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Judgment
The instant Criminal Appeal is preferred to challenge the judgment dated 6.1.1999 passed in Sessions Trial No. 337 of 1994 by Sessions Judge, Guna, whereby the Trial Court convicted the appellants for commission of offences punishable under Section 302/149, 148, 325/149 and 323/149 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.2000/- each for the offence under Section 302/149 IPC; three years under Section 148 IPC; five years RI and fine of Rs.500/- each under Section 325/149; and, one year RI under Section 323/149 of IPC, with default stipulation. All the sentences have been directed to run concurrently.
The facts necessary to be stated for disposal of the instant appeal are that as per prosecution case, Complainant Babulal (PW-2) lodged a report that on 5.6.1994, at about 8.00 am, his brother Nannulal S/o Mishrilal (deceased) went for purchasing and he was in his house. On hearing the cries of children, he immediately rushed to the spot and saw that Nannulal S/o Prabhulal, Prabhulal, Girraj, Ashok, Raju, Harish, Shobharam, Daulatram, Laxman, appellant No.9-Nandkishore, Nirbhay, Kallu and Badri were armed with Farsa; accused Vitthal, Nandu and Jagannath were armed with Gun; and, accused Laxman and Govind were armed with lathis. They were beating Nannulal S/o Mishrilal (deceased). The accused who were armed with Gun were standing there to stop the persons coming for rescue of Nannulal. Babulal (PW-2) and other persons of the village, namely, Bhagwanlal (not examined), Nandlal (PW-7), Nandkishore (PW-5), Lallu (PW-21), Govind (PW-20), Raghuveer (not examined), Ramswaroop (PW-19), Bharosa, Krishna Gopal (not examined) and Girdhari (PW-17) rushed to save the deceased Nannulal but they were beaten by the accused persons. The accused who were armed with guns fired the shots on the abovesaid persons, resulting in the pallet injuries to Bhagwanlal, Bharosa, Raghuveer, Nandkishore, Lallu and other persons standing nearby the spot. It is further alleged that appellant No.8-Laxman inflicted two injuries to Babulal (PW-2) in his both hands by means of lathi, appellant No.21-Prabhulal inflicted injury on the head of Babulal by the sharp side of Farsa. When all the persons from complainant side were running away from the place of occurrence with the body of Nannulal S/o Mishrilal, the appellants Kallu, Genda R/o Goriya @ Gorelal Chodga, Badri Kishan, Genda S/o Kishan and Ramswaroop pelted the stones from behind, which hit Babulal and other persons. They reached to their home and found Nannulal dead, who was having injuries on the hand and head. After his medical examination at District Hospital Guna, Babulal (PW-2) went to lodge the FIR (Ex.P/68) at Kotwali Guna. On the FIR (Ex.P/68), a case under Sections 147, 148, 149, 307 and 302 of IPC was registered against all the appellants-accused persons at Crime No.62/1994. After due investigation, the charge sheet was filed before the Judicial Magistrate First Class, Guna, who committed the case to the Court of Session and ultimately it was transferred to Sessions Judge Guna for trial.
The appellants abjured their guilt by taking a plea that they were doing their election work at the election office, where deceased Nannulal S/o Mishrilal, Babulal and other persons came, abused them and caused marpit and the present incident had taken place in their self-defence. The appellants further submitted that they have also lodged the FIR (Ex.D/19) against Babulal (complainant of the present case) and others, on the basis of which the police has registered the case against the complainant party at Crime No.63/1994 for the offences punishable under Sections 451, 323, 324, 147, 148, 149 of IPC. In support of their defence, they have examine three witnesses, namely, Dr. M.K.Jain (DW-1), Hajarilal (DW-2) and Dr. Y.S.Agrawal (DW-3). They have also produced the documentary evidence Exts. D/1 to D/20.
The trial Court after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above. Against their conviction, the appellants have preferred this appeal.
This appeal had been preferred by 27 appellants/accused, who have been convicted by the trial Court. However, during pendency of the appeal, appellant No.1-Nannulal, appellant No.7- Daulatram, appellant No.15-Gorelal, appellant No.21-Prabhulal, appellant No.23-Badri, appellant No.25-Rambabu and appellant No.27-Laxman died and appeal filed by them turned abated.
We have heard the learned counsel for the parties and perused the record.
