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Judgment
The appellants have preferred the present appeal being aggrieved with the judgment dated 12.5.2004 passed by the Sessions Judge, Gwalior in Sessions Trial No.9/2004, whereby each of the appellants has been convicted of offence under section 302 or section 302 read with section 34 of IPC and sentenced to life imprisonment with fine of Rs.1000/-.
The prosecution case, in short, is that on 10.11.2003 at about 11:30 PM the deceased-Ratan came to his house at Amkho Pahadiya, Gwalior and when he was about to take his dinner, the appellants came to his house and took him forcefully. Mamta (PW.1) wife of Ratan prayed that Ratan be taken after taking his dinner. However Mamta (PW.1) followed the deceased- Ratan, who was taken away by the appellants. The appellants demanded money from the deceased-Ratan and thereafter the appellant-Ashok held the waist of the deceased-Ratan and appellant-Dilip gave few blows of dagger to the deceased-Ratan causing him fatal injuries. Mamta (PW.1) immediately went to her house and called her father-in-law Kanhaiya Lal (PW.4), elder brother-in-law Raj Kumar (PW.2) and younger brother-in-law Neelu. These witnesses have also seen the incident which took place at the spot. The deceased-Ratan was taken to the hospital, but in the hospital he succumbed to the injuries. Mamta (PW.1) had lodged an FIR, Ex.P.1 at Police Station Kampoo. The Merg intimation was also registered by Head Constable Shiv Nath Singh (PW.12). The dead body of the deceased-Ratan was sent for postmortem. Dr. Yogendra Singh (PW.13) performed the postmortem on the body of the deceased-Ratan and gave a report, Ex.P.17. He found four incised injuries to the deceased. Out of them two wounds were through and through on the abdomen, due to those injuries liver was found cut and loop of intestine was coming out of the wound. One abrasion was also found to the deceased-Ratan. According to Dr. Yogendra Singh (PW.13) the deceased-Ratan died due to fatal injuries caused with the dagger.
S.H.O. Surendra Rai Sharma (PW.15) took the plain soil and blood stained soil from the spot and prepared a seizure memo, Ex.P.2, a spot map, Ex.P.3 was prepared. Copy of FIR was sent to the concerned JMFC on the same day by a dak book, Ex.P.11C. The appellants have been arrested and arrest memo was prepared. The appellant-Dilip informed about the dagger that he had hidden the dagger in one suitcase in his house whereas blood stained baniyan and Jerkin were also kept below the bedding of appellant-Ashok. A memo, Ex.P.14 under section 27 of the Evidence Act was prepared and thereafter one dagger, one jerkin and one baniyan of the appellant-Dilip were recovered by the seizure memo, Ex.P.15. Dr. Yogendra Singh (PW.13) also sent the clothes of the deceased-Ratan and all the articles seized by the police for Forensic Science Analysis. The Forensic Science Laboratory in its report, Ex.P.20, found that human blood was present on Article ?D? dagger, Article ?E? baniyan and Article ?F? Jerkin. Out of these three articles blood present on baniyan was found to be of blood group ?O?. After due investigation, the chargesheet was filed before the Judicial Magistrate First Class, Gwalior, who committed the case to the Court of Sessions.
The appellants abjured their guilt. They took a plea that the deceased-Ratan came himself to their house and started assaulting the appellant-Dilip with an iron rod, and therefore, he turned unconscious. The appellants have also stated that Raju, Neelu and Rajaram etc. were also present with deceased-Ratan having iron rods. In defence Dr. Jagdish Prasad Goyal (DW.1) was examined, who proved the MLC report of appellant-Dilip as Ex.D.3.
The Trial Court after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.
We have heard the learned counsel for the parties at length.
First point for consideration is whether the death of the deceased-Ratan was homicidal in nature or not. In this connection, evidence of Dr. Yogendra Singh (PW.13) is important, who performed the postmortem on the body of the deceased-Ratan and gave a report, Ex.P.17. He found following injuries: (i) An incised wound 2 x 1/4 x skin deep obliquely placed over mid clavicular area of left skull clavicle with blood clot.
(ii) An incised wound obliquely place 2.5 cm below xiphoid bone on upper part of abdomen directed towards right side piercing liver left lobe 3.5 x1 x1.5cm x through & through.
