Madhya Pradesh High Court
Rajendra Marar & Anr. vs The State Of M.P. on 18 September, 2024
Author: G.S. Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:46879
1 Cr.A. No.2353/1997
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 18th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 2353 of 1997
RAJENDRA MARAR & ANR.
Versus
THE STATE OF M.P.
Appearance:
Shri Khalid Noor Fakhruddin - Advocate for appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
Reserved on : 04/09/2024
Pronounced on : 18th/09/2024
JUDGMENT
Per: Justice G.S. Ahluwalia This Criminal Appeal under Section 374(2) of Cr.P.C. has been filed against the Judgment and Sentence dated 6-9-1997 passed by 2nd Additional Sessions Judge, Balaghat in S.T. No.92 of 1996, by which the appellants have been convicted and sentenced for the following offences:
S.No. Name of Conviction under Sentence Appellant Section
1. Rajendra a. 302 of IPC Life Imprisonment and fine of Rs.1000/- with default imprisonment of 4 months R.I. b. 324 of IPC 6 months R.I. and fine of Rs.
500/- in default 2 months R.I. c. 323/34 of IPC 2 months R.I. d. 25(1-B)(b) of 1 year R.I. and fine of Rs.
Arms Act 250/- with default Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 2 Cr.A. No.2353/1997 imprisonment of 1 month. 2. Surendra a. 302/34 of IPC Life Imprisonment and fine of Rs.1000/- with default imprisonment of 4 months R.I. b. 324/34 of IPC 6 months R.I. and fine of Rs. 500/- in default 2 months R.I. c. 323 of IPC 2 months R.I. All sentences shall run concurrently.
2. The prosecution story in short is that on 5-3-1996, the complainant Suraj Kumar lodged an FIR that he is the resident of village Sarekha where he lives along with his mother, father and brother. His uncle Gajanand and his sons Rajendra and Surendra reside in front of their house. About 2 years back, Surendra had abused his Bua, thereafter both the families were not on talking terms. It was about 4 P.M. his mother Sevanti Bai, Bua Parvatibai, father Bhajanlal and elder brother Sewak were in the house. At that time, the appellants started abusing Sewak. When Sewak came out of the house and objected to it, then Rajendra took out a knife from his pocket and Surendra was having lathi in his hand. They both started assaulting Sewak. Rajendra gave a knife blow on the chest and back of Sewak, whereas Surendra assaulted him by lathi. When his father Bhajanlal and complainant tried to save Sewak, then Rajendra assaulted him in abdominal region and back, whereas Surendra gave a lathi blow on the head of Bhajanalal. Sewak fell down and on account of injuries, he died on the spot. Accordingly, it was alleged that Rajendra and Surendra have caused injuries to the complainant and his father which are dangerous to life and have killed Sewak. The incident was witnessed by his mother Sewantibai, Bua Parvatibai, neighbor Netram and other residents of colony.
3. Accordingly, the police registered the F.I.R. for offence under Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 3 Cr.A. No.2353/1997 Sections 307, 302/34 of IPC. The complainant and Bhajanlal were got medically examined and the dead body of Sewak was sent for post mortem. The statements of the witnesses were recorded. The police after completing the investigation, filed the charge-sheet for offence under Sections 307, 302/34 of IPC.
4. The Trial Court by order dated 25-6-1996, framed charges under Section 302 or in the alternative 302/34, 307/34, 323 of IPC against Surendra and under Section 302 or in the alternative 302/34, 307 or in the alternative 307/34, 323/34 of IPC and under Section 25 of Arms Act.
5. The Appellants abjured their guilt and pleaded not guilty.
6. The Prosecution examined Suraj Kumar (P.W.1), Bhajanlal (P.W.2), Parwatibai (P.W.3), S.R. Ghoghare (P.W.4), Ashok Kumar (P.W.5), Netram (P.W.6), Dr. K. Prasad (P.W.7), Sunderlal (P.W.8), Dr. Ashok Lilhare (P.W.9), Dr. K.K. Khosla (P.W.10), Ashok (P.W.11) and G.P. Mishra (P.W.12).
7. The appellants did not examine any witness in their defence.
8. The Trial Court by impugned judgment and sentence convicted and sentenced the appellants for the above mentioned offences.
9. Challenging the Judgment and Sentence passed by the Court below, it is submitted by Counsel for the Appellants that the incident took place out of sudden and grave provocation. Even if the entire incident is accepted, still it would be an offence punishable under Section 304 Part 1 of IPC. Even otherwise, injuries were also found on the body of Rajendra which have not been explained, therefore, it is clear that the prosecution has suppressed the very genesis of the incident.
