Madhya Pradesh High Court
Narayansingh And Ors. vs State Of M.P. And Ors. on 31 July, 2000
Equivalent citations: 2000(4)MPHT175
Author: Shambhoo Singh
Bench: Shambhoo Singh
ORDER Shambhoo Singh, J.
1. This judgment shall govern the disposal of Cr. A. No. 623/94 and Cr. A. No. 78/95.
2. Accused persons Narayansingh & Badrilal have filed Cr. A. No. 623/94 against the judgment & order dated 30-8-94 passed by 1st A.S.J. Shajapur in S.T. No. 89/91 whereby the appellants were convicted for offences under Sections 302/34, 324/34 and 323 read with Section 34 I.P.C. and sentenced to life imprisonment and to pay fine of Rs. 3,000/-, in default of payment of fine 3 years R.I. each under Section 302/34, IPC and to pay fine of Rs. 500/-, in default of payment of fine 5 months R.I. on each count under Sections 324/34 and 323/34, IPC and State has filed Cr.A. No. 78/95 against the acquittal of accused persons Mansingh, Roopsingh, Narayansingh, Ladsingh, Shankerlal, Bapulal, Sarjusingh & Siddhulal.
3. The prosecution case, in brief, was that there arose some dispute about theft of Tuwar between the appellants' party and the complainant party. Members of both parties are residents of village Bilodapal. On 12-1-91 at 8 p.m. the appellants Badrilal and Narayansingh armed with axe and Farsi and acquitted co-accused Ladsingh, Mansingh, Roopsingh, Siddhulal, Shankerlal, Bapulal and Surajsingh armed with lathis, had gathered and formed unlawful assembly in front of the house of Daulatsingh with common object/intention to beat and teach him a lesson. When Daulatsingh came out of his house the appellant Badrilal gave him axe-blow which landed on his head. He made alarm and cried 'save-save'. All the accused persons shouted 'kill him, kill him'. Hearing this, Daulatsingh's brother deceased Kalu rushed there to save him. The appellant Narayansingh dealt one farsi-blow which struck his head. Thereafter, all the accused persons assaulted Kalusingh with their respective weapons. In the meantime, Chandersingh (P.W. 2) Bhanwarlal (P.W. 9), Suratsingh, Amarsingh and Balusingh etc. came there to save Kalusingh and Daulatsingh. The appellants also gave them beating and thereafter ran away from the spot. Daulatsingh, Kalusingh, Chandersingh, Suratsingh and Amarsingh went to police station Sarangpur where on 13-1-91 at 1.30 a.m. Daulatsingh lodged FIR, Ex. P-1, which was recorded by A.K. Agarwal, S.I. (P.W. 6). He sent Kalusingh, Daulatsingh and other injured persons for medical examination. Dr. R.K. Sharma (P.W. 10) examined them and found as under :
Kalusingh
1. Incised wound on the mid of the head 2" x 1/4" x 1/4".
2. Lacerated wound on occipital region 1" x 1/4" x 1/4".
3. Tenderness on left and right side of chest, (report Ex. P-21-A.).
Daulatsingh
1. Small lacerated wound on mid of the head 1/2" x 1/4" x 1/8".
2. Lacerated wound on occipital region 1/2" x 1/4" x 1/8".
3. Bruise on back 4" x 1" (Report Ex. P-16-A).
Chandersingh
1. Incised wound on the right side of the head 21/2" x 1/2" x 1/4".
(Report Ex. P-17-A) Suratsingh Abrasion on left index finger 1/2" x 1/4" x 5 cm deep.
(Report Ex. P-18-A).
Amarsingh One bruise mark on right thigh at lateral surface 31/2" x 1"
(Report Ex. P-19-A).
Balusingh One bruise mark on back of right shoulder 4" x 1".
(Report Ex. P-20-A).
4. Dr. R.K. Sharma opined that incised wounds were caused by sharp object and other injuries were caused by hard object. Next day Dr. B.S. Patidar (P.W. 7) X-rayed the head of the deceased and found fracture in occipital region vide report Ex. P-22.
