{"id":11455,"date":"2003-04-02T00:00:00","date_gmt":"2003-04-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-m-p-vs-mishrilal-dead-ors-on-2-april-2003"},"modified":"2015-02-04T22:21:07","modified_gmt":"2015-02-04T16:51:07","slug":"state-of-m-p-vs-mishrilal-dead-ors-on-2-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-m-p-vs-mishrilal-dead-ors-on-2-april-2003","title":{"rendered":"State Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003<\/div>\n
Author: Sema<\/div>\n
Bench: Y.K. Sabharwal, H.K. Sema<\/div>\n
           CASE NO.:\nAppeal (crl.)  489 of 1996\n\nPETITIONER:\nState of M.P.\n\nRESPONDENT:\nMishrilal (dead) & Ors.\t\t\t\t\t\t       @\n\nDATE OF JUDGMENT: 02\/04\/2003\n\nBENCH:\nY.K. SABHARWAL & H.K. SEMA\n\nJUDGMENT:\n<\/pre>\n
SEMA,J.\n<\/p>\n
\tThis appeal by special leave is preferred by the State against the
\njudgment of the High Court whereby and whereunder the sentences and
\nconvictions imposed by the Trial Court have been set-aside by allowing the
\nappeal, preferred by the accused.\n<\/p>\n
\tThe accused Mishrilal s\/o Balmukund Jaiswal, Madhusudan s\/o
\nMishrilal, Jamunaprasad s\/o Mishrilal, Radhakishan s\/o Ganpat Kalal, Vinod
\nKumar s\/o Babulal Kalal, Hukumchand s\/o Shankerlal Kalal, Jagdish s\/o
\nShankarlal Kalal, Rajendrakumar s\/o Babulal Kalal and Ashok Kumar s\/o
\nMishrilal Kalal were tried in Session Trial No. 73 of 1987 whereby the
\nSecond Addl. Sessions Judge, Devas convicted accused Ashok under
\nSections 302, 307 read with Sections 149 and 148 IPC and Section 25 of
\nArms Act.;  accused Jamunaprasad under Sections 307, 302 read with
\nSections 149 and 148 IPC and the remaining accused under Section 302 read
\nwith Sections 149, 307 read with section 149 and section 148 of the IPC and
\nsentenced all the accused to pay a fine of Rs.250\/- each and in default to
\nundergo imprisonment for one month under Section 148 IPC, sentenced
\naccused Ashok to suffer imprisonment for life under Section 302 IPC and to
\npay a fine of Rs.250\/- and in default to suffer three months imprisonment
\nand to suffer RI for five years under Section 307 read with Section 149 IPC
\nand to suffer RI for three years and to pay a fine of Rs.200\/- and in default to
\nsuffer one month imprisonment under Section 25 of the Arms Act, sentenced
\naccused Jamnaprasad to suffer RI for five years under Section 307 and
\nimprisonment for life under Section 302 read with Section 149 IPC and to
\npay a fine of Rs.250\/- and in default to suffer three months imprisonment
\nand sentenced remaining 7 accused to suffer imprisonment for life and to
\npay a fine of Rs.250\/- each and in default to suffer imprisonment for three
\nmonths under Section 302 read with Section 149 IPC and to undergo RI for
\nfive years under Section 307 read with Section 149 IPC.\n<\/p>\n
\tDuring the pendency of this appeal, accused Mishrilal has expired and
\ntherefore, the appeal qua him stands abated.\n<\/p>\n
\tThe apple of discord, as revealed by the prosecution story, was over a
\ntrivial matter about the passing of bullock-cart.  The bullock-cart of Babulal
\n(PW-1) being driven by his servant Patiram (PW-3) was stopped by the
\naccused in front of the house of Mishrilal (since deceased).  Babulal,
\nthereafter, reversed the bullock-cart, brought back his bullock-cart and
\nreached his house by another route.  At that time Maharaj Singh (PW-2),
\nuncle of Babulal (PW-1), Bhavarsingh (the deceased), grand-father of
\nBabulal and Gopal (PW-7) and others were sitting in front of the house of
\nBabulal, who questioned as to why the bullock-cart had to be brought back
\nby different route and at this Babulal narrated to them the story of stoppage
\nof bullock-cart by the respondents.   At this moment, accused Mishrilal
\narmed with a Farsi, Jamunaprasad armed with a twelve bore gun, accused
\nAshok Kumar with a desi Katta and rest of the accused-persons having lathis
\nwith them came near the house of Babulal hurling abuses, followed by
\nheated exchange of words between both the sides.  Then all of a sudden
\nJamunaprasad fired a gunshot at Babulal.    The pellets hit him in his legs.
