Ram Kumar Kewat vs State of M.P.

S.P. Khare, J.

Appellant Ram Kumar has been convicted u/s 307, Indian Penal Code and sentenced to rigorous imprisonment for seven years and to a fine of Rs. 1,000/-.

The prosecution case is that on 7-1-1984 at about 8.30 P.M. complainant Vijay Kumar (P.W.4) had gone to the house of Chhotelal to ask for refund of some loan and there was exchange of hot words between the two. Accused Ram Kumar came there and asked his brother to bring Ballam from his house. When Ballam came in the hands of accused Ram Kumar the complainant started running away towards the tank and he was chased by accused Ram Kumar. The accused caused injuries to him on his abdomen and chest by this weapon. His intestines came out and the injuries started bleeding. The incident was witnessed by Bodhram (P.W.11), Narsibai (P.W.3) and Tejilal (PW 9) who are respectively brother, Bhabhi and father of the complainant. Bodhram (P.W. 11) lodged the FIR Ex.P-16 at Panagar Police Station on the same date at 10.30 P.M.. The complainant was sent to the Government hospital and he was examined by Dr. Arvind Kumar (P.W.1) who found one stab wound on his abdomen and the other on his chest as per report Ex. P-2. He was operated by Dr. V. M. Bhatnagar (P.W. 14) and his report is Ex.P-18. Ballam Article ''A'' was recovered from the possession of accused Ram Kumar. According to the prosecution the appellant attempted to commit murder of Vijay Kumar.

The accused pleaded not guilty. His defence as suggested in cross- examination of the prosecution witnesses is that the complainant unlawfully trespassed into the house of Uchchhibai with an evil design and he was caught hold of there. It is further suggested that the complainant was first to strike the appellant with a lathi on his head causing a lacerated wound on his head and a contusion on the left forearm and therefore the appellant acted in self-defence.

The trial court, after appreciation of the evidence on record held that the appellant attempted to commit murder of the complainant and the plea of the right of self-defence set up by the accused has been negatived.

In this appeal it has been reiterated that the injuries sustained by the appellant in this incident have not been explained and therefore the plea of self-defence set up by him is rendered reasonably probable. It is submitted that the conviction u/s 307, Indian Penal Code is not well founded and the sentence is excessive.

The evidence on record has been scanned by this Court. Vijay Kumar (P.W.4) has deposed that he had gone to the house of Chhotelal to demand his money from him and at that time there was some altercation between him and the wife of Chhotelal; at that point accused Ram Kumar came there and asked him what was the matter; he told the appellant that he has come to recover his money but the appellant uttered that he would not get any money and gave a slap to him; the appellant asked his brother Dilprasad to bring Ballam from his house and he would finish him with that weapon; Dil Prasad brought the Ballam from his house and gave it to the appellant; on seeing Ballam in his hand he started running and reached the highway No. 7 but he was chased and attacked by the appellant; he struck the Ballam in his abdomen which brought his intestines out and profuse bleeding started. He has further deposed that the appellant took out the Ballam from this injury and dealt another blow on his chest. As soon as he sustained the first injury he shouted and on hearing his cries Bodhram (P.W.11) and Tejilal (P.W.9) came there and they took him to the Government hospital at Panagar. He was referred to the Medical college, Jabalpur where his injuries were operated upon. In cross-examination he has denied that he was armed with lathi and he caused injury on the head of the appellant. He has also denied the suggestion that he had caught hold of Uchchhibai wife of Chhotelal. The testimony of the complainant has been corroborated by his brother Bodhram (P.W.11), his father Tejilal (P.W.9) and his bhabhi Narsibai (P.W.3). There is no material discrepancy in the statements of these witnesses. They have their house close to the place of incident and therefore their presence on the spot is quite natural. They have also denied the suggestion that the complainant was armed with lathi and he gave the first blow on the head of the appellant.

