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Judgment
Kanwaljit Singh Ahluwalia, J—Prosecution case, in nut-shell is that Smt. Narbda (deceased) was married with Roopa (PW-6). Roshan (PW-11) is her son. On 18th of September, 2007 at 07:00 A.M. Smt. Narbda, as a result of injury caused by her brother, Omprakash (appellant No. 1 herein), as per the Post Mortem Report (Exhibit-P/54) had died on the very same day at 04:40 P.M.
Thus, in the present case, due to fatal injury caused by the brother (Omprakash), sister (Smt. Narbda) had died, and her husband, Roopa (PW-6) & her son Roshan (PW-11) have also sustained injuries in the alleged incident.
In the instant case, Prahlad (PW-15), Ramswarrop (PW-16), Omprakash, (appellant No. 1, herein) and Narbda (deceased) are real brothers and sister.
In the occurrence, Omprakash (appellant No. 1, herein), his wife Smt. Manbhar Devi (appellant No. 2, herein) and Mukesh (appellant No. 4, herein) had suffered injuries.
A cross case, bearing First Information Report No. 142/2007 at Police Station, Vijay Nagar, District Ajmer was registered against Roopa (PW-6) and his son Roshan (PW-11) for causing murder of Smt. Narbda (deceased). And for causing murder of Narbda and injuries to Roopa (PW-6) and Roshan (PW-11), an another First Information Report, bearing No. 143/2007 was also registered at Police Station, Vijay Nagar, District Ajmer.
After investigating in the above said First Information Report, bearing No. 143/2007 lodged by Mahaveer (PW-1) son-in-law of deceased Narbda, five persons, namely (i) Omprakash s/o. Hajari, (ii) Smt. Manbhar Devi W/o. Omprakash, (iii) Ratan Lal s/o. Hajari Lal (iv) Mukesh s/o. Narayan and (v) Sanwar Lal s/o. Rampal were sent for the trial. Though name of father of Omprakash and Ratan Lal is same, but they belongs to different caste.
The Court of Additional Sessions Judge (Fast Track), No. 1, Beawar, District Ajmer, vide its impugned judgment dated 26.05.2012, has held the appellants, namely (i) Omprakash s/o. Hajari, (ii) Smt. Manbhar Devi w/o. Omprakash, (iii) Ratan Lal s/o. Hajari Lal, (iv) Mukesh s/o. Narayan and (v) Sanwar Lal s/o. Rampal, guilty for offences punishable under Sections 148, 341, 323, 325 and 302 read with Section 149 of Indian Penal Code.
Having convicted the appellants for the above said offences, the trial Judge, vide a separate order of even date, sentenced them as under:-
"For offence under Section 148 I.P.C. the appellants were sentenced to undergo two years simple imprisonment and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo one month additional simple imprisonment.
For offence under Section 341/149 I.P.C. the appellants were sentenced to undergo one month simple imprisonment.
For offence under Section 323/149 I.P.C. the appellants were sentenced to undergo three months simple imprisonment and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo one month simple imprisonment.
For offence under Section 325/149 I.P.C. the appellants were sentenced to undergo three years simple imprisonment and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo one month simple imprisonment.
For offence under Section 302/149 I.P.C. the appellants were sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each. In default of payment of fine to further undergo six months simple imprisonment.
All the sentences were ordered to run concurrently."
Whereas in the cross-case, vide a separate judgment of even date, Roopa (PW-6) and Roshan Lal (PW-11) were also convicted by the Court of Additional Sessions Judge (Fast Track), No. 1, Beawar, District Ajmer, for offences punishable under Sections 447, 323 and 324 read with Section 34 of Indian Penal Code, for causing injuries to the appellants, namely Omprakash, Smt. Manbhar Devi w/o. Omprakash and Mukesh S/o. Narayan.