Learned counsel for the appellants submitted that the trial Court did not consider the plea of selfdefence taken by the appellant and exceeded its jurisdiction in convicting and sentencing the appellants. The trial Court has also erred in appreciating the evidence in proper perspective as there are material contradictions and omissions in medical and ocular evidence. There are inimical terms between the appellants and complainant party and on the testimony of related and interested witnesses, which was not corroborated either by any independent witness or by medical evidence, the appellants cannot be convicted. The injuries caused to some of the appellants have not been explained by the prosecution and the complainant party was aggressor in the incident, therefore, no offence under Sections 302/149, 148, 325/149, 323/149 of IPC is made out in any manner against the appellants.
Per Contra, learned counsel for the respondent- State supported the findings of the trial Court and submited that no indulgence can be shown in the impugned judgment of conviction and sentence.
Before venturing into the rival contentions, it is to be considered as to whether the death of the deceased Nannulal S/o Mishrilal was homicidal in nature or not and whether the injuries caused are sufficient in ordinary course of nature to cause death. In this regard, the evidence given by Dr. P.K.Pathak (PW-8) is pertinent, who performed the post-mortem on the body of the deceased Nannulal and gave a report Ex.P-20. He found following injuries on the body of the deceased :-
(1) Lacerated wound on right parietal region, obliquely placed extending upto temporal region size 6cm x 1cm x Bone deep on section and ecchymosis and fracture on right temporal and on parietal bone oblique 10 cm length going downward , posteriorly.
(2) Contusion with abrasion on right angle of mandible size 5cm x 4cm.
(3) Two abrasion mid-clavicular region size 2cm x 1cm.
(4) Lacerated wound on right wrist lateral aspect size 4cm x 1cm x 1/2 cm.
(5) Contusion with abrasion on right subcostal region size 8cm x 1/2 cm
(6) Lacerated wound fronto parietal region in midline size 5cm x 1cm x bone deep.
From perusal of above, it can safely be deduced that there was fracture of right parietal and temporal bone. According to the opinion of Dr. P.K.Pathak, the injury sustained by the deceased on right parietal region was grievous and sufficient in ordinary course of nature to cause death. Since lacerated wounds and fractures were found on the skull of the deceased and naturally such injuries could neither be caused by the deceased himself nor could they be sustained by him in any accident, therefore, the opinion given by Dr. P.K.Pathak (PW-8) is acceptable that the death of the deceased was homicidal in nature.
The injured persons were sent to District Hospital, Guna for medical examination where they were examined by Dr. P.K.Pathak (PW-8), who found injuries on the body of following injured persons and gave MLC Reports (Ex.P/21 to Ex.P/31), which are as under: Gopal (Ex.P/21):
abrasion size 1cm x 1cm on left zygomatic region.
lacerated wound size 1/2 cm x 1/2cm on right leg middle.
Lacerated wound size 1cm x 2 cm on left leg middle.
Babulal (Ex.P/22):
lacerated wound size 6 cm x 1/2 cm x 3/4cm on right parietal region.
lacerated wound size 1cm x 1/2cm x 1/2cm on right middle finger dorsal aspect.
contusion size 4cm x 2cm on left thumb.
swelling left arm size 3cm x 2 cm on left forearm.
swelling and contusion on left shoulder size 3cm x 2 cm on left shoulder.
Nandlal (Ex.P/23):
Lacerated wound right forearm ulna aspect, size 1cm x 1/2 cm.
Abrasion size 1cm x 1/2 cm on right leg.
Lallu (Ex.P/24):
Lacerated wound size 4cm X 1/2cm x upto bone over left side of occipital region.
Lacerated wound size 3cm x 1/2cm over right side frontal region.
Abrasion on left side chest size 3cm x 2 cm
Lacerated wound size 2cm x 1/2 cm on left chest at back.
Nandkishore (Ex.P/25):
Lacerated wound 0.5cm x 0.5 cm left angle of mandible.
Abrasion size 1/2cm x 1/2cm on right wrist.
Contusion size 1cm x 1cm on right forearm.
Kailash (Ex.P/26):
Lacerated wound 0.5cm x 0.5 cm left forearm.
lacerated wound size 0.5cm x 0.5 cm on medial side of left hand over 5th metacarpal.
Two black abrasion between eyebrows size 0.5cm x 0.5cm.
Govind (Ex.P/27):
lacerated wound size 3.4cm x 1/2 cm on right forearm ulna aspect upper 1/3.
lacerated wound size 3/4cm x 1/2cm on left thigh.
lacerated wound size 3/4cm x 1/2cm on right leg medial aspect.