\nThe deceased Bhavarsingh, grandfather of Babulal tried to save him and
\nstood in front of Babulal, when accused Ashok Kumar fired at him with the
\ndesi Katta hitting him on the chest.  The deceased fell down on the ground
\nand become unconscious.\t PW-2 Maharaj Singh and Karan Singh PW-4 also
\ncame to save Babulal but accused Jamunaprasad fired again hitting Maharaj
\nSingh and Karan Singh.\tAccused Madhusudan assaulted Babulal by the
\nlathi hitting him on the right shoulder.  On raising hue and cry, the accused
\nfled away.  The deceased Bhavarsingh was taken to Kannaud Hospital where
\nhe was declared dead.  Injured Babulal, Maharaj Singh and Karan Singh
\nwere admitted in the hospital and treated.  Dr.G.D. Kashyap (PW-6), sent
\nintimation to Police Station, Karnnod.\tASI Dharamraj Singh (PW-17)
\nreached the hospital and on being reported by Babulal (PW-1) ASI
\nregistered the FIR (Ex.P-1).  The police issued the requisition form of all the
\ninjured persons marked as (Exs.P-30, P-31 and P-32). Thereafter, the police
\ncase (Ex. P-33) was registered on the basis of (Ex.P-1).  The post-mortem
\nwas conducted by PW-6 embodying “the cause of death is from gunshot
\nwound and its mode is syncope”.\t The post-mortem report is (Ex.P-6).  The
\ninjury reports in respect of Babulal, Karan Singh and Maharaj Singh are
\nmarked as (Exs.P-7, P-11 and P-12).   X-ray plates with regard to injuries
\nsustained by Babulal and  Maharaj Singh are marked as (Exs.P-8 to P-10 and
\nP-13 to P-16) respectively.  The investigating officer also prepared a spot
\nmap (Ex.P-3).  Accused Mishrilal also lodged the report as regards the
\ninjuries sustained by him, Madhusudan and Jamunaprasad on the same day
\ni.e. 5.3.1987 and over the same incident.  The report is marked as (Ex.D-8).
\nThe police investigated the complaint lodged by Mishrilal and challan was
\nfiled under Sections 147, 148, 149 and 324 IPC and registered a crime No.52
\nof 1987, which is  pending before the learned Judicial Magistrate First Class
\nfor disposal.  The complaint lodged by the prosecution party vide (Ex.P-1)
\nwas investigated and after completion of the investigation, the Court framed
\ncharges against the accused parties under Section 302 and in the alternative
\nunder Section 302\/149, Section 307 and in the alternative under Section
\n307\/149 and Section 148 of the Indian Penal Code.  Accused Ashok Kumar
\nwas also additionally charged under Section 25 of the Arms Act.\t The
\naccused pleaded not guilty to the charges and after the trial they were
\nconvicted and sentenced as noticed above.\n<\/p>\n
\tThe High Court after re-appraisal of the evidence, set-aside the order
\nof conviction and acquitted the respondents of all the charges levelled
\nagainst them.\n<\/p>\n
\tFor the sake of convenience we have devised to categorize the case
\nunder the following headings: (1) Cross cases be tried together; (2) Genesis
\nof occurrence; (3) Presence of Accused Ashok Kumar at the place of
\nincident; (4) Common object; (5) Right of private defence; and (6) Non-
\nexplanation of the injuries, sustained by the accused, by the prosecution.\n<\/p>\n
CROSS CASES BE TRIED TOGETHER
\n\tUndisputedly, accused Mishrilal lodged the report to the police vide
\nEx.D-8 over the same incident happened on 5.3.1987, in which he had
\nclearly stated the injuries were sustained by him and his son Madhusudan at
\nthe hands of prosecution party.\t  It is also not disputed that on the strength of
\nthe complaint lodged by Mishriulal, investigation was also carried out and
\nchallan was filed namely crime case no.52\/87 under Sections 147, 148, 149
\nand 324 IPC against the prosecution party which is pending for disposal
\nbefore the learned Judicial Magistrate First Class.  In the said challan, the
\nprosecution party is stated to be an aggressor.\t This Court in Nathilal\t  Vs.
