Dhaniram @ Guddu Yadav vs The State Of M.P. on 24 October, 2017

[Cites 12, Cited by 27]

Madhya Pradesh High Court

Dhaniram @ Guddu Yadav vs The State Of M.P. on 24 October, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant/accused Dhaniram against the judgment and conviction dated 29th April, 1995, passed by First Additional Sessions Judge, Damoh in S.T. No.157/1992, whereby the appellant/accused has been convicted for commission of offence punishable under Section 326 of IPC and sentenced to undergo rigorous imprisonment for three years.

2. The prosecution story in nutshell is that on 10.06.1992 around 08:30 a.m in the morning in the village Borekala, the -2 - Cr. A. No.757/1995 complainant Rafiq and his brothers Sattar and Shafiq were spreading manure in their field. Meanwhile accused Nathu Yadav, Dhaniram, Murlidhar, Bhagwat, Arjun, Dagu and Khilu Yadav all resident of village Puraina, armed with lathi, Trishul, Ballam, Sword and Axe came there and told the complainant that you had detained their cattle in Kanjhi House, we will see you and all accused persons started beating the complainant and his brothers. Accused Bhagwat and Arjun inflicted blow of Farsa on head of complainant, Daggu assaulted him by lathi on his left shoulder. Remaining accused persons assaulted Shafiq and Sattar. Shafiq and Sattar sustained serious injuries and their fingers of hand were chopped off. Receiving the information of incident Assistant Sub Inspector, Police Station Hatta R.C. Rajak visited village Borekala and recorded the report of complainant Rafiq as Dehati Nalishi (Ex.P/1). He prepared the spot map (Ex.P/22) and seized plain earth and red earth from the spot. He also seized the tip of the finger of Shafiq vide seizure memo (Ex.P/23) and sent the injured Rafiq, Shafiq and Sattar for MLC to Hospital. Later on FIR (Ex.P/10) was got registered on the basis of Dehati Nalishi. During investigation Sub Inspector D.S. Parihar (PW-16) arrested the accused persons and on memorandum statement of Arjun one Sword and Trishul were seized. The statement of witnesses were recorded and after usual investigation the charge sheet has been filed in the Court.

3. The appellant and other accused persons were charged under Sections 148, 149, 324, 307, 326 of IPC by the trial Court. They abjured their guilt and pleaded innocence. In their defense it is stated by the appellants that at the time of incident the brother of appellants Nathu had gone to village -3 - Cr. A. No.757/1995 Borikala in search of labours. He was standing on a government land near electric pole the complainant Rafiq, Sattar and Shafiq and other accused persons came there and started beating Nathu by Sword, Axe and other deadly weapons. Seeing the quarrel appellant and his brothers went there and tried to save Nathu and they were also assaulted by the complainant party. Nathu sustained fatal injuries and died in the hospital. Other accused persons also sustained injuries. Thus, the complainant party had beaten and killed Nathu and injured the appellant. A criminal case under Section 302 of IPC is registered against them in Police Station Hatta. The appellant is innocent.

4. The prosecution has adduced 21 witnesses in its support whereas the accused persons had examined two witnesses in their defense.

5. Learned trial Court on appreciation of evidence adduced by the prosecution arrived at the conclusion that at the time of incident there was free fight between both the parties. In this fight the complainant and accused persons both have received injuries. The brother of appellant Nathu was killed in the incident. In this free fight present appellant Dhaniram had inflicted grievous injuries by Sword to Shafiq and Sattar and committed offence punishable under Section 326 of IPC. Thus, the trial Court had convicted the appellant under Section 326 of IPC and sentenced him to undergo R.I for three years. Other accused Arjun and Bhagwat were convicted under Section 324 of IPC and accused Daggu alias Hariram and Murlidhar were acquitted.

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6. It is argued by the learned counsel for the appellant that from the evidence available on record it appears that the complainant party had inflicted fatal injuries to appellant and his brothers. Nathu was died in the incident. The complainant and his brothers were prosecuted for commission of offence under Section 302 of IPC causing murder of Nathu. In the present case prosecution witnesses had given no explanation to the injuries caused to Nathu and brothers of the appellant. The place of incident is also changed, therefore, in view of substantial infirmity in statement of prosecution witnesses they cannot be believed beyond reasonable doubt. All the main prosecution witnesses are member of same family and interested one. No independent corroboration of their testimony is found. Therefore, the case of prosecution becomes doubtful. Trial Court on erroneous appreciation of evidence has held the appellant guilty. It is further contended that the present appeal is pending since more than 22 years. The appellant has already undergone more than 11 months in the jail at present he is aged about 75 years. Therefore, he may not be sent to jail.

