bullock-cart. The bullock-cart of Babulal
(PW-1) being driven by his servant Patiram (PW-3) was stopped by the
accused in front of the house of Mishrilal (since deceased). Babulal,
thereafter, reversed the bullock-cart, brought back his bullock-cart and
reached his house by another route. At that time Maharaj Singh (PW-2),
uncle of Babulal (PW-1), Bhavarsingh (the deceased), grand-father of
Babulal and Gopal (PW-7) and others were sitting in front of the house of
Babulal, who questioned as to why the bullock-cart had to be brought back
by different route and at this Babulal narrated to them the story of stoppage
of bullock-cart by the respondents. At this moment, accused Mishrilal
armed with a Farsi, Jamunaprasad armed with a twelve bore gun, accused
Ashok Kumar with a desi Katta and rest of the accused-persons having lathis
with them came near the house of Babulal hurling abuses, followed by
heated exchange of words between both the sides. Then all of a sudden
Jamunaprasad fired a gunshot at Babulal. The pellets hit him in his legs.
The deceased Bhavarsingh, grandfather of Babulal tried to save him and
stood in front of Babulal, when accused Ashok Kumar fired at him with the
desi Katta hitting him on the chest. The deceased fell down on the ground
and become unconscious. PW-2 Maharaj Singh and Karan Singh PW-4 also
came to save Babulal but accused Jamunaprasad fired again hitting Maharaj
Singh and Karan Singh. Accused Madhusudan assaulted Babulal by the
lathi hitting him on the right shoulder. On raising hue and cry, the accused
fled away. The deceased Bhavarsingh was taken to Kannaud Hospital where
he was declared dead. Injured Babulal, Maharaj Singh and Karan Singh
were admitted in the hospital and treated. Dr.G.D. Kashyap (PW-6), sent
intimation to Police Station, Karnnod. ASI Dharamraj Singh (PW-17)
reached the hospital and on being reported by Babulal (PW-1) ASI
registered the FIR (Ex.P-1). The police issued the requisition form of all the
injured persons marked as (Exs.P-30, P-31 and P-32). Thereafter, the police
case (Ex. P-33) was registered on the basis of (Ex.P-1). The post-mortem
was conducted by PW-6 embodying “the cause of death is from gunshot
wound and its mode is syncope”. The post-mortem report is (Ex.P-6). The
injury reports in respect of Babulal, Karan Singh and Maharaj Singh are
marked as (Exs.P-7, P-11 and P-12). X-ray plates with regard to injuries
sustained by Babulal and Maharaj Singh are marked as (Exs.P-8 to P-10 and
P-13 to P-16) respectively. The investigating officer also prepared a spot
map (Ex.P-3). Accused Mishrilal also lodged the report as regards the
injuries sustained by him, Madhusudan and Jamunaprasad on the same day
i.e. 5.3.1987 and over the same incident. The report is marked as (Ex.D-8).
The police investigated the complaint lodged by Mishrilal and challan was
filed under Sections 147, 148, 149 and 324 IPC and registered a crime No.52
of 1987, which is pending before the learned Judicial Magistrate First Class
for disposal. The complaint lodged by the prosecution party vide (Ex.P-1)
was investigated and after completion of the investigation, the Court framed
charges against the accused parties under Section 302 and in the alternative
under Section 302/149, Section 307 and in the alternative under Section
307/149 and Section 148 of the Indian Penal Code. Accused Ashok Kumar
was also additionally charged under Section 25 of the Arms Act. The
accused pleaded not guilty to the charges and after the trial they were
convicted and sentenced as noticed above.
The High Court after re-appraisal of the evidence, set-aside the order
of conviction and acquitted the respondents of all the charges levelled
against them.
For the sake of convenience we have devised to categorize the case
under the following headings: (1) Cross cases be tried together; (2) Genesis
of occurrence; (3) Presence of Accused Ashok Kumar at the place of
incident; (4) Common object; (5) Right of private defence; and (6) Non-
explanation of the injuries, sustained by the accused, by the prosecution.