\nState of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to be
\nfollowed by the Trial Court in the event of cross cases. It was observed
\nthus:-\n<\/p>\n
“We think that the fair procedure to adopt in a matter like the
\npresent where there are cross cases, is to direct that the same
\nlearned Judge must try both the cross cases one after the other.
\nAfter the recording of evidence in one case is completed, he
\nmust hear the arguments but he must reserve the judgment.
\nThereafter he must proceed to hear the cross case and after
\nrecording all the evidence he must hear the arguments but
\nreserve the judgment in that case.  The same learned Judge must
\nthereafter dispose of the matters by two separate judgments.  In
\ndeciding each of the cases, he can rely only on the evidence
\nrecorded in that particular case.  The evidence recorded in the
\ncross case cannot be looked into.  Nor can the judge be
\ninfluenced by whatever is argued in the cross case.  Each case
\nmust be decided on the basis of the evidence which has been
\nplaced on record in that particular case without being
\ninfluenced in any manner by the evidence or arguments urged
\nin the cross case.  But both the judgments must be pronounced
\nby the same learned Judge one after the other.”\n<\/p>\n
In the instant case, it is undisputed, that the investigating officer
\nsubmitted the challan on the basis of the complaint lodged by the accused
\nMishrilal in respect of the same incident.  It would have been just fair and
\nproper to decide both the cases together by the same court in view of the
\nguidelines devised by this Court in Nathilal’s case (supra).   The cross-
\ncases should be tried together by the same court irrespective of the nature of
\nthe offence involved.  The rational behind this is to avoid the conflicting
\njudgments over the same incident because if cross cases are allowed to be
\ntried by two courts separately there is likelihood of conflicting judgments.
\nIn the instant case, the investigating officer submitted the challan against
\nboth the parties.  Both the complaints cannot be said to be right.   Either of
\nthem must be false.  In such a situation, legal obligation is cast upon the
\ninvestigating officer to make an endeavour to find out the truth and to cull
\nout the truth from the falsehood.  Unfortunately, the investigating officer has
\nfailed to discharge the obligation, resulting in grave miscarriage of justice.\n<\/p>\n
GENESIS OF OCCURRENCE
\n\tAs already noticed, the apple of discord is passing of the bullock-cart
\nbelonging to PW-1 Babulal, in front of the house of the accused Mishrilal. It
\nis in the evidence on record that the bullock-cart of  accused Mishrilal was
\nparked in the gali impeding the passage of bullock-cart of Babulal PW.1.   In
\nthe circumstances Babulal was asked to stop the bullock-cart which had to
\nbe reversed and taken from the other route.  PW-1 naturally took it as an
\ninsult and felt bad and on being arrived at his place where Maharaj Singh,
\nBhavarsingh etc. were sitting and on being questioned about the change in
\nthe route, he narrated the incident of stoppage to the members of his family.
\nIn such a situation, it is expected that they have reasons to raise grievances.