(iii) An Incised wound left hypochondrium region obliquely with bulging of loop of small intestine size of wound 2.5 x 1 cm x through & through. Piercing lower end of descending colon.
(iv) An Incised wound 3.5 x 2 x skin deep back of thorax on left side just 1 cm below scapula bone.
(v) Linear abrasion 1 x ? cm on back of thorax left scapular region upper part superficially with blood oozing.
According to the postmortem report, it would be apparent that the injuries no.2 and 3 were fatal in nature. In injury no.2 the dagger head perforated the liver, whereas wound was through and through from abdomen to the back. Similarly, injury no.3 was also through and through from abdomen to back and it cut the several internal organs of the abdomen. The loop of intestine was coming out of the abdomen. Looking to the opinion given by Dr. Yogendra Singh (PW.13), which cannot be discarded, it would be apparent that injuries caused to the deceased-Ratan were sufficient to cause his death in natural course of life and injuries were fatal in nature, hence, the death of the deceased was homicidal in nature.
To prove the incident the witness Mamta (PW.1), Raj Kumar (PW.2), Hukum Singh (PW.3) and Kanhaiya Lal (PW.4) were examined. Out of them Hukum Singh (PW.3) has turned hostile. He has stated that when he saw he found that the deceased-Ratan was taken on a hand cart, and therefore, he was not an eye-witness. Mamta (PW.1), Raj Kumar (PW.2) and Kanhaiya Lal (PW.4) have claimed that they saw the appellants assaulting the deceased-Ratan. They have also stated that the appellant-Ashok held the deceased-Ratan, whereas appellant-Dilip gave few blows of dagger. However, Mamta (PW.1) has accepted in para 5 of her cross-examination that she saw the incident, and thereafter she went to her house and she informed her father-inlaw and brother-in-law about the incident. The witness Raj Kumar (PW.2) has also accepted in para 4 that when he reached to the spot appellant-Dilip had already assaulted the deceased-Ratan, and therefore, there was not possible for the witness Raj Kumar to save the deceased-Ratan from the appellant-Dilip. A similar admission is given by Kanhaiya Lal (PW.4). Under these circumstances, it appears that the witnesses Raj Kumar (PW.2) and Kanhaiya Lal (PW.4) were not the eye-witnesses, but they may be considered as witnesses under section 6 of the Evidence Act that they have reached to the spot and they found the deceased-Ratan to be injured and the appellant-Dilip had dagger in his hand. The testimony of the witness Mamta (PW.1) is duly confirmed by a timely lodged FIR, Ex.P.1, which was lodged within two hours of the incident. There was no enmity between the deceased-Ratan or the appellants. Mamta (PW.1) had stated that the appellants were maternal uncle of the deceased-Ratan in relation. The evidence given by Mamta (PW.1) is duly corroborated by Dr. Yogendra Singh (PW.13) through his postmortem report, Ex.P.17, whereas he found the injuries to the deceased-Ratan on the various places on the same description as given by Mamta (PW.1).
The learned counsel for the State has also invited the attention of this Court to the report of Forensic Science Laboratory and evidence given by Surendra Rai Sharma (PW.15) by which a dagger and clothes of the appellant-Dilip were recovered by S.H.O. Surendra Rai Sharma (PW.15) with a seizure memo, Ex.P.15. The testimony of Surendra Rai Sharma (PW.15) is believable and it is proved that one dagger, one baniyan and one Jerkin were recovered from the appellant-Dilip. According to the FSL report, Ex.P.20 on all the three articles human blood was found and on baniyan human blood of Group ?O? was found. It could not be established by the appellant-Dilip that his blood group was ?O? and on his baniyan his blood was found. It is true that the appellant-Dilip sustained some injuries which were proved by Dr.Jagdish Prasad Goyal (DW.1). However, if the MLC report, Ex.D.3 is perused then most of the injuries of the appellant-Dilip were blunt injures and no profuse bleeding was found so that blood stains could be caused on his baniyan. Under these circumstances, where the evidence of eye-witness Mamta (PW.1) is duly corroborated by the timely lodged FIR, Ex.P.1, medical evidence as proved by Dr. Yogendra Singh (PW.13) and report, Ex.P.20 given by the Forensic Science Laboratory, it is proved beyond doubt that the appellant-Dilip assaulted the deceased- Ratan with a dagger causing his death.
