Madhya Pradesh High Court
Kehar Singh vs The State Of M.P. on 2 May, 2017
Author: J.P.Gupta
Bench: Hemant Gupta, J.P.Gupta
1
HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT
AT JABALPUR
Cr.A. No.336/1994
Kehar Singh and two others
Vs.
The State of M.P. and others
Cr.A. No.497/1994
Inder Singh and two others
Vs.
The State of M.P. and others
=========================================
Coram
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice J.P.Gupta, J.
=============================================
Shri Siddharth Datt, Advocate appears for the appellants in
Cr.A.No.497/1994.
Since appellants in Cr.A.No.336/1994 are not represented, Shri
Siddharth Datt, Advocate is appointed as amicus curiae to argue
on behalf of the appellants in the said appeal.
Shri Akshay Namdeo, Govt. Advocate for the respondent/State.
=============================================
JUDGMENT
{ 2nd May, 2017 } Per J.P.Gupta, J :
This judgment shall govern the disposal of Criminal Appeal No.336/1994 as well as Criminal Appeal No.497/1994, as they arise out of common judgment.
2. These criminal appeals have been filed assailing the 2 impugned judgment dated 18.2.1994 passed by Second Addl. Sessions Judge, Damoh, in Sessions Trial No.129/1992 whereby the appellants have been convicted under sections 147 and 302 of the I.P.C. and sentenced to undergo R.I. for 1 year and imprisonment for life respectively.
3. The case of the prosecution in brief is that on 16.6.1992 at about 10-11 AM, Mohan, PW6, had gone to the public tap to fetch water. An altercation ensued between him and accused Inder Singh. Thereafter, complainant Mohan ran towards his field, where uncle of complainant, Ganesh Singh (deceased), Shankar Singh and Prakash were digging well. Complainant Mohan narrated the incident to them. After finishing the work of digging well, at about 1 PM complainant Mohan, uncle Ganesh Singh (deceased), Shankar Singh and Prakash chosen to move towards their village through the way of village Sarrakheda, as having suspicion to be attacked by accused Inder Singh and his companions. When they reached near Minna Nala all the accused persons suddenly came out. Accused Kehar Singh and Parvat Singh were armed with 'khaderua' and other accused persons were armed with lathi. All the accused persons abused them and ran to assault Mohan. Anticipating the intention of appellants, deceased Ganesh warned them not to touch anyone. Then all the appellants assaulted deceased Ganesh. Accused Shivraj gave a lathi blow on the back of Ganesh. When Ganesh tried to run 3 away, all the accused persons surrounded him and assaulted him with 'khaderua' and lathi due to which deceased Ganesh Singh received severe injuries on his head, back, neck and hands. He fell down. Then accused Shivraj Singh asked accused persons to beat rest of the complainant party. Then all the appellants rushed towards them to beat them. Complainants ran away. Appellants followed them to some distance and then flee away towards their village. Then complainants came back to the spot and found Ganesh died. Deceased had sustained injuries on head, back, neck and hands. Thereafter, complainant Mohan went to Police Station Taradehi and lodged FIR, Ex.P/4, which was registered vide Crime No.22/1992 for the offence under sections 147, 148, 149 and 302 of I.P.C. During investigation inquest report and spot map were prepared. Plain and blood stained earth were collected from the spot, as deposed by the I.O. and public witness Bahadur (PW3) and Imrat Singh (PW4). Dead body of deceased Ganesh was sent for autopsy. On 17.6.1992 at 4.40. PM autopsy was conducted by Dr.S.N.Gupta (PW5), who found following injuries on the person of the deceased as per post mortem report, Ex.P/3 :-
1. Bruise with Abrasion 5" x 1 ½" on left side of forehead and scalp extending longitudinally.
2. Swelling with Abrasion 4" x 3"in area of right Trigone Area;
3. Bruise 8" x 1½" on superior aspect of right shoulder tranversely.
4. Bruise 3" x 1½" on post aspect of right arm just above elbow.
5. Bruise 6" x 1½ " over anterior aspect of left shoulder obliquely.
6. Diffuse swelling with fracture collie left.4
7. Bruise 6" x 1½" on middle aspect of right thigh.
8. Bruise 10" x 1½" on middle part of the back.
All injuries were ante-mortem caused by hard and blunt object. Injuries No.1 and 2 were sufficient to cause death in an ordinary course of time. Time passed after death might be about 24-26 hours.