10. Per contra, the appeal is vehemently opposed by the Counsel for the State. It is submitted that it is not a case of sudden and grave provocation.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 4 Cr.A. No.2353/1997
11. Heard the learned Counsel for the parties.
Whether the death of Sewak was homicidal in nature or not?
12. Dr. Ashok Lilhare (P.W.9) had conducted the postmortem of the deceased Sewak and found following injuries on his dead body :
Average built, male, supine in position, pale, rigor mortis present, no foul smell, no discharge from anus and nostril, pupil dilated eye open On External Examination
1. One stab wound at the left side of 5th inter costal space which was 7 cm anterior to midclavicular line 2x1x upto the deep (illegible). Blood clot seen
2. One stab wound on the back side of chest below scapula bone 4 cm x 2 cm deep (Illegible) horizontally placed.
Both injuries were ante mortem in nature On Internal Examination Laceration in left lung and a puncture on left side of heart Cause of death was excessive hemorrhage due to direct puncture to Lt (Illegible) and penetrating injury (illegible) present shock -death. Death before 24 hours. The Post mortem report is Annexure P.18.
13. He further stated that the knife in a sealed condition was sent by police on 28-3-1996 to enquire whether injuries could have been caused by said weapon or not? It was replied by this witness, that injuries could have been caused by the seized knife. In cross-examination, he denied the suggestion that if a person falls on the knife, then he can sustain the similar injuries, however, he admitted that the injuries could have been caused on account of scuffle. However, explained that if the injuries are sustained during scuffle, then there would not be any force behind the assault, but admitted that the depth of such injury would be less. He further stated that after examining the knife, he had returned the same to the police constable in the sealed condition.
14. Thus, it is clear that the death of Sewak was homicidal in nature.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 5 Cr.A. No.2353/1997
15. Now, the next question for consideration is that who is the author of the injuries to the deceased Sewak?
16. Suraj (P.W.1), Bhajanlal (P.W.2), Parvatibai (P.W.3) and Netram (P.W.6) are the eye-witnesses out of whom, Suraj (P.W.1) and Bhajanlal (P.W.2) are the injured eye-witnesses.
Injured Eye Witnesses
17. The presence of injuries on the body of the eye-witness clearly indicates his presence on the spot. Therefore, an injured eye-witness enjoys a special status and due credence should be given to his evidence. The Supreme Court in the case of State of U.P. v. Naresh, reported in (2011) 4 SCC 324 has held as under :
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.) * * *
29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 6 Cr.A. No.2353/1997 case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje.)
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
―9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.‖* Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan, Arumugam v. State, Mahendra Pratap Singh v. State of U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra.]
18. The Supreme Court in the case of Baleshwar Mahto v. State of Bihar, reported in (2017) 3 SCC 152 has held as under :
12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 7 Cr.A. No.2353/1997 to the following observations in Abdul Sayeed v. State of M.P. : (SCC pp. 271-72, paras 28-30) ―28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
―Convincing evidence is required to discredit an injured witness.‖ [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : (SCC pp. 726-27, paras 28-29) ‗28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 8 Cr.A. No.2353/1997 subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.‖
19. Now, we would consider the evidence of Suraj (P.W.1), Bhajanlal (P.W.2), Parvatibai (P.W.3) and Netram (P.W.6) in the light of law laid down by Supreme Court.
20. Suraj Kumar (P.W.1) is not only an injured eye witness, but he had also lodged the FIR. He has stated that the appellants are known to him. The incident took place on the day of Holi. It was about 4-5 P.M. The incident took place in front of his house. The appellants are the sons of his uncle. Both the appellants were abusing his brother Sewak and were challenging him to come out. Appellants started abusing in the name of mother and sister, accordingly, Sewak came out of the house. Thereafter, the appellants started assaulting him. Accordingly, this witness tried to intervene and he too was assaulted by the appellants. Rajendra was having knife and Surendra was having lathi. Rajendra assaulted Sewak by means of knife by causing injury on his chest whereas Surendra gave a lathi blow to his brother. This witness was also assaulted by Rajendra by knife. First blow landed on his abdominal region and another blow landed on his left shoulder. After suffering the knife injury he fell down. His brother Sewak Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 9 Cr.A. No.2353/1997 had also become unconscious. His father also came on the spot and he too suffered an injury on his forehead on account of lathi blow given by Surendra. The FIR lodged by him is Ex. P.1. He was sent for medical examination, where he remained admitted for 8 days. He was cross- examined and an attempt was made to suggest that assault was already made on Sewak prior to his visit to place of incident, but this witness specifically admitted that the entire incident took place in his presence. Thus, nothing could be elicited, which may make his evidence unreliable.
