Madhya Pradesh High Court
Sattar Khan vs The State Of M.P. on 8 February, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench : Hon'ble Shri Justice S.K.Gangele, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
CRA No.739/1995
Sattar Khan and another
Vs.
State of Madhya Pradesh
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Shri Ajay Tamrakar, Amicus Curie for the appellants.
Shri A.N. Gupta, Government Advocate for the
respondent/State.
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CRA No. 17/1999
State of Madhya Pradesh
Vs.
Rafique and another
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Shri A.N. Gupta, Government Advocate for the
respondent/State.
Smt. Pratibha Mishra, Amicus Curie for the respondents.
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CRA No. 18/1999
State of Madhya Pradesh
Vs.
Shafique and another
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Shri A.N. Gupta, Government Advocate for the
respondent/State.
Smt. Premlata Lokhande, Amicus Curie for the respondents.
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JUDGMENT
(08/02/2018) Per : S.K. Gangele, J. :-
Criminal Appeal No.739/1995 has been filed by the accused persons. Criminal Appeal Nos.17/1999 and 18/1999 have been filed 2 by the State against the acquittal of some of the accused persons.
2. All the three appeals have been filed against the same judgment dated 29.04.1995 passed in Sessions Trial No.158/1992. The appeals are clubbed and are heard together.
3. Five accused persons were tried before the trial Court for commission of offences punishable under Sections 302, 147, 148, 149, 323 and 324 of the IPC. The trial Court convicted accused Sattar Khan for commission of offence punishable under Section 304 Part-I of the IPC and awarded sentence R.I. for 10 years and accused Rafique for commission of offences punishable under Sections 323 and 324 of the IPC and awarded sentence R.I. for 1 year.
4. The prosecution story in brief is that on 10.06.1992, deceased Natthu Yadav had gone to find labourers for the purpose of digging a well. He told his younger brother Dhaniram that Sattar had beaten him at Ramashray Hotel. When Natthu Yadav again reached at the hotel of Ramashray, he was again beaten by the accused persons, who were armed with sword, farsa, axe and lathi. Durga Patel, Rama Patel and Rustom tried to pacify the quarrel. In the aforesaid incident Murlidhar, Arjun and deceased Natthu received injuries. The report of the incident was lodged by injured Dhaniram at the Police Station. Subsequently, the deceased Natthu died on the spot. Police registered offence against the accused 3 persons and filed charge-sheet. Accused persons abjured their guilt and pleaded innocence.
5. It is also admitted fact that against the complainant party a counter case vide Crime No.157/1992 was registered for commission of offence punishable under Section 307/326 of the IPC. The aforesaid fact has been mentioned by the trial Court in paragraph 45 of the judgment. The trial Court also recorded findings that there was free fight between the parties. In the aforesaid fight complainant party also received injuries. Hence, the accused persons are responsible for their individual act and on the basis of aforesaid findings the trial Court convicted appellant Sattar Khan for commission of offence punishable under Section 304 Part- I of the IPC and accused appellant Rafique for commission of offence punishable under Sections 323 and 324 of the IPC.
6. Learned Amicus Curiae appearing on behalf of the appellant has submitted that the trial Court has committed an error in holding that there was a free fight between the parties. The complainant party had come to the field of Rustom Khan and the quarrel had taken place at the field of Rustom Khan. The complainant party was aggressor. The prosecution suppressed the genesis and the origin of the occurrence of crime. True version of the offence has not been mentioned. Hence, the appellants are entitled for benefit of doubt. In support of his contentions, learned counsel for the 4 appellants relied on the judgment of the Apex Court in case of Lakshmi Singh and others vs. State of Bihar AIR 1976 SC 2263, Bhagwan Sahai and another vs. State of Rajasthan (2016) 13 SCC 171 and Suresh Singhal vs. State (Delhi Administration) (2017) 2 SCC 737.
7. Counsel for the State has submitted that the trial Court appreciated the evidence properly. The appellants-accused persons were present on the spot. They were armed with deadly weapons. Their intention was to kill the deceased. Hence, the trial Court has rightly convicted the appellant and awarded proper sentence.
8. There is no dispute in the present case that the complainant party also received injuries and a counter case was registered against the complainant party for commission of offence punishable under Sections 307 and 326 of the IPC. Unfortunately, all the documents in regard to injuries and the nature of injuries sustained by the accused persons in the counter case have not been brought on record.
9. Dr. Shailendra Nikhar (PW-23) in his deposition in para 5 of his cross-examination admitted that on 10.06.1992 he had examined Rafique, Safique and Sattar. One finger of left hand of Safique was chopped off. This fact has also been mentioned by the trial Court in paragraph 18 of the judgment. We would like to examine the fact that whether in the light of the judgment of the 5 Apex Court in case of Lakshmi Singh and others vs. State of Bihar AIR 1976 SC 2263 and Bhagwan Sahai and another vs. State of Rajasthan (2016) 13 SCC 171, the appellants are entitled to benefit of doubt or not?