In the cross-case, vide a separate judgment and order of even date, the trial Court has sentenced the appellants, namely Roopa (PW-6) and Roshan Lal (PW-11) as under:-
"For offence under Section 447/34 I.P.C. the appellants were sentenced to undergo three months simple imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo fifteen days additional simple imprisonment.
For offence under Section 323/34 I.P.C. the appellants were sentenced to undergo six months simple imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo fifteen days simple imprisonment.
For offence under Section 324/34 I.P.C. the appellants were sentenced to undergo two years simple imprisonment and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo one month simple imprisonment.
All sentences were ordered to run concurrently."
Aggrieved against their conviction and sentence, the present appellants, namely (i) Omprakash s/o. Hajari, (ii) Smt. Manbhar Devi w/o. Omprakash, (iii) Ratan Lal S/o. Hajari Lal, (iv) Mukesh s/o. Narayan and (v) Sanwar Lal s/o. Rampal, have instituted instant D.B. Criminal Appeal No. 528/2012, whereas in a cross-case, Roopa (PW-6) and his son Roshan Lal (PW-11), have preferred S.B. Criminal Appeal No. 452/2012, under Section 374(2) of the Code of Criminal Procedure, 1973.
Since both the aforequoted appeals pertain to the same incident, we shall decide both the appeals separately, but simultaneously.
In the instant case, the criminal proceedings were set into motion on the basis of written-report (Exhibit-P/1), presented by Mahaveer s/o. Suva Lal (PW-1), son-in-law of Roopa (PW-6), before Assistant Sub-Inspector, Bholu Singh (PW-17), who was then posted at Police Station, Vijay Nagar, District Ajmer.
Mahaveer (PW-1), in the written-report (Exhibit-P/1) stated that on 18.09.2007 at about 09:00 A.M., he was present in the mandi (staple). He was informed by Hariprasad that his father-in-law, mother-in-law and brother-in-law (wife''s brother) have been taken to the hospital, due to beating caused. The witness (Mahaveer) came to the hospital and found his father-in-law, mother-in-law and brother-in-law admitted in the hospital. He was informed by Roopa (PW-6), father-in-law that he along with his wife, Narbda and son Roshan (PW-11), all three were working in the field. Accused, Omprakash, Smt. Manbhar Devi, Mukesh, Rakesh, Sanwar Lal and Ratan Lal came armed with lathis (sticks) & kulharis (axes) and gave beating. At that time, Mahaveer Dhobi s/o. Raymal (PW-5), who was also working in the nearby field, had seen the alleged occurrence. After beating, accused left Narbda (deceased), Roopa (PW-6), father-in-law and Roshan Lal (PW-11), brother-in-law in the field beneath the acacia (babul) tree. Ramswaroop (PW-16) and Prahalad (PW-15) brought injured to the Hospital.
From perusal of above said written-report (Exhibit-P/1), the following facts are discernible:--
"(a) THAT Mahaveer (PW-1) is not an eye-witness of the alleged occurrence.
(b) THAT the incident was relayed to him (Mahaveer) by his father-in-law, Roopa (PW-6).
(c) THAT Roopa (PW-6), father-in-law had stated that occurrence was witnessed by Mahaveer Dhobi (PW-5) who was working in the nearby field.
(d) THAT Prahlad (PW-15) and Ramswaroop (PW-16) transported the injured from the alleged field to the Hospital at Vijay Nagar.
(e) THAT in the occurrence, Roopa (PW-6), husband of the deceased, Narbda and Roshan Lal (PW-11), son of the deceased are injured eye-witnesses."
In the present case, the prosecution agency, during trial, in all, had examined eighteen-witnesses and also proved on record sixty-documents, being Exhibit-P/1 to Exhibit-P/60-A respectively.
The statement of accused were recorded under Section 313 of Code of Criminal Procedure, 1973. They denied all the incriminating evidence put to them and pleaded innocence.
Three injured appellants, namely Omprakash, Smt. Manbhar Devi and Mukesh had taken a plea that first they were caused injuries by the complainant-party and in their self-defence they had also caused injuries to the complainant party.