21. Bhajanlal (P.W.2) is another injured eye witness. He also supported the evidence of Suraj Kumar (P.W.1). Rajendra was having knife, whereas Surendra was having lathi. Rajendra gave a knife blow to his son Sewak and another knife blow was given on the back of Sewak by Rajendra. When this witness tried to intervene, then he too was assaulted by Surendra by lathi. His son Suraj (P.W.1) was also assaulted by the appellants. Sewak Ram had died. This witness was cross-examined and in cross-examination, he admitted that on the day of Holi, his son-in-law Kishore (son-in-law of his brother Gajanlal) had come to his house. It is true that prior thereto, a dispute took place between him and his elder brother Gajanlal and they were separated by their sons and sons of this witness brought him back to his house and the sons of Gajanlal took him back to his house. Kishore had come to pacify the things. Later on, he came to know that Kishore was slapped by his sons. He also admitted that his elder brother Gajanlal had objected that why his son-in-law Kishore was slapped. He admitted that a dispute was going on amongst his elder brother, appellants and sons of this witness, therefore, he went to intervene in the matter and sustained a lathi injury on his head. He admitted that he is not on talking terms with his elder brother Gajanlal.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 10 Cr.A. No.2353/1997
22. Parvatibai (P.W.3) has also supported the prosecution story. She has stated that Bhajanlal (P.W.2) and Jaglal are two brothers. She resides separately. At about 5 P.M., Bhajanlal was lifting sand which was lying in front of his house. The appellants came their and objected to lifting of sand. Her nephews Sewak and Suraj were assaulted by knife and hand by the appellants Rajendra and Surendra. When dispute was going on, She also reached on the spot. Initially Rajendra gave a knife blow on the chest of Sewak thereafter Surendra also assaulted him by knife on hand and waist. When Suraj tried to intervene, then he too was assaulted by Rajendra on his back. Sewak fell down on the ground. At that time, the police also reached there. Sewak and Suraj were taken to hospital. Sewak died in the vehicle. She was also sitting in the vehicle. Thereafter, Suraj was admitted in the hospital. After the postmortem, the dead body of Sewak was given to them. She was cross-examined. In cross examination, She stated that She had informed the police that the dispute arose on the question of lifting sand but admitted that said fact is not mentioned in the police statement Ex. D.3. Bhajanlal (P.W.2), Suraj (P.W.1) and herself had tried to intervene in the matter. Lot of persons had gathered on the spot and some persons were witnessing the incident from their homes. She further claimed that she had informed the police that Rajendra had assaulted Sewak and Surendra had gave knife blow to Sewak on his back and waist but could not explain as to why such fact is not mentioned in her police statement, Ex. D.3. She denied the suggestion that Sewak had brought the knife to assault and sustained injuries during scuffle.
23. Netram (P.W.6) has stated that Gajanand who is the father of the appellants and Bhajanlal (P.W.2) who is the father of injured Suraj and Deceased Sewak are known to him. Sewak and Rajendra were fighting. At that time co-accused Surendra came on the spot, he was having knife.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 11 Cr.A. No.2353/1997 Surendra gave a knife blow to Sewak which landed on his back, waist and front. As a result he fell down. At that time, Rajendra was scuffling with Sewak. The incident was witnessed by all the residents. Suraj also came on the spot. He too was assaulted by Surendra by knife in his abdominal region. Rajendra was assaulting by hand. The incident continued for ½ hours. The police party also reached on the spot. Sewakram and Suraj were taken by the police from the spot. This witness pointed towards Rajendra and said that he was having knife. Rajendra had assaulted by knife. He further claimed that he does not know the names of the appellants. In cross examination, he stated that police had not recorded his statement. He could not explain as to how, the police recorded his statement Ex. D.4. He denied that he had not gone to the spot. He claimed that he had seen from his house. He admitted that he did not intervene in the matter. He admitted that on the festival of holi, lot of persons consume liquor. He did not intervene because both the parties are cousin brothers by relation. Fathers of both the parties were asking to leave each other.
24. Although the independent eye witness Netram (P.W.6) has given a slightly different version by stating that in fact it was Surendra who had assaulted by knife, but thereafter, he identified Rajendra in the Court, as the accused who had assaulted by knife. He also clarified that he do not know the names of the appellants. Thus, it is clear that since, there was some confusion in the mind of this witness with regard to names of the appellants, therefore, some discrepancy had occurred in his evidence.