10. Dhaniram (PW-13) is injured eye witness. He also lodged FIR (Ex.P/13) at the Police Station. He deposed that my brother and I went to the village to engage labourers for the purpose of digging a well. When we were inside the village, I heard sound of quarrel. It was coming from Ramashray hotel. After hearing sound, I went at the hotel by running along with Murlidhar, Bhagwat and Arjun. A quarrel was going on between Natthu, Rafique, Safique, Sattar, Rustom and Chhuttan. Sattar was armed with sword, Rafique with farsa, Safique with farsa, Rustom with axe and Chhuttan with lathi. They were beating Natthu. We tried to prevent them but they had not paid any heed to me. Sattar and Rafique inflicted a blow of farsa on my head and other parts of the body. The accused persons had also beaten my son Murlidhar, Bhagwat and another person Arjun. Natthu received injuries on his head. He went to the Police Station and lodged the report at 8.45 p.m. I lodged the report and affixed my thumb impression. Police sent Murlidhar, Bhagwat and Arjun for medical examination. They were sent to Damoh hospital and thereafter, referred to Jabalpur Medical 6 College. After one hour of the incident, I came to know that my brother Natthu was died.
11. Another injured eye witness Bhagwat (PW-14), he deposed the same facts that he heard sound of quarrel from the hotel of Ramashray. Thereafter, he and another person came on the spot and noticed that the accused persons armed with the weapons as deposed by PW-13 were beating the deceased. When we tried to save the deceased, they had also beaten me and my father Murlidhar and Arjun. They were referred for medical examination. Arjun (PW-17) is another injured eye witness. He deposed the same facts and Murlidhar (PW/18) is also an injured eye witness.
12. Dr. Shailendra Nikhar (PW-23) examined the injured eye witnesses. He deposed that on 10.06.1992, I was posted as Medical Officer at Police Station Hata. I examined Dhaniram and noticed following injuries on his person:-
1. 3"x ¼"x bone deep incised wound on the left side of head.
2. An abrasion of 4 cm x 3 cm on the neck.
3. Swelling on the left shoulder and left calf muscle of 6 cm x 6 cm.
4. One contusion.
The injuries were caused by hard and blunt object.
13. On the same date I examined Bhagwat son of Dhaniram and noticed following injuries on his person:-
1. One lacerated wound of 3 cm x ½ cm x muscle deep on right side of the head.
2. One incised wound of 6 cmx¼cmx¼cm on the right wrist.7
14. He further deposed that, I also examined Arjun son of Natthuram on the same date and noticed following injuries on his person:-
1. One incised wound of 1½ cm.
2. Contusion of 5 cm x 5 cm on the left arm.
3. Abrasion of 9 cm on the right side of the back and one abrasion of 8 cm on left side of the chest.
15. Both injuries were caused by penetrating wound. I also examined Murlidhar. There was head injury of 4 cm x 4 cm x bone deep. The injury was caused by hard and blunt object. He admitted in his cross-examination that on 10.06.1992, I examined Rafique, Safique and Sattar and noticed injuries on their person. I submitted my report in file no. 157/92. One finger of Safique was cut.
16. Dr. P.D. Kargaiya (PW-22) performed postmortem of deceased Natthu son of Deena Yadav. He deposed that I noticed following injuries on the person of deceased:-
1. One incised wound of 7 cm x 1½ cm muscle deep.
2. One incised wound of 5 x 1½ cms on front of the head.
3. One incised wound of 3 cm x 1½ cm on deep back side of the head, depressed fracture of right bone.
4. One incised wound of 6 cm x 2 cm x 1½ cm on back side of left shoulder.
5. An abrasion of 10 cm behind the neck.
6. An abrasion of 7 cm behind right shoulder.
7. One lacerated wound of 2 cm x 1 cm x ½ cm on the back of right wrist.
8. One lacerated wound of 3x1½ x ½ cms behind the right knee.
9. One incised wound of ½ cm x ½ cm on left side of the lips.8
17. From the evidence of four injured eye witnesses, this fact has been proved that there was a quarrel between the accused persons and the complainant party. However, the prosecution did not explain the injuries suffered by the accused persons.
18. R.C. Rajak, Investigating Officer (PW-25) admitted in para 2 of the cross-examination that deceased Natthu was found at the field of Rustom and this is the place of incident and Dhaniram, Natthu, Bhagwat, Murlidhar, Arjun and Daggu were also accused and they were tried in crime no.157/1992 for offence punishable under Sections 307 and 326 of the IPC. I had sent Sattar, Rafique and Safique for medical examination and one finger of Safique was chopped off.
19. Ex.P/2 is the spot map. It is verified by Ramlal (PW/1) and as per the spot map, the place of incident has been mentioned at serial no.1 which is a field of Rustom Khan.