\nWhereas the accused party being succeeded in getting the bullock-cart
\ndiverted, were victorious and there was\t no reason to revolt by following
\nBabulal armed with farsi, gun and desi katta and lathis as alleged by the
\nprosecution.   This allegation is clearly against the logic.  It is logically
\nimprobable that the accused being able to stop and compel the bullock-cart
\nto retreat would have still opted to follow Babulal and initiate a quarrel.  It is
\nlogically improbable and unbelievable in the ordinary course of human
\nconduct because the grievance of the accused, if any, has been redressed by
\npreventing the bullock-cart to pass through the passage and accomplish in
\nretreating the bullock-cart through another route, would still follow the
\nprosecution party and assault them in front of their house.  They have no
\nreason to be annoyed or unhappy which would compel them to go to the
\nhouse of the prosecution party and took up a quarrel with them.\t In the
\nevidence on record it is shown that the cartridges were found in front of the
\nhouse of  PW-8 and blood stained earth was seized from the wall of the
\nhouse of PW-8.\tBut in spot map (Ex.P-3)  the  position shown is contrary
\nand the house of PW-8 was omitted from this map.  The testimony of
\nRamnarayan (PW-8) is inconsistent with (Ex.P-3) spot map.  This apart, the
\nlearned Trial Judge made a spot inspection on 11.3.1991 under Section 310
\nCr.P.C.\t However, the Trial Judge did not choose to record the memo of
\ninspection.  The judgment was delivered on 16.3.1991.  What had prompted
\nthe learned Trial Judge to have recourse to spot inspection was not spelled
\nout because no memorandum of inspection was prepared.  But it is clearly
\nsuggestive of deficiency of evidence with regard to place of occurrence.   In
\nsuch a situation, it was incumbent on the part of the learned Trial Judge, to
\nhave recorded the memo of inspection for proper appreciation of the
\ninspection.  Undoubtedly, the mandatory provision has not been followed by
\nthe Trial Court.\n<\/p>\n
\tThe prosecution party and not the complainant party were the
\naggressors, is further made amply clear in the depositions of PWs 1 and 2.
\nPW-1 Babulal stated in para 9 of the statement as under:-
\n“All of them stood in front of my cart and they did not cry
\nlowdly and they used to tell only this that no cart will go from
\nhere and please do not take away cart via this route.  All of
\nthem prevented my cart on the high way, for which I took bad.”\n<\/p>\n
Babulal further stated as under:\n<\/p>\n
“Then I stated to my grandfather that all of these were not
\nallowing to bring my bullock cart from this side I stated  while
\nrebuking that these mather chodon are not allowing to take out
\nthe bullock cart then Maharaj Singh and Bhawar Singh stated
\nthat we will make them understand and then they remained
\nstand there.”\n<\/p>\n
PW-2 Maharaj Singh also stated as under:-\n<\/p>\n
“This is correct that Babu had stated this that salone did not
\nallow the cart to came out through the high way and due to this
\nfact we took it ill.”\n<\/p>\n
\tFrom the facts and circumstances, as adumbrated above, it is amply
\nclear that the prosecution party was the aggressor and the alleged incident
\ndid not happen in front of the house of the prosecution party, rather the
\nprosecution party took offence to the stoppage of bullock-cart of Babulal,
\nbut the prosecution has suppressed the genesis and origin of the occurrence.
\nWe are clearly of the view, therefore, that the prosecution party was an
\naggressor.\n<\/p>\n
PRESENCE OF ACCUSED ASHOK KUMAR AT THE PLACE OF
\nOCCURRENCE<\/p>\n
\tAccused Ashok Kumar was attributed of firing with desi katta at the
\nchest of the deceased Bhavarsingh which appears to have proved fatal.  In
\nthe instant case, the prosecution party went straight to the hospital from the
\nplace of incident.  Ex.P-29 is the intimation to the police station by the
\ndoctor.\t It is silent about the authors of the injuries.  It does not speak about
\nkatta, farsi or lathi.\tAccused Ashok Kumar, from the very beginning of the
\ntrial, took a defence that he was not present at the spot on the day of incident
\nand he has been falsely implicated on the ground that Ashok Kumar was
\nhaving some love affair with Suganbai, the sister of PW-7 Gopal.  Accused
\nAshok Kumar sustained no injury.  In this background, the plea raised by
\nAshok Kumar, that he has been falsely implicated on the ground of his
\ninvolvement with Suganbai, the sister of PW-7 Gopal, becomes significant.
\nPW-7 Gopal is undisputedly a member of the family of a complainant party
\nand in this background falsely implicating Ashok Kumar as an accused
\ncannot be ruled out.  As noticed earlier, in Ex.P-29 there was no mention of
\nan attack by a desi katta.  The necessary implication is that the name of
\nAshok Kumar and katta were introduced only after arrival of the police
\n(PW-17) and after deliberation.\t Further, in Ex.P-29 only gun was
\nmentioned.  Against Ashok Kumar one of the eyewitness account is given by
\nPW-5 Chagan.  He was unable to say as from where katta was taken out.