In support of the version, the accused have proved on record five documents, being Exhibit-D/1 to Exhibit-D/5-A. Exhibit-D/1 and Exhibit-D/2 are statements of Roopa (PW-6) and Roshan Lal (PW-11) recorded by the Police under Section 161 Cr.P.C. during investigation, whereas Exhibit-D/3-A to Exhibit-D/5-A are Injury Reports of Omprakash, Smt. Manbhar Devi and Mukesh respectively.
In defence, accused had not examined any witness.
We shall first notice Medical Evidence.
Dr. Rajendra Khadia (PW-3) on 18.09.2007 at 11:00 A.M. had examined Roopa (PW-6), aged about sixty-years, and as per Injury Report (Exhibit-P/4) found the following injuries on his person:-
Swelling 4" x 4" left forearm upper 1/3rd
Swelling 2" x 2" left hand dorsally
Swelling with lacerated wound 2"x 2" and 1" x 1" x 1 c.m. at right elbow
Compound fracture with two lacerated wound 2 c.m. x 2 c.m. x bone deep at right leg upper 1/2
Lacerated wound 2 c.m. x 1 c.m. x 1 c.m. left leg upper
1/3 side.
Lacerated wound 2 c.m. x 2 c.m. at scalp
Swelling 2" x 2" at right hand frontal region."
After radiological examination of Roopa (PW-6), it was found that Injury Nos. 1, 4, 5 and 7 caused by blunt weapon, were grievous in nature, whereas Injury Nos. 2 and 3 were declared as simple in nature.
On the very same day and time, Dr. Rajendra Khadia (PW-3) had also examined injured, Roshan Lal (PW-11), and as per Injury Report (Exhibit-P/11) found following five injuries on his person:-
Lacerated wound 2 c.m. x 2 c.m. x 2 c.m. left elbow.
Two lacerated wound 2 c.m. x 2 c.m. 2 c.m. left forearm upper 1/2
Two lacerated wound 2 c.m. x 2 c.m. x 1 c.m. right leg upper 1/2
Swelling 2" x 3" left forearm lower 1/2
Swelling 2" x 2" left leg."
After radiological examination of injured Roshan Lal (PW-11), it was found that Injury Nos. 2 and 4, caused by blunt weapon, were grievous in nature, whereas, Injury Nos. 1, 3 and 5 were declared as simple in nature.
On the very same day and time, Dr. Rajendra Khadia (PW-3) had also examined Narbda (deceased), and as per Injury Report (Exhibit-P/17) found following injuries on her person:-
Lacerated wound 1 c.m. x 1 c.m. x 1 c.m. right elbow.
Swelling 1" x 1" and lacerated wound 2 c.m. x 2 c.m. right hand (MP joint 2nd)
Lacerated wound 3 c.m. x 2 c.m. at right hand thumb (MP joint).
Two lacerated wounds 2 c.m. x 2 c.m. at right knee and swelling and fracture 4 c.m. x 4 cm.
Lacerated wound 2 c.m. x 2 c.m. x 2 c.m. left leg upper 1/3 bone deep
Lacerated wound 2 x 2 x 1 c.m. at left leg lower 1/3.
Complain of pain in abdomen, lack of blood and internal injury."
It will be pertinent to note here that Injury No. 7 is complain of pain in the abdomen, but Dr. Rajendra Khadia (PW-3) while preparing Injury Report (Exhibit-P/17) has not found any injury on the head of Narbda (deceased).
Dr. Rajendra Khadia (PW-3) on 18.09.2007 at around 11:30 A.M. had also examined appellants, namely Omprakash, his wife Smt. Manbhar Devi, and Mukesh s/o. Narayan.
As per Injury Report (Exhibit-D-3/A) of appellant, Omprakash, Dr. Rajendra Khadia (PW-3) had found following injuries:-
Incised wound 3 c.m. x 1 c.m. x 1 c.m. left side of scalp, fronto parietal region.
