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Judgment
Hon''ble Shri Justice Anil Kumar Sharma
Appellants have filed this appeal against judgment dated 14.10.1997 passed in Sessions Trial No. 118/1995 by the learned Additional Sessions Judge, Dhar, whereby appellant No. 1 has been convicted for the offence punishable u/s 304-I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 4,000/-has also been imposed upon him; appellant No. 2 has been convicted for the offence punishable u/s 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and fine of Rs. 2,000/-has been imposed upon him, with default stipulation. Brief facts of the case are that on 25.08.1994, there was some altercation between complainant Ashok and accused No. 1 Ram Prasad. Thereafter, on 26.08.1994 at about 11.00 AM, while deceased Shankarlal was returning from temple to his house, it is alleged that accused Ram Prasad, Hira Singh and Amar Singh and Narayan Singh armed with sharp weapons stopped Shankarlal. On call of Shankarlal, his brothers Ashok, Pyarchand and Pannalal reached to the spot. Accused persons started beating Shankarlal; due to which, he sustained grievous injury of cut on his right hand. Shankarlal was taken to Police Station Kanvan where he lodged the report. Thereafter, Shankarlal died. His brothers also got injured in the incident. On report of Shankarlal, Station House Officer, Kanval, District Dhar registered a case and on filing of challan, learned trial Court has tried four accused persons for the charges of offence punishable under Sections 341 and 324 in alternative u/s 302 read with Section 34 of the IPC and after trial, convicted appellant Ram Prasad for the offence punishable u/s 304-I of the IPC and appellant Hira Singh for the offence punishable u/s 324 IPC and sentenced him as mentioned in para 1 of the judgment. Co-accused Narayan Singh and Amar Singh have been acquitted from all the charges and appellant Ram Prasad has also been acquitted from the charge of offence punishable u/s 324 IPC and appellant Hira Singh has also been acquitted from the charges of offence punishable under Sections 341 and 302 in alternative u/s 302/34 IPC.
Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that learned trial Court has erred in convicting appellants, after arriving at the conclusion that there was free fight between both the parties and injury sustained by the victim was not on vital part of the body and further injury was not dangerous to life.
Main point for consideration in this appeal is whether learned trial Court is justified in convicting the appellants by the impugned judgment.
Learned Counsel for appellants has drawn attention towards paragraphs No. 26, 28 and 35 of the impugned judgment and submitted that learned trial Court has held that there was free fight between complainant and accused party and on that count; appellants have been acquitted from the charges of offence punishable u/s 341 IPC. Learned Counsel for appellants has further submitted that in the absence of evidence regarding who has attacked first, appellants cannot be held guilty for the offence, for which they have been convicted. Learned Counsel for the appellants has further submitted that learned trial Court has further not considered the fact that appellants have also been injured in the incident.
Learned trial Court in paragraph No. 23 of the impugned judgment has considered the fact that Investigating Officer Pratik Rai (PW-10) has stated that appellant Ram Prasad has lodged report Ex. D/4. Learned trial Court has disbelieved self-defence of appellants / accused in paragraph No. 20 of the impugned judgment, by holding that since attack was of simple nature, right of self-defence, is not applicable to the appellants / accused. Injury sustained by Ram Prasad was of simple nature.
Learned Counsel for the appellants has drawn attention towards the statement of Dr. Anant Rao Dube (PW-1), who in his cross-examination stated that he has examined Ram Prasad and found ten injuries on his body, which were of simple in nature and were caused by hard and blunt object. His report is Ex. D/1. He has also examined Hira Singh and found four injuries on his body and advised for X-ray of Injury No. 1 and 4. Final Report Ex. D/5 shows that against complainant party, challan has been filed for offence punishable u/s 324, 147, 149 and 325 IPC and X-ray report Ex. D/6 shows that Hira Singh sustained fracture of 4th metacarpal bone. Learned Counsel for appellants has submitted that learned trial Court has failed to consider the fact that one of the appellants has sustained grievous injury even then learned trial Court has not given benefit of right of self-defence to the appellants.
