Bhagwat Singh vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

This appeal has been filed u/s 374 (2) of the Cr.P.C. by Bhagwat Singh being aggrieved by judgment dated 13.01.1997 passed by Sessions Judge, Distt. Shajapur in Special Sessions Trial No. 22/91 convicting the accused for offence u/s 307 read with Section 34 of the IPC and sentencing him to undergo 5 years RI and fine of Rs. 1000/-, in default he was to undergo an additional sentence of six months RI. Brief facts necessary for elucidation are that on the date of the incident i.e., 8.9.90 at approximately 4.30 pm near the temple of Ramdevji the accused were assaulting Ratansingh because he had allowed his cattle to graze in the temple premises and was tying the cattle there. Hearing the dispute P.W.7 Gajrajsingh, Bahadursingh P.W.8 and Gopalsingh P.W.6 came to the spot and the accused also assaulted them with the lathis. When Ramsingh came there and pacified everybody, he asked everybody to return home when suddenly accused Fatehsingh ran into his house and the present accused appellant Bhagwatsingh handed him a gun and coming out accused Fatehsingh fired the gun at Gopalsingh (P.W.6) which caused injury with the pellets in the stomach, right hand and leg of Gopal Singh as he fell to the ground. The other prosecution witnesses took him to the Shajapur hospital and Gajrajsingh P.W.7 filed the FIR Ex.P/12 at Police Station Shajapur. All the injured were sent to the medical; since, the condition of Gopalsingh was deteriorating he was referred to the M.Y. Hospital at Indore and Dr. Shukla P.W.15 operated him to save his life. His left leg had to be amputated below the knees. The investigating officer Mahendrasingh Shaktawat (P.W.13) prepared the panchnama Ex.P/9 and collected the simple and controlled earth samples. Accused Shivnarayan was arrested and the gun was recovered from the house of Fatehsingh. From the other accused the lathis were recovered. After completion of investigation 5 accused were duly charged and committed to their trial.

The accused abjured their guilt and stated that they were falsely implicated in the matter. Counsel submitted that the prosecution witnesses Gopalsingh P.W.6, Gajrajsingh P.W.7 and Bahadursingh P.W.8 and their companions were themselves fighting with the accused and had forcibly entered the house of the accused persons and Gajrajsingh and Ratansingh were in fact asking them why they were tying their cattle in the temple premises and actually they were the aggressors because the incident had taken place in the house of the accused appellant and the pujari of the temple was father of the accused Bhagwatsingh. Whereas the accused were being assaulted by the complainant party who were the actual aggressors and in private right of their self defence the incident had occurred. Moreover a minor Anubai was also assaulted by the complainant party and all the accused persons have also received injuries when the complainant party forced itself into the house of the accused. They also tried to break down the door and in self defence Fatehsingh had fired from the gun and he had no intention to commit the murder of Gopalsingh. The Trial Court on considering the evidence, however acquitted 3 of the accused namely Kesharsingh, Ghisulal and Shivnarayan. And Fatehsingh died during the pendency of the trial and hence only Bhagwatsingh the present appellant was convicted for offence u/s 307 read with Section 34 of the IPC as mentioned herein above and hence the present appeal.

Counsel for the appellant has vehemently urged the fact that the learned Judge of the lower Court had erred in convicting the accused when under the same set of circumstances three other accused had been acquitted by the Court. Similarly the main accused who was responsible for firing the gunshot Fatehsingh had died during the trial and the only allegation against the present appellant Bhagwatsingh was that he had handed over the gun to Fatehsingh. There is no other whisper of evidence available against the present accused and Counsel submitted that the impugned judgment of the conviction be set aside on this ground alone. And pointing to the peculiar facts and circumstances of the case Counsel submitted that Ratansingh who was injured and due to whom the entire dispute had arisen, has not been peculiarly thus cited neither as witness by the prosecution nor examined in Court and as observed by the trial Court in impugned para-14 of its judgment this was clearly indicative of the fact that the complainant party were the aggressors and both the parties have received injuries in the fracas. Whereas 3 of the prosecution witnesses Gajrajsingh P.W.7, Bahadur P.W.8 and Gopalsingh P.W.6 had also received 11 injuries and only Gopalsingh received three grievous injuries, whereas other injuries were simple in nature. Per contra the accused party Kesharsingh, Ghesulal, Shivnarayan and Fatehsingh and the minor girl Anubai all received a total of 26 injuries and Kesharsingh, Fatehsingh and Shivnarayan received incised injuries by hard and sharp object and Counsel placed reliance on Lakshmi Singh and others etc. v. State of Bihar (AIR 1976 SC 2263 (1)) to state that the genesis and origin of the occurrence have been suppressed by the present complainant and there was a free fight amongst both the parties and the Apex Court had also held that when there is omission on the part of the prosecution to explain the injuries on the person of the accused and when the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case and therefore the evidence was unreliable. Moreover, Counsel submitted that the only allegation that has been consistently levelled against the present accused is that of handing over a gun to Fatehsingh and in the alternate Counsel also prayed that it was more than 15 years since the incident and no fruitful purpose would be served in sending the appellant to prison.

Counsel prayed that the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. In alternate Counsel has prayed that if the Court is satisfied regarding the conviction the custodial sentence be reduced to the period already undergone.

Counsel for the State has per contra stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed. On considering the above submissions and the impugned judgment and material evidence on record I find that the appeal needs to be allowed primarily on the basis that the prosecution has failed to prove that the accused were the aggressors. Placing reliance on Lakshmi Singh (supra) I find that the accused persons have also received grievous injuries which has been noted in impugned para-14 of the judgment and more simply the only allegation that survives against the present appellant is that of exhortation at the time of the handing over the gun to Fatehsingh. Besides this allegation there is no material evidence on record available against the appellant. Similarly Ratansingh peculiarly in the facts and circumstances of the case has not been examined by the prosecution so as to prove how the incident took place due to the dispute. Then under these circumstances I have no scintilla of doubt in acquitting the present accused when the lower Court has itself accepted that the accused had the right to self defence and the complainants were the aggressors. The Trial Court has already acquitted three of the accused on the same ground and hence I find that the same benefit also accrues to the present accused appellant. In view of the above the appeal is allowed. The impugned judgment of conviction is set aside and the accused appellant is acquitted from the said offence.

Appellant is on bail. His bail bond and surety bond are hereby discharged.

A copy of this order be sent to the concerned Trial Court for compliance.