The deceased Kalusingh was shifted to M.Y. Hospital where he died on 25-1-91. Head Constable Hopchand (P.W. 11) held inquest on the dead-body of Kalusingh and prepared report Ex. P-2-A and sent the dead-body for post-mortem examination. Dr. R.K. Singh (P.W. 8) performed post-mortem examination on the dead-body of Kalusingh and found the following :
(1) Abrasion at L 3 plain 0.5 cm lateral to mid line back right side, vertical 4 cm x 1 cm. (2) Surgical stitched wound on right parietal and temporal region 4 cm posterior to prominence, 22 cms. long, having 17 intact stitches from Zygpmatic process right side middle part going posteriorly upto 4 cms. posterior to parietal prominence. Scalp in whole thickness repaired. Scalp Hemotoma present on right temp-fronto-parietal region in size 18 x 6 cm scalp hemotoma present.
There is a depressed comminuted fracture on right tempo-parieto region extending from plain to posterior 11 cm x 7 cm sagital area. There are 4 bore holes each 1 cm diameter. Extra dural hemotoma present at this region 0.5 cm thick.
(3) Healing wound on left parietal region 4 cm x 0.5 cm (Report Ex. P-24).
According to Dr. Singh these injuries were caused by hard and blunt object and the head injury was sufficient to cause death in ordinary course of nature. Dr. Singh opined that cause of death was cardio respiratory failure as a result of head injury and its complications.
5. On the same day i.e., 13-1-1991 at about 2:30 p.m. the acquitted accused Roopsingh lodged FIR Ex. D-2 at P.S. Sarangpur. Roopsingh and Suratsingh were sent for medical examination. The Doctor examined them and found as under :
Roopsingh
1. Incised wound on head on left parietal region 1" x 1/4" x 1/5".
2. Bruise mark on back side 4" x 1".
(Report Ex. D-5-A).
Suratsingh Bruise mark on right hand 3" x 1".
(Report Ex. D-6).
6. The appellants and acquitted co-accused persons were arrested on 25-1-91. Acquitted co-accused persons produced Lathis which were seized by the Investigating Officer - R.S. Yadav (P.W. 12). The appellant Narayansingh and Badrilal produced axe and Farsi which were seized vide seizure memos Ex. P-9 and P-10. After completion of investigation challan was filed for offences under Sections 302/149, 307/149, 323/149 and 324/149, IPC. The accused persons pleaded not guilty and false implication. Their defence is that the complainant party attacked them when they were sitting in the temple. On their report, the complainant party is facing Sessions Trial in Ujjain. The learned Trial Judge acquitted all the accused persons including the appellants of all the offences under Sections 302/149, 307/149, 323/149 and 324/149, IPC. However, the appellants were convicted for offences under Sections 302/34, 323/34 and 324/34 of the IPC and they have filed Criminal Appeal No. 623/94. The State also filed Criminal Appeal No. 78/95 against acquittal. Leave to appeal was granted only against the appellants and Ladsingh, Siddhulal, Mansingh and Roopsingh. During the pendency of this appeal accused Ladsingh expired.
7. Some arguments were advanced by Shri J.P. Gupta, the learned Senior Counsel and thereafter Shri Abhyankar learned counsel submitted his arguments for the accused-appellants. He contended that the appellants have been falsely implicated by the complainant party. This incident did not take place at the house of Daulatsingh as stated by the prosecution, when the accused persons were sitting in the temple and were discussing about the theft of Tuwar. Daulatsingh, Kalusingh, Chandersingh, Suratsingh, Amarsingh etc. came there and started quarrelling. Daulatsingh gave a sword-blow on the head of Roopsingh and other accused persons also caused injuries. He argued that the appellants had right of private defence. Prosecution also failed to explain the injuries sustained by the accused persons. He, therefore, prays for their acquittal. On the other hand Shri Desai supported the impugned judgment and also prayed to convict the other acquitted accused persons.
8. We considered the arguments advanced by Learned Counsel for both sides and perused the record.
9. The fact of homicidal death of Kalusingh is not disputed before us and rightly so as it is amply proved from ocular evidence as well as medical evidence and inquest report, Ex. P-2. Under such circumstances the learned Trial Judge rightly held that the deceased Kalusingh met with homicidal death.
10. Now the question that arises for consideration is whether the appellants formed common intention to cause the death of Kalusingh and killed him.
11. Prosecution has examined Daulatsingh (P.W. 1), Chandersingh (P.W. 2), Balusingh (P.W. 3) and Bhanwarlal (P.W. 9) as eye-witnesses.