CROSS CASES BE TRIED TOGETHER
Undisputedly, accused Mishrilal lodged the report to the police vide
Ex.D-8 over the same incident happened on 5.3.1987, in which he had
clearly stated the injuries were sustained by him and his son Madhusudan at
the hands of prosecution party. It is also not disputed that on the strength of
the complaint lodged by Mishriulal, investigation was also carried out and
challan was filed namely crime case no.52/87 under Sections 147, 148, 149
and 324 IPC against the prosecution party which is pending for disposal
before the learned Judicial Magistrate First Class. In the said challan, the
prosecution party is stated to be an aggressor. This Court in Nathilal Vs.
State of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to be
followed by the Trial Court in the event of cross cases. It was observed
thus:-
“We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same
learned Judge must try both the cross cases one after the other.
After the recording of evidence in one case is completed, he
must hear the arguments but he must reserve the judgment.
Thereafter he must proceed to hear the cross case and after
recording all the evidence he must hear the arguments but
reserve the judgment in that case. The same learned Judge must
thereafter dispose of the matters by two separate judgments. In
deciding each of the cases, he can rely only on the evidence
recorded in that particular case. The evidence recorded in the
cross case cannot be looked into. Nor can the judge be
influenced by whatever is argued in the cross case. Each case
must be decided on the basis of the evidence which has been
placed on record in that particular case without being
influenced in any manner by the evidence or arguments urged
in the cross case. But both the judgments must be pronounced
by the same learned Judge one after the other.”
In the instant case, it is undisputed, that the investigating officer
submitted the challan on the basis of the complaint lodged by the accused
Mishrilal in respect of the same incident. It would have been just fair and
proper to decide both the cases together by the same court in view of the
guidelines devised by this Court in Nathilal’s case (supra). The cross-
cases should be tried together by the same court irrespective of the nature of
the offence involved. The rational behind this is to avoid the conflicting
judgments over the same incident because if cross cases are allowed to be
tried by two courts separately there is likelihood of conflicting judgments.
In the instant case, the investigating officer submitted the challan against
both the parties. Both the complaints cannot be said to be right. Either of
them must be false. In such a situation, legal obligation is cast upon the
investigating officer to make an endeavour to find out the truth and to cull
out the truth from the falsehood. Unfortunately, the investigating officer has
failed to discharge the obligation, resulting in grave miscarriage of justice.
GENESIS OF OCCURRENCE
As already noticed, the apple of discord is passing of the bullock-cart
belonging to PW-1 Babulal, in front of the house of the accused Mishrilal. It
is in the evidence on record that the bullock-cart of accused Mishrilal was
parked in the gali impeding the passage of bullock-cart of Babulal PW.1. In
the circumstances Babulal was asked to stop the bullock-cart which had to
be reversed and taken from the other route. PW-1 naturally took it as an
insult and felt bad and on being arrived at his place where Maharaj Singh,
Bhavarsingh etc. were sitting and on being questioned about the change in
the route, he narrated the incident of stoppage to the members of his family.
In such a situation, it is expected that they have reasons to raise grievances.
Whereas the accused party being succeeded in getting the bullock-cart
diverted, were victorious and there was no reason to revolt by following
Babulal armed with farsi, gun and desi katta and lathis as alleged by the
prosecution. This allegation is clearly against the logic. It is logically
improbable that the accused being able to stop and compel the bullock-cart
to retreat would have still opted to follow Babulal and initiate a quarrel. It is
logically improbable and unbelievable in the ordinary course of human
conduct because the grievance of the accused, if any, has been redressed by
preventing the bullock-cart to pass through the passage and accomplish in
retreating the bullock-cart through another route, would still follow the
prosecution party and assault them in front of their house. They have no
reason to be annoyed or unhappy which would compel them to go to the
house of the prosecution party and took up a quarrel with them. In the
evidence on record it is shown that the cartridges were found in front of the
house of PW-8 and blood stained earth was seized from the wall of the
house of PW-8. But in spot map (Ex.P-3) the position shown is contrary
and the house of PW-8 was omitted from this map. The testimony of
Ramnarayan (PW-8) is inconsistent with (Ex.P-3) spot map. This apart, the
learned Trial Judge made a spot inspection on 11.3.1991 under Section 310
Cr.P.C. However, the Trial Judge did not choose to record the memo of
inspection. The judgment was delivered on 16.3.1991. What had prompted
the learned Trial Judge to have recourse to spot inspection was not spelled
out because no memorandum of inspection was prepared. But it is clearly
suggestive of deficiency of evidence with regard to place of occurrence. In
such a situation, it was incumbent on the part of the learned Trial Judge, to
have recorded the memo of inspection for proper appreciation of the
inspection. Undoubtedly, the mandatory provision has not been followed by
the Trial Court.
