Balram Singh & Anr vs State Of Madhya Pradesh

These appeals have been filed by appellants Balram Singh son of Toofan Singh and Indrapal Singh son of Balram Singh respectively who have been convicted by the Court of 1st Additional Sessions Judge, Ashoknagar, Distt. Guna (as Ashoknagar was not carved out as a separate district at that point of time) in S.T.No.328/1998 (original) and attached S.T.No.83/99, whereby appellant Balram has been convicted under Section 323 of IPC with one year rigorous imprisonment and fine of Rs.1,000/-and in default of payment of fine he has been directed to undergo further two months rigorous imprisonment and appellant Indrapal Singh has been convicted under Section 302 of IPC with life imprisonment and fine of Rs.1,000/- and in case of default of payment of fine, further rigorous imprisonment of two months.

Learned counsel for the appellants submits that both the appellants are innocent and no case under Section 302 of IPC is made out. It is submitted that as per prosecution story incident had taken place on 24.2.1998 at about 8 am when at village Ratikheda Balram was collecting Gitti in front of house of Sultan Singh (PW-1), then Vijaybhan (PW-6) asked not to take such Gitti when Balram hit him with handle of spade. At that point of time, even Sultan Singh requested Balram not to collect Gitti. It is alleged that at that juncture Balram left the place of incident and later on Balram alongwith Indrapal and Balakram armed with Farsa, Lakhan with Ballam, Mohan with axe, Bharat with Barchhi and accused Tofan and Ramkumar armed with Lathi came and at that point of time Balram hit complainant Sultan Singh with Farsa on his head and appellant Indrapal Singh hit deceased Brikbhan with Farsa on his head. It is submitted that Sultan and Brikbhan fell down because of such blow and then all the accused persons beat them with kicks and fists. Such incident was witnessed by Chandrabhan Singh, Krishnabhan Singh (PW-5), Ramkumari Bai (PW-8) and Pankunwar Bai (PW-9).

It is submitted by the learned counsel for the appellants that Brikbhan died on 3.12.1998 i.e. after about 10 months of the incident, and therefore, it cannot be said that death was caused directly due to the assault made by appellant Indrapalsingh, therefore, no case under Section 302 of IPC is made out.

Learned counsel for the appellants further submits that as per the MLC (Ex.P/7) Brikbhan had sustained a lacerated wound measuring 5x1 x bone deep on vertex of head and there was blackening in the left eye of Brikbhan and such injuries were caused by hard and blunt object, whereas both Krishanbhan (PW-5) and Vijaybhan (PW-6) have mentioned in their deposition that Brikbhan was hit with sharp side of Farsa, therefore, there is no corroboration between the medical evidence and the eye-witness account. It is also submitted that Dr. S.N.Iyangar (PW-14) has mentioned in his examination-in-chief that patient was operated on the same day for removal of clotted blood, but thereafter admittedly patient was discharged from the hospital on 28.6.1998 and was again admitted on 25.8.1998. At the time of his discharge on 28.6.1998 patient was treated for TB, deficiency of B-complex and protein. He was also administered medicines so to prevent relapse of epilepsy. Thus, it is submitted that when doctor has opined that patient was suffering from TB and as per the postmortem report (Ex.P/13) death was due to cardio respiratory failure as a result of fibrocaseous disease of lungs, malnutrition, anemia, hypoproteinemia & cachexia, there was no direct nexus between the injury and the cause of death, and therefore, appellant Indrapal could not have been convicted under the provisions of Section 302 of IPC. Learned counsel has also read evidence of Dr. M.Bhagat (PW-4) who was posted as Assistant Surgeon in Ashoknagar Hospital on 24.2.1998 and who had examined both injured Sultan as well as deceased Brikbhan and found that Sultan had sustained a lacerated wound on his forehead which was bleeding of size of 3x 1 cm x bone deep by hard and blunt object within 24 hours, whereas deceased Brikbhan had sustained a lacerated bleeding wound of size of 5 x 1 cm x bone deep. It is pointed out that his pulse was 80 pm and blood pressure was 110/70 and his other functions were normal to point out that even doctor has opined that such injury was caused by hard and blunt object and further that Brikbhan was in a position to speak but no dying declaration of his was recorded by the police so to ascertain how he had sustained such injury.