11. It has come in the evidence of Daulatsingh that on the date of incident at about 8 p.m., accused Siddhu came to him in his house and told him that Bapusingh was calling him. When he came out of his house he saw that the appellants Badrilal, Narayan and acquitted accused Ladsingh, Siddhusingh, Roopsingh, Shankerlal, Surajsingh, Roopsingh and Mansingh had gathered near the stars of his house. The appellant Badri was armed with axe and Narayansingh was armed with Farsi and other accused were having Lathis in their hands. When Daulatsingh came out Badri gave him axe-blow which struck his head. He shouted for help, hearing which his brother Kalusingh came there. The appellant-Narayansingh gave him Farsi-blow which landed on his head. Thereafter Narayansingh inflicted Farsi-blow on his (Daulatsingh's) head. Thereafter all the accused persons gave beating to Kalusingh. When this quarrel was going on, Daulatsingh's uncle Chandersingh came there, he was beaten with Farsi by Narayansingh. Thereafter Surajsingh, Balusingh and Amarsingh came to save him, they were also assaulted. The evidence of Chander is that he saw the appellant Badri inflicting axe-blow to Daulatsingh and appellant Narayansingh giving Farsi-blow to Kalusingh which landed on his hand. He stated that when he tried to save them, he was given Farsi-blow by Narayansingh which struck his head. Siddhusingh gave a lathi-blow to Kalusingh which landed on his chest. Bhanwarlal (P.W. 9) deposed that the appellants Narayansingh, Badrilal, Roopsingh and Siddhu gave lathi-Farsi-blows to Kalusingh. The evidence of Balusingh (P.W. 3) is that when he reached the spot he saw Kalusingh, Chandersingh and Daulatsingh injured. When he attempted to save them, he was attacked by Mansingh with lathi.
12. When we scrutinise the evidence of these witnesses, we find that Bhanwarlal had improved his evidence. He did not mention in his Police statement, Ex. D-3 that he saw the appellants causing injuries to Kalusingh and Daulatsingh. According to his police statement he saw the members of both the parties abusing each other. He asked them not to quarrel but they gave beating to each other. The evidence of these witnesses and the site plan. Ex. P-3 show that the house of Kalusingh is adjacent to the house of Daulatsingh and the house of Balusingh is abutted to the house of Kalusingh and then comes the house of Bhanwarlal. Daulatsingh clearly admitted that the place of occurrence is not visible from the house of Bhanwarlal. It is thus clear that he could not see the Marpeet done with Daulatsingh and Kalusingh. Balusingh clearly admitted that he did not see Daulatsingh and Kalusingh being assaulted. These witnesses came on the spot after the injuries had been caused to Daulatsingh and Kalusingh. Of course these witnesses establish the presence of the appellants on the spot armed with axe and Farsi. Presence of Daulatsingh and Chandersingh on the spot, is proved from the injuries sustained by them. Dr. R.K. Sharma examined Daulatsingh on 13-1-91 and found two lacerated wounds on his head and a bruise on back vide report Ex. P-16-A. On the same day he found one incised wound on the head of Chandersingh vide report Ex. P-17-A. He also found Surajsingh, Amarsingh and Balusingh having one injury each. The presence of Daulatsingh in his house was natural. The same is the case with Chandersingh, Balusingh etc. The evidence of Daulatsingh was further been corroborated by FIR Ex. P-1 which was lodged at 1.30 a.m. in the night i.e. after 4 hours of the incident. The distance of Police Station Sarangpur from the Village Pal Baloda is 8 Kms. and it was night time and many persons were injured under such circumstances it must have taken time to reach the police station. Therefore, there was no delay in lodging FIR.
13. It has come in the evidence of Daulatsingh, Chandersingh and Balusingh that electric bulb was switched on at the house of Daulatsingh. Therefore, these witnesses were in a position to clearly identify the appellants who are resident of the same village in the light of the bulb.
14. From the evidence of Daulatsingh and Chandersingh it is clear that the appellant Narayansingh caused Farsi-blow to Kalusingh which landed on his head. It is true that Daulatsingh also stated that all the accused persons assaulted Kalusingh. But it was an omnibus statement. He did not tell, which accused caused which injuries. According to Chandersingh, only appellant Narayansingh had caused Farsi injury to the deceased Kalusingh. He did not state that Badrilal also gave him axe-blow. Dr. R.K. Sharma found one incised wound on the head of the deceased and one lacerated wound on the occipital region. In this way, medical evidence also supported his version. Dr. R.K. Singh who conducted post-mortem examination on the dead-body of Kalusingh opined that the cause of death was head injury. It is thus clear that the appellant Narayansingh killed Kalusingh.
