Bapu vs State of M.P.

S.L. Kochar, J.

THIS Criminal Appeal is directed by the Appellant against Judgment dated 20th Dec.2004 passed by Additional Sessions Judge, Ujjain in Sessions Trial No. 372/03 thereby convicting the Appellant for the offence punishable under Sections 307 and sentencing him to suffer Rigorous Imprisonment for 10 Years with fine of Rs. 5000/- in default of payment of fine to suffer RI for 2 months.

The prosecution case Mul Tum in Purbo is that on 07th July, 2003 in the evening at 6.00 p.m. in village Sijawada, the appellant along with co-accused persons gathered in front of the house of complainant Kashiram over the dispute of contract regarding grazing of cattle, at the relevant time, accused Bapu caused head injury to Kailash, brother of the complainant, by Farsi and other accused persons bet Kailash by lathi, kicks and fists. On raising cries by Kailash, complainant Kashiram, Rajarma, Sewaram and Kailash S/o Manna came over there and rescued Kailash. Accused persons also threatened Kailash to do away. On the same day, Complainant Kashiram lodged First Information Report of the incident in Police Station, Ingoria vide Exh. P/2. Injured was sent for medical examination in District Hospital, Ujjain by Police.

After completion of investigation, charge sheet was filed against six accused persons; four acquitted accused persons abjured their guilt. Appellant Bapu and co-accused Madan have pleaded right of private defence of their person. They also sustained injuries in the same incident, for which counter case was registered by the police against complainant/party. The prosecution has examined to prove its case 9 witnesses whereas the appellant has examined Dr. A.K. Jain (DW 1) in their defence. Learned trial court, after hearing both the parties, convicted the appellant and acquitted other 5 persons holding that the prosecution has failed to prove presence and participation of other 5 accused persons in the said incident.

Having heard learned counsel for the parties and after perusing the entire record of the case, this court is of the view that the case of appellant Bapu is squarely covered by law of right of private defence of his own body and body of Madan. Kashiram (PW 2) has deposed that on the date of incident in the evening at about 6.00 p.m. appellant/Bapu along with acquitted accused persons, having Farsi, Axe, Dharia and Lathis in their hands came to his house. Appellant Bapu dealt Farsi blow on the head of his brother Kailash which landed on the right side of parietal temporal region. The other acquitted accused persons have also assaulted him by lathi, kicks and fists. (Learned trial Court has marked two witnesses as PW 2 i.e. PW 2 Bhanwarlal and PW 2 Kashiram, this mistake has not been corrected in the judgment). On alarm raised by Kailash, the witness and other persons rescued him, The witness further stated that injured Kailash fell unconscious. They took Kailash to the police station where this witness lodged First Information Report Ex.P/2. He was also the witness of map Ex.P/3. In cross-examination paragraph 9, this witness has accepted that before the trial Court for the same incident, he and his brother Kailash and other accused persons Rameshwar, Jagdish, Dashrath were facing prosecution for causing injuries to appellant Bapu and acquitted co-accused Madan. He expressed his ignorance regarding injury sustained by acquitted co-accused Madan and appellant Bapu. He has denied assaulting appellant Bapu and acquitted co-accused Madan by lathi and sharp edged weapon Dharia. He has accepted that acquitted co-accused Madan lodged report in the police station on the basis of which police registered the case against them and he was knowing that Madan sustained injuries and was admitted in the hospital. He has also admitted about presence of appellant Bapu in the hospital but denied about witnessing the injuries on his person. He has also denied about assaulting acquitted co-accused Madan and appellant Bapu and Kailash (PW 4) sustained injuries when Madan and Bapu were saving themselves. In paragraph 10, the say of this witness is that he had seen only one injury on the head of his brother Kailash S/o Nanaji (PW 5). The witness has also failed to explain injuries sustained by appellant Bapu and acquitted co-accused Madan.