Pain on left forearm ulna aspect.
Krishna Gopal (Ex.P/28):
Lacerated wound size 1cm x 0.25cm on left leg.
Lacerated wound size 1cm x 0.25cm on left leg.
Bhagwan Lal (Ex.P/29):
Lacerated wound size 0.5cm X 0.5cm on right arm middle aspect.
Lacerated wound size 0.5cm X 0.5cm over 12 cm. below lat. right clavicle.
Lacerated wound size 0.5cm X 0.5cm, 5cm over 5cm above left to nipple.
Ram Bharosa (Ex.P/30):
Lacerated wound 5cm x 3 ? cm x 1/2 cm on right side forehead.
Small lacerated wound 0.5cm x 0.5cm on left side clavicle.
Contusion size 6cm x 4 cm on left thigh.
Contusion and abrasion size 1/2cm x 1/2cm on left thigh medial aspect.
Raghuveer (Ex.P/31):
Lacerated wound 0.5 cm x 0.5 cm on left chest, 3rd and 4th ribs.
Lacerated wound 0.5 cm x 0.5 cm over middle forearm.
Lacerated wound 0.5 cm x 0.5 cm over posterior lat. middle of right thigh.
Lacerated wound 0.5 cm x 0.5 cm over lat. and upper part of right leg.
In the present case, mainly Babulal (PW-2), Nandkishore (PW-3), Nandlal (PW-7), Kailash (PW- 14), Girdharilal (PW-17), Ramswaroop (PW-19), Govind (PW-20) and Lallu (PW-21) were examined as eye-witnesses. Out of them, Kailash (PW-14) has not stated anything against the appellants and he has turned hostile.
Babulal (PW-2) deposed that two days before the last Panchayat election his brother Nannulal was coming from Parwah to Guna. At the same time, accused Nannulal, Prabhulal, Girraj, Raju, Harish, Shobharam, Laxman, Nandkishore, Govind were armed with farsa; accused Vitthal, Nandu and Radhe were having guns and remaining accused persons were armed with sticks. Accused Nannulal told his brother Nannulal to vote for him then his brother replied that he will not vote for accused Nannulal then accused persons stated that if his brother does not vote for Nannulal then they will kill him and after that they started beating to Nannulal, due to which he sustained injuries on his forehead, face and other parts of the body. Accused persons did not allow them to lift Nannulal then he stated to use the lathi enabling them to pick up the body. During the course of the incident the accused persons also inflicted injuries to them, due to which they sustained injuries by sharp cutting object and firearm injuries as well. In para 28 of his crossexamination, Babulal admitted that at the time of incident he was at his home and after hearing that his brother has been killed, he immediately came to the place of occurrence and found the deadbody of Nannulal. Therefore, it is clear that Babulal (PW-2) is not the eye-witness and he reached on the spot after occurrence of the incident.
Nandkishore (PW-3) stated in his examination that two years ago in the morning near Kalyanji Temple Parwah, accused persons had beaten Nannulal. When he heard about the incident, he reached on the spot and rescued Nannulal. At the time of incident, accused Daulatram, Girraj, Raju and Nannulal S/o Prabhulal were having farsa. Accused Vitthal, Nandu and Radhe were armed with guns and remaining accused persons were having lathis. The accused Nannu and Radhe fired, due to which he, Babulal, Nandkihsore, Bharosa and Girdharilal sustained gunshot injuries. Accused persons did not allow them to lift the dead body of Nannulal then Nandkishore, Nandlal, Lallu, Babulal, Gopal, Girdharilal and Ramswaroop came there and they lifted the deadbody of Nannulal. In para 11 of his cross-examination, Nandkishore (PW-3) accepted that when he reached at the scene of crime, he found the deadbody of Nannulal lying on the ground which indicates that this witness also has not seen the incident and, therefore he is not in a position to describe the role played by each of the appellants in the incident.
