Madhya Pradesh High Court
Veeran & Ors. vs The State Of Madhya Pradesh on 26 April, 2013
Author: Vimla Jain
Bench: Vimla Jain
(1) Cr.A.Nos. 275 & 334/2006
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SMT. JUSTICE VIMLA JAIN
CRIMINAL APPEAL NO. 275/2006
APPELLANTS: 1. Veeran S/o Raptelal Kewat, aged 32 years
2. Madanlal S/o Mishrilal Kewat, aged 42 years,
3. Rammulal S/o Dulichand Kewat, aged 40
years,
All residents of Village Nibhoura, Police Station
Panagar, District Jabalpur M.P..
Versus
RESPONDENT: State of Madhya Pradesh, through Police Station
Panagar District Jabalpur (M.P.).
CRIMINAL APPEAL NO. 334/2006
APPELLANT: Mukesh Kumar Kewat S/o Mishrilal Kewat,
aged 30 years, R/o Village Nibhoura, Police
Station Panagar District Jabalpur (M.P)
Versus
RESPONDENT: State of Madhya Pradesh through Police Station
Panagar, District Jabalpur (M.P.).
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For the Appellant : Shri S.C.Datt, Senior Advocate with Shri Siddharth Datt, Advocate.
For the Respondent/State : Shri Amit Pandey, Panel Lawyer. Date of hearing : 09/04/2013 Date of judgment: 26/04/2013 Per: Rakesh Saksena;J, (J U D G M E N T ) Appellants have filed this appeal against the judgment dated 28th January, 2006 passed by 12th Additional Sessions Judge, (Fast Track Court), (2) Cr.A.Nos. 275 & 334/2006 Jabalpur in Sessions Trial No. 68/1999, convicting and sentencing the appellants as under:
CONVICTION SENTENCE Under Section 302/34 IPC Imprisonment for life, Fine of Rs. 500/- each, in default, rigorous imprisonment for two years each. Under Section 307/34 IPC Rigorous imprisonment for 7 years, Fine of Rs. 500/- each, in default, rigorous imprisonment for one year each. Under Section 324/34 IPC Rigorous imprisonment for two years, Fine of Rs. 300/- each, in default, rigorous imprisonment for six months each. Under Section 323/34 IPC Rigorous imprisonment for one year, Fine of Rs. 200/- each, in default, rigorous imprisonment for three months each.
2. In short, the prosecution case is that in the noon of 12.10.1998, while Meenu and Vineet, respectively the son and nephew of Udal (deceased) were searching their lost she buffalo, there occurred a quarrel between them and appellant Rammu. When they went to their house, Meenu informed the said incident to his mother Kusum Bai. In the evening, when deceased returned home, Kusum Bai narrated the incident to him. In the evening, at about 8 P.M., when they were at their house, appellants including Rammu reached near their house, abused them and pelted stones at the house. When deceased came out of his house to remonstrate them, accused Mishrilal dealt a stick blow on his head. Madan and Mukesh (3) Cr.A.Nos. 275 & 334/2006 assaulted him with swords. Rammu and Veeran assaulted him with sticks. When Kusum Bai (PW2), the wife of deceased shouted Jugal Kishore (PW1), Chiranjilal (PW3) and Omprakash (PW9) came out of their house and rushed to the spot. When these persons tried to intervene, appellants assaulted them also by their weapons. Accused Anantram also reached there and uttered filthy abuses to them. Deceased fell down unconscious. Injured persons took deceased to police station Panagar, where Jugal Kishore (PW1) lodged first information report Ex. P/1. All the injured persons were sent to Govt. Hospital, Panagar for preliminary treatment. Subsequently, they were referred to Medical College, Jabalpur.
3. Investigating Officer A.S.I. H.S.Gaur (PW17), after recording first information report, recorded statements of witnesses. Since, deceased was not in condition to speak, his statement could not be recorded. PW17 went at the spot, prepared spot map Ex. P/14 and seized articles from the spot including amputated finger of Jugal Kishore vide seizure memo Ex. P/15.