The say of Kailash S/o Mannaji (PW 4) is that on the date of incident in the evening between 6.00 and /.00 p.m., he was standing in front of his house and Kailash s/o Nanaji (PW 5) was also standing near OTLA (Platform) of his house. Acquitted co-accused persons were also present at the house of Sarpanch. Acquitted co-accused Hindu Bagri, asked Kailash (PW 5) as to why he had taken SEDHA of Inayat Seth. This was denied by Kailash and according to him his relations had taken the same and asked Hindu Bagri to take the same from Inayat Seth. At that juncture, this witness and other persons i.e. Sarpanch, Sewaram and Rajaram pacified the dispute. The appellant and other co-accused persons went away from that place. This witness has further stated that after some time, the appellant Bapu and acquitted co-accused persons again came over there and appellant Bapu caused Farsi blow on the right side of the head of Kailash (PW 5) and other acquitted persons assaulted him by kicks and fists. This witness and other persons intervened into the quarrel. Injured Kailash fell on the ground. They put bandage on his head and thereafter took him to police station where Kashiram (PW 2) lodged First Information Report. Injured Kailash (PW 5) was unconscious and he was taken to Ujjain hospital by his father. In cross-examination Para 6, this witness was contradicted with his case diary statement Ex. D/2 in which the fact of earlier incident occurred with Kailash was not mentioned and he failed to assign any reason about this material omission, in his statement Ex.D/2 recorded by Police. In Para 7, he has denied about witnessing the injury on the person of the appellant and acquitted co-accused Madan. He had also denied presence of Dashrath, Kailash, Rameshwar, Jagdish and Kashiram having Dharia and Lathis in their possession and assaulting appellant and acquitted co-accused Madan. He has expressed his ignorance about receiving injuries by Appellant Bapu and co-accused Madan. The witness has also stated that he was not knowing that when Appellant Bapu and Madan were assaulted by Kailash and his companions, at the juncture, appellant Bapu and Madan acted in their defence and Kailash (PW 5) sustained injuries. This witness has admitted that he was the servant of Nanaji Jat. Nanaji Jat is the father of injured Kailash (PW 5). This witness has also not explained injuries present on the person of appellant Bapu and acquitted co-accused Madan.

Kailash (PW 5) has stated that on the date of the incident in the evening at about 6.00 p.m. he was sitting in front of his house on the OTLLA (platform), at that time, appellant Bapu and other acquitted co-accused persons having Farsi, Axe, Dharia and Lalthi in their possession reached over there and asked him as to why he had taken SEDHA of Inayat Seth on which he expressed his willingness in their favour to take SEDHA of Inayat Seth. During the course of this talk, Ramesh Sarpanch and other persons reached over there and pacified the dispute whereupon appellant went way from the said place. The witness further stated that he was sitting on the OTLA and again Appellant Bapu and other co-accused persons reached over. They all surrounded him and present appellant Bapu, caused injuries on his head by Farsi. He raised hue and cry and fell on the ground. The other acquitted accused persons assaulted him by kicks and fists. Immediately thereafter, Sarpanch Ramesh, Kailash, Kashiram, Sewaram and other persons reached over there whereupon appellant fled away. His brother Kashiram tied his head with towel. He was taken to the police station in a tractor. In a tractor he fell unconscious and then he was brought to Indore M.Y. Hospital. A specific question was put to him by defence counsel that which Appellant Bapu and acquitted co-accused Madan, were returning back from a forest with their cattle, at that juncture, he and his other companions assaulted them and this witness received injuries when appellant Bapu and acquitted co-accused Madan were defending them. He also expressed ignorance as to how appellant Bapu and acquitted co-accused Madan received injuries but he has accepted the fact of lodging of report by the appellant. In paragraph 8, this witness has admitted that his house is situated on the way of forest. This witness has also not explained injuries sustained by appellant Bapu and acquitted co-accused Madan.

More or less, the statement of eye witness Sewaram (PW 6) is also same and this witness also did not explain injuries present on the person of appellant Bapu and acquitted co-accused Madan.

Dr. B.R. Ratnakar (PW 9) examined Kailash S/o Nanaji (PW S) on 07.07.2003 and found one incised injury on right parietal-temporal region. His medical report is Ex.P/22. Exh. P/18 is the query report. Dr. JP Gupta (PW 7) has treated Kailash s/o Nanaji (PW 5) in MY Hospital, Indore. According to him, Kailsh (PW S) sustained injuries on his head caused by hard and sharp object. He was having fracture and he performed operation for head injury. According to him, injury sustained by Kailash was dangerous to life. Same opinion was given in query by Dr. Ratnakar (PW 9).