Nandlal (PW-7) deposed that last year in Hindi month of Jeth, Nannulal was going to catch the bus. When he reached behind Kalyanji Temple, accused persons had given him beating, due to which he sustained injuries and succumbed to the injuries. At the time of incident, accused Vitthal, Nandu @ Nandlal and Radhe were having guns and remaining accused persons were armed with farsa and lathi. Accused Prabhulal and Daulatram were shouting - "nobody should be escaped, kill all of them? and then he took the dead body of Nannu from the spot. After that, he, Girdhari, Nandkishor, Babulal, Bhagwanlal, Lalaram, Ramswaroop, Krishna Gopal and Raghuveer carried the body of the deceased Nannulal to the house of Babulal. In para 5 of his cross-examination, this witness also admitted that after hearing the noise when he reached on the spot, he found the deadbody of Nannulal lying on the ground, at that time, Babulal was standing near the deadbody of Nannulal. Therefore, from the evidence of this witness Nandlal, it reveals that this witness has also not seen the incident.
Girdharilal (PW-17) deposed that two years ago, at about 8.00 am, Nannulal was going to lodge the report against the accused persons. Some of the children informed him about the incident then he immediately came at the place of occurrence where he saw that Babulal, Nandlal, Nandkishore were carrying injured Nannulal. Accused Vitthal and Nandu were having gun and they fired, due to which he sustained injury on the elbow of his left hand. Bharosa, Nandkishore, Bhagwanlal and Babulal also sustained gun shot injuries which were caused by Nandu and Vitthal but he did not know as to what weapons were held by other co-accused persons. The accused persons ran towards his house by shouting, therefore he entered his house. After that, Nannulal was taken to the District Hospital. The statement of this witness also disclose that he was not present at the time of occurrence, therefore, he has not seen that who has caused injuries to the deceased Nannulal.
Ramswaroop (PW-19) stated that two years ago at about 8.00 am behind Kalyanji Temple, accused persons Nannulal S/o Prabhulal, Prabhulal, Vitthal, Nandkishore, Nandu, Girraj, Harish, Shobharam, Laxman, Kallu, Gorelal, Gendalal, Santosh and Badri were beating Nannulal by farsa whereas the accused Laxman, Ramswaroop, Nandkishore, Nandkishore, Santosh, Rababu, Daulatram and Chhote were beating by stone to Nannulal. Accused Vitthal and Nandlal were also having gun and he sustained gunshot injury on his right foot. Girdhari, Babulal, Nandkishore and Nandlal rescued Nannulal and brought him to his house and he was taken to Guna by bus. In his cross-examination, Ramswaroop conceded that when the incident has taken place, he was at his house and after hearing about the incident he went to the place of occurrence and by the time he reached there, the incident had taken place. Looking to the admission by this witness, he is also not found to be the eye-witness of the incident.
According to Govind (PW-20), two and half years ago at 7-8 am he was at his residence. At that time, youngsters shouted that there is a quarrel then he went towards the spot where he found that accused persons were causing marpit with Nannulal by means of farsa. At the same time, accused Vitthal and Nandu were having guns and remaining accused were armed with farsa and lathi. Vitthal and Nandu fired, due to which he sustained injuries on his elbow of right hand and over right foot. Nannulal died on the spot and his deadbody was taken to the District Hospital, Guna. In paragraphs 8 and 9 of his cross-examination, this witness has conceded that the scene of crime is 300 ft. away from his house and when reached there, he found dead body of Nannulal. In these circumstances, this witness can also not be treated to be eye-witness of the incident.
Lallu (PW-21) deposed that two and half year back, at about 8 am he was in his house. At the same time, a child namely Kallu came from the market crying about happening of quarrel and Nannulal has been killed. After hearing this, he reached behind the temple of Kalyanji where he found that accused persons were beating Nannulal by farsa and lathi. Accused Vitthal and Nandu were having gun. Accused Govind and Laxman were armed with lathi and remaining accused were having farsa. When he was 30 ft. away from the incident, one stone hit on his head, therefore, he could not reach near the spot. Thereafter Nandlal, Nandkishore and Babulal carried the dead body of Nannulal and he was brought to Guna. In the incident, Bhagwanlal, Krishnagopal, Nandkishore, Rambharosa, Nandlal and Govind also sustained gun shot injuries. In para 6 of his cross-examination, this witness accepted that at the place where he received stone injury, the deadbody of Nannulal came there near to him. The evidence of Lallu (PW-21) transpires that he also came on the spot after the incident.