Incised wound 2 c.m. x 2 c.m. 1 c.m. back side right scapular area.
Complain of pain right thigh and right leg."
It is pertinent to note here that Injury No. 1 is incised wound on the head of Omprakash.
On the very same day and time, Dr. Rajendra Khadia (PW-3), had also examined appellant, Smt. Manbhar Devi w/o. Omprakash, and as per Injury Report (Exhibit-D/4-A) found following four injuries on her person:-
Incised wound 5 c.m. x 2 c.m. x 2 c.m. left shoulder lat.
Incised wound 3 c.m. x 2 c.m. 2.2 c.m. left arm upper 1/3
Incised wound 2 c.m. x 2 c.m. x 1 c.m. scalp fronto region
Swelling 2" x 2" behind right hand."
Injury No. 3 on the person of injured, Smt. Manbhar Devi is on the head.
Dr. Rajendra Khadia (PW-3) on 18.09.2007 itself had examined appellant, Mukesh and found two abrasions on his person. Both the injuries were declared as simple in nature, even though Injury No. 2 was on the head.
Thus, it is apparent that all injuries on two eyewitnesses, Roopa (PW-6), Roshan Lal (PW-11) and Narbda, deceased have been caused with blunt weapon, whereas injury on person of accused Omprakash and Manbhar have been caused with incised weapon and on person of Mukesh, accused with blunt weapon.
In the present case, Smt. Narbda while admitted in the hospital, had died.
Dr. R.K. Mathur (PW-14) on 19.09.2007, being posted as Medical Jurist at J.L.N. Hospital, Ajmer, had conducted autopsy on the dead-body of Smt. Narbda, and as per Post Mortem Report (Exhibit-P/54), found following injuries on the person of deceased Smt. Narbda:-
Stitched wound on the right elbow 1.5 cm.
Contused swelling on the right hand dorsally with a stitched wound on right hand 2 cm.
Stitched wound on right hand at MP joint 3 cm.
Stitched wound on the front of right knee 3 cm.
Stitched wound below Injury No. 4, 2 cm.
Stitched wound on left leg lateral 4 cm.
Stitched wound below Injury No. 6, 3 cm
Contused swelling right thigh with fracture right tissue stroke.
Lacerated wound on the head 4 x 2 c.m. bone deep."
Injury No. 9 is on the head. The said injury was not noted in the Medico-Legal Report (Exhibit-P/17) prepared by Dr. Rajendra Khadia (PW-3). Dr. R.K. Mathur (PW-14) stated that Injury No. 9 was fracture on parietal bone, resulting into swelling on the brain.
As per opinion of the Medical Board, the cause of death was injury, caused on the head of deceased, which was ante-mortem in nature.
It will be necessary for us to highlight Injury No. 9, which had proved fatal and was not noted by Dr. Rajendra Khadia (PW-3) in the Injury Report of Narbda (Exhibit-P/17) prepared by him.
From analyzing the case of prosecution, Roopa (PW-6), injured husband of deceased (Smt. Narbda) and Roshan Lal (PW-11), injured son of the deceased (Smt. Narbda) are material witnesses, along with Mahaveer (PW-5) whose presence has been admitted in the First Information Report and also by the injured eye-witnesses in their deposition before the Court. Testimony of Prahlad (PW-15) and Ramswaroop (PW-16), who had carried injured from the side of the complainant as well as accused to the hospital are also required to be considered. However, we shall not adduced to the evidence of remaining witnesses as not much hinges upon their deposition in the Court.
We shall first take note of testimony of Roopa (PW-6).