\nThe alleged eyewitness account of PW-5 Chagan is also not acceptable
\nbecause the name of PW-5 was not mentioned in Ex. P-1.\tHis name also
\nappears to have been introduced after the arrival of PW-17 and after
\ndeliberation.  The alleged disclosure and recovery of Ex.P-20 and seizure
\nmemo Ex.P-21 both prepared by one V.K. Silawat, Station House Officer of
\nPolice Station, was not examined in the case.  PW-9 Babulal – punch
\nwitness, father of PW-5, did not prove the material recited in Ex.P-20.\t PW-
\n12 Lakhanlal – another punch witness, also did not testify the material
\nrecited in Ex.P-20.  The prosecution has also failed to prove that the desi
\nkatta was in exclusive possession of the accused Ashok Kumar.  This all
\ngoes to show that the facts of seizure are not free from doubt.\t All the more
\nso, when the prosecution tried to suppress the genesis and the origin of the
\noccurrence.   There is no guarantee that they are speaking the truth with
\nregard to the facts of seizure Ex.P-21.\t As already noticed, accused Ashok
\nKumar was attributed of hitting on the chest of the deceased by desi katta.
\nDr.G.D. Kashyap (PW-6) conducted the post-mortem.  He found the
\nfollowing external injuries:-\n<\/p>\n
“External Injuries: (1) Gunshot (Firearm) wound. (A) wound of
\nentry size (irregular round shape) 2″x2″x18″ on the front Right
\nchest 4″ above the right (Illeg.) when a probe inserted in this
\nwound it comes out on posterior side on wound of exit.
\nDirection the wound is medialy Back wounds and downwords
\n(B) wound of exit Gun shot size 2 ” x2″x18″ situated 1″ Rt.
\nLateral to 10th Thoracic vertebra, Direction lateraly (Illeg.) and
\nupwords.  It is continuous to the wound of entry.  The edges of
\nboth wounds are irregular oral shape.  But edges of entrance
\nwound in inverted and edges of exit wound is everted.  Both the
\nwounds are antemortem wounds.  From both these wounds
\noozing of blood is too much.”\n<\/p>\n
\t\tThe doctor also found  irregular shaped six small chharas stained with
\nblood  from the right chest of the deceased.\n<\/p>\n
\t\tFrom the post-mortem report as noticed, PW-6 described the injuries
\nas gunshot and not from the pistol.  It is strenuously urged by Mr. Jaspal
\nSingh, learned Senior counsel, that the pistol uses bullets and not chharas.
\nAccording to him, since six chharas were found from the chest of the
\ndeceased, the shots were fired from the 12 bore gun and not from the pistol.
\nLearned counsel for the appellant, however, contended that in desi katta 12
\nbore cartridges can also be fired.  The prosecution has failed to obtain the
\nopinion of ballistic expert.  The prosecution also did not explain as to
\nwhether in desi katta 12 bore cartridges can also be fired.  In the absence of
\nexplanation by the prosecution, it is difficult to accept that in desi katta 12
\nbore cartridges can be fired in the instant case.    In the present case, a doubt
\nhas been created as to whether a desi katta can also fire 12 bore cartridges,
\nwhich has not been explained by the prosecution. As already noticed, Ashok
\nKumar did not sustain any injuries on his body.\t In the ordinary course of
\nhuman conduct, when his father Mishrilal is inflicted as many as five injuries
\nwhich are stated to be dangerous to life, a son is expected to intervene in
\norder to salvage his father and in the process he would receive injuries on his
\nbody, if he was present at the place of occurrence.  The other two sons
\nMadhusudan and Jamunaprasad who were with the father Mishrilal received
\nsimple injuries.  In the FIR. (Ex.D-8) lodged by Mishrilal also, the presence
\nof Ashok at the place of occurrence was not mentioned.\tIt is in these
\ncircumstances, the presence of Ashok Kumar at the place of incident is not
\nfree from doubt.  He must, therefore, be entitled to the benefit of doubt.\n<\/p>\n
COMMON OBJECT
\n\t\tWe have noticed that in Ex.P-1 accused Mishrilal, Jamunaprasad,
\nMadhusudan and Ashok Kumar have been mentioned, but the remaining five
\naccused Radhakishan, Vinod Kumar, Hukumchand, Jagdish and
\nRajendrakumar were not mentioned.   It is also in the evidence on record that
\nfive accused were standing at the back and did not participate.\t The five
\naccused were roped in aid of Section 149 IPC.  In the  Ex.P-1 itself, it is