4. On 15.10.1998, deceased expired. On receipt of that information, a merg report was recorded at police station Garha. Investigating Officer conducted inquest proceedings, drew memorandum Ex. P/3 and referred the dead body of deceased for postmortem examination. Dr. Suresh Nema (PW20) conducted postmortem examination and gave report Ex. P/40.
5. In the course of investigation, accused/appellants were arrested and on their information, weapons used in the offence were seized. After completion of the investigation, charge sheet was filed in the Court of (4) Cr.A.Nos. 275 & 334/2006 Magistrate, who committed the case for trial.
6. On charges being framed, appellants abjured their guilt and pleaded false implication. According to them, complainant, deceased and other prosecution witnesses assaulted them with spear and lathi. As a result of which, they also suffered injuries. They, merely, defended themselves from the assault made by the members of the complainant party.
7. Learned trial Judge, upon trial, after appreciating the evidence, held the appellants guilty, convicted and sentenced them as mentioned above. However, finding no sufficient evidence against accused Mishrilal and Anantram, acquitted them of all the charges.
8. Aggrieved by their conviction and sentence, appellants have filed the present appeals on the grounds that the learned trial Judge erred in holding appellants guilty on the basis of evidence adduced by the prosecution. The order of conviction was incorrect, improper and illegal since learned trial Judge failed to consider that there were contradictions, omissions and improvements in the prosecution evidence. The evidence was not properly appreciated. In respect of the same incident, a counter case was registered against the complainant party for the injuries sustained by the appellants. The injuries of appellants were not explained by the prosecution which indicated that the prosecution suppressed the material part of the prosecution story. Learned senior counsel for the appellants submitted that it was a case of exercise of right of private defence. In the alternative, he submitted that the conviction of appellants under Section (5) Cr.A.Nos. 275 & 334/2006 302/34 was not justified. On the other hand, learned Panel Lawyer for the State supported the impugned judgment of conviction and submitted that the learned trial Judge committed no error in holding the appellants guilty on the basis of the evidence of injured witnesses.
9. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.
10. It has not been disputed by the appellants that deceased died on account of injuries and that prosecution witnesses viz. Jugal Kishore (PW1), Kusum Bai (PW2), Chiranjilal (PW3) and Omprakash (PW9) suffered injuries. Jugal Kishore (PW1) stated that hearing cries of Kusum Bai, when he reached at the house of deceased, he saw appellants assaulting deceased with axe and lathis. When he and his brother Chiranjilal tried to intervene, they were also assaulted. By the blow of sword given by Mukesh his finger of left hand got amputated. He went to police station and lodged first information report Ex. P/1. He, deceased and other injured persons were sent to Panagar Hospital and also to Medical College, Jabalpur. On the third day, his uncle deceased succumbed to his injuries. Evidence of Jugal Kishore finds support from the evidence of Investigating Officer H.S.Gaur (PW17). R.S.Choubey (PW18), Sub Inspector of police Station, Garha on receiving information about the death of deceased from Medical College, Jabalpur conducted inquest proceedings and recorded memorandum Ex. P/3 and referred the dead body of deceased to C.M.O., Medical College, Jabalpur for postmortem examination.
(6) Cr.A.Nos. 275 & 334/2006
11. Dr. K.C. Agrawal (PW6), Medical Officer of P.H.C. Panagar examined injuries of all the injured persons including deceased. He deposed that he found following injuries on the body of Udal Prasad Kewat (deceased):-
(i) Lacerated wound 3.5 cm x 1 cm x bone deep on left eye brow.
(ii) Incised wound 10 cm x 1 cm x bone deep on the right side of skull going behind the ear.
(iii) Abrasion 5 cm x 2 cm on left scapular region.
(iv) Pain in whole of the chest.
He referred patient to Medical College for detailed investigation and treatment. Injury nos. 1 and 3 were caused by some hard and blunt weapon, whereas injury no.2 was caused by sharp edged weapon. Injury report Ex. P/17 was written and signed by him.