Learned counsel for the appellants has also taken this Court through the testimony of Dr. R.K.Jain (PW-7) Radiologist to point that though Dr. R.K.Jain has mentioned in his examination-in-chief that on being referred by the Assistant Surgeon he had taken x-ray of head of Brikbhan son of Nandlal and Sultan son of Nandlal and found fracture in fronto parietal bone of deceased Brikbhan but no fracture was found on the body of Sultan, but in the cross-examination has admitted that there was fracture of parieto occipital bone on the body of appellant Balram as well. Reading such testimony, it is submitted that it was a case of free fight in which Balram had sustained a fracture and Balram and Indrapal Singh exercised their right of private defence, and therefore, their conviction cannot be upheld. It is also submitted that Dr. R.K.Jain (PW-7) has clearly mentioned that Brikbhan's fracture was not in two parts but was a linear type of fracture which is also called hairline fracture. It is pointed out that such injury could have been sustained if a person falls from some height on a solid or hard surface. It is evident from the evidence of Dr. R.K.Jain (PW-7) that report of fracture of Balram was enclosed in Sessions Case No.10/99 as Ex.D/6. It is submitted that in Sessions Case No.10/99 some of the members of the complainant party have also been convicted under Section 325 of IPC with two years of rigorous imprisonment. Pointing out towards such evidence, it is again submitted that it was a case of free fight.

Learned counsel for the appellants has also referred to the evidence of Dr. Natwar Singh (PW-11) who was posted as Assistant Surgeon at Civil Hospital, Ashoknagar, to point out that he had carried out postmortem of deceased Brikbhan and has clearly deposed that patient was in coma for last 8-9 months because of head injury and was sustaining only on liquid diet which was administered through rice tubes. It is also pointed out that in cross-examination Dr. Natwar Singh has admitted that deceased was suffering from a disease of lungs which could be TB also and on dissection fibrocaseous material was found which was sign of malnutrition, anemia and protein deficiency and under such facts and circumstances a person could have died of heart failure.

Learned counsel for the appellants has also read evidence of Sultan Singh (PW-1) and pointed out that Sultan Singh, who happens to be an eye-witness and an injured witness, has admitted that Farsa was hit on the head of Brikbhan from the sharp side. It is pointed out that similar evidence has been given by Halke @ Brijmohan (PW-3) who has admitted in para 11 of his cross-examination that Indrapal had hit Brikbhan with sharp side of Farsa on his head, whereas no such sharp cutting injury or incise wound was found on the body of deceased Brikbhan. Reading such evidence, it is submitted that trial Court has committed an error in recording finding of conviction.

Learned counsel for the appellants placed reliance on the judgment of the Supreme Court in the case of Sompal Singh and another vs. State of Uttar Pradesh as reported in (2014) 7 SCC 316 wherein drawing a distinction between "hurt which endangers life" and "injuries as are likely to cause death", conviction was upheld under Section 304 Part I simpliciter and sentence was reduced to 7 years RI. The Supreme Court has referred to Section 320 of IPC which is reproduced herein below :-

"320. Grievous hurt - The following kinds of hurt only are designated as "grievous":-

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Sixthly - Permanent disfiguration of the head or face.

Seventhly -Fracture or dislocation of a bone or tooth.

Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

and has held that since clauses sixthly and seventhly of Section 320 of IPC were relevant under the facts of that case, wherein injured had suffered following injuries :-

"(1) Incised wound 9 c.m. X 1 c.m. X bone deep on the right side of the skull, 7 c.m. from the right ear.

(2) Incised wound 7 c.m. X 1 c.m. X bone deep on the midline of skull, 8 c.m. away from injury No.1.

(3) Contusion 6 c.m. X 2 c.m. on the left anterior chest below the left nipple.

(4) Contusion 8 c.m. X 2 c.m. middle of right thigh.

(5) Contusion 4 c.m. X 2 c.m. on the left back of shoulder."

it is very difficult to say as to whether a person is liable under Section 325 of IPC for causing grievous hurt or Section 304 of IPC for culpable homicide not amounting to murder when the injury results in death of the victim. Under such facts and circumstances, it was held that injuries 1 and 2 clearly fall in the category of injuries as are likely to cause death and are beyond "hurt which endanger life" even though each injury may not be individually sufficient to cause death and conviction of the appellant as recorded by the High Court under Section 304 Part I of IPC was upheld.

Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Vijay Kumar Vs. State of Rajasthan as reported in (2014) 3 SCC 412 wherein it has been held that if chain of circumstances does not point only to accused and testimony of witnesses does not inspire confidence, then conviction should be reversed. It is submitted that in the present case firstly as it was a case of self defence and secondly testimony of Sultan Singh (PW-1) and Halke @ Brijmohan Singh (PW-3), who have categorically admitted that deceased was hit with a Farsa from the sharp side, is contrary to the medical report, and therefore, conviction of accused should be reversed.

Learned counsel for the appellants has also placed reliance on the judgment of this High Court in the case of Bala Prasad Dhansukh Vs. State of M.P. as reported in AIR 1961 (MP ) 241 wherein the appellant-accused was convicted by the Second Additional Sessions Judge, Bhopal, under Section 302 of IPC for committing murder of Mulchand by striking him with a bamboo stick on his head on 9.10.1959 at village Barkheda Nathu with sentence of imprisonment for life. In para 14 of the judgment Division Bench of this Court framed a question namely "the Criminal Appeal Nos.525/00 & 527/00 crucial point in this case is not, whether the appellant did or did not strike the deceased with a lathi on his head, but whether he struck him under circumstances which could sustain a plea on his behalf that it was done in self defence. Placing reliance on the judgment of Privy Council in the case of Chan Kau v. The Queen as reported in (1955) AC 206 at P. 211 wherein the Judicial Committee of the Privy Council had ruled that :-

" In cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is form him, to establish provocation or any other defence apart from that of insanity.

the Division Bench of this Court held thus in para 25 and 26:-

The burden on the accused of establishing circumstances which bring the case under an exception is not as onerous as the burden on the prosecution of establishing its case beyond reasonable doubt. In the instant case the defence is established by proof of circumstances which support a plea of self defence from the prosecution evidence itself, which we have no reason to doubt and which the prosecution has not negatived.

The appeal is, therefore, allowed. The conviction and sentence of the appellant (accused) are hereby set aside and he is acquitted of the offence of murder. He shall be released forthwith.

Learned counsel for the appellants has also placed reliance on the judgment of the Supreme Court in the case of Lakshmi Singh and others vs. State of Bihar as reported in (1976) 4 SCC 394 wherein it has been held that if prosecution fails to explain the injuries caused to the accused, then case might be one of private defence. It has also been held in para 17 that where truth and falsehood are inextricably mixed the entire prosecution case must be rejected. It has been held that it is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case. Placing reliance on such judgment, it is submitted that it is not a case of conviction and both the accused be acquitted. In the alternative, it is submitted that appellant Balram has undergone sentence of 4 months and 6 days during trial, whereas appellant Indrapal has undergone similar sentence during trial and after conviction was taken in custody on 7.7.2000 and was extended benefit of bail on 5.12.2003, and has therefore, remained in custody for about 3 years and 9 months, therefore, at worst, their period of sentence be declared to have been undergone and they be released.

Learned Public Prosecutor for the State on the other hand submits that in the FIR (Ex.P/1) itself there is a clear mention of Balram and Indrapal Singh causing injury to Sultan and Brikbhan from the side of Lathi of Farsa, therefore, if in their statements which were recorded in the Court after long gap of over one and a half years of the date of incident minor contradiction has arisen, then that will not fail the case of the prosecution. It is submitted that in Ex.P/8 there is a mention of fracture of fronto parietal bone of skull as was sustained by Brikbhan. Reading MLC of Brikbhan as is contained in Ex.P/7, it is submitted that Dr. M.Bhagat (PW-4) has clearly mentioned that if there is fracture in x-ray report, the injury must be treated as grievous. It is therefore submitted that the injury was grievous as fracture has been found as per report Ex.P/8 on the skull of the deceased. It is also submitted that though learned counsel for the appellants has tried to point out that death had no proximate cause with the injury, but as per the discharge ticket from the JA Hospital as is contained in Ex.P/16, it is clearly mentioned that deceased was subjected to operation on 25.2.1998 under general anesthesia. It is also pointed out that contention of learned counsel for the appellants that patient's parameters were normal as have been noted by Dr. M.Bhagat (PW-4), and therefore, his dying declaration should have been recorded, is also not made out because in the discharge ticket (Ex.P/16) itself it is mentioned that that patient was admitted with history of unconsciousness with history of bleeding from nose and history of vomiting. General condition was very low and thus the contention of learned counsel for the appellants that deceased Brikbhan did not die of such injury is not made out. It is also submitted that law laid down in the case of Sompal Singh (supra) if made applicable, then it is apparent from the report Ex.P/7 that it was not a hurt which endangers life, but it will fall in the category of injury as is likely to cause death as doctor had termed it to be grievous, and therefore, at best conviction of appellant Indrapal Singh can be converted from one Section 302 of IPC to 304 Part I of IPC, rather than recording a finding of acquittal. It is also submitted that Doctor S.N. Iyangar (PW-14) categorically stated that patient was not suffering from epilepsy but medicine for epilepsy is administered in such kind of injury. Reading this statement of Doctor Iyangar, it is submitted that suggestion of learned counsel for the appellants that such injury could have been sustained by the deceased due to fall as he was patient of epilepsy is not made out.