In the Court, Roopa (PW-6) stated that eight/nine months ago at 07:00 A.M., he was present in his field, along with Roshan and Narbda, the mother of Roshan. They have been cultivating the said field from last four/five years. This witness further stated that he and Omprakash had purchased the alleged field. It was deposed that the alleged field has not been partitioned in the Revenue Records between Omprakash and this witness. However, they had divided said land by making boundary wall between them. The witness stated that he went to the field to operate/switch on the motor. At that time, Ratan Lal, Bhanwar Lal, Mukesh, Omprakash, Smt. Manbhar w/o. Omprakash and Rakesh concealed themselves. On his arrival, they all started beating. Omprakash was armed with kassi. Manbhar was armed with spade (fawda) and remaining four were armed with sticks. The said persons have given beating to him, his son Roshan (PW-11) and wife Narbda (deceased). Lastly, this witness, in the Court, stated that the above said occurrence was witnessed by Mahaveer Dhobi, as Mahaveer came to plough our field.
The exact words stated by this witness are as follows:-
In cross-examination, this witness (PW-6) admitted that a cross-case has also been registered against him and his son, Roshan (PW-11). The witness further stated that the field where the well is situated and the motor was installed belongs to him and Omprakash. Lastly, this witness stated that he is not aware, when he was admitted in the hospital, the accused were also admitted there or not.
To be precise, this witness stated as under:-
Roshan (PW-11) corroborating the testimony of his father, stated that Omprakash gave a kassi blow to his mother. Lastly, this witness stated that Mahaveer Dhobi (PW-5), who was ploughing our in the nearby field, intervened.
We may note here that Roopa (PW-6) and Roshan Lal (PW-11) have not explained the injuries on the person of three accused-appellants, namely Omprakash, Smt. Manbhar Devi and Mukesh. Omprakash and Smt. Manbhar have also sustained injury on the head caused by incised weapon.
Thus, it is apparent that Roopa (PW-6) and Roshan (Pw-11) are not telling the whole truth to this Court.
Prahlad (PW-15), in the Court stated that Omprakash is his brother and Narbda (deceased) was his elder sister. His land was away from the place of occurrence, whereas, Omprakash and Narbda were having adjoining land and both were having half share in the field. The witness stated that the complainant, and accused, Omprakash had partitioned their land by way of mutual arrangement. The witness stated that he learnt that a fight had taken place between Narbda and Omprakash. The witness reached at the spot and saw that a fight was going-on between them in the field of Omprakash and both the parties were not stopping. Roopa (PW-6) was armed with Kulhari. Roshan (PW-11) was armed with spade (fawda). Narbda was armed with kudal and Sanwar Lal was having lathi. Lastly, this witness stated that Omprakash, Smt. Manbhar Devi and Mukesh were taken to the hospital in a tempo, whereas the complainant-party, Roopa (PW-6), Roshan (PW-11) and Narbda (deceased) were taken to the hospital in a Maruti van.
Thus, from the testimony of Prahald (PW-15), it is apparent that a fight had taken place between both the parties and at the same time, three accused, namely Omprakash, Smt. Manbhar Devi and Mukesh were transported to the hospital in a tempo, whereas Roshan, Roopa and Narbda were taken to the hospital in a Maruti van. The exact words stated by the witness are as follow:-
In the Court, Prahlad (PW-15) also stated that at the time of occurrence, Roopa (PW-6) was armed with Kulhari, Roshan (PW-11) was armed with spade (fawada) and Narbda (deceased) was armed with kudal.
Curiously enough, Roopa (PW-6) and Roshan (PW-11), in the Court, are silent about their role, even though Prahlad (PW-15) has assigned weapon to Roopa (PW-6). Roshan (PW-11) and deceased (Narbda). They have not uttered a single word in the Court regarding their being armed and having caused injuries to accused-appellants.
Rather, Roopa (PW-6), in the Court, had taken a recourse to falsehood and stated that it is wrong that from their side injuries were caused to Omprakash and his brother Ramswaroop or Narbda, deceased had caused injury with kudali to Smt. Manbhar Devi.
We shall reproduce here the following portion from the testimony of Roopa (PW-6):
Thus, to us, Mahaveer s/o. Raimal (PW-5), whose presence has been admitted by Roopa (PW-6), Roshan (PW-11) and Prahlad (PW-15), is the most independent witness.