From the evidence of witnesses Babulal (PW-2), Nandkishore (PW-3), Nandlal (PW-7), Kailash (PW- 14), Girdharilal (PW-17), Ramswaroop (PW-19), Govind (PW-20) and Lallu (PW-21), who were claiming themselves as eye-witnesses of the incident, it reveals that they have not witnessed the incident and they have reached at the place of occurrence after the incident, therefore, they have not described the role played by each of the appellants in the incident. There exists inconsistency in the statements of these witnesses regarding the weapons which the appellants were having. All the witnesses transcribed the incident as a chorus that some accused persons were having farsa and they have inflicted farsa blows on the body of Nannulal but as per the statement of Dr. P.K.Pathak (PW-8) and autopsy report (Ex.P/20), no incised wound or cut injury was found on the body of deceased Nannulal. These witnesses tried to improve their statements before the Court by stating that the accused persons inflicted injuries to Nannulal from back side of farsa but this fact finds mention neither in the FIR nor in the statements of the witness recorded under Section 161 of CrPC, therefore, the statements of these witnesses are not found reliable and trustworthy.
If the aforesaid witnesses would have stated that after hearing the noise of quarrel they reached on the spot and found Nannulal in dead condition and at the same time accused persons were also present there having weapons and firearms with them, then the evidence of these witnesses can be relied upon under Section 6 of the Indian Evidence Act but they have not narrated the story like that and tried to claim themselves as eye-witnesses, which is not found proved from their admission in the cross-examination.
As per the statement of Dr. P.K.Pathak (PW-8) and Dr. R.K.Jain (PW-4), the witnesses Gopal, Babulal, Nandlal, Nandkishore, Lallu, Kailash, Govind, Krishnagopal, Bhagwanlal, Rambharosa and Raghuvir also sustained injuries in the incident; out of the above injured persons, Raghuvir, Rambharosa, Bhagwanlal and Krishnagopal were not examined by the prosecution and Kailash (PW-14) has not stated anything except that he has received gun shot injury but he has not seen as to who has fired on him. Remaining injured persons have made omnibus allegation against the accused persons in respect of causing of injuries to them but they have not specified as to which injury has been caused by which accused.
From the statement of Girdhari (PW-17) it appears that his father Daulatram was contesting against the appellant/accused Nannulal (now dead) the election of Village Sarpanch. Daulatram wanted to be elected unopposed from Anapur but accused Nannulal was not ready for this and due to which this incident has happened.
Learned counsel for the appellants submitted that in the same incident the complainant party also assaulted the accused persons namely, Vitthal Das, Nirbhaylal, Ganesh Singh, Nannulal, Shobharam and Nandlal, due to which they sustained injuries and an FIR (Ex.D/19) was also lodged by Nannulal. The Head Constable Hajarilal (DW-2) deposed that on 5.6.1994 Nannulal brought Nirbhaylal, Ramesh, Nandlal, Shobharam and Vitthal in injured condition and he lodged a report (Ex.D-19) against Bhagwanlal and others. After registration of the case, he sent the injured persons to the District Hospital, Guna for medical examination.
Dr. M.K.Jain (DW-1) stated that on 5.6.1994 he has examined injured persons Vitthal, Nirbhaylal, Ganesh Singh, Nannulal, Shobharam and Nandlal and found following injuries as per MLC reports (Ex.D/13 to D/18) :-
Vitthal Das (Ex.D/13):
Lacerated wound size 2cm x 1cm x 1cm deep bone over left upper lip and left angle of mouth, blood clot in mouth.
Abrasion size 1cm x 1cm posterior and middle of left forearm.
Contusion size 3cm x 3cm laterally over right elbow.
Abrasion size 2cm x 2cm laterally over lower point of left leg.
Abrasion size 3cm x 2cm laterally over middle of left leg.
Nirbhaylal (Ex.D/14):
Lacerated wound size 2cm x 0.5cm x 0.3 deep bone on right occipital region of scalp
Contusion size 5cm x 3cm posteriorly near left shoulder.
Abrasion size 1cm x 1cm on anteriorly and lower part of left leg.
Abrasion size 2cm x 2cm on back in right middle thoracic region.
Lacerated wound size 2cm x 0.5 cm x 5 deep bone anterior over left thumb.
Ganesh Singh (Ex.D/15):
Lacerated wound size 7cm x 0.5 bone deep over right parietal region of scalp.
Lacerated wound size 3cm x 0.5cm skin deep over left parietal region of scalp.
Abrasion size 5cm x 0.2cm over back on left shoulder.
Lacerated wound size 1cm x 0.3 skin deep over left side of forehead near hairline.
Contusion and abrasion size 5cm x 1cm posteriorly over upper part of left forearm.