25. Thus, it is clear that earlier some dispute took place between the father of the appellants and Bhajanal (P.W.2) and Kishore, who is the son- in-law of elder brother of Bhajanlal (P.W.2) went to the house of Bhajanlal (P.W.2) and it appears that he was slapped by the sons of Bhajanlal (P.W.2). It is not the case of the prosecution that immediately thereafter, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 12 Cr.A. No.2353/1997 the incident took place, but the prosecution witness Bhajanlal (P.W.2) has stated that he and his elder brother were separated and the sons of his elder brother took him to his house and the sons of Bhajanlal (P.W.2) brought him back to his house. Thus, after the act of slapping the son-in-law of elder brother of Bhajanlal, the parties got separated. Thereafter, it is alleged that the appellants came to the house of the injured Suraj Kumar (P.W.1) and Bhajanlal (P.W.2) and started abusing Sewak and also challenged him to come out of the house.
Injuries to injured Suraj Kumar (P.W.1) and Bhajanlal (P.W.2)
26. Dr. K.K. Khosla (P.W.10) had medically examined injured Suraj Kumar (P.W.1) and found one incised wound ¼ inch x ¼ inch on left scapular region bleeding present (Depth to be ascertained) and second incised wound ¼ inch x 1/ inch left (illegible) (Depth to be ascertained) bleeding present.
27. The patient was admitted in the hospital and M.L.C. is Ex. P.20. The bedhead ticket is Ex. P.21. In response to query raised by police, he had opined that the injury could have been caused by knife which was seized from Rajendra. In cross-examination, he admitted that the injuries could have been sustained in scuffle and could have been caused by other weapon also.
28. Bhajanlal (P.W.2) was medically examined by Dr. K. Prasad (P.W.7) who has stated that on 5-3-1996 he had medically examined Bhajanlal (P.W.2) and found one lacerated wound on right side of his head which was ½ inch x skin deep. It was a simple injury caused by hard and blunt object. The duration of injury was within 2-4 hours of examination. The M.L.C. report is Ex. P.15. In cross examination, it was admitted that the injury could have been sustained on account of fall or dash against the wall.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 13 Cr.A. No.2353/1997 Seizure of weapons
29. Ashok Kumar (P.W.5) is a witness of arrest and seizure. He stated that Rajendra was arrested by police vide arrest memo Ex.P.5. Surendra was arrested vide arrest memo Ex. P.6., however, he turned hostile on the question of recording of memorandum. He was cross-examined by Public Prosecutor. Although he admitted his signatures on memorandum of Rajendra Ex. P.7 and memorandum of Surendra Ex. P.8, but he denied that such memorandums were given by Rajendra and Surendra. He also denied the seizure of knife and lathi, but he admitted his signatures on seizure memo of knife, Ex. P.9 and seizure memo of lathi, Ex. P.10. He admitted that blood stained earth, plain earth were seized vide seizure memo Ex. P.11. He denied that blood stained cloths of the deceased were seized by the police from hospital, but admitted his signatures on seizure memo Ex. P.12. He also denied the seizure of blood stained cloths from the appellants but admitted his signatures on seizure memo Ex. P.13 and P.14. In cross-examination, he claimed that his signatures were obtained by police while he was in his house and police station. However, the documents were not read over and he does not know as to what was written in the documents.
30. Ashok (P.W.11) has stated that the name of younger one is Rajendra and name of elder one is Surendra. Deceased Sewak was also known to him. The appellants Rajendra and Surendra had not given any memorandum but their memorandum, Ex. P.7 and P.8 contains his signatures. Rajendra had produced one knife which he had thrown in the garbage. It was seized vide seizure memo Ex. P.9. Nothing was seized from Surendra. The blood stained and plain earth were seized vide seizure memo P.11. The police had seized blood stained cloths of deceased Sewakram vide seizure memo Ex. P.12. He was declared hostile. In cross Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 14 Cr.A. No.2353/1997 examination, he admitted that Rajendra had given memorandum Ex.P.7. Similarly, Surendra had given memorandum Ex. P.8. He also admitted that on production by Surendra, the police had seized one lathi vide seizure memo Ex. P.10. The cloths of Surendra were also seized vide seizure memo Ex. P.14. The knife was also identified by this witness in the Court which is Article A. In cross examination he stated that nothing was disclosed by appellants and he was informed by T.I. Mishra about seizure but immediately thereafter, he clarified that they were seized in front of him. He further stated that the documents written with blue ink were signed by him.
31. Thus, it is clear that Ashok (P.W.11) has supported the seizure of knife from Rajendra and Lathi from Surendra. He has also proved the memorandums made by Rajendra and Surendra vide memorandum Ex. P.7 and P.8.