Mr. P.S. Yadav (PW 8) SHO of Police Station, Ingoria, who recorded First Information Report, Ex. P/2, lodged by Kashiram (PW 2) has also prepared spot map Ex. P/3 and effected seizure of blood stained earth and controlled earth vide seizure-memo Ex. P/l. This witness has investigated the whole case and filed charge sheet. In Para 1, this witness has admitted that on the same day, acquitted co-accused Madan also lodged report Ex. D/S and its original is available in Special Sessions Trial No. 40/04. Ex. D/5-C is the certified copy. On the basis of this report, injured Kailash S/o Nanaji; Jagdish, Rameshwar, Kashiram, and Dashrath were charge-sheeted. He had sent appellant Bapu and acquitted co-accused Madan for medical examination vide medical requisition memo Ex. D/6 and D/7. The medical report is Ex. D/6-A and D/7-A, their certified copies are Ex. D/6-C and D/7-C Ex. D.7-A is the original of these documents and is available in S.T. No. 40/04. Appellant Bapu and acquitted co-accused Madan were medically examined by Dr. A.K. Jain (DW 1) on 07.07.2003. On the person of appellant Bapu one lacerated wound with haemotoma 6,05 cm x skin deep was present on parietal region. Around this injury in 6cm diameter haemotoma with blood clots were present. He advised x-ray for this injury. Second injury was large swelling 8 cm x 5 cm on left forearm and third injury was contusion 2.5 cm x 0.7 cm on left palm below thumb. According to his opinion, all injuries were caused by hard and blunt object. On the same day, he examined acquitted co-accused Madan and found one incised injury on his head 3.5 cm x 1.5 cm up to skin deep. The blood was oozing from this wound and blood clot was also present. This injury was on the left side of the head and caused by sharp edged weapon within 6 Hrs. duration from the examination. Madan and appellant Bapu were examined by this witness on 07.07.2003 at 7.20 p.m.

While appreciating the evidence adduced by the prosecution and plea of self defence of the appellant, learned trial Court has held in paragraph 25 of its judgment, that according to eye witness, the incident had occurred on OTLA situated in front of the house of injured Kailash (PW 5) and this fact has not been denied by the appellant. This was also not disputed by the appellant in cross examination of the witness and in the first information report also the place of incident is shown in front of the house of injured Kailash (PW 5). Therefore, the appellant was the aggressor and non explanation of injuries sustained by the appellant and acquitted co-accused Madan, by the prosecution witness, would not give any benefit for establishing the right of self defence of the appellant.

This Court has minutely scrutinized the statement of prosecution witness, defence witness and the documents. In First Information Report, Exh. P/2 as well as document Ex. D/5-C, place of incident is shown in village Sijawada "in front of house of Nanaji Jat. In both documents place of incident is not shown "OTLA" of the complainant. Blood stained earth and controlled earth were also seized from in front of the house of the complainant. In the First Information Report, Ex. P/2 nowhere it is mentioned that Kailash (PW 5) was sitting on his OTLA situated in front of his house and there he was assaulted by the appellant. Spot map Ex. P/3 proved by SHO and Kashiram (PW 2) in front of whom it was prepared is also showing the place of incident 2 ft. away from OTLA by the sign of encircled cross. The place of incident is shown, which is in between public road of village Sijawada and OTLA of the complainant. OTLA is not shown as place of incident. In the map it is not shown that road situated in front of the house of complainant was Pakka road (cemented road) or it is a simple Kachcha road. No evidence has been accuced by the prosecution to show that the place situated 2 ft. away from OTLA, was owned or in possession of complainant. Kashiram (PW 2) author of First Information Report and eye witness brother of injured, has nowhere stated in his statement that his brother Kailash was sitting on OTLA and was also assaulted by appellant Bapu on the same place. No blood stain was found and seized from OTLA. Kailash S/o Mannaji (PW 4) who was the servant of complainant has also not mentioned in his statement about OTLA (Platform) as place of incident or sitting or standing of injured Kailash (PW 5) on OTLA in fron of his house at that time appellant Bapu along with other co-accused persons surrounded him and appellant dealt Farsi blow on his head.

