AI Structured Summary
Not yet generated for this judgment
Judgment
This criminal appeal under Section 374 (2) of the Cr.P.C . filed on behalf of the appellants/accused persons Shrichand and Shivcharan is directed against judgment dated 28.2.1998 passed by the Court of IIIrd Additional Sessions Judge, Chhindwara in Sessions Trial No. 60/1997, whereby accused Shrichand was convicted under Section 302 of the I.P.C. and was sentenced to undergo life imprisonment and a fine in the sum of Rs.5,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months. Accused Shivcharan was convicted under Section 326 of the I.P.C and was directed to undergo rigorous imprisonment for a period of three and half years and a fine in the sum of Rs.1,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of three months.
The prosecution case before the trial Court may briefly be stated thus: Accused persons Shrichand and Shivcharan are real brother. Deceased Khoob Chand and injured Dwarika Prasad were cousins. At about 5:30 p.m. on 28.9.1997, deceased Khoob Chand was standing in front of Sarpanch Munna Lal's house. At that time, accused persons Shrichand and Shivcharan arrived on the spot. Shrichand demanded the price of sheaves grass said to have been supplied by him to deceased Khoob Chand. Deceased Khoob Chand replied as to on what account Shrichand was demanding money.
Consequently, they started abusing each other. Pursuant to aforesaid altercation, accused Shrichand struck a blow with an axe he was carrying, upon the back of the deceased Khoob
Chand. As a result, deceased fell down and started to bleed.
His cousin Dwarika tried to pull him up, he asked Shrichand and Shivcharan as to why they had assaulted his brother; whereon, accused Shivcharan exhorted Dwarika and asked him to come and threatened that Shivcharan would also killed Dwarika. Thereafter, Shivcharan struck a blow to Dwarika with the axe he was carrying, near left elbow joint.
Consequently, Dwarika also started to bleed. Mohan, Munna Lal and Malook Chand were present on the spot, they intervened in the matter. If they had not protected Khoob Chand and Dwarika, the accused persons would have killed both of them. Since, Khoob Chand had sustained a serious injury in the back, he was losing his consciousness. Deceased Khoob Chand and Dwarika were taken on a bullock cart to police out-post Newton, where the first information report was lodged by injured Dwarika. Deceased Khoob Chand succumbed to his injuries at around the time, they reached the police outpost. During investigation, on the separate disclosure statements made by accused persons Shrichand and Shivcharan, axes with blood like stains were recovered from the possession of accused persons.
The trial Court framed the charge under Section 302 read with section 34 of the I.P.C. against accused Shrichand and a charge under Section 302 read with Section 34 and Section 307 of the I.P.C. against accused Shivcharan. The accused persons abjured guilt and claimed to be tried.
After the trial, the trial Court held that the prosecution has succeeded in proving beyond reasonable doubt that accused Shrichand had committed murder of Khoob Chand by inflicting a blow with an axe; therefore, he was convicted under Section 302 read with section 34 of the I.P.C. It was further held that co-accused Shivcharan had not participated in aforesaid act of accused Shrichand in any manner; therefore, he was acquitted of the charge under Section 302 read with section 34 of the I.P.C. It was further held that the prosecution had failed to prove that the accused Shivcharan had attempted to commit murder of injured Dwarika; however, the prosecution had succeeded in proving that Shivcharan had caused grievous injury to Dwarika by a sharp cutting objects like axe; therefore, the trial Court acquitted Shivcharan of the offence punishable under Section 307 of the I.P.C. but convicted him under Section 326 of the I.P.C. thereof.
Conviction of appellant Shrichand under Section 302 and appellant Shivcharan under Section 326 of the I.P.C. has been challenged before this Court mainly on the ground that appellant Shrichand was demanding Rs.800/- from Khoob Chand for sheaves of grass he had supplied to him. The deceased was disputing the fact that any such amount was
due. Deceased Khoob Chand and his cousin Dwarika beat the appellants with sticks. As a result, Shrichand sustained three injuries caused by hard and blunt objects and Shivcharan sustained five injuries also caused by hard and blunt objects.
The existence of these injuries upon the person of the appellants have been proved by Dr. R.K. Bansod (PW-10) and recorded in their M.L.C. reports Ex. D-2 and D-3. None of the prosecution witnesses has admitted that the appellants had suffered such significant and numerous injuries in the incident. As such, no explanation is forthcoming from the prosecution to explain the injuries sustained by the appellants in the incident. In these circumstances, the trial Court ought to have drawn following inferences:
(I) that prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version; (II) the witnesses, who have denied the existence of injuries on the person of accused are lying on a most material point and; therefore, their evidence is unreliable; (III) that the defence version which explains injuries on the body of accused persons is rendered probable so as to throw doubt upon the prosecution story.