Nannulal (Ex.D/16):
Contusion size 7cm x 3cm posteriorly over middle upper part of left forearm.
Lacerated wound size 1cm x 0.3cm x 0.3cm deep bone as injury No.1.
Lacerated wound size 3cm x 1cm x 0.5cm deep anteriorly over middle of left leg.
Lacerated wound size 1cm x 5cm over both of left little and adjacent toe.
Shobharam (Ex.D/17):
Lacerated wound size 1cm x 1cm x 0.5cm deep anteriorly over upper part of right leg.
Lacerated wound size 2.5cm x 0.5cm x0.5cm deep over right leg just above middle malicolus.
Abrasion size 2cm x 1cm over left side of forehead.
Contusion size 7cm x 3cm anterio medialy lower part of left leg.
Nandlal (Ex.D/18):
Lacerated wound size 2.5cm x 0.5cm x 0.3cm deep over middle of forehead and bleeding Ant. Over middle forehead middle part.
Lacerated wound size 5cm x 0.5cm bone deep bleeding over fronto parietal region of scalp.
Lacerated wound size 3cm x 0.5 deep bleeding over right parietal region of scalp.
Lacerated wound size 1cm x 0.5cm x 0.3 deep over distal of right little finger.
Contusion size 5cm x 3cm posterior over left elbow and upper part of arm.
Dr. Y.S.Agarwal (DW-3) deposed that he was posted in District Hospital, Guna where Nannulal S/o Prabhulal was admitted in surgical ward on 5.6.1994. He was having fracture on his radius bone of left hand and his operation was conducted on 9.7.1994 and nailing was done. He was discharged from the hospital on 25.7.1994. From the statement of Dr. Y.S.Agarwal (DW-3) it is evident that the accused persons have also sustained injuries in the same incident and cross-case has also been registered against the complainant party but the prosecution has not explained the injuries found on the body of above accused persons.
Learned counsel for the appellants submitted that Investigating Officer Sanjay Chaturvedi (PW-25) conceded that in the site plan of the cross-case, he mentioned the place of incident as the shop of appellant No.1-Nannulal where he has built up election office. In front of this shop, the house of Omprakash Jogi is situated after crossing the road and in the present case the scene of crime is shown to be the place in front of the house of Omprakash Jogi which indicates that the complainant party was aggressor and they have caused injuries to the appellant No.1-Nannulal and other accused persons which have not been explained by the prosecution. Therefore, the accused were within their right of private defence.
A glimpse of injuries sustained by six persons from the appellants'' side leaves no room for doubt that some of them which are lacerated wounds on the head were inflicted on the vital part of the body (head) which could not have been self- inflicted or self-suffered. They were neither insignificant nor trivial. Not one but three persons from the appellants'' side had sustained those injuries. What is most significant is that prosecution side has not challenged existence, nature and duration of those injuries. The prosecution witnesses have completely feigned ignorance about all these injuries and have concealed it. What is still most significant of immense importance is that neither of them had divulged how the incident started and who were the aggressors. They claimed to have arrived at the assault scene after hearing the commotion and assault by each faction and therefore the genesis of the incident lies in mystery and we are left to grope into that. The appellants who according to the defence case were attacked, had a genuine apprehension of sustaining grievous injuries and hence if they caused injuries to the prosecution side they cannot be faulted with. Reiterating of the FIR version by the prosecution witnesses too is a fib as in their FIR also they have concealed the factum of inflicting injuries on the appellants side. Thus the painted picture which emerges is that the depositions of the prosecution witnesses had an air of mendacity creating a serious doubt on it''s authenticity. This makes a serious inroad in accepting prosecution allegations as a true story inspiring confidence. It is recollected here that the prosecution witnesses have deposed without any ambiguity that they had not assaulted the appellant''s side nor they had seen any injury on their persons, while admitting the fact that they were being prosecuted in a cross version, for committing crimes respecting the same incident in the same court initiated by the appellant side. Thus what is established on record is that prosecution has suppressed accused injuries without offering any explanation for it. In such fact scenario the inevitable conclusion which can be drawn is that none of the prosecution witnesses are worthy of being relied upon. Their depositions are untruthful concealed in suppression of facts. Hence, we find it difficult to place any reliance on them.