12. Dr. P.K. Agrawal (PW21), the Surgical Expert of Medical College stated that on 12.10.1998, in the night injured Udal was brought to Medical College from Govt. Hospital Panagar. He gave history of beating at about 7 P.M.. He was semiconscious. On examining him, he found following injuries:-
(i) Lacerated wound 7 cm x ½ cm x muscle deep on his right temporal region.
(ii) Lacerated wound 2 cm x 1 cm x muscle deep on left eye brow.
(iii) Abrasion 3 cm x 2 cm on left shoulder.
(iv) Crepitus over left side of chest.
(v) Incised wound 3 cm x 0.5 cm x 0.2 cm on right side
back.
On CT scan, depressed fracture on the right side of skull was (7) Cr.A.Nos. 275 & 334/2006 detected. There was hemorrhagic contusion on the same side which had affected the balance of brain. In his opinion, the nature of injuries was grievous. A summary of MLC Ex. P/41 was prepared and signed by him.
13. After the death of deceased, Dr. Suresh Kumar Nema (PW20), Medical Jurist conducted postmortem examination of the body of deceased and found following injuries vide postmortem examination report Ex. P/40:-
(i) Stitched wound on left eye brow. Small stitched wound noticed on right tempro parietal region of scalp vertical in direction. Starting just above pinna of right ear. Length was 13 cm. Scrotum was swollen.
(ii) Abrasion on back of left shoulder 3 cm x 2 cm.
Drainage tube found coming out from right parietal eminence.
On internal examination, he found piece of right parietal bone missing under the stitched wound. Brain was exposed in that portion. Sub- dural collection of blood was found on right cerebral hemisphere. Right temporal lobe was found lacerated. Left lung lower lobe was punctured. Left 3rd to 10th ribs were found fractured. Injuries were antemortem. Since it was an operated case, no opinion regarding cause of injuries could be given. Cause of death was combined effect of head injury and the puncture of lower lobe of left lung.
14. From the aforesaid evidence, in our opinion, it stood established that deceased suffered injuries for which he was examined by Dr. K.C.Agrawal (PW6) and after his death his postmortem examination was conducted by Dr. Suresh Nema (PW20). His injuries were serious/grievous in nature and (8) Cr.A.Nos. 275 & 334/2006 his death was caused by the injuries. Thus, the learned trial Judge, in our opinion, rightly held that the death of deceased was homicidal in nature.
15. Dr. K.C.Agrawal (PW6) on 12.10.1998, examined Jugal Kishore and found following injuries on his body:-
(i) Left index finger amputated at the place of
metacarpophalangeal joint.
(ii) Incised wound 1.2 cm x 1 cm on left middle finger
posterior aspect.
(iii) Incised wound 2.5 cm x 0.3 cm x skin deep on right forearm.
(iv) Incised wound 5 cm x 1 cm x bone deep on left side of head near mid line on top of head.
(v) Abrasion 3 cm x 0.5 cm on left leg anterior aspect near knee joint.
Injury nos. 1, 2, 3 and 4 were due to sharp cutting object. Injury No.5 was due to hard and blunt object. For further investigation, patient was referred to Medical College, Jabalpur.
16. Dr. Alok Chandra Agrawal (PW16) of Medical College also examined injuries of Jugal Kishore and found almost similar injuries on his body vide MLC report Ex. P/35. In his opinion, except the amputation injury of the finger, other injuries were simple in nature. From the aforesaid medical evidence, it stood proved beyond doubt that Jugal Kishore suffered five injuries out of which the amputation injury of his left hand finger was grievous.
17. According to Dr. K.C.Agrawal (PW6), on examining Kusum Bai, he found a contusion of 5 cm x 5 cm size on left side of her chin and lower lip.
(9) Cr.A.Nos. 275 & 334/2006 This injury was caused by hard and blunt object. He advised X-ray
examination of the injury and referred the patient to Medical College for opinion and treatment. MLC report is Ex. P/18.
18. On the same day, Dr. K. C. Agrawal (PW6) examined injuries of Chiranjilal and vide his report Ex. P/20, he found following injuries on his body:-
(i) Incised wound 3 cm x 1 cm x bone deep on left
shoulder joint.