For aforesaid contention, learned counsel for the appellants has placed reliance upon the judgment in case of Laxmi Singh and others vs State of Bihar AIR 1976 SC 2263; therefore, it has been argued that the appellants deserve benefit of doubt.
The second argument that has been advanced on behalf of the appellants is that the sole injury that is alleged to have been caused by appellant Shrichand to deceased Khoob Chand was inflicted upon his back, which is a non-vital part of the body; therefore, the appellant Shrichand cannot be attributed with intention to cause death of deceased Khoob
Chand. At worst, it can be said that he had knowledge that such an injury may cause death of the deceased; therefore, the act of the appellant Shrichand would fall under the category of Section 304 (Part-II) of the I.P.C. For the aforesaid contention, learned counsel for the appellants has placed reliance upon the judgment rendered by the Supreme Court in the case of Arjun Vs. State of Chhattisgarh (2017) 3 SCC
247.
Learned panel lawyer for the respondent/State on the other hand has supported the impugned judgment.
On perusal of the record and after due consideration of the rival contentions, we are of the view that this appeal must succeed but only in part. The conviction of appellant Shrichand under Section 302 of the I.P.C. is liable to be modified into one under Section 304 (Part-II) and the sentence is also required to be modified accordingly. The conviction of appellant Shivcharan under Section 326 of the I.P.C . does not deserve to be interfered with and is liable to be affirmed. The reasons for our conclusions are as follows:
As per prosecution story, the incident is alleged to have taken place in front of Sarpanch Munna Lal's house.
Appellant Shrichand lives across the road. Prosecution has examined two eye witnesses namely Mohan (PW-3) and Munna Lal (PW-4), who are witnesses to the incident from the beginning to end. They were sitting in Munna Lal's house waiting for the local MLA to arrive. Injured eye witness Dwarika reached the spot when the appellant Shrichand inflicted axe blow upon Khoob Chand. The sum and substance of the deposition of aforesaid three prosecution witnesses is that at about 5:00 p.m. on 24.1.1997, Mohan (PW-3) and Munna Lal (PW-4) were sitting in the house of Sarpanch Munna Lal. At that time, deceased Khoob Chand arrived in the alley situated in front of Munna Lal's house. He came from the direction of tailor's house. Appellant Shrichand stopped deceased Khoob Chand and asked for the price of grass sheaves supplied by him. Deceased Khoob Chand protested and said that no money was due by him to appellant Shrichand; whereon, Shrichand started to abuse Khoob Chand and matter flared up. At that juncture, appellant Shrichand delivered a blow to back of deceased Khoob Chand with an axe that he was carrying. As a result, Khoob Chand fell down and started to bleed from the wound.
Mohan (PW-3) has stated that after altercation with deceased Khoob Chand, Shrichand had gone inside his house and had returned with an axe. At that time, Dwarika also arrived. During same altercation, accused Shivcharan delivered a blow with an axe to the hand of Dwarika Prasad as he tried to intercede on behalf of Khoob Chand. Dwarika also to blead from his hand.
Munna Lal (PW-4) left immediately for police out-post Newton to call the police. Meanwhile, deceased Khoob Chand was lapsing into unconsciousness. The villagers took deceased Khoob Chand and Dwarika in a bullock-cart towards Newton police out-post. The police met them on their way to police out-post Newton; thereafter, Dwarika lodged the FIR at around 10:00 p.m.. At about the same time, Khoob Chand succumbed to his injury.
Dr. R.K. Bansod (PW-10) has supported the prosecution case and has stated that at about 11:00 p.m. on 24.1.1997, he had examined deceased Khoob Chand. He had suffered incised wound admeasuring 4" X 1" which was very deep and was bleeding profusely. As a result of aforesaid injury, deceased Khoob Chand was gasping for breath. The injury was surrounded by swelling. It was caused by hard and sharp object. At that time, Khoob Chand was semi-conscious.
Dr. R.K. Bansod (PW-10) has further submitted that he had conducted post-mortem examination on the dead body of the deceased at about 10:30 p.m. on 25.1.1997. After dissecting the body, he had found that under aforesaid injury, 5th, 6th and 7th ribs were broken. The muscles were cut and there was a 4" X 1" cut in lung. In his opinion, the deceased had died as a result of shock and hemorrhage resulting from aforesaid injury.