32. G.P. Mishra (P.W.12) is the investigating officer, who had lodged the F.I.R., Ex. P.1. He had also sent the injured Suraj (P.W.1) for M.L.C. with his requisition Ex. P.20. The requisition for M.L.C. of Bhajanlal is Ex. P.15. The spot map, Ex. P.24 was prepared by him on the next day of incident. The Lash Panchnama is Ex. P.25. This witness has also proved the recording of memorandum by Rajendra and Surendra, Ex. P.7 and P.8 and also proved the seizure of knife from Rajendra Ex. P.9 and seizure of Lathi from Surendra Ex. P.10. The blood stained earth and plain earth was also seized vide seizure memo Ex. P.11. The underwear and Kada of deceased were seized vide seizure memo Ex. P.26. Other cloths of deceased i.e., black coloured pant which was stained with blood was seized vide seizure memo Ex. P.12. The blood stained cloths of Rajendra were seized vide seizure memo Ex. P. 13. The seized knife is Article A. The blood stained lathi was seized from Surendra vide seizure memo Ex.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 15 Cr.A. No.2353/1997 P.10. The blood stained cloths of Surendra were seized vide seizure memo Ex. P.14. The seized articles were sent for Forensic Examination vide memo Ex. P.27 and F.S.L. report is Ex. P.28. As per F.S.L. report, Ex. P.28, except on Kada of the deceased, blood was found on all articles.
33. Although, the blood group on the blood stained articles could not be ascertained, but where there are reliable eyewitnesses, then non- ascertainment of blood group would lose its effect. Whether the appellants had acted on account of sudden and grave provocation or not?
34. The Supreme Court in the case of B.D. Khunte v. Union of India, reported in (2015) 1 SCC 286 has held as under :
12. What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:
(1) The deceased must have given provocation to the accused.
(2) The provocation so given must have been grave. (3) The provocation given by the deceased must have been sudden.
(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self- control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control.
* * *
14. All that the evidence proves is that after the said incident the appellant was seen crying and depressed and when asked by his colleagues he is said to have narrated his tale of humiliation at the hands of the deceased. There is no evidence to prove that after the incident aforementioned the appellant had continued to suffer a prolonged spell of grave Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 16 Cr.A. No.2353/1997 provocation. By their nature such provocation even when sudden and grave cool off with passage of time often lapsing into what would become a motive for taking revenge whenever an opportunity arises. That appears to have happened in the present case also for the appellant's version is that he and his colleagues had planned to avenge the humiliation by beating up the deceased in the evening when they all assemble near the water heating point. That apart, the appellant attended to his normal duty during the daytime and after the evening dinner, went to perform his guard duty at 2100 hrs. All these circumstances do not betray any signs of grave leave alone grave and sudden provocation to have continued haunting the appellant and disturbing his mental equilibrium or depriving him of self-
control that is an essential attribute of grave and sudden provocation to qualify as a mitigating factor under Exception 1 to Section 300 IPC.
15. It was contended by Mr Shishodia that although between the incident that happened at noon and the shooting of the deceased at 2130 hrs were separated by nearly seven hours' interval, the nature of the provocation continued to be grave within the meaning of Exception 1 to Section 300 IPC. We find it difficult to accept that submission. Grave provocation within the meaning of Exception 1 is a provocation where judgment and reason take leave of the offender and violent passion takes over. ―Provocation‖ has been defined by Oxford Dictionary, as an action, insult, etc. that is likely to provoke physical retaliation. The term grave only adds an element of virulent intensity to what is otherwise likely to provoke retaliation.
16. In Holmes v. Director of Public Prosecutions provocation has been explained as under:
―The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.‖ Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 17 Cr.A. No.2353/1997
17. The argument that the incident that took place around noon on that day was a grave provocation that continued to provoke the appellant right through the day till 9.30 evening when the appellant shot the deceased, does not, therefore, appeal to us, not only because the appellant had settled for a lesser act of retaliation like beating of the deceased in the evening by him and his colleagues when they assembled near the water heating point, but also because the appellant had performed his normal duties during the daytime and even in the evening except that he and some of his colleagues appear to have planned beating up the deceased.