(ii) Contusion 8 cm x 2 cm on left arm lower part.
(iii) Incised wound 5 cm x 0.3 cm x skin deep on right arm upper part.
(iv) Incised wound 0.3 cm x 0.2 cm x 0.2 cm on left side of head.
(v) Incised wound 8 cm x 1 cm x bone deep on occipital region of head.
Injury nos. 1, 3, 4 and 5 were caused by sharp cutting object and injury no.2 was caused by hard and blunt object. Patient was referred to Medical College, Jabalpur for detailed examination and treatment. In the absence of any specific medical evidence and the X-ray examination, injuries were found to be simple in nature.
19. Dr. K.C.Agrawal (PW6) on the same day examined Omprakash and vide his report Ex. P/21, he found a contusion 2 cm x 1 cm on his left leg lower part. This injury was found to be simple in nature.
20. Now, the question before this Court is whether injuries to deceased which resulted into his death and injuries of other prosecution witnesses were caused by the appellants.
(10) Cr.A.Nos. 275 & 334/2006
21. Prosecution case rested mainly on the evidence of Jugal Kishore (PW1), Kusum Bai (PW2), Chiranjilal (PW3), Omprakash (PW9) and Vineet (PW11), who were also injured in the incident.
22. Kusum Bai (PW2) stated that on the day of occurrence when her son Meenu and nephew Vineet had gone for grazing she buffalo, appellant Rammu assaulted him. When they came back, they informed her about the said occurrence. On her asking, her son along with Chiranjilal went to police station in the evening and lodged report in that regard. Evidence of Kusum Bai in this regard finds support from the evidence of Vineet (PW11). Kusum Bai further stated that in the evening when her husband Udal came back from his work and sat for eating food, she informed him about the incident of beating by Rammu. Soon thereafter Rammu came in front of their house and started pelting stones. Other accused persons viz. Anantram, Mukesh, Madan and Veeran also pelted stones. When her husband went out and asked them as to why they were throwing stones, Mukesh dealt a blow of sword on his head, Rammu, Veeran and other accused persons assaulted him with lathis. When she went there to rescue him, Rammu dealt a lathi blow on her mouth. On her shouting Chiranjilal, Jugal Kishore and Omprakash also reached there and tried to save them, whereupon all the accused persons assaulted them also. After the occurrence was over, they carried injured Udal to police station Panagar. Udal was firstly taken to Panagar Hospital, thereafter he was shifted to Medical College, Jabalpur. After three days, Udal died.
(11) Cr.A.Nos. 275 & 334/2006
23. Evidence of Kusuam Bai stood corroborated from the evidence of Jugal Kishore (PW1) and Chiranjilal (PW3). Jugal Kishore (PW1) stated that in the evening at about 8.30 P.M., when he was at this house, he heard cries of his aunt Kusum Bai calling for help. When he and Chiranjilal rushed and reached there, they saw accused persons assaulting their uncle with swords and lathis. When he tried to defend his uncle, accused Mukesh dealt a blow of sword to him, whereby his left hand finger got amputated and fell down. Madan also inflicted sword injury to him on his back. Veeran, Rammu and Anantram assaulted him with lathis. Chiranjilal, Kusum Bai and Omprakash also suffered injuries when they tried to intervene. After beating, when accused persons ran away, they carried Udal to police station Panagar, where he lodged first information report Ex. P/1. Udal was initially taken to Panagar hospital and thereafter was shifted to Medical College, Jabalpur, where on third day he died. He stated that his house was situated at a distance of 150 feet away from the house of Udal.