In the back drop of aforesaid prosecution evidence, when we examine the defence taken by the appellants, we find that all three prosecution witnesses namely Dwarika (PW-1) Mohan (PW-3) and Munna (PW-4) have categorically denied that deceased Khoob Chand and Dwarika had caused any injury to Shrichand or Shivcharan.
They have stated that if at all Shrichand and Shivcharan have suffered any injury, they do not know how it was caused.
However, it is significant to note that Dr. R.K. Bansod (PW-
10) had admitted in his cross examination that at about 11:50 p.m. on 24.1.1997, he had examined Shrichand and had found following three injuries on his person:
(i) One lacerated wound admeasuring 1/4" X 1/4" on left eyebrow. Blood had clotted over that injury;
(ii) a contusion admeasuring 3"X 4" upon lips;
(iii) a contusion admeasuring 2" X 1" on right side of neck; -Aforesaid injuries were caused by hard and blunt object. Duration of aforesaid injuries was 5 to 9 hours. His M.L.C. Report in this regard is Ex. P-3.
Dr. Bansod (PW-10) had also stated in his cross examination that at 11:30 p.m. on 24.1.1997, he examined appellant Shivcharan and had found following injuries:
(i) a red contusion admeasuring 4"X1" between 5th and 8th rips. The injured was complained of pain;
(ii) a contusion ad measuring 5" X 1" red in colour, on outer aspect of right thy;
(iii) a contusion admeasuring 4"X1"/ red in colour, on outer aspect of right elbow;
(iv) an abrasion below naval admeasuring 2"X1/4",
(v) an abrasion admeasuring 1.5"X 2.5"/ right side of throat.
All of aforesaid injuries were caused by hard and blunt object within 5 to 8 hours of the examination. Appellant Shivcharan was refereed for X-ray examination of injury number 1. His M.L.C. Report is exhibit D-2.
Thus, it is clear that at least 5 injuries on the body of appellant Shivcharan and three injuries on the body of appellant Shrichand were present, which could have been caused in the incident. The prosecution witnesses, had failed to explain any of these injuries. In fact, they denied having seen any such injury on the person of the appellant. In these circumstances, relying upon the judgment rendered by the Supreme Court in the case of Laxmi Singh and others vs State of Bihar AIR 1976 SC 2263, learned counsel for the appellant has contended that the appellants deserve benefit of
doubt. In the case of Laxmi Singh (supra), the Supreme Court has relied upon the judgment rendered by an earlier case of Supreme Court Mohan Rai Vs. State of Bihar AIR 1995 S.C. 1674. It has been held in substance, in the case of Laxmi Singh as follows:
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altecaration 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 have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the procession one.
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 creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
However, we may note that none of the injuries sustained by appellant Shivcharan was visible, as none of them caused any bleeding. Likewise, there was only one injury on the person of appellant Shrichand, which was 1"x1/4" on left eyebrow, wherein the blood had clotted and which could be said to be visible. Moreover, none of aforesaid injuries was grievous in nature. The fact that these injuries were caused during the incident did not find place in the examination of the accused persons under Section 313 of the Cr.P.C. Moreover, a suggestion was made to Mohan (PW-
3) in his cross- examination that after the incident, the appellants were tied up in the courtyard of Sarpanch Munna Lal and Munna Lal, Mohan or some other persons had beaten up the appellants. In these circumstances, the possibility that aforesaid injuries were not caused by the Khoob Chand or Dwarika during the course of the incident also cannot be ruled out. It may further be noted that the injuries found on the person of the appellants pale into insignificance when compared to conspicuous and serious injuries sustained by the victims. In this regard, a three Judge Bench of the Supreme Court in the case of Takhaji Hiraji Vs. Thakore Kubersing Chaman Singh (2001) 6 SCC 145 has substantially held as
hereunder:
The view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.
Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions:
(1) that the injury on the person of the accused was a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in question.
Non-explanation of injuries assumes greater significance when
- the evidence consists of interested or partisan witnesses or
- where the defence gives a version which competes in probability with that of the prosecution.
Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood - the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.
The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons."
Likewise, another three Bench of the Supreme Court in the case of Rajendra Singh Vs. State of Bihar AIR 2000 SC 1779 has also held as follows:
The question whether non-explanation of the injuries on accused Rajender ipso facto cannot be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident.