Learned trial Court has incorrectly mentioned in paragraph 25 of its judgment that Kashiram (PW 2), Kailash (PW 4) have substantially stated about the place of occurrence OTLA and the same has not been challenged by appellant Bapu in cross-examination. Injured Kailash (PW 5) and Sewaram (PW 6) have stated about sitting of Kailash on OTLA and OTLA being the place of incident. In cross-examination, defence has given specific suggestion to both the witnesses that incident had not occurred on OTLA. So the finding of learned trial Court in paragraph 25 to this effect is contrary to the evidence on record.

The initial prosecution case was not that Kailash/ s/o Nanaji (PW 5) was sitting on OTLA of his house and assaulted by appellant Bapu and other acquitted co-accused persons while he was sitting on OTLA. It appears that the prosecution has improved this story deliberately in the statements of Kailash S/o Nanaji (PW 5) and Sewaram (PW 6) to deny the defence case of right of private defence of the person of the appellant Bapu and acquitted co-accused Madan, when the defence already disclosed in cross examination of Kashrjam (PW 2) and Kailash s/o Mannaji (PW 4). To both these witnesses Kailash S/o Nanaji (PW 5) as well as Sewaram (PW 6), in cross examination, a specific case of defence was put up and it has been denied by them while admitting registration of counter case and their prosecution in the said case. None of these witnesses has explained injury sustained by appellant Bapu and acquitted co-accused Madan. In the accused statement recorded u/s 313, CrPC, appellant Bapu and acquitted co-accused Madan have answered question No. 39 that on the date of incident in the evening, appellant Bapu and Madan were returning form forest with their cattle to their house, at that time they were surrounded by Jagdish, Kailash, Kashiram, Dashrath and Rameshwar. They abused them in the name of their castes, all were having sharp edged weapon, Dharia and Lathis. Acquitted co-accused Madan was assaulted by Dashrath with Dharia causing injury on his hand and appellant Bapu was also assaulted by them. At that time they acted in their defence. Appellant Bapu and acquitted co-accused Madan have also stated that only they were present on the place of incident and other four acquitted co-accused persons were not present. Learned trial Court has disbelieved the prosecution case as discussed in paragraphs 26 to 28 of its Judgment on the ground of conflict between eye witness account and medical report because four witnesses have stated about participation in the incident and assaulting Kailash S/o Nanaji (PW 5) by all six accused persons whereas injured Kailash suffered only and only injury caused by sharp edged weapon on his head. Learned trial Court in paragraph 25 of its judgment relying on some Supreme Court Judgments has held that appellant would not get any benefit only because of non-explanation of injury sustained by him and Madan in the same incident by the prosecution witnesses. This Court has perused all Supreme Court Judgments i.e.

i) 2003 SCC (Cri.) 58; Dharaminder v/s State of Himachal Pradesh;

ii) 2000 (1) SCT (Cri) 589, Rajendra Singh v/s State of Bihar;

iii) Bhaba Nanda Sarma and Others Vs. State of Assam, .