The learned counsel for the appellants has submitted that appellant-Ashok was falsely implicated in the matter because he was relative to the appellant-Dilip. It is true that the FIR was lodged within time, but in two hours after the incident Mamta (PW.1) and her relatives could think about lodging of the FIR and possibility cannot be ruled out that the appellant-Ashok was falsely implicated in the matter. It was not a clear cut statement of Mamta (PW.1) that the appellant-Ashok also came to call the deceased- Ratan. According to her, it was appellant-Dilip who took the deceased-Ratan with him. The witnesses Raj Kumar (PW.2) and Kanhaiya Lal (PW.4) have stated that they saw the appellant- Ashok who held the deceased-Ratan, but these witnesses have reached to the spot with some delay and they have also accepted that when the appellant-Dilip completed the assault, the deceased- Ratan fell down on the ground which indicates that he was not held by the appellant-Ashok. Looking to the haphazard blows of dagger given by the appellant-Dilip, it appears that the deceased-Ratan was not held by anyone. If deceased-Ratan was held by the appellant-Ashok then the blows which were given by the appellant-Dilip should have been on chest just above the heart and on other vital parts of the body. It appears by the injury no.1 to 4 that one blow was found on left side of clavicle area that was away from the heart and lungs. One blow was found of left scapular region on back which is not so deep and it was skin deep which indicates that the deceased-Ratan turned to run away, and thereafter one blow could be given on his back. If the deceased- Ratan was held by the appellant-Ashok then he could not have turned his posture and no blow could be given on his back. Under these circumstances, possibility cannot be ruled out that the witness Mamta (PW.1) though lodged the FIR within time, had an opportunity to add the name of the appellant-Ashok with the appellant-Dilip because appellant-Ashok was relative to appellant- Dilip. Hence, the testimony of the witness Mamta (PW.1) cannot be accepted beyond doubt that the appellant-Ashok held the deceased-Ratan when the appellant-Dilip was giving some blows. Except the fact that appellant-Ashok held the deceased-Ratan no overt act of the appellant-Ashok is shown, so that his common intention may be presumed with the co-accused Dilip. Under these circumstances, the prosecution has failed to prove the common intention of the appellant-Ashok with the appellant-Dilip. By mere presence no accused can be convicted of an offence done by someone else. The Trial Court has committed an error in convicting the appellant-Ashok with help of section 34 of IPC.
The learned counsel for the appellants has also submitted that the appellant-Dilip sustained as many as five injuries in the incident and such injuries were proved by the MLC report, Ex.D.3 recorded by Dr.Jagdish Prasad Goyal (DW.1). The MLC was recorded at 2:15 AM on the same day, and therefore, it would be apparent that the appellant-Dilip had sustained the injuries in the incident. It is also submitted that there is no claim of Mamta (PW.1), Raj Kumar (PW.2) or Kanhaiya Lal (PW.4) that when they saw the appellant-Dilip who killed the deceased-Ratan then they assaulted the appellant-Dilip. On the other hand the learned counsel for the State submits that if the deceased-Ratan assaulted the appellant-Dilip with an iron rod that iron rod should have been found at the spot. However, it is not necessary because when the deceased-Ratan was taken to the hospital on hand cart then it is possible the iron rod would have been taken by Kanhaiya Lal etc. from the spot.
In statement under section 313 of Cr.P.C the appellant-Dilip has stated that the deceased-Ratan was quarreling with him and thereafter Hukum Singh (PW.3), Raj Kumar (PW.2), Kanhaiya Lal (PW.4) etc. came to help the deceased-Ratan and they have also assaulted him, but such wild allegation cannot be accepted at this stage. The appellant-Dilip has proved the MLC report, Ex.D.3 to show that he sustained injuries in the incident, but he did not prove any counter FIR lodged by him. According to the MLC report, Ex.D.3 the appellant-Dilip was taken to the hospital by Head Constable Phool Chand Bajpai from Police Station Kampoo, hence, there must be a requisition of Police Station Kampoo to record the MLC report, and therefore, there must be the FIR lodged by appellant-Dilip, but no such FIR is proved by appellant-Dilip before the Trial Court, hence his wild allegation against the witnesses that they assaulted him cannot be accepted. No suggestion was given to the witness Mamta (PW.1) that the witnesses Raj Kumar (PW.2) and Kanhaiya Lal (PW.4) assaulted the appellant-Dilip, and therefore, the witnesses have no role to the injuries of appellant- Dilip.