15. The evidence of above eye-witness cannot be brushed aside on the ground that they were near relations of the deceased. Near relations are the last persons to allow real culprit escape and falsely implicate innocent persons. It is true that witness Amarsingh, Kalusingh etc. have not been examined. But on this ground no adverse inference can be drawn against the prosecution. These witnesses came on the spot after the attack having been made on Daulatsingh and Kalusingh.
16. As stated earlier, the defence of the appellants was that the complainant party was aggressor. The members of this party - Daulatsingh, Chandersingh, Balusingh etc. came in the temple where the accused persons were sitting and discussing about the theft of Tuwar from the field of Shivnarayan. Police had apprehended Gordhan and Shivsingh and Daulatsingh was prompting them to involve the appellant Badri and Siddhu in this theft case. On being questioned by Roopsingh as to why he (Daulatsingh) was falsely implicating Badri and Siddhu, Daulatsingh brought sword from his house and gave sword-blow to him which struck his head. In the meantime, Kalusingh gave lathi-blow to Bapulal which landed on his hand and Mansingh, Daulatsingh, Surajsingh, Chandersingh etc. started beating them. They lodged FIR Ex. D-2 at 2:30 a.m. on 13-1-91. Dr. R.K. Sharma, (P.W. 10) examined Roopsingh and found one incised wound (1" x 1/4" x 8") on his head and one bruise (4" x 1") on his back vide report Ex. D-5 and found one bruise (3" x 1") on Surajsingh vide report Ex. D-6. It is true that in FIR Ex. D-2, it was mentioned that accused persons were sitting in the temple and the complainant party attacked them there. But no evidence has been produced by the appellants in this regard. Even the defence did not give suggestion to the prosecution witnesses in their cross-examination that they assaulted the accused persons in the temple. On the contrary, the defence gave suggestion to Chandersingh in para 6 of his cross-examination that this incident took place in between the houses of Daulatsingh and Hansraj. It has come in the evidence that the house of Hansraj and Daulatsingh are situated in front of each other. It is true that the Investigating Officer R.S. Yadav (P.W. 12) admitted that he did not find blood on the spot, but in our opinion, non-find of blood on the spot is not sufficient to hold that prosecution case false. As stated earlier, members of complainant party and accused persons were present on the spot and due to trampling the blood could not have been seen by the Investigating Officer. In view of this, the evidence of Daulatsingh, Chandersingh, Balusingh and Bhanwarlal clearly proved that this incident took place in front of the house of Daulatsingh and they assaulted Kalusingh and Daulatsingh. The burden of proving right of private defence lay on the appellants. Of course, they are not expected to prove it beyond reasonable doubt as the prosecution is required to do so. It is sufficient if they show preponderance of probability in their favour. But they miserably failed to do so. It is clear from the evidence that Kalusingh came on the spot all alone. No suggestion was given that he was armed with any weapon and he was going to cause death or grievous hurt to the members of the accused party. He was not having any arm with him. Therefore, the appellants had no apprehension that he would cause death or grievous hurt. We, therefore, hold that the appellants had no right of private defence.
17. It is true as stated above, that the acquitted accused Roopsingh had two injuries - one incised wound on his head and one bruise on his back and Suratsingh had one bruise and the prosecution did not explain these injuries. But these injuries were minor and under such circumstances non-explanation of these injuries does not make the prosecution case doubtful. (See 3 Judge Bench decision reported in AIR 1998 SC 3117, Ram Sunder Yadav v. State of Bihar).
18. The evidence shows that after injuries having been caused to Daulatsingh and Kalusingh, members of the complainant party, Chandersingh, Balusingh etc. came on the spot and free fight began between these two groups, in which Chandersingh (P.W. 2), Surajsingh, Amarsingh, Balusingh and the accused persons Roopsingh and Suratsingh sustained injuries. Under these circumstances, each accused is responsible for his own act.
19. Now the question is as to what offence was made out against Narayansingh. From the evidence of Chandersingh it is clear that Narayansingh gave only one farsi-blow to the deceased Kalusingh. He did not take advantage of his helplessness and did not repeat the blows. It clearly shows that he had no intention to kill Kalusingh. Kalusingh died after 12 days. Under such circumstances, it cannot be held that he committed murder of Kalusingh. However, looking to the fact that he caused injury on head with deadly weapon like farsi, therefore, it can be held that he (the appellant Narayansingh) had knowledge that by causing injury with Farsi on head, he was likely to cause death of Kalusingh. Therefore, the offence made out against the appellant Narayansingh is culpable homicide not amounting to murder punishable under Section 304 IPC.
