Hemta vs State of M.P.

R.D. Shukla, J.

This appeal is against judgment and order dated 23.10.91 of the first Addl. Sessions Judge Dhar in S.T. 312/90 whereby the accused-appellant has been convicted under S. 302 IPC for having committed murder of Toliya son of Manglia Bheel on 23.6.90 at about 9.30 a.m. in village Gwabaidi District Dhar and sentenced to imprisonment for life.

Prosecution story in brief is that on the date of the incident i.e. on 23.6.90 at about 9.30 a.m. deceased Toliya accompanied by his son Shambhu (P.W. 1), Chhagan (P.W. 2) Kalabal (P.W. 3) went to the deputed field which they had cultivated a day before. They found the accused and his two brothers conducting sowing operations in the disputed filed. It was objected to by deceased Toliya and his family members. Accused Hemta took out bow and arrow and gave an arrow shot which hit deceased Toliya in his chest. He pulled out the arrow and died sometime thereafter.

The matter was reported to the police by son of deceased Toliya i.e. Shambhu (P.W. 1) the same day at about 10/35 a.m. at P.S. Amzera which is about 3 k.m. away from the place of incident. The report was recorded by i.c. Shersing A.S.I. who registered the offence under S. 302/34 IPC under crime no. 132/90 vide Ex. P.1. He visited the spot and summoned the witnesses vide Ex. P.6. He also prepared inquest report and sent the dead body for post mortem examination with letter Ex. P/8.

A.S.I. Shersing prepared spot map vide Ex. P/9, seized bllod stained and controlled earth from the spot vide Ex. P/10 and arrested the accused persons viz. Hemta, Sardar and Kemta Vide Ex. P/l 1, on 24.6.90. One bow and arrows were also seized at the instance of accused Hemta Vide Ex. P/12. One twelve-bore gun was also seized from accused Hemta vide Ex. P/13. Clothes of the deceased received from the hospital were seized vide Ex. P/14. Accused Hemta had also sustained some injuries. He was also sent for medical examination vide. Ex. P/15.

Dr. Shrivastava (P.W. 4) conducted autopsy on the dead body of Toliya and found the following injury of his persons:-

Incised would �" x �" on right side of chest on 5th intercostals pace and puncture of muscle and plural and pericardium.

The injured died of hemorrhage and cardio shock. One arrow with letter Ex. P/3 was sent by the police for examination and on examination, Dr. Shrivastava (P.W. 8) opined that the injury found on the body of Toliya could be caused by this arrow. Dr. Shrivastava also examined accused Hemta on 24.6.90 and found the following, injuries on his persons.

(1) Complained swelling and paid on left arm but no external injury was found.

(2) Complained swelling and pain on right scapular region.

(3) An abrasion on right leg �" x 1 �.

(4) An abrasion of lower part of right leg �" x �.

Dr. Shrivastava prepared injury report of Hemta Vide Ex. P/4.

The arrow found on the spot, blood stained and controlled earth and clothes of the deceased were sent for chemical examination. Blood was found on all these, articles excepting the controlled earth vide Ex. P/16, by the Chemical Examiner.

All the three accused persons were prosecuted. They denied the guilt and pleaded false implication. After trial, the trial Judge acquitted accused Hemta and Sardar but convicted accused Hemta as stated above, hence this appeal.

Contention of the learned counsel for the appellant is that the accused persons were in possession of the land and the complainant party came armed and, therefore, the accused had a right of self defence. Second contention of the learned counsel for the appellant is that the accused neither came prepared nor intended to commit murder as they refrained from causing further injury despite having been armed with gun also and, therefore, the offence would not come under the purview of murder.

As against it, learned counsel for the State submitted that the complainant party was in possession of the land much before the date of incident. They had also cultivated the same. The accused committed trespass and conducted sowing operations. They were not in settled possession of the land the and therefore, they had not right of self defence.

We have been taken to the evidence on record. The fact of homicidal death of Toliya has not been challenged and rightly so the same stands provided not only from the evidence of the eye-witnesses P.W. 1 Shambhu, P.W. 2 Chhagan and P.W. 3 Kalabai but from the evidence of Dr. Shrivastava (P.W. 4) as well, who conducted autopsy on the dead body of Toliya on the same day.