4. According to the doctor's opinion, deceased died on account of shock as a result of two head injuries. Accused persons were arrested. On the information of appellant Kehar Singh, one blood stained 'khaderua' was seized. Seized article was sent to the FSL and as per FSL report it was confirmed that the stained earth collected from the spot, clothes of the deceased and the 'khaderua' recovered at the instance of appellant Kehar Singh, were having blood stains. After completion of investigation, a charge-sheet was filed before the court of JMFC, Damoh, who committed the case to the court of Sessions, Damoh.
5. On receiving the case on transfer, second Addl. Sessions Judge, Damoh framed charges for commission of the offence under sections 147 and 302 of the I.P.C. and recorded the plea of the appellants. The appellants abjured the guilt and in defence it is said that in the incident accused Inder singh and Kehar Singh also sustained injuries while they were going to lodge report against the complainant, on the way near Minna Nala deceased Ganesh Singh assaulted Kehar Singh and Inder Singh. Then in exercise of right of private defence they caused injury to deceased Ganesh Singh.
5
6. The learned trial court after recording the evidence of the prosecution as well as the defence witnesses held the appellants guilty of the offence and convicted them and sentenced them to imprisonment, as mentioned above.
7. Learned counsel for the appellants submitted that the finding of the learned trial court is contrary to facts, evidence and law applicable to the case. Material witnesses Mohan, PW6, Shankar Singh, PW8 and Prakash, Pw10, are not reliable witnesses and no weightage could be attached to their testimony, as they have not explained the injuries sustained by appellants Kehar Singh and Inder Singh. No case for an offence under section 302 of I.P.C. is made out against any of the accused persons, as it has not been established as to which accused person has caused head injury. In the aforesaid circumstances none of them could be made liable for the substantive offence of murder. It is further submitted that even assuming that the appellants had themselves formed an unlawful assembly for the purpose of assaulting the deceased, the only offence that could be made out against them would be one under section 325 read with section 149 I.P.C. It is further submitted that it is the duty of the prosecution to explain the injuries sustained by appellant Kehar Singh, which was on his head, and it cannot be ignored by saying that it is simple in nature. It is not necessary that accused must sustain a serious injury before the right of private defence can 6 accrue to him. Mere apprehension of grievous heart is sufficient to grant to an accused a right of private defence, even to the extent of causing death of assailant. It is further submitted that witnesses are interested witnesses and their statements have material contradictions, omissions and improvement in the statements before the court. Hence, the appellants be acquitted of the charge.
8. On the other hand, learned Govt. Advocate rebutted the contentions and supported the finding of the learned trial court and prayed for dismissal of the appeal.
9. Having considered the contentions advanced by learned counsel for the parties and on perusal of record, it is found that death of deceased Ganesh Singh was homicidal in nature. In this regard the finding of the trial court has not been challenged. Apart from it, the statement of Dr.S.N.Gupta, PW5, is corroborated by Autopsy report, Ex.P/3, which makes it clear that deceased died on account of two injuries on his head, which turned up into fracture, and were sufficient in the ordinary course of nature to cause death. Asif Iqbal, I.O., PW14, has also stated that on getting information of death of deceased Ganesh Singh, he recorded 'marg' intimation, Ex.P/5, and proceeded towards the spot on the same day and took steps to secure the dead body of the deceased at the spot. Thereafter, on the next day, i.e. 17.6.1992, prepared inquest memo. According to the inquest report, Ex.P/1, 7 injuries were found on the body of the deceased, as narrated by medical expert and the aforesaid evidence is unimpeachable and sufficient to hold undoubtedly that the death of the deceased was homicidal. Thus, in this regard, finding of the learned trial court is hereby confirmed.
10. Now, the question is whether the appellants formed unlawful assembly with the object to commit the murder of the deceased and thereafter in furtherance of their common object, they committed murder of the deceased.