In State of M.P. vs Mishrilal (dead) and others, AIR 2003 SC 4089, it has been observed by the apex court as under:-
"17.The last and which appears to be fatal to the prosecution case is nonexplanation of the injuries sustained by the accused. As already said accused Mishri lal received as many as five injuries, which were dangerous to life. Madusudan and Jamuna prasad received simple injuries. In Ex. P-1 as well as in the entire deposition of PWs, the prosecution has not explained the injuries sustained by the accused. In the background of the defence, as set up by the accused, it was incumbent on the part of the prosecution, to have explained the injuries sustained by the accused. The defence version is that on being retreated the bullock-cart of Babulal, the complainant party - Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit Mishrilal''s head with the farsa and Babulal, Maharaj Singh and Karan Singh beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and they also beat him. When Jamuna prasad came to save, he was also beaten up and on that Jamuna prasad ran towards the house and made two fires in the air to save his father. It is the case of defence that the bullet, which struck Bhavar singh, came from towards the house of Babulal. In the face of defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries is fatal to the prosecution case.
In State of Rajasthan v. Madho, AIR 1991 SC 1065 at page 1067 this Court held as under :
"The fact remains that both the respondents had sustained serious injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW-2."
In Ex. P-1, as already noticed, there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consist of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case."
In Raghubir Singh Vs State of Rajasthan and Others, (2011)12 SCC 235, it has been held by the apex court as Under:-
"14. It has firstly to be borne in mind that the injuries on the accused had not been explained as the prosecution witness did not utter a single word as to how they had been suffered by them. In this view of the matter, the defence can legitimately raise a suspicion that the genesis of the incident was shrouded in mystery and the prosecution had suppressed a part of the proceeding. It is true, as contended by Dr. Manish Singhvi, that each and every injury on an accused is not required to be explained and more particularly where all the injuries caused to the accused are simple in nature (as in the present case) and the facts of the case have to be assessed on the nature of probabilities. Examining the incident in the light of the above, we find that the injuries in the present case were required to be explained as there is a serious dispute a to the possession of the land in which the incident had happened, more particularly as Raghuveer Singh himself was uncertain as to the nature of the possession as per the statements on record and the Patwari had also warned the complainant party not to trespass into the land. Undoubtedly, there are a large number of injured witnesses, some of them grievously hurt, to support the prosecution case, but in the light of the finding of the High Court that there was uncertainty about the possession, this fact by itself cannot preclude the accused from claiming that no case was made out against them."
Recently in Mohd. Khalil Chisti vs State Of Rajasthan (2013) 2 SCC 541, the Hon''ble Apex Court affirmed the same view after taking stock of various other pronouncements in Waman vs State of Maharastra (2011) 7 SCC 295; Raghubir Singh (Supra); and Krishnan vs State of T.N., (2006)11 SCC 304.
Besides above disquieting feature there are other factors also which impels us to reject the prosecution case. No independent witness has been examined by the prosecution. It is noticeable that in the F.I.R. lodged from the appellants side, informant Babulal (PW-2) and deceased Nannulal have been arraigned as accused along with Daulatram, Girdhari, Ramswaroop, Rambharosa, Nandlal, Bhagwanlal, Gopal Singh, Nandkishore, Krishnagopal, Lallu and others as the aggressors. The said F.I.R. of the cross version has been duly proved as Exhibi t D-19, which has not been contested by the prosecution side. Thus, on an overall examination of facts and circumstances, the out come which can be safely arrived at is that the prosecution has not been able to establish the guilt of the appellants beyond all reasonable doubt and has suppressed the real genesis of the incident. Its witnesses have not deposed real truth and have concealed very significant aspect of accused injuries, which makes them untrustworthy witnesses. FIR is imbibed with an element of concoction and hence looses its authenticity and corroborative value and consequently for all these reasons all the accused appellants are entitled to acquittal.
In view whereof, we are of the view that the trial Court has committed an error in convicting the appellants of the offence under Sections 302/149, 148, 325/149, 323/149 of IPC.
On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby allowed. The conviction as well as sentence recorded by the trial court against the appellants for the offences under Section 302/149, 148, 325/149, 323/149 of IPC vide judgment dated 6.1.1999 passed by Sessions Judge, Guna in Sessions Trial No.337/1994 is hereby set aside and the appellants are acquitted from the aforesaid charges. The appellants are on bail, they need not surrender, their personal bond and surety bonds are discharged. They would be entitled to get the fine amount back if they have deposited the same before the trial Court. A copy of the judgment be sent to the trial Court along with the record for information and compliance.