Dr. Arvind Kumar (P.W.1) has deposed that he had examined Vijay Kumar (P.W.4) on 7-1-1984 and he found (1) an incised wound (stab) on the anterior aspect of left side of lower abdomen size 2" x 3/4" x going deep into peritoneal cavity - loop of intestine along with its attachment was coming out from the wound - transverse in direction and (2) an incised wound (stab) on the anterior aspect of chest - one and a half inch above the lower end of sternum extending from right border of sternum towards the right side of the chest - size - 2" x 1/2" x communicating with right pleural cavity - Hissing sound. His report is Ex. P-2. Dr. v. M. Bhatnagar (P.W. 14) has deposed that he was Reader in Surgery in Medical college, Jabalpur and on 8-1-1984 he examined Vijay Kumar (P.W.4) and performed the surgical operation. He found (a) an incised wound on left iliac region, clean cut margins -3" x 2"- loops of intestine were lying outside the wound and (b) 4" x 2" x 1" wound on 4th intercostal space to the left of sternum - bone was injured - margins of wound were clean cut - Two perforations were present - each perforation was 1" in diameter - 2" dia. wound (perforation) was present in the bladder near its fundus area. His report is Ex. P-18.

Dr. Arvind Kumar as D.W. 1 has deposed that he had examined appellant Ramkumar on 7-1-1984 at 11.30 P.M. and he found (a) a lacerated wound on the left side of his head in fronto - parietal region 3" x 1/4" x scalp deep and (b) a contusion with abrasion 1" x 1" on left forearm. His report is Ex. D-1.

The learned counsel for the appellant relying upon a decision of the Supreme Court in Kashi Ram and Others Vs. State of M.P., has argued that a plea of self defence can be taken by introducing such plea in the cross- examination of prosecution witnesses or in the statement of the accused persons recorded u/s 313, Criminal Procedure Code or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case.

In the present case the accused has not set up the plea of self defence in his statement u/s 313, Criminal Procedure Code and he has also not examined Chhotelal or his wife to establish that the complainant had caught hold of the wife of Chhotelal or he had trespassed into her house as suggested in the cross-examination of complainant Vijay Kumar (P.W.4). There is no evidence to show that the complainant was armed with lathi at the time of the incident-except the suggestion in his cross-examination. As mentioned above, the prosecution has adduced cogent evidence to establish that the appellant asked his brother to bring Ballam from his house and then on seeing the Ballam in the hands of the appellant the complainant started fleeing from the place of incident and the appellant attacked him with the Ballam after chasing him upto the highway. It is clear that the appellant was in an aggressive posture and in an offensive mood. It is difficult to hold from the material on record that there is a probability of the complainant causing injury on the head of the appellant by a lathi. It is true that on medical examination the appellant was found to have a lacerated wound on his head and a contusion on his left forearm, but these were minor injuries compared to the serious injuries sustained by the complainant at the hands of the accused. It cannot be said even on the basis of preponderance of probability that the complainant was first to mount an attack on the appellant. In such a case failure of the prosecution to explain the minor injuries of the appellant is not fatal. The appellant might have sustained injuries on his head and on his forearm during the course of incident or otherwise without the knowledge of the complainant and, therefore, he is not in a position to explain these injuries. In Ayodhya Ram alias Ayodhya Prasad Singh and Others Vs. State of Bihar, it has been held that the prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score.

In Takhaji Hiraji Vs. Thakore Kubersing Chamansing and Others, , the law on this point has been recapitulated by the Supreme Court. It has been laid down 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: (i) that the injury on the person of the accused was of 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.

In the present case on a consideration of the totality of the evidence on record it is found that the plea of self defence set up by the appellant is not reasonably probable. The appellant was first to cause injuries to the complainant with his Ballam and these injuries were of serious nature. The manner in which the appellant called the Ballam from his brother, chased the complainant and attacked him clearly go to show that the appellant was the aggressor. Nonexplanation of the minor injuries of the appellant in this case does not render the prosecution case untrue. The appellant cannot be said to have acted in self defence. The trial Court has rightly negatived this plea.

The conviction of the appellant for the offence u/s 307, Indian Penal Code is unassailable. The nature and the size of the weapon and the vital parts of the body on which these serious injuries were inflicted to bring the case within the ambit of section 307, Indian Penal Code. The conviction of the appellant for the aforesaid offence is confirmed.

However, keeping in view the fact that about 13 years have lapsed since the date of incident and other facts and circumstances of the case, the substantive sentence of rigorous imprisonment of seven years is reduced to four years. With this modification in the sentence, the appeal is dismissed.