After hearing arguments and going through the record following questions emerge for our decision :-

(i) Whether Balram and Indrapal Singh had caused injury to Sultan and Brikbhan while resorting to self defence ?

(ii) Whether single injury found on the body of deceased Brikbhan is sufficient to attract conviction under Section 302 of IPC ?

(iii) Whether under the facts and circumstances of the case conviction of appellant Indrapal Singh can be converted from one under Section 302 to Section 304 Part I of IPC or under Section 325 of IPC ?

As far as plea of self defence and reliance on judgments in the case of Bala Prasad Dhansukh and Lakshmi Singh (supra) is concerned, prosecution story is that Balram was collecting gitti at about 8 A.M. from the place in front of house of Sultan when he was checked and asked not to do so. Thereafter, he left the place of incident and arrived armed with farsa and other weapons along with his team consisting of Indrapal Singh and others and this part of evidence has remained unrebutted. From the facts of the case narrated above, it is apparent that Balram had not acted in self defence but had reached the scene of incident again with a view to cause retribution and take revenge, and, therefore, plea of self defence will not be applicable inasmuch as it was not in the first instance that complainant party acted as aggressor and accused had to take recourse to the mechanism of self defence and to save their life had to hit back. Mere fracture sustained by Balram is not sufficient to prove the hypothesis of self defence as has been put forward by the accused, therefore, this contention deserves to be rejected and rejected.

The Supreme Court in the case of Chamru Budhwa vs State of Madhya Pradesh as reported in AIR 1954 SC 652 when the blow was not given with an intention of causing death or of causing such bodily injury as was likely to cause death, converted the conviction under Section 302 of IPC to one under Section 304 Part II of IPC and sentenced the accused to 7 years RI. In the case of Hari Ram v. State of Haryana as reported in AIR 1983 SC 185 it was held that since only one blow was struck by appellant on Ran Singh and from the evidence it does not appear that there was any intention to kill Ran Singh, therefore, offence was held to be under Part II of Section 304 of IPC and was punished with five years imprisonment. In the case of Madhusudan Satpathy and others v. State of Orissa as reported in AIR 1994 SC 474 when medical evidence reveal that there was only one injury on the head and that proved to be fatal, it was held that offence committed would fall within the ambit of Section 304 Part II of IPC and the sentence was reduced to RI for three years.

In the present case also, there is single injury on the head of Brikbhan. There is no opinion of the doctor that such injury was sufficient to cause death in normal course, and therefore, we are of the opinion that in the light of the judgments referred above and also in the case of Sompal Singh (supra), this is a case where appellant Indrapal Singh can at best be held to be guilty of offence under Section 304 Part II of IPC and since he has already suffered imprisonment for over three years and nine months and appeal has come for hearing after more than 18 years of its filing during such period he has faced humiliation in the hands of the society and has been treated as convict of murder which is sufficient social retribution in our opinion, therefore, while converting his conviction from one under Section 302 to 304 Part II of IPC, he is sentenced to the period already undergone by him. Similarly, the act done by appellant Balram did not amount to any grievous injury and only simple injury was caused and he has also suffered mental agony of trial for over 20 years, therefore, we do not interfere in the finding of his conviction under Section 323 of IPC, however, he is also sentenced to the period already undergone by him.

With the aforesaid, both the appeals are disposed of. Record of the trial Court be sent back.