7. We have heard the learned counsel for the parties and perused the record.

8. It is not disputed by the defense that at the time of incident Sattar (PW-19) and Shafiq (PW-18) had sustained grievous injuries. R.C. Rajak Assistant Sub Inspector (PW-

17) deposed that on 10.06.1992 at Police Station Hatta Dhaniram lodged a report against the complainant and his brothers. He came to know that in the incident complainant Rafiq and his brothers Sattar and Shafiq were also injured. Then he visited village Borekala and met injured Rafiq, Sattar -5 - Cr. A. No.757/1995 and Shafiq. He recorded Dehati Nalisi (Ex.P/1) on the report of the Rafiq and sent the injured for MLC to Primary Health Centre Hatta. Dr. S.K. Nikhar deposed that on 10.06.1992 at PHC Hatta he had examined Shafiq and found following injuries:-

i. Incised wound 3 X 2 cm over right ring finger. ii. Incised wound 13 cm semi lunar over left parietal region.

iii. Incised wound 7 X ½ cm left fronto parietal area. iv. Incised wound 3 X 1 X 1/4 cm over left wrist. v. Incised wound 12 cm ½ cm X ½ over right wrist. All injuries were caused by hard and sharp object. The lower part of right ring finger was chopped off.

9. It is further deposed by Dr. Nikhar that on examination of Sattar he found following injuries:-

          i.    Incised wound 1/ ½ X ¼ cm right side of the
chest.

ii. Incised wound 1 ½ cm deep over the chest at front side.

iii. Incised wound over right hand index finger. First phalynx was cut.

iv. Incised wound 4 X 1 cm over right parietal area. v. Incised wound 10 X 1 ½ cm bone deep over left occipital area.

All injuries were caused by hard and sharp object.

10. The statement of Dr. Nikhar is duly corroborated by MLC report (Ex.P/17) and (Ex.P/18) given by him. Thus from the evidence of Dr. Nikhar it is established that at the time of incident Shafiq and Sattar had received grievous injuries by sharp cutting object. This fact is also corroborated by Dr. -6 - Cr. A. No.757/1995 Vinod (PW-11) who had examined Sattar and Shafiq at Medical College, Jabalpur. He found the injuries caused to Sattar and Shafiq as stated by Dr. Nikhar and gave his report (Ex.P/12) and (Ex.P/13). The trial Court on proper appreciation of evidence has relied upon the MLC report of Shafiq and Sattar and recorded a finding that they had received grievous injuries by sharp cutting object in the incident.

11. In the present case all the independent eye witnesses have been declared hostile they have not supported the case of prosecution. Prosecution witnesses complainant Rafiq (PW-1), Shafiq (PW-18) and Sattar (PW-19) are real brothers whereas Sheikh Rustam (PW-20) is their father. The witnesses are close relatives and interested, therefore, their evidence has to be scanned with caution and circumspection.

12. It is deposed by complainant Rafiq (PW-1), Shafiq (PW-

18) and Sattar (PW-19) that at the time of incident they were spreading the manure in their field meanwhile accused Nathu, Dhaniram, Arjun, Bhagwat and Daggu armed with Axe, Sword, Farsa, Katarna came there and started assaulting the complainant Rafiq, Shafiq and Sattar and inflicted grievous injuries to them. Rafiq lodged Dehati Nalishi (Ex.P/1) and they were sent for medical examination to Primary Health Centre, Hatta. Sheikh Rustam (PW-20) also corroborates the statement of complainant. He deposed that hearing the noise of quarrel he reached on the spot and found the accused persons beating the complainant and his brother by deadly weapons.

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13. This is the defense of appellant and other accused persons that at the time of incident Nathu had gone to village Borikala in search of labours. He was standing on a government land near electric pole the complainant Rafiq, Sattar and Shafiq and other accused persons came there and started beating Nathu by Sword, Axe and other deadly weapons. Seeing the quarrel appellant and his brothers went there and tried to save Nathu and they were also assaulted by the complainant party. Nathu sustained fatal injuries and died in the hospital. Other accused persons also sustained injuries. Thus, the complainant party had beaten and killed Nathu and injured the appellant.

14. In view of the defense taken by the appellant it is to be seen whether the incident took place on the field of complainant ? Rafiq (PW-1) deposed in his statement para-2 that there was an electric pole installed in front of his field and a hotel of Barowa(Ramasrai) was situated some 15 steps distant from this pole. Sattar (PW-19) deposed that the electric pole is situated some 5 ft. distant from his field. Shafiq (PW-18) has also admitted that there is a electric pole situated at some 5 mts distant from his field but later on he tried to change his version and stated that this is a telephone pole and electric pole is some 100 yards distant from his field. Whereas Sattar (PW-19) in cross para-4 has admitted that a telephone pole and electric pole are hardly 15 ft. distant from each other and both are situated near his field. Thus, it is clear that Shafiq is not telling truth about the situation of electric pole. It is quite evident from above evidence that an electric pole is situated near the field of complainant. The hotel of Barowa i.e. Ram Asrai is also nearer to this electric pole. Ghanshyam Prasad Patwari (PW-

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7) deposed that he had prepared the spot map (Ex.P/9). He had admitted that the place of incident was adjacent to the road and on other side of the road there was a hotel of Ram Asrai. There was government land between the road and fields of complainant. Thus, it is clear that the electric pole is standing on the government land situated between road and the field of complainant. Sheikh Rustam (PW-20) deposed that after incident he had seen accused Nathu lying on the ground in injured condition near the electric pole. Thus, we can very well presume that the incident took place near the electric pole, which is a government land.