The prosecution party and not the complainant party were the
aggressors, is further made amply clear in the depositions of PWs 1 and 2.
PW-1 Babulal stated in para 9 of the statement as under:-
“All of them stood in front of my cart and they did not cry
lowdly and they used to tell only this that no cart will go from
here and please do not take away cart via this route. All of
them prevented my cart on the high way, for which I took bad.”
Babulal further stated as under:
“Then I stated to my grandfather that all of these were not
allowing to bring my bullock cart from this side I stated while
rebuking that these mather chodon are not allowing to take out
the bullock cart then Maharaj Singh and Bhawar Singh stated
that we will make them understand and then they remained
stand there.”
PW-2 Maharaj Singh also stated as under:-
“This is correct that Babu had stated this that salone did not
allow the cart to came out through the high way and due to this
fact we took it ill.”
From the facts and circumstances, as adumbrated above, it is amply
clear that the prosecution party was the aggressor and the alleged incident
did not happen in front of the house of the prosecution party, rather the
prosecution party took offence to the stoppage of bullock-cart of Babulal,
but the prosecution has suppressed the genesis and origin of the occurrence.
We are clearly of the view, therefore, that the prosecution party was an
aggressor.
PRESENCE OF ACCUSED ASHOK KUMAR AT THE PLACE OF
OCCURRENCE
Accused Ashok Kumar was attributed of firing with desi katta at the
chest of the deceased Bhavarsingh which appears to have proved fatal. In
the instant case, the prosecution party went straight to the hospital from the
place of incident. Ex.P-29 is the intimation to the police station by the
doctor. It is silent about the authors of the injuries. It does not speak about
katta, farsi or lathi. Accused Ashok Kumar, from the very beginning of the
trial, took a defence that he was not present at the spot on the day of incident
and he has been falsely implicated on the ground that Ashok Kumar was
having some love affair with Suganbai, the sister of PW-7 Gopal. Accused
Ashok Kumar sustained no injury. In this background, the plea raised by
Ashok Kumar, that he has been falsely implicated on the ground of his
involvement with Suganbai, the sister of PW-7 Gopal, becomes significant.
PW-7 Gopal is undisputedly a member of the family of a complainant party
and in this background falsely implicating Ashok Kumar as an accused
cannot be ruled out. As noticed earlier, in Ex.P-29 there was no mention of
an attack by a desi katta. The necessary implication is that the name of
Ashok Kumar and katta were introduced only after arrival of the police
(PW-17) and after deliberation. Further, in Ex.P-29 only gun was
mentioned. Against Ashok Kumar one of the eyewitness account is given by
PW-5 Chagan. He was unable to say as from where katta was taken out.
The alleged eyewitness account of PW-5 Chagan is also not acceptable
because the name of PW-5 was not mentioned in Ex. P-1. His name also
appears to have been introduced after the arrival of PW-17 and after
deliberation. The alleged disclosure and recovery of Ex.P-20 and seizure
memo Ex.P-21 both prepared by one V.K. Silawat, Station House Officer of
Police Station, was not examined in the case. PW-9 Babulal – punch
witness, father of PW-5, did not prove the material recited in Ex.P-20. PW-
12 Lakhanlal – another punch witness, also did not testify the material
recited in Ex.P-20. The prosecution has also failed to prove that the desi
katta was in exclusive possession of the accused Ashok Kumar. This all
goes to show that the facts of seizure are not free from doubt. All the more
so, when the prosecution tried to suppress the genesis and the origin of the
occurrence. There is no guarantee that they are speaking the truth with
regard to the facts of seizure Ex.P-21. As already noticed, accused Ashok
Kumar was attributed of hitting on the chest of the deceased by desi katta.
Dr.G.D. Kashyap (PW-6) conducted the post-mortem. He found the
following external injuries:-
“External Injuries: (1) Gunshot (Firearm) wound. (A) wound of
entry size (irregular round shape) 2″x2″x18″ on the front Right
chest 4″ above the right (Illeg.) when a probe inserted in this
wound it comes out on posterior side on wound of exit.