\nstated that others were having lathis.\tWho were the others and who were
\nhaving lathis, has not been described in the complaint.\t It is in the evidence of
\nPWs 1 and 2 that they were standing behind at a short distance.\t No
\nparticipation of each of the accused, overt act or otherwise, has been
\nattributed to them. They could be passive onlookers. It is difficult to accept
\nthat they were members of unlawful assembly and the offence was
\ncommitted in prosecution of common object of that assembly. Their
\nconviction with the aid of Section 149 is, thus, clearly impermissible.\t Their
\nconviction under Section 148 would also go.\n<\/p>\n
RIGHT OF PRIVATE DEFENCE.\n<\/p>\n
\t\tAs already noticed, Mishrilal, Madhusudan and Jamunaprasad
\nreceived injuries in the incident.  According to Dr. G.D. Kashyap (PW-6) the
\ninjuries sustained by Madhusudan and Jamunaprasad were simple in nature,
\nwhile the injuries found on the person of Mishrilal would be dangerous to life
\nbeing on the sensitive part of the body – head.\t Accused Mishrilal received as
\nmany as five injuries – one incised wound and one lacerated wound on vital
\npart like head.\t  The doctor opined that the injuries were dangerous to life.
\nThe other three accused were all the sons of Mishrilal.\t We have doubted the
\npresence of accused – Ashok Kumar at the place of incident.  The remaining
\ntwo sons Madhusudan and Jamunaprasad received injuries on their bodies.
\nIn the ordinary course of human conduct, if the father receives as many as
\nfive injuries in the presence of sons, the sons are not expected to be\tmoot
\nspectators.  Firing from 12 bore gun is attributed to accused Jamunaprasad,
\nthe pellets of which hit the legs of Babulal PW-1 causing injuries which were
\nsimple in nature.  Since we have already held that the prosecution party was
\nthe aggressor, we do not think that accused Jamunaprasad has exceeded the
\nright of private defence.  The fact that PW-1 Babulal received the bullet
\ninjuries on his legs would clearly show that Jamunaprasad fired from 12 bore
\ngun to free his father and themselves from the clutches of the accused.\t  One
\nshould not forget that Mishrilal has received as many as five injuries which
\nwere dangerous to life and the accused Jamunaprasad at that time reasonably
\napprehending the danger to the life of his father had fired the gunshot at that
\npoint of time in self-defence, which is quite justified.  It is in these
\ncircumstances that we hold that the accused did not exceed the right of
\nprivate defence.\n<\/p>\n
NON-EXPLANATION OF THE INJURIES SUSTAIBED BY THE
\nACCUSED<\/p>\n
\tThe last and which appears to be fatal to the prosecution case is
\nnon-explanation of the injuries sustained by the accused.
\nAs already said, accused Mishrilal received as many as five injuries, which
\nwere dangerous to life.\t Madusudan and Jamunanprasad received simple
\ninjuries.  In Ex.P-1 as well as in the entire deposition of PWs, the prosecution
\nhas not explained the injuries sustained by the accused.  In the background of
\nthe defence, as set up by the accused, it was incumbent on the part of the
\nprosecution, to have explained the injuries sustained by the accused.  The
\ndefence version is that on being retreated the bullock-cart of Babulal, the
\ncomplainant party –  Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish,
\nMulia, Kailash and Karan Singh came with lathis and farsa.  Mathura Lal hit
\nMishrilal’s head with the farsa and Babulal, Maharaj Singh and Karan Singh
\nbeat Mishrilal with lathis.   Madhusudan ran to save his father Mishrilal and
\nthey also beat him.  When Jamunanprasad came to save, he was also beaten
\nup and on that Jamunaprasad ran towards the house and made two fires in the
\nair to save his father.\t It is the case of defence that the bullet, which struck
\nBhavarsingh, came from towards the house of Babulal.  In the face of
\ndefence version, which competes in probability with that of the prosecution
\ncase, it was mandatory on the part of the prosecution to have explained the
\ninjuries sustained by the accused and non-explanation of the injuries is fatal
\nto the prosecution case. In Lakshmi Singh and others\tvs.    State of
\nBihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai  v.