20. Accused Sattar Khan submitted in his statement that he was at Ramashray hotel, where deceased Natthu Yadav called him and abused him. Thereafter, I slapped him and after some time when I was at my field Natthu, Dhaniram, Daggu, Murlidhar, Arjun and Bhagwat came there. They were armed with weapons and they had inflicted injuries on us. In the aforesaid incident, we received injuries and the case is pending vide Crime No. 157/1992. 9
21. The appellant Sattar Khan stated that there was a quarrel, he received injuries. The injury report is not on record neither prosecution summoned the MLC report of Sattar, Rafique and another accused. Only a short question was asked in cross- examination from the doctor in reply to it he admitted that he had examined the accused persons. The defence has to blame itself for not providing complete evidence before the Court and the report of the injuries alleged to be sustained by the accused persons. From the evidence of prosecution, this fact has been proved that quarrel had taken place. In the aforesaid quarrel both the parties received injuries.
22. The Apex Court in case of Lakshmi Singh and others vs. State of Bihar AIR 1976 SC 2263 has held as under in regard to non-explanation of the injuries sustained by the accused about the time of incident occurrence :-
"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.
It seems to us that 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 sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:10
(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 prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-
explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously 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 credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in 11 the prosecution case on unconvincing premises."
The aforesaid case has been followed by the Apex Court in case of Bhagwan Sahai and another vs. State of Rajasthan (2016) 13 SCC 171.
23. In our opinion, the accused persons-appellants cannot take advantage of the aforesaid judgment because they themselves did not produce sufficient evidence in regard to the injuries suffered by them. Only brief question was asked from Dr. Shailendra Nikhar (PW-23) in which he admitted that he had also examined three accused persons. Hence, the appellants have to blame themselves that they did not summon the MLC report and produce the documents as exhibit as to what type of injuries were suffered by them.
24. Next question is that whether the appellants are entitled to get the benefit of right of private defence? The Apex Court in case of Suresh Singhal vs. State (Delhi Administration) (2017) 2 SCC 737 has held as under in regard to right to private defence:-
"20. With regard to the evidence that the appellant was being assaulted and in fact attempted to be strangulated, it needs to be considered whether the appellant shot the deceased in the exercise of his right of private defence. Such a right is clearly available when there is a reasonable apprehension of receiving the injury.
21. The right of private defence is contemplated by Section 97 of IPC which reads as follows:-12
"Section 97. Right of private defence of the body and of property.-- Every person has a right, subject to the restrictions contained in section 99, to defend--
First -- His own body, and the body of any other person, against any offence affecting the human body;
Secondly--The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
22. In Darshan Singh vs. State of Punjab and Another, this court laid down the following principles which emerged upon the careful consideration and scrutiny of a number of judgments as follows:-
"58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self- defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.13
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self- defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
23. Having regard to the above, we are of the view that the appellant reasonably apprehended a danger to his life when the deceased and his brothers started strangulating him after pushing him to the floor. As observed by this Court a mere reasonable apprehension is enough to put the right of self-defence into operation and it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the appellant apprehended that such an offence is contemplated and is likely to be committed if the right of private defence is not exercised. "
25. The Apex Court has specifically held that merely an apprehension of danger to life is not sufficient to exercise right to private defence. Four persons received serious injuries; they are 14 the injured eye witnesses. Deceased also died due to the injuries suffered by him on the spot. He received number of injuries.
26. Hence, in our opinion, the accused persons have exceeded the right to private defence. Appellant Sattar was armed with sword. The evidence is that he had inflicted injuries on the person of the deceased. There were four incised injuries on the head of the deceased that may be caused due to sudden provocation.
27. Hence, in our opinion, the trial Court has rightly convicted appellant Sattar for commission of offence punishable under Section 304 Part-I of the IPC and awarded proper sentence of R.I. 10 years. Appellant Rafique has been convicted for commission of offence punishable under Sections 323 and 324 of IPC. He is awarded sentence of R.I. one year.
28. Consequently, the Criminal Appeal No.739/95 so far as appellant no.1 Sattar is concerned, is hereby dismissed. Appellant no.1 Sattar is on bail. His bail bonds are hereby canceled. He is directed to surrender immediately before the trial Court.
29. Criminal Appeal No.739/95 so far as appellant no.2 Rafique is concerned, is partly allowed. Rafique was in jail during the trial.
Hence, he is awarded sentence to the extent already undergone.
His conviction as awarded by the trial Court is hereby upheld and the sentence is modified to already undergone. Appellant no.2 Rafique is on bail. His bail bonds stand discharged.15
30. Criminal Appeal Nos.17/1999 and 18/1999 filed by the State are hereby dismissed.
31. Copy of this judgment be sent to the Court below for information and compliance alongwith its record.
(S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
RJ
Digitally signed by RAJESH
KUMAR JYOTISHI
Date: 2018.02.15 11:18:21
+05'30'