In all these judgments, Hon. Supreme Court has held that only non-explanation of injuries on the person of accused by the prosecution witnesses would not be sufficient to hold that they acted in the right of private defence of their person, especially when injuries were insignificant viz. simple abrasion and contusion whereas in the case on hand, the appellant has come with specific right of private defence of a person right from beginning and has given a specific suggestion to all witnesses but the witnesses failed to explain the injuries sustained by appellant Bapu and acquitted co-accused Madan, both have received four injuries. Acquitted co-accused Madan has received injury on the head caused by sharp edged weapon. The part of body and measurement of injury sustained by appellant Bapu and acquitted co-accused Madan were not insignificant. The injury on the head of appellant Bapu as well as acquitted co-accused Madan were quite visible and from the incised wound on the head of acquitted co-accused Madan, blood was oozing even at the time of examination by doctor. Therefore, witnesses would have not failed to witness their injuries. In such circumstances, failure to explain injuries present on the person of appellant Bapu and acquitted co-accused Madan by the prosecution witnesses would be fatal to the prosecution case especially when the prosecution evidence consists of interested and inimical witnesses where the defence has given a version which competes with probabilities of prosecution case. In the present case, the prosecution witnesses have not only failed to explain injuries sustained by appellant Bapu and acquitted co-accused Madan in one and the same incident but they have expressed their ignorance. They have given evasive reply to the specific question put up by defence in cross-examination and the prosecution has changed the stand about the place of occurrence after examination of two material witnesses Kashiram (PW 2) and Kailash S/o Mannaji (PW 4) just to frustrate and deny the defence version. The nature and size of injury present on the person of appellant Bapu and acquitted co-accused Madan, caused by hard and sharp object and hard and blunt object, could not be considered as minor and superficial. Therefore, its non-explanation by the prosecution is very important circumstance in favour of appellant Bapu coupled with the fact that prosecution witnesses have implicated and five acquitted co-accused persons in the incident and the testimony of the prosecution witness has been belied by the medical evidence coupled with other circumstances about their participation in the incident. Learned trial Court has disbelieved substratum of the prosecution case while acquitting five co-accused persons whereas appellant Bapu and acquitted co-accused Madan have explained injury sustained by Kailash (PW 5) and by them.

The Hon''ble Supreme Court in the case Laxmi Singh and Ors. v/s State of Bihar has exhaustively considered the aspect of non explanation of injuries sustained by accused at the time of occurrence by the prosecution witnesses. Hon''ble justice Fazal Ali speaking for the Bench has observed thus:

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following interferences:

i) That the prosecution has suppressed the genesis and the origin of occurrence and has thus not presented the true version,

ii) 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.

iii) 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 prosecution one. In the instant case, when it is held as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution then it will be difficult for the Court to rely on the evidence of PWs 1 to 4 and 6., more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. This neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v/s Bai Fatima; Criminal Appeal No. 67 of 1971 decided on March, 19, 1975 = (reported in AIR 1975 SC 1478) 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 if (it) far outweighs the effect of omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

(Also see Bhagwan Swaroop Vs. State of Madhya Pradesh,

The right of private defence is a defensive right and not a punitive or retributive right. This right commences as soon as-and not before- a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with duration of such apprehension. The law of right of private defence suggests the citizen to act within four corners of law in their self defence and if there is apprehension of threat to harm their body or property at that juncture they should not behave cowardly by running away from the place of incident but face the same with defence of right of private defence of property or body. (See Yogendra Morarji Vs. State of Gujarat,

Applying the above mentioned tests and the Provisions u/s 97 of the Indian Penal Code regarding right of private defence of body of a person, this court is of the firm view that learned trial Court has wrongly held that the incident had occurred on OTLA of injured Kailash s/o Nanaji (PW 5). This story has been introduced by the prosecution later on in the trial, after examination of material witnesses Kashiram (PW 2) brother of injured Kailash S/o Nanaji (PW 5) and Kailash S/o Mannaji, (PW 4) servant of injured. The prosecution consists of testimony of all interested witnesses and their version about participation of other five accused persons, has been disbelieved by the learned trial Court. Kailash s/o Nanaji (PW 5) has sustained only one injury on the head as per the statement of prosecution witness, after receiving this solitary injury, he fell on the ground and also became unconscious. If appellant Bapu was aggressor and dealt a blow on the person of Kailash (PW 5) first in time, thereafter Kailash could not remain in a position to assault appellant. The prosecution witnesses have not stated that appellant Bapu and acquitted co-accused Madan were assaulted by other persons, after assault made by the appellant to Kailash. Therefore, only irresistible conclusion which appears to be more probable and nearer to the defence of appellant that first the appellant and his companion Madan were assaulted by complainant party, thereafter in defence, they used force and caused injury to Kailash.

For the reasons stated hereinabove, appellant has proved his case of right of self defence of his body and body of Madan by preponderance of probabilities. The prosecution has failed to prove its case beyond reasonable doubt. Thus this appeal is allowed. Conviction and sentence of Appellant Bapu are hereby set aside. Learned trial Court is directed to release the appellant forthwith if not required in any other criminal case.