\nState of Bihar, (1968) 3 SCR 525: AIR 1968 SC  1281: 1968 Cri LJ 1479, it
\nwas held by this Court:\n<\/p>\n
“where the prosecution fails to explain the injuries on the
\naccused, two results follow: (1) that the evidence of the
\nprosecution witnesses is untrue; and (2) that the injuries
\nprobabilise the plea taken by the appellants<\/p>\n
in a murder case, the non-explanation of the injuries
\nsustained by the accused at about the time of the occurrence or
\nin the course of altercation is a very important circumstance
\nfrom which the court can draw the following inferences:\n<\/p>\n
(1)\tthat the prosecution has suppressed the genesis and the
\norigin of the occurrence and has thus not presented the true
\nversion;\n<\/p>\n
(2)\tthat the witnesses who have denied the presence of the
\ninjuries on the person of the accused are lying on a most
\nmaterial point and therefore their evidence is unreliable;\n<\/p>\n
(3)\tthat in case there is a defence version which explains the
\ninjuries on the person of the accused it is rendered probable so
\nas to throw doubt on the prosecution case.\n<\/p>\n
The omission on the part of the prosecution to explain the
\ninjuries on the person of the accused assumes much greater
\nimportance where the evidence consists of interested or inimical
\nwitnesses or where the defence gives a version which competes
\nin probability with that of the prosecution one.\n<\/p>\n
However there may be cases where the non-explanation of
\nthe injuries by the prosecution may not affect the prosecution
\ncase.  This principle would obviously apply to cases where the
\ninjuries sustained by the accused are minor and superficial or
\nwhere the evidence is so clear and cogent, so independent and
\ndisinterested, so probable, consistent and creditworthy, that it
\nfar outweighs the effect of the omission on the part of the
\nprosecution to explain the injuries.”\n<\/p>\n
In State of Rajasthan\tVs.    Madho, AIR 1991 SC 1065 at
\npage 1067 this Court held as under:\n<\/p>\n
“The fact remains that both the respondents had sustained
\nserious injuries, Kishna mainly on the skull whereas Madho on
\nthe skull as well as scapular region.  If the prosecution
\nwitnesses shy away from the reality and do not explain the
\ninjuries caused to the respondents herein it casts a doubt on the
\ngenesis of the prosecution case since the evidence shows that
\nthese injuries were sustained in the course of the same incident.
\nIt gives the impression that the witnesses are suppressing some
\npart of the incident.  The High Court was, therefore, of the
\nopinion that having regard to the fact that they have failed to
\nexplain the injuries sustained by the two respondents in the
\ncourse of the same transaction, the respondents were entitled to
\nthe benefit of the doubt as it was hazardous to place implicit
\nreliance on the testimony of the injured PW-2.”\n<\/p>\n
\t\tIn Ex.P-1, as already noticed, there is no explanation about the
\ninjuries sustained by the three accused.  None of the prosecution witnesses
\nexplained the injuries sustained by the accused.   The injuries sustained by
\nMishrilal were dangerous to life.  The prosecution witnesses consist of
\ninterested and inimical witnesses.  We are, therefore, of the view that the
\nprosecution has not presented the true version on most material part of the
\nstory.\tTheir evidential value does not inspire confidence and it cannot be
\naccepted on its face value and relied upon.  It is in these circumstances that
\nnon-explanation of the injuries sustained by the accused proved fatal to the
\nprosecution case.\n<\/p>\n
We may also note that the learned Trial Judge has disbelieved the
\nopinion of Dr.G.D.Kashyap (PW-6) that the injuries sustained by Mishrilal
\nbeing in the sensitive part of the body\t head were dangerous to life, albeit
\nwithout any valid reasons.  To us, to say the least, the prosecution case too
\nappears to be one sided.\n<\/p>\n
\t\tFor the afore-stated reasons this appeal is dismissed.\tThe accused are
\non bail.  Their bail bonds stand cancelled and sureties discharged.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003 Author: Sema Bench: Y.K. Sabharwal, H.K. Sema 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-11455","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-m-p-vs-mishrilal-dead-ors-on-2-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003 - 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