Direction the wound is medialy Back wounds and downwords
(B) wound of exit Gun shot size 2 ” x2″x18″ situated 1″ Rt.
Lateral to 10th Thoracic vertebra, Direction lateraly (Illeg.) and
upwords. It is continuous to the wound of entry. The edges of
both wounds are irregular oral shape. But edges of entrance
wound in inverted and edges of exit wound is everted. Both the
wounds are antemortem wounds. From both these wounds
oozing of blood is too much.”
The doctor also found irregular shaped six small chharas stained with
blood from the right chest of the deceased.
From the post-mortem report as noticed, PW-6 described the injuries
as gunshot and not from the pistol. It is strenuously urged by Mr. Jaspal
Singh, learned Senior counsel, that the pistol uses bullets and not chharas.
According to him, since six chharas were found from the chest of the
deceased, the shots were fired from the 12 bore gun and not from the pistol.
Learned counsel for the appellant, however, contended that in desi katta 12
bore cartridges can also be fired. The prosecution has failed to obtain the
opinion of ballistic expert. The prosecution also did not explain as to
whether in desi katta 12 bore cartridges can also be fired. In the absence of
explanation by the prosecution, it is difficult to accept that in desi katta 12
bore cartridges can be fired in the instant case. In the present case, a doubt
has been created as to whether a desi katta can also fire 12 bore cartridges,
which has not been explained by the prosecution. As already noticed, Ashok
Kumar did not sustain any injuries on his body. In the ordinary course of
human conduct, when his father Mishrilal is inflicted as many as five injuries
which are stated to be dangerous to life, a son is expected to intervene in
order to salvage his father and in the process he would receive injuries on his
body, if he was present at the place of occurrence. The other two sons
Madhusudan and Jamunaprasad who were with the father Mishrilal received
simple injuries. In the FIR. (Ex.D-8) lodged by Mishrilal also, the presence
of Ashok at the place of occurrence was not mentioned. It is in these
circumstances, the presence of Ashok Kumar at the place of incident is not
free from doubt. He must, therefore, be entitled to the benefit of doubt.
COMMON OBJECT
We have noticed that in Ex.P-1 accused Mishrilal, Jamunaprasad,
Madhusudan and Ashok Kumar have been mentioned, but the remaining five
accused Radhakishan, Vinod Kumar, Hukumchand, Jagdish and
Rajendrakumar were not mentioned. It is also in the evidence on record that
five accused were standing at the back and did not participate. The five
accused were roped in aid of Section 149 IPC. In the Ex.P-1 itself, it is
stated that others were having lathis. Who were the others and who were
having lathis, has not been described in the complaint. It is in the evidence of
PWs 1 and 2 that they were standing behind at a short distance. No
participation of each of the accused, overt act or otherwise, has been
attributed to them. They could be passive onlookers. It is difficult to accept
that they were members of unlawful assembly and the offence was
committed in prosecution of common object of that assembly. Their
conviction with the aid of Section 149 is, thus, clearly impermissible. Their
conviction under Section 148 would also go.
RIGHT OF PRIVATE DEFENCE.
As already noticed, Mishrilal, Madhusudan and Jamunaprasad
received injuries in the incident. According to Dr. G.D. Kashyap (PW-6) the
injuries sustained by Madhusudan and Jamunaprasad were simple in nature,
while the injuries found on the person of Mishrilal would be dangerous to life
being on the sensitive part of the body – head. Accused Mishrilal received as
many as five injuries – one incised wound and one lacerated wound on vital
part like head. The doctor opined that the injuries were dangerous to life.
The other three accused were all the sons of Mishrilal. We have doubted the
presence of accused – Ashok Kumar at the place of incident. The remaining
two sons Madhusudan and Jamunaprasad received injuries on their bodies.