24. Chiranjilal (PW3) also reiterated the same story. According to him, he and his brother Jugal Kishore rushed to the house of Udal upon hearing cries of Kusum Bai and saw Madan and Mukesh assaulting Udal with swords and other accused persons assaulting with sticks. When he tried to intervene, Madan dealt a blow of sword on his head causing 6" long cut wound on his head. He also accompanied Udal and other persons to police station and the hospital. Evidence of Jugal Kishore stood corroborated (12) Cr.A.Nos. 275 & 334/2006 from the evidence of A.S.I. H.S.Gaur (PW17), who stated that on 12.10.1998, Jugal Kishore lodged first information report Ex. P/1. He sent Udal and other injured persons to Panagar Hospital and thereafter to Medical College, Jabalpur. He went to the spot, prepared the spot map Ex. P/14 and also seized amputated finger of Jugal Kishore vide seizure memo Ex. P/15. Similar version was given by Omprakash (PW9), the son of deceased.
25. Learned senior counsel for the appellants submitted that the evidence of aforesaid eye witnesses was not reliable since no independent witnesses were examined by the prosecution. It is true that the case of the prosecution is based only on the evidence of relative witnesses, but where the presence of the eye witnesses is proved to be natural and their statements appear truthful disclosure of actual facts leading to the occurrence, it shall not be permissible for the Court to discard the statement of such related witnesses. There is no bar in law on examining family members or any other person as witnesses. What is expected from the Court is to keep in mind the relationship of witnesses and critically scrutinize their evidence before reaching a conclusion. In the instant case, the presence of eye witnesses is proved by the fact that they all suffered injuries in the incident at the hands of accused persons. Their injuries were proved by Dr. K.C.Agrawal (PW6) and Dr. Alok Agrawal (PW16). Witnesses suffered injuries by sharp edged weapons as well as by hard and blunt weapons.
(13) Cr.A.Nos. 275 & 334/2006
26. Learned trial Judge, while appreciating the evidence of prosecution witnesses though found that the complainant Jugal Kishore (PW1) as well as other witnesses made exaggeration in involving accused Mishrilal and Anantram, since their names were not mentioned by Jugal Kishore in First Information Report Ex. P/1, but merely on this ground whole of the evidence of the said witnesses cannot be held to have been rendered unreliable.
27. As far as the non examination of independent eye witnesses is concerned, Jugal Kishore (PW1) and Kusum Bai (PW2) stated that some of the persons from the neighbourhood witnessed the incident from their house, but they did not dare to come out and save them. This clearly indicated that the neighbour witnesses wished to keep themselves away from the occurrence. Merely by their non examination, in our opinion, no adverse inference can be drawn against the prosecution.
28. Learned senior counsel for the appellants vehemently argued that the evidence of eye witnesses examined by the prosecution is not reliable since they did not give the truthful and correct account of the incident and failed to explain the injuries found on the body of accused persons. He submitted that the injuries found on the body of accused persons were not merely superficial or trivial injuries, they were caused on vital parts of the body like head and that too by some sharp edged weapons. According to him, the incident had not occurred at the house of deceased, but on the way to village. He referred to the spot map Ex. P/14 prepared by the (14) Cr.A.Nos. 275 & 334/2006 Investigating Officer and Ex. P/39 drawn by Patwari Girani Lal (PW19). He further submitted that as per prosecution case stones were pelted at the house of deceased, but no such stones were seized by the Investigating Officer. According to him, in these circumstances it was apparent that the genesis of the occurrence was suppressed and in fact deceased and prosecution witnesses had attacked Rammu, who is said to have assaulted Meenu, the son of deceased in the noon. As such, it is probable that accused/appellants might have caused injuries to deceased and prosecution witnesses in exercise of their right of private defence. He placed reliance on Lakshmi Singh and others-AIR 1976 SC 2263, Umrao Vs. State of Haryana and others-AIR 2006 SC 2152, Kewal Singh and others Vs. State of Punjab-AIR 2004 SC 72 and State of U.P. Vs. Jodha Singh and others-AIR 1989 SC 1822.
29. In case of Lakshmi Singh (supra), the Apex Court observed that "in a murder case, the non-explanation of 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 denied the presence of injuries on the person of the accused were lying on the most material point and, therefore, their evidence was unreliable; (3) that in case there is a defence version which explains the (15) Cr.A.Nos. 275 & 334/2006 injuries on the person of the accused, it renders the defence probable."
* * *
" 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. 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."