11. In order to prove the guilt of the appellants/accused, the prosecution has examined three eyewitnesses, namely Mohan Singh, PW6, Shankar Singh, PW8 and Prakash Singh, PW10. They have stated that on the date of incident they along with deceased Ganesh Singh were going towards village Kotkheda through village Surrakheda, as they have suspicion to be assaulted by appellant/accused Inder Singh and his companions on account of the altercation took place on the same day morning in village Kotkheda with Mohan, PW6. On the way near Minna nala, all the accused persons suddenly came out. Accused Kehar Singh and Parvat Singh were armed with 'khaderua' while other accused persons were armed with 'lathi'. All the accused persons abused them and rushed to assault Mohan. Anticipating the intention of appellants, deceased Ganesh warned them not to touch anyone. Then all the appellants assaulted deceased Ganesh. Accused 8 Shivraj gave a lathi blow on the back of Ganesh. When Ganesh tried to run away, all the accused persons surrounded him and assaulted him by 'khaderua' and 'lathi', due to which deceased Ganesh Singh received severe injuries on his head and other parts of the body and fell down. Then accused Shivraj Singh asked other accused persons to beat rest of the complainant party. Then all the appellants rushed towards complainants to beat them; but, they ran away. Appellants followed them to some distance and then flee away towards village Kotkheda. Then complainant party came back on the spot and found Ganesh died. Deceased had sustained injuries on head, back, neck and hands. Thereafter, complainant Mohan (PW6) went to Police Station Taradehi and lodged FIR, Ex.P/4, which was recorded by Asif Iqbal, PW14, as confirmed by him in his statement.
12. The statements of aforesaid eyewitnesses have remained unimpeached during the long cross examination. Shankar Singh, PW8 and Prakash, PW10, are independent witnesses. There are no contradictions in their statements. We also do not find any infirmity in the same. They are creditable and reliable. The statement of Dr.S.N.Gupta, PW5, and postmortem report, Ex.P/3, confirm the presence of injuries on the body of the deceased, which may be caused with 'khaderua' and lathi, which are hard and blunt objects. Thus, the testimony of eyewitnesses also got corroboration by medical evidence.
9
13. Apart from the aforesaid medical evidence, Ratan Singh, PW2 and Madhu Singh, PW11, who are also independent witnesses, have stated that before the incident in the day time appellants were seen together carrying 'khaderua' and 'lathi' and also talking with regard to taking revenge from Mohan, PW6. The evidence of these witnesses is also unimpeachable. The aforesaid circumstance also corroborates the version disclosed by the eyewitnesses.
14. During investigation, at the time of arrest of appellants, 'khaderua' and lathi have been seized, as narrated by I.O. Asif Iqbal, PW14; but, except 'khaderua', seized at the instance of Kehar Singh, no other article was found to have blood stains. 'Khaderua' seized from appellant Kehar Singh was sent to FSL and as per the FSL report, Ex.P/30, it discloses that the same was having blood stains. However, there is no report with regard to confirmation of human blood. Even though, it can be said that seized 'khaderua' may be the same article which was used at the time of assaulting the deceased. Thus, this evidence also corroborates the testimony of the eyewitnesses.
15. Hence, from the statements of eyewitnesses Mohan Singh, PW6, Shankar Singh, PW8 and Prakash, PW10, and statements of Dr.S.N.Gupta, PW5, Ratan Singh, PW2 and Madhu Singh, PW11, it is established beyond reasonable doubt that death of the deceased had taken place on account of the injuries caused by the 10 appellants/accused persons in the manner as narrated hereinabove.
16. On behalf of the appellants it is contended that in the incident accused Kehar Singh and Inder Singh also sustained injuries, which have not been explained by the prosecution and all the eyewitnesses have denied the fact that appellant accused Kehar Singh and Inder Singh had received injury in the incident. While defence witness Dr.J.P.Khare, DW1, has categorically stated that on 26.1.1992 at about 10.30 AM, he examined Kehar Singh and Inder Singh and recorded their injuries vide Ex.D/5 and D/6. The injuries were 120 to 146 hours old and caused by hard and blunt object. He found following injuries on the person of appellants Kehar Singh and Inder Singh.
Kehar Singh :
1) Lacerated wound 1" x 1/2" x 1/4" on scalp of left temporal region front part by blunt object simple in nature.
2) Abrasion 1/2" x ½" on right elbow by rough object simple.
3) Lacerated would ½" x ½" x ¼" on terminal phalanx of right index finger inner side by blunt object simple in nature.
4) Abrasion 1" x ¼" x ¼" on inner part of right wrist by rough object simple.
Inder Singh :
1) Abrasion 2½" x 2" on left side of neck middle part by rough hard object simple in nature.
2) Abrasion 2½" x 2" on back left middle part by rough object, simple in nature.