15. Sattar (PW-19) deposed that on the date of incident around 7 O' clock in the morning Nathu called him at hotel of Ram Asrai and told him why he had detained his cattle in Kanjhi house, thereafter Nathu went towards his house giving threatening to Sattar to see him. In cross-examination Sattar has admitted that in the hotel he had heated talks with Sattar and both had grappled with each other. This shows that there was a quarrel between Nathu and Sattar at Ram Asrai, hotel. The incident of detaining of cattle in Kanjhi house had taken place some 2 years back, therefore, it is not reliable that the present quarrel had started due to that incident after lapse of two years.

16. Investigating Officer R.C. Rajak (PW-17) has admitted that in this incident one of the accused Nathu was murdered and complainant Rafiq, Sattar and Shafiq are being prosecuted for the offence under Section 302 of IPC in Sessions Trial No.158/1992 for murder of Nathu. On appellant Dhaniram's report the above offence was registered against complainant and his brothers. Sheikh -9 - Cr. A. No.757/1995 Rustam (PW-20) has admitted that Nathu had also sustained injuries in the incident and he had seen him lying injured on the spot. Sattar (PW-19) has also admitted this fact. Complainant Rafiq and his brother Shafiq and Sattar have not given any explanation as to how Nathu had sustained injuries and who had killed him. They had stated ignorance about the injuries of Nathu and categorically stated that they have not inflicted injuries to him. Thus, it is evident that these witnesses are not telling the truth.

17. The Supreme Court in the case of Lashmi Singh v. State of Bihar1976 SC 2263, held as follows :

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

18. In State of Rajasthan v. Rajendra Singh, 1998 CR.L.J 3628, under somewhat identical facts, it has been held by the apex court as under:-

"8. All the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. But the -10 - Cr. A. No.757/1995 evidence establishes that the respondent had two contused lacerated wounds : one on his face and one on his head. The injuries were bleeding injuries and visible and yet the witnesses stated that they had not seen any injury on the person of the respondent. That would mean that neither the family members of Harveer nor the two independent witnesses were willing to give a true version and had tried to suppress the part played by some of them which had resulted in causing injuries to the respondent. The High Court was, therefore, justified in not placing reliance on their evidence."

19. From the evidence on record, it appears that there was a quarrel between Sattar and deceased Nathu at Ram Asrai hotel. It is quite possible that seeing the quarrel other accused persons and brothers of Sattar, Rafiq and Shafiq came there and joined it. It is also found from the evidence of Shafiq and Sattar that initially there was stone pelting between the parties and thereafter they have started assaulting each other. The place of occurrence is government land where an electric pole is installed. This place is adjacent to field of complainant as well as Ram Asrai hotel. The prosecution witnesses are not telling the truth and suppressing the genesis of incident. They are changing the place of occurrence and denying the injuries of Nathu. It is apparent that the occurrence is not taken place as described by prosecution witnesses. It can be presumed that the quarrel between deceased Nathu and Sattar develops between a sudden fight between the parties which started from mutual abuses and hurling of stones.

20. In the case of sudden quarrel it was held by the Hon'ble Supreme Court in Jumman & Ors. v. State of Punjab [AIR 1957 SC 469] as under:-

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"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides?

We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C."

21. In view aforesaid facts the trial Court has rightly arrived at the conclusion that there was a free fight between both the parties. In the case of free fight, every accused is liable for his individual act. In the present case it is rightly found proved by the trial Court that appellant Dhaniram has assaulted Shafiq and Sattar by sword and inflicted grievous injury to them. Thus, appellant Dhaniram is rightly found guilty for commission of offence punishable under Section 326 of IPC by the trial Court.

22. As far as sentence is concerned at present appellant Dhaniram is aged about 70 years. In the incident his brother has been murdered and he has also received injuries. He has also suffered more then 11 months of imprisonment during trial.The appeal is pending since 22 years. Therefore, it would be proper to sentence him to suffer imprisonment as he has already undergone in the jail.

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23. Consequently, appeal is partly allowed. The conviction of appellant under Section 326 of IPC is maintained but in place of sentence of three years awarded by trial Court he is sentence to suffer imprisonment for the period as already undergone by him.

         (S.K. Gangele)                     (Anurag Shrivastava)
             Judge                                 Judge

Vin**

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