Mahaveer (PW-5), in the Court, has stated that when the motor was started, a fight had ensued. The exact words are that
However, this witness (Mahaveer PW-5) stated that Omprakash caused first blow to Roshan (PW-11). The witness further stated that Omprakash, his wife Smt. Manbhar Devi and son Mukesh caused injuries to Roshan (PW-11). Thereafter, witness left the spot. Roshan (PW-11) had suffered injury on his hand and feet. The witness has not seen any injury on the person of Narbda (deceased).
Taking totality of circumstances, which has emerged in the prosecution evidence, and the fact that Roopa (PW-6) and Ratan Lal (PW-11) have denied causing any injuries to the accused, we are of the view that they have suppressed the origin and genesis of the occurrence.
Non-explanation of the injuries on the person of the accused by two witnesses, namely Roopa (PW-6) and Roshan (PW-11), who as per Prahlad (PW-15) were armed with the weapon, cannot be viewed lightly.
It will be necessary to mention here that counsel for the appellants has relied upon the case of Lakshmi Singh and Others Vs. State of Bihar, reported in (1996) 4 Supreme Court Cases 394, wherein it was held by the Hon''ble Apex Court that if the injuries on the person of accused are not explained, it is to be assumed that prosecution has suppressed genesis and origin of the occurrence and, thus, they have not presented the true version.
It is apposite to reproduce here relevant Paras of the aforesaid judgment:-
"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:
In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975:) one of us (Untwalia, J., speaking for the Court, observed as follows:
In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
It seems to us that 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 altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup-pressed 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."
Thus, Mahaveer (PW-5), who was declared hostile to the prosecution seems to be a truthful witness to the extent that when motor was started, a fight had erupted between both the parties.
Thus, the present is one case, where a sudden fight had ensued and the case, if any, fall within Exception 4 to Section 300 I.P.C.
Exception 4 to Section 300 I.P.C. reads as follows:-
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
It was held by the Hon''ble Supreme Court in the case of Jumman and Others Vs. The State of Punjab, AIR 1957 SC 469 : (1957) CriLJ 586 as under:-
"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under S. 300, I.P.C., Exception 4.
(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to S. 300, I.P.C., applies with the result that the offence is under S. 304 (Part I), I.P.C."
A Division Bench of this Court in Buddhi and Others Vs. State of Rajasthan, (2006) 3 RLW 1950 : (2006) 3 WLC 217 , relying upon Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 held as under:-
"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."
Roshan (PW-11), in the Court, stated that Omprakash had caused injury with a Kassi on the head of Narbda.
Having held that in the present case, occurrence had taken place without any premeditation, a sudden fight had erupted and it is difficult to find which party was aggressor, therefore, as per law laid down in the case of Jumman & Ors. and Buddhi & Ors. (supra), we are of the view offence, if any, qua Omprakash will not fall under Section 302 I.P.C. but under Section 304-Part-I, I.P.C.
Appellants, Smt. Manbhar and Mukesh are also injured in the occurrence and their presence at the spot is stamped, therefore, they will be responsible for causing grievous injuries with weapon in their hand to Roopa (PW-6) and Roshan (PW-11) individually, thus, they are acquitted of offences under Sections 302 read with Section 149 I.P.C., but are held individually responsible for offence under Section 325 I.P.C.
We maintain conviction of appellants, Omprakash, Smt. Manbhar Devi and Mukesh for offence under Sections 323 and 325 I.P.C.
However, all three appellants, Omprakash, Smt. Manbhar Devi and Mukesh are acquitted of offences punishable under Sections 148 and 302 read with Section 149 I.P.C.
As a result of above discussions, the appellant, Omprakash due to modification in offences stand convicted for offence punishable under Section 304 Part-I, 325 and 323 I.P.C., where as other appellants, Smt. Manbhar & Mukesh are convicted for offences punishable under Sections 325 and 323 I.P.C.