P.W. 1. Shambhu son of the deceased has stated that be along with his father, sister and brother-in-law went to the field and found Hemta conducting sowing operations there. The same was protested by his father. Accused Hemta thereafter gave an arrow shot to his father who fell down on the ground and died thereafter on account of that arrow injury. This witnesses stands corroborated from the F.I.R. (Ex. P/1) proved by A.S.I Shersingh (P.W. 8) and the medical evidence, i.e. autopsy report and the evidence of Dr. Shrivastava (P.W. 4). P.W. 2 Chhagan and P.W. 3 Kalabai have also corroborated the story disclosed by Shambhu (P.W. 1).

Cross-examination and the arguments do not indicate serious challenge regarding causing of injury by the accused. In our opinion, therefore, it has rightly found by the trial Judge that accused Hemta gave an arrow shot and caused injury on the chest of deceased Toliya which resulted in his death. All the three - eye-witnesses have stated that they have earlier cultivated the land and it was after their cultivation that sowing operation was being conducted by accused Hemta. Thus accused Hemta was not in settled possession of the land, and, therefore, he had no right of self defence.

The injuries found on the body of Hemta were on the leg and could be caused during sowing operations. No external injury was found on left arm and back. Complaint of pain may be because of other reasons also. There is no evidence to show that the complainant party assaulted accused Hemta.

Learned counsel for the appellant vehemently submitted that it was not necessary that the accused should sustain injury before exercising right of self defence. Mere apprehension is sufficient. There is no dispute and it is the principal of law, the dispute is the cause of apprehension and accrual of right of self defence. The accused was not in settled possession of the land and, therefore, the complainant party had a right to ask the accused to go away from the field, and stop trespass, since the accused had no right of self defence and, therefore, there was no question of exercise of the same. As against it, the complainant party had a right to oust the accused. Even if the fact of settled possession is not found proved in favour of either of the parties, the complainant party had only protested and asked the accused to stop sowing operations. In such a situation, the accused had no right of self defence of person or property.

Learned counsel has drawn our attention to last line of paragraph 8 of the Statement of P. W. 2 Chhagan and submitted that he admitted apprehension and use of force under that apprehension. We do not agree with this contention of the learned counsel for the appellant. The prosecution witness has denied all this suggestions. In the last line it is written that the accused gave arrow shot to safe his own life. There appears to be some typographical error. The typist has committed mistake by not typing word ''NAHI'' after the word ''SAHI'', for, a sentence or a word out of a sentence cannot be read in isolation. The sentence or a word is read in the context and reference to the questions put and the trend of answers given to those questions by a witness. In our considered opinion, there was only a typographical error. The accused cannot be allowed to take advantage of that error.

It has come in the evidence that the complainant party protested against sowing operations and accused gave an arrow shot to deceased Toliya. There was sudden altercations and exchange of hot words and protest by the complainant party and it was at this juncture that accused gave arrow shot which unfortunately landed on vital part of the body of Toliya and punctured plural and pericardium.

In our considered opinion, therefore, intention of commission of murder cannot be inferred. However, knowledge can be attributed to the accused regarding likelihood of death because of arrow shot injury. The accused would, therefore, beheld guilty under part II of S. 304 IPC. The incident took place over possession of small piece of land and exchange of hot words, protest and counter-protest between the complainant parley and the accused and, therefore, very serious view cannot be taken in the matter of punishment.

In the result, the appeal is partly allowed. The accused-appellant is acquitted of the offence under S. 302 IPC but he is convicted for offence under S. 304 Part II IPC i.e. for causing death for culpable homicide not amounting to murder i.e. for causing death of Toliyha with knowledge and likelihood thereof and sentence to R.I. for four years. Period of incarceration during and after trial shall he adjusted as per provisions of S. 428 Cr. P.C. The accused is on bail, is directed to surrender before C.J. M. Dhar on or before 30.9.1996 for undergoing remaining part of sentence.