17. It is submitted that the above opinion of the medical expert categorically establishes the fact that injuries were caused during the incident. It is further contended that non-explanation of the aforesaid injuries is fatal to the prosecution as in the aforesaid 11 circumstances, the eyewitnesses cannot be believed as they are trying to hide the genesis of the incident and the possibility cannot be ruled out that appellants assaulted the victim in the exercise of right of private defence.
18. The aforesaid contention of appellants/accused persons has no substance as from the statement of Dr.Khare, DW1, it cannot be said with certainty that injuries were caused during the incident, as the period of duration of injury is an estimation dependent on various factors, which is simply a probability.
19. On behalf of the accused persons suggestions have been given about the aforesaid defence during cross examination of eyewitnesses; but, none of the accused persons have disclosed this fact in their examination under section 313 Cr.P.C. that during the incident they have sustained aforesaid injuries and the deceased and aforesaid eyewitnesses were aggressor and the accused persons were acting in exercise of right of private defence. In the aforesaid circumstances, the aforesaid defence cannot be considered.
20. Hon'ble the Apex court in the case of Manjeet Singh Vs. State of Himachal Pradesh, reported in 2014 Cr.L.J. 3970, came across similar situation and has held as under :-
"18. From the record, we find that neither the accused nor his two companions in the statements recorded under Section 313 CrPC, have stated that the deceased and his companions were the aggressors and that the accused was acting in exercise of the right of private defence.12
In fact, their case is that of total denial. There is nothing on the record to suggest that the accused or his companions received injuries at the hands of the deceased or the deceased tried to snatch the carbine of the accused. No evidence has been brought on record that the deceased and his companions entered the hall of the hotel with arms.
20. This Court in George Dominic Varkey v. State of Kerala [(1971) 3 SCC 275 : 1971 SCC (Cri) 532] has held :
"6. ... Broadly stated, the right of private defence rests on three ideas: first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence; and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of Section 99 of the Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case. Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat."
21. In Moti Singh v. State of Maharashtra [(2002) 9 SCC 494, this Court held that dimension of the injuries may not be serious, it is the situs of the injuries that would indicate whether the accused could reasonably entertain the apprehension that at least grievous injuries/hurt would be caused to him by the assaulters unless aggression is thwarted.
22. In the present case during the course of cross-examination of the prosecution witnesses, especially Jai Pal (PW 5), Romi Kapoor (PW
6), Pawan Kumar (PW 7), Satish Kumar (PW 9) and Charanjeet Singh (PW 12) an attempt has been made on behalf of the accused to set up the case of private defence.
23. In Rajender Singh v. State of Bihar [(2000) 4 SCC 298] dealing with the similar proposition this Court held as follows:
"Non-explanation of the injuries on the person of the accused, ipso facto, cannot be held to be fatal to the prosecution case. Ordinarily, the prosecution is not obliged to explain each and every injury on the person of the deceased even though such injuries might have been caused during the course of the occurrence and they are minor in nature. But where the injuries are grievous, non-explanation of such injuries would attract the Court to look at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident.
24. Evidence of eyewitnesses, especially of the injured, namely, Jai Pal (PW 5), Romi Kapoor (PW 6) and Pawan Kumar (PW 7), which 13 are trustworthy, when read together, we find that non-explanation of the injuries on the person of the accused and his two companions cannot be held to be fatal to the prosecution case.
21. In view of the aforesaid law laid down by the Apex court, in this case also when eyewitnesses Mohan, PW6, Shankar Singh, PW8 and Prakash, PW10, are trustworthy and their testimony is also corroborated with medical evidence, we find that non- explanation of superficial injuries on the person of accused Kehar Singh cannot be held to be fatal to the prosecution case. So far as injuries of Inder Singh is concerned, the same has been explained by Mohan, PW6, stating that he also beaten Inder Singh at the time of altercation at public tap.
22. In view of the aforesaid discussion, it is held that the prosecution has established that appellants/accused persons formed unlawful assembly with the common object to assault deceased Ganesh and caused injuries to deceased Ganesh, which resulted into his death.
23. Now, the question is whether the act of the appellants is punishable under section 302 I.P.C. or under section 304 of I.P.C. In this regard reference to the judgment of the Apex court in the case of Manjeet Singh (supra) would be beneficial. The relevant para is quoted hereinbelow :-
"26. The question now requires to be determined is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature 14 to cause the death of the deceased. The evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words the accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300 IPC, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder under Section 304 IPC."