30. In case of Umrao (supra), the Apex Court observed that "it may not be necessary for the prosecution to explain the injuries on the person of the accused in all circumstances, but, it is trite that when such a plea is raised and the court opines that the version of the accused persons may be correct, the explanation of injuries on the person of accused cannot be put to a back seat or cannot simply be ignored."
31. In case of Kewal Singh (supra), the Apex Court laid down a preposition in respect of a case of free fight observing "when both the parties come armed and indulge in a free fight resulting injuries on both sides, since both the parties came prepared to fight, it would not be necessary to go into the question as to whether any of them exercised their right of private defence."
(16) Cr.A.Nos. 275 & 334/2006
32. In Jodha Singh (supra), the Apex Court observed "when a wordy quarrel had taken place and the quarrel had led to the use of weapons by both the parties against each other, it's not a case where the accused deliberately attacked the deceased and the witness with an intention to kill them. On the other hand, it's a case which would fall under Exception 4 to Section 300 of the Indian Penal Code. ................Further the accused cannot be convicted for the offence of rioting if the attack on the victims had taken place in the course of a sudden quarrel."
33. In the light of above prepositions, when we examine the evidence of the prosecution witnesses, we find it established that in the same incident accused persons also suffered injuries. According to the statements of accused persons recorded under Section 313 of the Code of Criminal Procedure, deceased and prosecution witnesses caused injuries to them. Though, no witnesses were examined by the accused persons in their defence and no report lodged by them with police was proved in the case, but from the evidence of Station Officer of Police Station, Panagar R.S.Kalra (PW14), it is revealed that in the same occurrence some of the accused persons had suffered injuries, though he could not remember specifically as to which of them suffered injuries and to which of them he sent for Medical Examination. Dr. K. C. Agrawal (PW6) of Primary Health Centre, Panagar, however, deposed that on 12.10.1998, accused Madanlal, Rammu, Mukesh and Veeran were brought to hospital by police for treatment. He examined their injuries. He found following injuries on the body of Madan:-
(17) Cr.A.Nos. 275 & 334/2006
(i) Lacerated wound 2 cm x 0.2 cm x 0.2 cm on left eye
brow.
(ii) Lacerated wound 1 cm x 0.2 cm x 0.2 cm on left side
of face.
(iii) Lacerated wound 3.5 cm x 1 cm x 0.5 cm on right
post-axillary line near fifth lumber vertical region.
(iv) Penetrating wound 1 cm x 1 cm x 0.8 cm on back.
(v) Penetrating wound 0.3 cm x 0.3 cm x 0.2 cm on right side of back.
(vi) Incised wound 2 cm x 0.2 cm x 0.2 cm on right
thumb.
Injury nos. 1, 2 and 3 were caused by hard and blunt object, whereas injury nos. 4 and 5 were caused by blunt object. Injury no.6 was caused by some sharp edged weapon. The patient was referred for X-ray examination for further treatment and opinion about the nature of injuries. His injury report is Ex. D/4.
He found following injuries on the body of Rammulal:-
(i) Incised wound 1.5 cm x 0.3 cm x 0.8 cm on right
thigh.
(ii) Abrasion on right leg.
Injury no.1 was caused by sharp edged weapon and injury no.2 was caused by hard and blunt object. The patient was referred for X-ray examination and opinion. His injury report is Ex. D/5.
He found following injuries on the body of Mukesh:-
(i) Incised wound 2 cm x 1 cm x 0.5 cm on right
scapular region upper part.
(ii) Diffuse swelling 5 cm x 5 cm on left foot.
(iii) Contusion 5 cm x 2 cm on left arm.
(18) Cr.A.Nos. 275 & 334/2006
(iv) Contusion 5 cm x 3 cm on right forearm.
(v) Contusion 5 cm x 2 cm on right shoulder.
Injury no. 1 was caused by sharp edged weapon and other injuries were caused by hard and blunt object. The patient was referred for X-ray examination. His injury report is Ex. D/6. He found following injuries on the body of Veeran:
(i) Contusion with lacerated wound 2 cm x 2 cm on left side of forehead. Size of laceration 0.5 cm x 0.2 cm x skin deep.