18. This Court was in K.M. Nanavati v. State of Maharashtra dealing with a somewhat similar question. In that case the wife of the accused had confessed her illicit intimacy with the deceased when the deceased was not present. The prosecution case as proved at the trial was that after the confession of the wife, the accused had driven her and the children to a cinema and left them there, gone to his ship to take a revolver loaded with six rounds and driven his car to the office of the deceased and then to his flat, gone to his bedroom and shot him dead. This Court held that between 1.30 p.m. when the deceased left his house and 4.20 p.m. when the murder took place there was a gap of three hours which was sufficient time for him to regain his self-control even if he had not regained it earlier. The following passage from the decision is significant when it deals with the expression ―grave‖ within the meaning of Exception 1 to Section 300 IPC: (AIR p. 630, para 86) ―86. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But, if his version is true -- for the purpose of this argument we shall accept that what he has said is true
-- it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self- control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 18 Cr.A. No.2353/1997 there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bedroom of Ahuja and shot him dead. Between 1.30 p.m., when he left his house, and 4.20 p.m., when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self- control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused -- though we do not believe that
-- it does not affect the question, for the accused entered the bedroom of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to Section 300 of the Penal Code.‖
19. The position in the case at hand is no different. Between 1400 hrs when the appellant was given a grave provocation and 2130 hrs, the time when the appellant shot the deceased there were seven hours which period was sufficient for the appellant to cool down. A person who is under a grave and sudden provocation can regain his cool and composure. Grave provocation after all is a momentary loss of one's capacity to differentiate between what is right and what is not. So long as that critical moment does not result in any damage, the incident lapses into realm of memories to fuel his desire to take revenge and thus act as a motivation for the commission of a crime in future. But any such memory of a past event does not qualify as a grave and sudden provocation for mitigating the offence. The beating and humiliation which the accused had suffered may have acted as a motive for revenge against the deceased who had caused such humiliation but that is not what falls in Exception 1 to Section 300 IPC which is identical to Exception 1 to Section 300 of the Ranbir Penal Code applicable to the State of Jammu and Kashmir where the offence in question was committed by the appellant. We may, in this regard, extract the following passage from Mancini v. Director of Public Prosecutions: (AC p. 9) Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 19 Cr.A. No.2353/1997 ―It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control as a result of which he commits the unlawful act which caused death. ... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.‖
20. The contention that the daytime incident being such that the appellant could get a grave provocation, the moment he saw the deceased coming towards the place where he was on guard duty, also has not appealed to us. It is not the case of the appellant that the deceased had come close to him or tried to act fresh with him so as to give to the appellant another provocation that could possibly justify his losing self-control and using his weapon. The appellant's version that he had called halt as all Jawans on guard duty are trained to do in operational areas but when the person approaching him did not stop and when he recognised the person to be none other than the deceased shot him, clearly suggests that the deceased was not in close physical proximity to the appellant. The appellant may have been angry with the deceased for his act of misdemeanour. But any such anger would only constitute a motive for taking revenge upon the deceased. It could not be described as a grave and sudden provocation for which the deceased could have been shot the moment he came in front of the appellant. The deceased, at any rate, could not be accused of having given any provocation to the appellant by moving towards the place where the appellant was on guard duty for Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 20 Cr.A. No.2353/1997 the deceased was well within the sphere of his duty to keep an eye on those who were performing the guard duty. The very act of appearance of the deceased near the picket/post where the appellant was on duty could not, therefore, constitute a provocation within the meaning of Exception 1 to Section 300 IPC.
35. The Supreme Court in the case of Sukhlal Sarkar v. Union of India, reported in (2012) 5 SCC 703 has held as under :
8. We have critically gone through the evidence on record especially the evidence of PW 1. Considerable thrust was made by the counsel appearing for the appellant on the following evidence of PW 1 which reads as follows:
―Infuriated, Sanjay Kumar Dubey slapped and pushed the accused and the accused fell down.‖ The learned Single Judge, it may be noted, had opined that the provocation was mild, but was sudden and hence the exception to Section 300 would apply.
9. The meaning of the expressions ―grave‖ and ―sudden‖ provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression ―grave‖ indicate that provocation be of such a nature so as to give cause for alarm to the appellant. ―Sudden‖ means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.
10. Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into losing his control, it must be shown that the provocation was such as would in the circumstances have caused the reasonable man to lose his self-control. A person who claims the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind.
11. We have critically gone through the evidence of PW 1, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 21 Cr.A. No.2353/1997 the eyewitness, and we are of the considered view that the deceased had not provoked the appellant in inviting him to fire from his rifle so as to kill him. The deceased, it may be noted was unarmed. PW 1 was only trying to wake up the appellant so as to do patrolling duty. Assuming that the deceased had slapped and pushed the appellant, such an action of the deceased could not be characterised as grave and sudden, so as to provoke the appellant to fire at the deceased killing him at the spot.
36. The Supreme Court in the case of Prasad Pradhan Vs. State of Chhatisgarh reported in (2023) 11 SCC 320 has held as under :
26. The question then is -- was there a ―sudden quarrel‖ between the deceased and the appellants so that the case would not be murder, but culpable homicide, in terms of Exception 4 (―if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner‖). In the opinion of this Court, there was no ―sudden quarrel‖.
The testimonies of the two important eyewitnesses, PW 1 and PW 2, establish that when the deceased was levelling the septic tank on his property, the appellant-accused started abusing him; he asked them not to. The appellants, who were in the adjacent property, climbed the wall, entered the deceased's house, and attacked him with axes. These facts do not constitute a ―sudden quarrel‖, given that the appellants abused the deceased, in an unprovoked manner, and then they went to where he was, armed with axes, and assaulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a cruel manner, or did not take undue advantage. This is because they were armed : a fact which shows premeditation on their part. Moreover, they both attacked Vrindawan on the head, which is a vital part of the body, thus taking undue advantage of their situation.