It may be noted in this regard that not only the injuries found on the person of the appellants are insignificant and superficial, the eye witnesses in the case are neither interested nor partisan. There is no defence version which competes in probability with that of prosecution version; therefore, non-explanation of injuries found on the person of the appellants, does not dent the prosecution case in any manner.
The last question that remains for consideration is whether the act of appellant Shrichand would constitute murder punishable under Section 302 of the I.P.C? and if not, whether it would constitute an offence under Section 304 (Part-II).
It may be noted in this regard that the weapon used by appellant Shrichand for causing injury was an axe, which per se, is a dangerous weapon. Though, Mohan (PW-3) has stated that after the altercation between appellant Shrichand and deceased Khoob Chand started, appellant went home and returned with an axe in his hand. On the basis of aforesaid statement, learned panel lawyer for the respondent/State has argued that aforesaid act on the part of appellant Shrichand betrays his intention to cause death or at any rate, to cause such bodily injury; as is sufficient in the ordinary course of nature to cause death. However, it may be seen that Munna (PW-4), who was present on the spot throughout, has clearly stated that the axe used in the incident was all along in the hands of appellant Shrichand. Thus, on this point, the testimony of Mohan (PW-3) has been contradicted by Munna (PW-4). In such circumstances, the Court would prefer the statement that goes in favour of the accused. Munna (PW-4) has also admitted that preceding the incident, there was an altercation between appellant Shrichand on one hand and deceased Khoob Chand on the other on account of price of grass sheaves purportedly sold by appellant Shrichand to deceased Khoob Chand, with the deceased denying his liability to pay; as such, there was a sudden fight and the appellant was in the heat of passion upon a sudden quarrel and he inflicted solitary injury, without any premeditation upon the back of the deceased. It goes without saying that back is a non-vital part of the human body. If the appellant had intention either to cause death of the deceased or to cause him such bodily injury as is sufficient in the ordinary course of nature to cause death, he could easily have dealt a blow to his head, neck, chest or stomach which are vital parts. In these circumstances, it cannot be said that he had an intention to cause death or cause such bodily injury as was sufficient in the ordinary course of nature to cause death; therefore, his act would fall under exception No.4 of Section 300 of the I.P.C.
However, the blow was so severe that it cut through the ribs and caused a 2 inch deep wound in the lung. The injury was caused by a dangerous weapon like axe. Thus, the appellant Shrichand can certainly be attributed with the knowledge that aforesaid act was likely to cause death; therefore, his act would not come under the purview of Section 304 (Part-I) of the I.P.C. but 304 (Part-II) thereof.
On the basis of foregoing discussion, we are of the view that the trial Court erred in convicting appellant Shrichand under Section 302 . His act falls under Section 304 (Part-II) of the I.P.C.; therefore, his conviction is liable to be modified accordingly.
So far as the appellant Shivcharan is concerned, he inflicted a blow with sharp side of the axe to victim Dwarika; as a result, he suffered an incised wound admeasuring 3"x1" from which a lot of blood was gushing out. This fact has been proved by Dr. R.K. Bansod (PW-10). His report in this regard is Ex.P-17. In the X-ray examination of the left elbow joint of victim Dwarika, a fracture was detected. The X-ray plate is Ex.P-19, which had been admitted by the accused persons.
Thus, it is proved beyond reasonable doubt that appellant Shivcharan had caused an incised wound to left elbow of the victim Dwarika causing fracture of shaft of ulna bone. Thus, he has been rightly convicted under Section 326 of the I.P.C. for causing grievous injury to the victim Dwarika with a sharp cutting object.
On the basis of foregoing discussion, this appeal is allowed in part. The conviction of appellant Shrichand under Section 302 of the I.P.C. is modified to one under Section 304 (Part-II) of the I.P.C. The sentence of life imprisonment is reduced to one of rigorous imprisonment for a period of 10
years. Appellant Shrichand shall appear before the trial Court to undergo remaining part of his sentence (if any) on 10-7-
2017. In case he fails to appear before that Court as directed, the trial Court shall issue coercive process to make him undergo the modified sentence imposed upon him.
The appeal filed by appellant Shivcharan is dismissed.
His conviction and sentence under Section 326 of the I.P.C. is affirmed. He has already been released from jail after undergoing the entire jail sentence. (please refer to order dated 15.9.2008 passed in criminal appeal No.908/1998).
For the able assistance rendered by Shri Yogesh Soni, Advocate to this Court as amicus curiae, we direct the M.P.
State Legal Services Authority to pay a sum of Rs.5,000/-
(Rupees five thousand) to the learned amicus curiae as honorarium for defending the appellants in the present appeal.