(ii) Lacerated wound 1 cm x 0.2 cm x 0.2 on bridge of the nose.
(iii) Contusion 5 cm x 2 cm on left posterior axillary line.
Injuries were caused by hard and blunt object. They were simple in nature. His injury report is Ex. D/7.
34. It is thus proved that accused persons also suffered injuries in the same incident. When explanation was sought from the prosecution witnesses, they bluntly refused to have caused any injury to accused persons. Jugal Kishore (PW1) and Kusum Bai (PW2) though admitted that a case for `Marpeet' of accused persons was pending against them, but they did not know as to how they suffered injuries since they (witnesses) were empty handed, they did not cause any injury to accused persons. According to Kusum Bai (PW2), accused persons suffered injuries with their own weapons.
35. Defence suggested to prosecution witnesses during cross examination was that when Rammu happened to pass from the front of (19) Cr.A.Nos. 275 & 334/2006 the house of deceased, Jugal Kishore, Chiranjilal, Omprakash etc. attacked him. When he raised hue and cry, other accused persons reached there and defended themselves. This gives, in our opinion, some idea that injuries to deceased and prosecution witnesses were caused by the accused persons, but how the incident occurred remained shrouded in suspicion. Admittedly, Meenu and Vineet were beaten by Rammu prior to the present occurrence, which was the cause of the instant occurrence. Though, it is alleged by the prosecution witnesses that Meenu and Chiranjilal had gone to lodge report about the said occurrence, but that report was not produced in the case. Be that as it may, since accused Rammu had beaten Vineet and Meenu, the grudge must remain with the complainant party. If a report was lodged, the grudge could have been shifted on the side of accused persons. It is alleged that Rammu pelted stones at the house of deceased, but admittedly no stones were seized by the Investigating Officer. It is also significant to note that the incident occurred not exactly at or in front of the house of deceased, but at some distance from his house. From the spot map Ex. P/14, drawn by the Investigating Officer, it seems that the incident occurred in front of the house of Prabhat, which according to Omprakash (PW9) is about 75-100 meters away from the house of deceased. It has been admitted by the witnesses that it was the passage for going to village. From the evidence on record, it is, however, not established that the houses of accused persons were situated at or near the place of occurrence. It does not, (20) Cr.A.Nos. 275 & 334/2006 therefore, seem probable that if at all Rammu was attacked by the accused persons, at once other accused persons could have reached the spot armed with weapons. Had this been the situation, Rammu would have suffered much more injuries rather only two injuries as found on his body by the doctor.
36. In the aforesaid fact situation, it is not possible for us to hold that appellants acted in the exercise of their right of private defence, or it was a case of mutual free fight. It, however, in our opinion, stood established that appellants attacked deceased and the prosecution witnesses armed with swords and sticks, whereby deceased suffered injuries which resulted into his death and that at the same time they attempted to cause death of Jugal Kishore (PW1) by causing dangerous injury on his head. The finding of the trial Court in this regard seems justified and, therefore, affirmed. Since the genesis or the origin of the occurrence remained shrouded in obscurity and neither of the parties presented the true version of the occurrence, in our opinion, it cannot be held established that appellants assaulted deceased with the intention and premeditation to commit his murder. At the same, since the incident seemed to be a case of sudden fight/sudden quarrel, appellants, in our opinion, were liable to be held guilty for committing the offence under Section 304-I of the Indian Penal Code.
37. For the aforesaid reasons, the conviction and sentence of appellants as awarded by the trial Court under Sections 307/34, 324/34 and 323/34 of (21) Cr.A.Nos. 275 & 334/2006 the Indian Penal is affirmed. However, their conviction under Section 302/34 of the Indian Penal Code is modified to one under Section 304-I/34 of the Indian Penal Code and they are sentenced to rigorous imprisonment for seven years. All the sentences of imprisonment shall run concurrent.
38. Appeal partly allowed.
(RAKESH SAKSENA) (SMT. VIMLA JAIN)
JUDGE JUDGE
AD/