27. Again, on the question of whether the facts of this case are covered by the First Exception to Section 300 i.e. that the appellant-accused did what they were accused of (which is to attack and inflict grave injuries that led to the death of Vrindawan), because of their loss of self-
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 22 Cr.A. No.2353/1997 control, on account of a grave and sudden provocation -- the answer must be the same, which is that the provision (Exception 1 to Section 300) cannot be attracted. Apart from a long-standing pre-existing dispute, what caused ―sudden‖ provocation to the appellants, has not been shown by them. Neither did they lead any evidence, to fall within Exception 1, nor did the evidence on record substantiate such a contention.
28. Speaking of what is grave and sudden provocation, this Court in K.M. Nanavati v. State of Maharashtra [K.M. Nanavati v. State of Maharashtra, 1961 SCC OnLine SC 96 : 1962 Supp (1) SCR 567 : AIR 1962 SC 605] explained the standard of reasonableness for applying the ―grave and sudden‖ provocation, in the following manner : (AIR pp. 629-30, paras 84-85) ―84. Is there any standard of a reasonable man for the application of the doctrine of ―grave and sudden‖ provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values, etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of ―grave and sudden‖ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 23 Cr.A. No.2353/1997 was placed would be so provoked as to lose his self- control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.‖
37. Thus, whether there was any sudden and grave provocation or not would depend on the facts and circumstances of each case.
38. If the facts of the case are considered in the light of the law laid down by Supreme Court in the case of B.D. Khunte (Supra), Prasad Pradhan (Supra) and Sukhlal Sarkar (Supra), it is clear that there was some quarrel between two brothers i.e., Bhajanlal (P.W.2) and his elder brother Gajanlal. The sons of Bhajanlal (P.W.2) had slapped Kishore, the son-in-law of Gajanlal. But both the parties had separated and went to their house. Only after some time, the appellants came in front of the house of deceased and started abusing him and also challenged him to come out of the house. Once, the parties were separated and both the parties, went to their respective houses, then even if the appellants carried the grudge against Sewak that Kishore was slapped, then it cannot be said that the appellants had acted on account of sudden and grave provocation. There was sufficient cooling off period. Why the appellant no.1 Rajendra and appellant no.2 Surendra came in front of the house of the deceased Sewak with knife and lathi, if they had no intention to kill the deceased? Thus, it appears that the appellants were aggrieved by the act of slapping their Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 24 Cr.A. No.2353/1997 brother-in-law Kishore and after making preparation, they came to the house of the deceased and started abusing him and also challenged him to come out of the house. Thus, even if there was any provocation on account of slapping of Kishore, but still it cannot be said that the appellants had acted on account of sudden provocation.
39. Furthermore, it is not a case of single blow. Suraj Kumar (P.W.1) had received two incised wounds, whereas Bhajanlal (P.W.2) had received one lacerated wound, whereas 2 stab wounds were caused to deceased Sewak.
40. Under these circumstances, the submission made by Counsel for the appellants that the incident took place due to sudden and grave provocation cannot be accepted.
Whether non-explanation of insignificant injuries to accused is fatal to prosecution case?
41. It is submitted by Counsel for the appellants that since, the Appellant No.1 Rajendra had also sustained injuries, which have been suppressed by the prosecution therefore, it is clear that prosecution has suppressed the very genesis of incident.
42. By referring to the evidence of G.P. Mishra (P.W.12) it is submitted that this witness has admitted that he had got the medical examination of Rajendra done, and it was found that he had sustained simple injuries. It is further submitted that the eye-witnesses have also tried to suppress this fact because in their statements recorded under Section 161 of Cr.P.C., they had admitted that Rajendra had sustained injuries on the fingers of his hand.
43. Considered the submissions made by Counsel for the appellants.
44. It is true that the prosecution has not filed the copy of MLC of Appellant No.1 Rajendra. If the evidence of Bhajanlal (P.W.2) and G.P. Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 25 Cr.A. No.2353/1997 Mishra (P.W.12) are read conjointly, then it is clear that Appellant No.1 Rajendra must have sustained simple injuries on his fingers. Appellant No.1 Rajendra is said to have used knife. Therefore, sustaining the incised wounds on his fingers may also be because of use of knife by himself. However, one thing is clear that G.P. Mishra (P.W.12) has stated that as per the opinion of the Doctor, Appellant No.1 Rajendra had sustained simple injuries. Although according to G.P. Mishra (P.W.12) the MLC of Appellant Rajendra is in police case diary, but no attempt was made by Appellants for production of the same. Therefore, it is clear that Appellant No.1 Rajendra must have sustained simple injuries on fingers of his hand.