20. It is true that separate alternative charge under Section 302, IPC was not framed. But no prejudice has been caused to the appellant. It is clearly written in the charge that the appellant caused the death of Kalusingh.
21. As stated earlier, it has come in the evidence of Daulatsingh and Chandersingh that the appellant Narayansingh gave farsi-blow to Chandersingh which landed on his head. Dr. R.K. Sharma found one incised wound on his head. It is thus proved that the appellant Narayansingh also committed offence under Section 324 of the IPC.
22. So far as Badrilal is concerned, he did not cause any injury to Kalusingh. Accused party had come to the house of Daulatsingh to beat him. Their common object/intention was to assault Daulatsingh. They had nothing to do with Kalusingh. Badrilal did not cause any injury to Kalusingh and there is no evidence or circumstances on the basis of which it can be inferred that he shared common intention with Narayansingh to cause the death of Kalusingh. It is true that common intention can be formed on the spot itself. But, in this case, as mentioned above, when the appellant Badrilal was causing injuries to Daulatsingh, all of a sudden Kalusingh came there, and the appellant Narayansingh gave him farsi-blow which proved fatal. There is nothing on record to show that the appellant Narayansingh caused farsi-blow to Kalusingh in furtherance of common intention. Therefore, in our opinion, the appellant Badrilal cannot be convicted for the offence under Section 304 with the aid of Section 34 of the IPC.
23. About Badrilal, Chandersingh and Daulatsingh deposed that Badrilal gave axe-blow to Daulatsingh which landed on his head. Daulatsingh stated that the blunt part of the axe struck his head. His evidence has been corroborated by Dr. R.K. Sharma who found lacerated wounds on his head. His evidence further gets corroboration from the FIR Ex. P-1. Under such circumstances, it has been proved that the appellant Badrilal caused injury to Daulatsingh with axe and axe is such a weapon, which, if used as weapon of offence, it is likely to cause death. In view of this, Badrilal is found guilty for offence under Section 324, IPC.
24. In view of above, Cr.A. No. 623/94 is partly allowed. Both the appellants-Narayansingh and Badrilal are acquitted of the offences under Sections 302/34, 324/34 and 323/34, IPC and instead Narayansingh is convicted for offence under Sections 304 and 324 of the IPC. He has suffered incarceration of about 6 years and 24 days. We, therefore, sentence him under Section 304 IPC to the period already undergone. He is sentenced to 3 years RI for the offence under Section 324, IPC which he has suffered. Badrilal is acquitted of the offence under Sections 302/34, 324/34 and 323/34, IPC. However, he is convicted for offence under Section 324, IPC and sentenced to 3 years RI which he has suffered. The appellants are on bail. Their bail-bonds are discharged.
25. In the result, Cr. Appeal No. 623/94 is partly allowed as indicated above.
26. Cr. Appeal No. 78/95 filed by the prosecution against acquittal of all the accused of the charges under Sections 148, 147, 302/149, 323/149, 324/149, IPC deserves to be dismissed. It could not be proved by the prosecution that the appellants Narayansingh, Badrilal, Ladsingh (who died during the pendency of the appeal), Mansingh, Siddhulal and Roopsingh were members of an unlawful assembly, therefore, no one can be convicted with the aid of Section 149, IPC and all the accused have been rightly acquitted of the offence under Sections 148, 302/149, 324/149 and 323/149, IPC. As mentioned earlier, there was free fight between complainant party and the accused party and where free fight takes place, accused can be convicted for his individual acts only and not on the basis of constructive criminal liability for the acts of others. The learned trial Judge minutely examined the prosecution evidence and concluded that it was not proved that there was unlawful assembly. In appeal against acquittal, the view taken by the trial Judge has to be given due weight as he had an added advantage of watching the demeanour of the prosecution witnesses. Even if two views are possible, the view adopted by the trial Judge has to be accepted unless material evidence was left from consideration and the conclusions drawn were perverse. We find no reason to disagree with the finding of the learned trial Judge.
27. In view of above, Cr. Appeal No. 78/95 filed by the State is dismissed. The respondents' bail-bonds are discharged.