However, we set aside the life imprisonment awarded upon Omprakash under Section 302 I.P.C. and sentence him under Section 304 Part-I I.P.C. to undergo ten-years rigorous imprisonment and to pay a fine of Rs. 10,000/-. In default thereof to further undergo one year rigorous imprisonment.
The sentence awarded to Omprakash for offence punishable under Sections 325 and 323 I.P.C. by the trial Court is maintained and same shall run concurrently with the sentence awarded under Section 304 Part-I of I.P.C.
Appellant, Smt. Manbhar Devi is a lady. The age of appellant, Mukesh at the time of recording statement under Section 313 Cr.P.C. has been noted as twenty-six years.
Considering the fact that appellant, Smt. Manbhar Devi is a lady & the age of appellant, Mukesh and the fact that from last eight-years, they are in the corridor of the Court and had suffered a protracted trial, we are of the view that no useful purpose will be served by sending them behind the bars.
Furthermore, we are also of the view that an opportunity can be granted to them to follow the path of rectitude. Hence, while maintaining their conviction under Sections 325 and 323 I.P.C., we order that they shall be released on probation for a period of one-year and shall deposit a cost of Rs. 5000/- each. They shall also furnish a personal bond/bonds of the sureties before the trial Court, in which it shall be specified that during the period of probation, they shall be of peace and maintain good conduct.
We empower the trial Court also to specify any other condition in the requisite bonds and the bonds to be furnished by the sureties. The trial Court is further empowered to call upon the accused to serve their sentence, in case of any breach of terms and conditions to be specified in the bonds by the trial Court.
The fine and cost, so deposited shall be disbursed to the legal heirs of deceased, Narbda as compensation.
Now we shall consider the case of remaining two accused, namely Ratan Lal s/o. Hajari Lal and Sanwar Lal s/o. Rampal. They have not suffered any injury in the occurrence. Thus, their presence at the spot is not stamped.
Mahaveer (PW-5), who is an independent witness, is totally silent about presence of these two accused at the time of alleged occurrence. He has not named them as accused.
Roopa (PW-6) has stated that Omprakash was armed with Kassi, Smt. Manbhar Devi was armed with spade (fawda) and remaining accused were armed with sticks. This witness, in the statement made in Court has not attributed any specific injury to appellants, Ratan Lal and Sanwar Lal.
In the present case, occurrence has taken place on 18.09.2007 at 09:00 A.M., First Information Report (Exhibit-P/50) was registered on the very same day at 01:00 P.M. and the special report had reached Illaqa Magistrate on 19.09.2007 at 10:30 A.M. at Vijay Nagar.
Vijay Nagar is a small town. Police Station, Court and Residence of the Magistrate are situated in the closeby vicinity, thus, the delay in reaching of special report remain unexplained.
In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:-
"6. This Court in Meharaj Singh (L/Nk.) vs. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.
In the instant case, the copy of the report referred to in Section 157 Cr.P.C. is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 Cr.P.C., particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 Cr.P.C. to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."
Thus, by sifting the grain from the chaff and considering the fact that presence of Ratan Lal and Sanwar Lal in the occurrence is not stamped, independent witness, Mahaveer has not named them as accused and is silent, qua their presence and Roopa (PW-6) has not assigned them any specific role and furthermore, considering the fact that other two accused were also armed with similar weapons i.e. lath is and injury can also be caused by them, therefore, taking delay in reaching of special report along with above fact as spell out by us and as a matter of abundant caution, we extend the benefit of doubt to appellants, Ratan Lal and Sanwar Lal.
As a result of above discussions, we accept the present appeal, qua Ratan Lal and Sanwar Lal and they are acquitted of the charges. Conviction pronounced and sentence awarded upon them by the trial Court is set aside and they are acquitted of the charges.
The learned trial Court shall adhere to provisions of Section 437-A Cr.P.C. to give effect to our judgment, qua each accused-appellants.
With the above modification, the present appeal stands disposed of.