45. Now the question for consideration is that whether non-explanation of insignificant injuries to the accused would be fatal to the prosecution case or not?
46. The Supreme Court in the case of Anil Kumar Vs. State of U.P. reported in (2004) 13 SCC 257 has held as under :
10. We shall first deal with the question regarding non-
explanation of injuries on the accused. Issue is if there is no such explanation, what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where the prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai v. State of Bihar it was observed : (SCR p. 529 F-G) ―In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.‖ In another important case Lakshmi Singh v. State of Bihar after referring to the ratio laid down in Mohar Rai case this Court observed : (SCC p. 401, para 12) Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 26 Cr.A. No.2353/1997 ―[W]here 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.‖ It was further observed that:
―[I]n 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.‖ In Mohar Rai case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true, or at any rate, not wholly true. Likewise in Lakshmi Singh case it is observed that any non- explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 27 Cr.A. No.2353/1997 case. These aspects were highlighted by this Court in Vijayee Singh v. State of U.P.
11. Non-explanation of injuries by the prosecution will not affect the prosecution case where 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 outweighs the effect of the omission on the part of the prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar the prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh v. State of Bihar it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of the prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifling and superficial injuries on the accused are of little assistance to them to throw doubt on the veracity of the prosecution case. (See Surendra Paswan v. State of Jharkhand.)
47. The Supreme Court in the case of Ram Pat Vs. State of Haryana reported in (2009) 7 SCC 614 has held as under :
40. It is furthermore well settled that whereas grievous injuries suffered by the accused are required to be explained by the prosecution, simple injuries need not Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 28 Cr.A. No.2353/1997 necessarily be. Non-explanation of simple injuries of the nature suffered by the accused would not be fatal. In Hari v. State of Maharashtra this Court held:
―30. On the other question, namely, non-explanation of injury on the accused persons, learned counsel for the appellant has cited a decision in Lakshmi Singh v. State of Bihar. In the said case, this Court while laying down the principle that the prosecution has a duty to explain the injuries on the person of an accused held that non- explanation assumes considerable importance where the evidence consists of interested witnesses and the defence gives a version which competes in probability with that of the prosecution case.
31. But while laying down the aforesaid principle, learned Judges in para 12 held that there are cases where the non-
explanation of the injuries by the prosecution may not affect the prosecution case. This would ‗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'. Therefore, no general principles have been laid down that non-explanation of injury on accused person shall in all cases vitiate the prosecution case. It depends on the facts and the case in hand falls within the exception mentioned in para 12 in Lakshmi Singh.‖
48. Thus, non-explanation of simple or insignificant injuries sustained by Appellant No.1 Rajendra is not fatal to the prosecution case and it cannot be said that genesis of the incident was suppressed by the prosecution.
49. No other argument is advanced by Counsel for the appellants.
50. Thus, the conviction of the Appellant No.1 Rajendra for offence under Sections 302, 324, 323/34 of IPC and under Section 25(1-B)(b) of Arms Act is hereby affirmed. Similarly, the conviction of Appellant No.2 Surendra for offence under Sections 302/34, 324/34, 323 of IPC is hereby affirmed.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01NEUTRAL CITATION NO. 2024:MPHC-JBP:46879 29 Cr.A. No.2353/1997
51. So far as the quantum of sentence is concerned, since, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, no interference is required. Accordingly, the sentence awarded by Trial Court for above mentioned offences is hereby affirmed.
52. Ex-Consequenti, the Judgment and Sentence dated 6-9-1997 passed by 2nd Additional Sessions Judge, Balaghat in S.T. No.92 of 1996 is hereby affirmed.
53. The Appellant No.1 Rajendra is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the Trial Court on or before 5th of October, 2024 failing which the Trial Court shall issue perpetual warrant of arrest against him for undergoing the remaining jail sentence.
54. The Appellant No.2 Surendra was also granted bail, however, he did not appear before the Registry of this Court and accordingly, non- bailable warrant of arrest was issued on 2-1-2019 and he was produced in custody on 25-3-2019. His application for bail was dismissed for want of prosecution on 17-6-2019 and the record indicates that thereafter no application for bail/suspension of sentence was filed. Therefore, it is clear that the Appellant No.2 Surendra must be in jail. He shall undergo the remaining jail sentence.
55. Let a copy of this Judgment be immediately sent to the Trial Court along with its record for necessary information and compliance.
56. The appeal fails and is hereby Dismissed.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 18-09-2024
16:27:01