Learned Counsel for appellants has cited judgment of Hon''ble Apex Court in the matter of Subramani and others v. State of Tamil Nadu reported in 2002 Supreme Court Cases (Criminal) 1659, in which it has been held that once it is held that accused had the right of private defence and reasonable apprehended that death or grievous bodily injury hurt would be the consequence if right of private defence was not exercised, right of private defence of property extended u/s 103 IPC to voluntarily causing death of aggressor subject to restrictions mentioned in Section 99 IPC. Intention of the appellants was not to cause death of deceased, but they had acted in exercise of right of private defence. While acting in exercise of right of private defence, appellants cannot be said to be motivated by common intention to commit criminal act.
Learned Counsel for the appellants has also cited judgment of Hon''ble Apex Court in case of Lakshmi Singh and others v. State of Bihar reported in AIR 1976 Supreme Court 2263, in which it has been held 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 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 persecution 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 prosecution one.
Learned Counsel for appellants has drawn attention towards the statement of Dr. Anant Rao Dube (PW-1), who has stated that Injury No. 1 of Shankarlal, which was incised wound of 8 x 2 cms bony deep on the thumb, was of grievous in nature and it was dangerous to life because of which vain has been cut. But, in cross-examination, doctor has admitted that other injuries sustained by Shankarlal were of simple in nature and none of the injuries was found on vital part of the body.
Learned Counsel for the appellants has further drawn attention to the statement of Ashok (PW-2), who in his cross-examination shown ignorance that how Ram Prasad sustained injury on his head, but admitted that Hira Singh and Ram Prasad were sent for medical examination on Kanvan Hospital. He has further admitted that he along with Pyarchand, Pannalal and Bandarlal, is facing trial for offence in the Court of Magistrate at Badnagar. He has further admitted that in report Ex. P/5 lodged by him, there is no clear mention that Ram Prasad inflicted Farsi on the right hand of Shankar.
Learned Counsel for appellants has further drawn attention towards the statement of Praychand (PW-3), who has stated that Ram Prasad, Hira Singh, Narayan Singh inflicted Farsi on the hand of Shankar. In cross-examination, he has admitted that he has not seen any injury on the body of Ram Prasad and Hira Singh. He has further admitted that on report of Ram Prasad, case is pending against his father and three brothers. He has further exaggerated his statement by saying that Ram Prasad, Hira Singh and Narayan Singh inflicted one or two Farsi blow each on the hand of Shankar, while Shankar has sustained only one injury on the hand by sharp weapon. This witness has further admitted that when they reached to Police Station, Hira Singh and Ram Prasad had already reached to the Police Station. Police has taken him and his brothers in custody on the report of Ram Prasad. This fact has also been admitted by Pannalal (PW-4).
Learned Counsel for appellants has further submitted that all these prosecution witnesses have admitted that case is pending against them on the report of complainant Ram Prasad and they have shown ignorance about injuries sustained by Ram Prasad and Hira Singh. Therefore, learned trial Court is not justified in convicting appellants by believing the unreliable testimony of the prosecution witnesses and not believing the fact that appellants were exercising their right of self-defence of body.
Since there is conclusion regarding free fight between both the parties, there is no evidence that who was the aggressor and one of the appellants has sustained grievous injury, prosecution witnesses have not explained injuries sustained by the appellants. Therefore, the prosecution evidence relied for conviction of the appellants as the witnesses are hiding the facts, which are against them. Therefore, considering the judgments cited by the Learned Counsel for the appellants, evidence on record shows that appellants were exercising their right of private defence of the body, therefore, learned trial Court is not justified in convicting the appellants. Therefore, appeal is allowed and impugned judgment of conviction passed by the learned trial Court is set aside. Appellant Ram Prasad is acquitted from the charges of offence punishable u/s 304-I of the IPC and appellant Hira Singh is acquitted from the charge of offence punishable u/s 324 IPC. Fine amount, if deposited by the appellants, be refunded to them. Bail bonds of the appellants are discharged.