24. In the instant case, it is also found that there is lack of motive to commit the murder of the deceased. As per the record, the incident had taken place only as a consequence of the altercation that had taken place on the same day in morning between complainant Mohan and accused Inder Singh. In the background of the aforesaid incident, it cannot be presumed that appellants had a motive to commit the murder of deceased Ganesh. Therefore, it cannot be said that as the object of the unlawful assembly was to commit the murder of the deceased.
25. The Apex Court in the case of Hawa Singh and others Vs. State of Haryana, 1993 Supp (2) SCC 527, has observed in para 6 as under :-
6. The motive is almost non-existent. Ram Kumar appellant had some altercation with one Sunder two days earlier. Sat Narain was also present there and he tried to pacify them. The alleged motive is that Ram Kumar did not like it and he left the place while giving threats to Sat Narain. It is difficult to believe that such a minor incident can be the motive for committing the double murder two days later. We are of the view that the prosecution has not been able to show the existence of any motive for the appellants to commit the crime. The absence of motive lends further support to the contention of the learned counsel for the appellants that there was no common object on the part of the appellants to commit the crime.
26. In the present case, only two injuries which were on the head of the deceased were fatal and rest of the injuries were 15 simple and the cause of death was the two head injuries. In these circumstances, question arises as to whether all the accused persons are responsible for the death of the deceased. Hon'ble the Apex court has dealt with such situation in the case of Sarman and others Vs. State of M.P., 1993 Supp. (2) SCC 356, in para 5, 6 and 7 which reads as under :-
"5. Now coming to the nature of the offence it is true that the doctor found a number of injuries. However, it must be noted that even according to the prosecution all the appellants were only armed with lathies and were charged for offence punishable under Section 147 IPC. The doctor, PW 19 who conducted post-mortem noticed 17 injuries. Out of them injury Nos. 1, 3, 10, 11 and 14 were described as incised wounds. Though they resulted in bleeding but no other damage was noticed. It is only injury No. 15 which resulted in a depressed fracture of parietal bone and ultimately proved in membrane puncture. Though the doctor in a general way stated cause of death was due to multiple injuries but he has specifically stated that on injury No. 15 he noticed a depressed fracture of parietal bone which individually was sufficient to cause death of the deceased. In these circumstances question that arises is whether all the other accused are also responsible for the death of the deceased, the prosecution has not explained as to how the deceased received incised wounds though they are simple. The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused injury No. 15 which unfortunately resulted in the death of the deceased. If anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under Sections 302/149 IPC.
6. Although post-mortem report says that all the injuries might have caused the death of the deceased but in as much as the accused inflicted injuries with lathies and particularly when they are simple and on non-vital parts it cannot be said that their object was to kill the deceased. They may have knowledge that the blows given were likely to cause death.
7. Accordingly we set aside the conviction of the appellants under Sections 302/149 IPC and sentence of imprisonment for life and instead convict them under section 304 Part II/149 I.P.C."
27. In view of the aforesaid discussion and the proposition of 16 law, we hold that appellants/accused persons have caused the death of deceased Ganesh with the knowledge that they are likely by such act to cause death of the deceased. We accordingly set aside the conviction of the accused persons under section 302 I.P.C., instead hold them guilty for the offence under section 304 Part II of the I.P.C. read with section 149 I.P.C. and sentence each of them to undergo R.I. for 10 years. The appellants are further convicted for the offence under section 147 of the I.P.C. and sentenced to undergo R.I. for one year. Both the sentences to run concurrently.
28. The appellants/accused persons are on bail. They are directed to surrender forthwith before the trial court. They be sent to jail for serving the remaining jail sentence in accordance with law. Their bail bonds shall stand discharge.
29. In the result, the appeals stand partly allowed.
(Hemant Gupta) (J.P.Gupta)
Chief Justice Judge
HS
17
18
HIGH COURT OF MADHYA PRADESH : JABALPUR
Cr.A. No.336/1994
Kehar Singh and two others
Vs.
The State of M.P. and others
Cr.A. No.497/1994
Inder Singh and two others
Vs.
The State of M.P. and others
JUDGMENT FOR CONSIDERATION
(J.P.Gupta)
Judge
__/05/2017
HON'BLE SHRI JUSTICE HEMANT GUPTA
(Chief Justice)
__/05/2017
JUDGMENT
Post for : __/05/2017
Judge
__/05/2017