It is apparent that witnesses are silent about the injuries caused to the appellant-Dilip. In this connection the learned counsel for the appellants has placed reliance upon the judgment passed by the Apex Court in the case of ?Lakshmi Singh and others Vs. State of Bihar? [AIR 1976 SC 2263]. A little portion of para 11 of that judgment may be referred as under: ''hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.''
And hence, the Apex Court has observed that it may be case of right of private defence. It is true that the prosecution witnesses did not give any explanation to the injuries caused to the appellant- Dilip. Non-explanation gives two indications; firstly either the eyewitnesses were not the actual eye-witnesses and secondly that the eye-witnesses do not want to explain the injuries of the appellantaccused.
In the present case, where the evidence of Mamta (PW.1) is duly corroborated by other corroborative piece of evidence, hence, it appears that the prosecution witnesses did not explain the injuries caused to the appellant-Dilip, and hence, it shall be presumed that the deceased-Ratan assaulted the appellant-Dilip with some hard and blunt object causing simple injuries to him.
It is also apparent that if the appellant-Dilip was aggressor then after giving such blows of dagger the deceased-Ratan was not in a position to give any blow to the appellant-Dilip with the help of any hard and blunt object and therefore, it is clear that the deceased-Ratan was aggressor. Hence, the appellant-Dilip got a right of private defence. A right of private defence can be enhanced to cause death of the assailant if life of the person is under danger. When the deceased-Ratan started assaulting with iron rod then the appellant-Dilip could stop him by giving one blow of dagger on his hand in which he kept iron rod. But, looking to the injuries caused to the deceased-Ratan as proved by Dr. Yogendra Singh (PW.13), it appears that appellant-Dilip gave powerful blows of dagger on abdomen. The injuries no.2 and 3 were through and through wounds where dagger inserted in the abdomen and pierced up to the back and all the vital parts within the abdomen were found cut including the liver. Hence, it would be apparent that the appellant-Dilip exceeded his right of private defence.
In this connection the judgment passed by the Apex Court in the case of ?Shingara Singh Vs. State of Haryana and another?[(2003) 12 SCC 758] may be referred, in which it is held that when the accused exceeded his right of private defence and causes death of the assailant then the matter falls within the purview of exception 2 of section 300 of IPC and hence, the offence would be of section 304 (Part-I) of IPC. In the light of the aforesaid judgment passed by the Apex Court in the case of Shingara Singh (supra) where the appellant-Dilip had exceeded his right of private defence he cannot be convicted of offence under section 302 of IPC, but he should be convicted of offence under section 304 (Part-I) of IPC.
So far as the sentence is concerned, it is informed that the appellant-Dilip is in custody since 11.11.2003, and therefore, he has already undergone approximately 13 years in the custody. Looking to the facts and circumstances of the case, whereas the appellant remained in custody for approximately 13 years, it would be appropriate to inflict the jail sentence for the period for which he remained in custody.
On the basis of aforesaid discussion, it is apparent that the appeal filed by the appellant-Ashok is acceptable. His common intention could not be established by the prosecution, and therefore, he cannot be convicted of offence under section 302 of IPC or any inferior offence of the same nature either directly or with the help of section 34 of IPC. Hence, his appeal appears to be acceptable, hence it is allowed. His conviction as well as sentence of offence under section 302 read with section 34 of IPC is hereby set aside. He is acquitted from the charge of section 302 read with section 34 of IPC. The appeal filed by the appellant-Dilip is hereby partly allowed. His conviction as well as the sentence of offence under section 302 of IPC is hereby set aside. He is acquitted from that charge. However, under the same head of the charge he is convicted of offence under section 304 (Part-1) of IPC and sentenced to the rigorous imprisonment for the period in which he remained in the custody during the trial and appeal. Looking to the custody period that if some fine is imposed upon the appellant- Dilip, then he had already undergone the default sentence relating to fine amount and no fresh fine is required to be imposed upon him.
The Registry of this Court is directed to arrange for issuance of super-session warrant for appellant-Dilip without any delay so that he may be released forthwith. Appellant-Ashok is on bail. His further presence is no more required before this Court. Therefore, it is directed that his bail bonds shall stand discharged.
A copy of the judgment be also sent to the Trial Court along with its record for information and compliance.