In the ordinary course of human conduct, if the father receives as many as
five injuries in the presence of sons, the sons are not expected to be moot
spectators. Firing from 12 bore gun is attributed to accused Jamunaprasad,
the pellets of which hit the legs of Babulal PW-1 causing injuries which were
simple in nature. Since we have already held that the prosecution party was
the aggressor, we do not think that accused Jamunaprasad has exceeded the
right of private defence. The fact that PW-1 Babulal received the bullet
injuries on his legs would clearly show that Jamunaprasad fired from 12 bore
gun to free his father and themselves from the clutches of the accused. One
should not forget that Mishrilal has received as many as five injuries which
were dangerous to life and the accused Jamunaprasad at that time reasonably
apprehending the danger to the life of his father had fired the gunshot at that
point of time in self-defence, which is quite justified. It is in these
circumstances that we hold that the accused did not exceed the right of
private defence.
NON-EXPLANATION OF THE INJURIES SUSTAIBED BY THE
ACCUSED
The last and which appears to be fatal to the prosecution case is
non-explanation of the injuries sustained by the accused.
As already said, accused Mishrilal received as many as five injuries, which
were dangerous to life. Madusudan and Jamunanprasad received simple
injuries. In Ex.P-1 as well as in the entire deposition of PWs, the prosecution
has not explained the injuries sustained by the accused. In the background of
the defence, as set up by the accused, it was incumbent on the part of the
prosecution, to have explained the injuries sustained by the accused. The
defence version is that on being retreated the bullock-cart of Babulal, the
complainant party – Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish,
Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit
Mishrilal’s head with the farsa and Babulal, Maharaj Singh and Karan Singh
beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and
they also beat him. When Jamunanprasad came to save, he was also beaten
up and on that Jamunaprasad ran towards the house and made two fires in the
air to save his father. It is the case of defence that the bullet, which struck
Bhavarsingh, came from towards the house of Babulal. In the face of
defence version, which competes in probability with that of the prosecution
case, it was mandatory on the part of the prosecution to have explained the
injuries sustained by the accused and non-explanation of the injuries is fatal
to the prosecution case. In Lakshmi Singh and others vs. State of
Bihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai v.
State of Bihar, (1968) 3 SCR 525: AIR 1968 SC 1281: 1968 Cri LJ 1479, it
was held by this Court:
“where the prosecution fails to explain the injuries on the
accused, two results follow: (1) that the evidence of the
prosecution witnesses is untrue; and (2) that the injuries
probabilise the plea taken by the appellants
in a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence or
in the course of altercation is a very important circumstance
from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true
version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so
as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or inimical
witnesses or where the defence gives a version which competes
in probability with that of the prosecution one.
However there may be cases where the non-explanation of
the injuries by the prosecution may not affect the prosecution
case. This principle would obviously apply to cases where the
injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that it
far outweighs the effect of the omission on the part of the
prosecution to explain the injuries.”
In State of Rajasthan Vs. Madho, AIR 1991 SC 1065 at
page 1067 this Court held as under:
“The fact remains that both the respondents had sustained
serious injuries, Kishna mainly on the skull whereas Madho on
the skull as well as scapular region. If the prosecution
witnesses shy away from the reality and do not explain the
injuries caused to the respondents herein it casts a doubt on the
genesis of the prosecution case since the evidence shows that
these injuries were sustained in the course of the same incident.
It gives the impression that the witnesses are suppressing some
part of the incident. The High Court was, therefore, of the
opinion that having regard to the fact that they have failed to
explain the injuries sustained by the two respondents in the
course of the same transaction, the respondents were entitled to
the benefit of the doubt as it was hazardous to place implicit
reliance on the testimony of the injured PW-2.”
In Ex.P-1, as already noticed, there is no explanation about the
injuries sustained by the three accused. None of the prosecution witnesses
explained the injuries sustained by the accused. The injuries sustained by
Mishrilal were dangerous to life. The prosecution witnesses consist of
interested and inimical witnesses. We are, therefore, of the view that the
prosecution has not presented the true version on most material part of the
story. Their evidential value does not inspire confidence and it cannot be
accepted on its face value and relied upon. It is in these circumstances that
non-explanation of the injuries sustained by the accused proved fatal to the
prosecution case.
We may also note that the learned Trial Judge has disbelieved the
opinion of Dr.G.D.Kashyap (PW-6) that the injuries sustained by Mishrilal
being in the sensitive part of the body head were dangerous to life, albeit
without any valid reasons. To us, to say the least, the prosecution case too
appears to be one sided.
For the afore-stated reasons this appeal is dismissed. The accused are
on bail. Their bail bonds stand cancelled and sureties discharged.