Hiralal and Others vs State of M.P.

A.R. Tiwari, J.—This appeal is directed against the judgment dated 31.12.1985 delivered by the Third Additional Sessions Judge, Dhar in Sessions Trial No. 160/84 thereby convicting the Respondents Hiralal and Narayan u/s 302/34 of the Indian Penal Code and sentencing each of them to suffer imprisonment for life and to pay a fine of Rs. 100/-; convicting the Appellant Hiralal u/s 307 of the Indian Penal Code and the Appellant Narayan u/s 307/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 100/- each; convicting the Appellants Hiralal and Narayan u/s 326/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for five years and to pay a fine of Rs. 100/- each; convicting the Appellants Onkarlal and Shantabai u/s 323 of the Indian Penal Code and sentencing them to pay a fine of Rs. 500/- each and in default to suffer simple imprisonment for four months. Each of the Appellants was further sentenced to suffer imprisonment for six months in default of payment of fine as imposed above. The substantive sentences were directed to run concurrently.

The facts in brief are that the Appellants went to sow the agricultural field known as ''Kanchla field'', which was in possession of the deceased Tulsiram, at 3.30 P.M. on 3.7.84. Mohanlal (PW-1), the brother of the deceased, Kailash (PW-2) the son of PW-1, Shankarlal (PW-3) - the son of the deceased were doing agricultural operations in their field situated near the aforesaid disputed field and saw the Appellants going to trespass in the aforesaid field for the purpose of sowing it. Ayodhyabai (PW-4) was present in Anr. field nearby. The Appellant Onkarlal was armed with lathi, Hiralal armed with Farsa, Narayan was armed with axe and Shantabai was armed with a lathi. They mounted attack on the deceased Tulsiram as soon as he reached the aforesaid field. Mohanlal tried to intervene, but he too was assaulted. Shankar also made efforts to intervene, but he too was assaulted. The Appellants also sustained injuries. Tulsiram succumbed to the injuries sustained by him on the spot. Mohanlal and Kailash also sustained injuries in this incident. The incident was witnessed by Mangilal (PW-12), Dayaram (PW-13), Ayodhyabai (PW-4), Ramchandra and Radheshyam (not examined in this case). The cause behind this quarrel was that the Appellant Onkarlal had spent a sum of Rs. 7,000/- in the performance of the religious rites of his mother in lieu of which he intended to take half portion of the disputed land owned by his deceased mother. According to the prosecution, this piece of land at the relevant time was in possession of the deceased Tulsiram. The report of the incident was lodged by Mohanlal (PW-1) which is marked in this case as Ex. P/27. The postmortem was performed and the report of postmortem report is Ex. P/12. Mohanlal, Kailash and Shankarlal were also medically examined and the injury reports are respectively Ex. P/3, P/4 and Ex. P/5. Ex. P/25 is the X-ray report of Kailash and Ex. P/25-A is the X-Ray plate. Ex. P/26 is the X-Ray report of Mohan and Ex. P/26-A is the X-Ray plate. The First Information Report Ex. P/29 was lodged by PW-1 Mohanlal. The weapons of assault were seized pursuant to the information furnished u/s 27 of the Evidence Act and certain other articles were also seized. Articles were submitted for Chemical Examination. The reports are Ex. P/32 and Ex. P/34. According to the defence, the Appellants also sustained injuries in the same incident. Ex. D/l is the injury report of the Appellant Onkar and Ex. D/5 is the X-Ray report and Ex. D/5-A is the X-ray plate. Ex. D/2, D/3 and Ex. B/4 are the injury reports respectively of the Appellants Santibai, Ramnarayan and Hiralal. Ex. D/6 is the report of this incident submitted by the Appellant Hiralal on which no case was registered by the Police. The spot-maps Ex. P/6 and Ex. P./10 were also prepared. After completion of investigation, the challan was filed. The Appellants were charged under Sections 302/34, 307/34 (with reference to Mohan), u/s 307/34 (with reference to Kailash and u/s 323/34 of the Indian Penal Code (with reference to Shantibai) to which they pleaded not guilty. On trial, they were convicted and sentenced as above.

We have heard Shri R.S. Garg, learned Counsel for the Appellants and Shri G.S. Chauhan, learned Dy. Govt. Advocate for the Respondent-State.

Shri Garg submitted that the Trial Court has committed an error of law in lightly brushing aside the injuries sustained by the Appellant in the course of the same incident despite the fact that the injuries were not superficial. According to him non-explanation of the injuries was by itself sufficient to discard the prosecution story on suppression of the genesis of the occurrence. He further urged that the investigation is tained and unfair because the case on the basis of the report lodged by the Appellant was not even registered and no investigation was directed to ascertain the truth of the case. He submitted that the complainant- party had formed an unlawful assembly to dispossess the Appellants from the possession of the disputed land and the Appellants in that context had every right to defend the properly as well as their own bodies. He, therefore, urged that the conviction as recorded deserves to be quashed. On the other hand Shri Chauhan submitted that there is no infirmity either in approach or in conclusion reached by the Trial Court and if it is found that the Appellants had the right of defence as daimed by them, then they have clearly exceeded that right. Shri Chauhan, thus, urged that the Appellants deserve to be suitably punished.

The point for determination is whether this appeal deserves to be allowed.

This is yet Anr. case where brOrs. and the members of their respective __ branches fought over the property, just 2 bighas in area, and in that, besides members too sustaining injuries, one beother died and the other brother, accused in the case, was seriously injured. The episode is more poignant and unfortunate when we notice that the basis of the scrimmage was the expenditure of the sum of Rs. 7,000/- by the injured brother (Onkarlal) on the death of the mother (Smt. Dhulibai) in obsequies and other religious rites. The broil centered round the urge to grab permanently field admeasuring two bighas, popularly known as ''Kanchla field'', owned at one time by the deceased mother. The case is an illustration of the level to which even real brOrs. had degraded little realising the caution of T. Drummond in his Letter to Landlords of Tipperary (1838) that "property has its duties as well as rights". The focus was set on right and in that urge to usurp, even blood relationship was so cruelly ignored and precious little was thought about duties associated with it.

Before going into finer aspects of the case, it is apt to bear in mind the undernoted salient features of the case:

a) The Appellant had lodged the counter report (Ex. D/6) in this case, although belatedly, but the investigator omitted to register the case and to ascertain on proper investigation as to which side was the aggressor and victimiser. He just assumed without justification that Appellants were the aggressors. (Paral2ofPW-15T.R. Suryavanshi). This exhibited somewhat a partisan proclivity and can be labelled as a short-cut, which is often a wrong cut, both in logic and law.

b) The Appellants received injuries in the same incident as proved by Ex. D/l (injury-report of the Appellant Onkarlal) Ex. D/5 (his X-ray report) Ex. D/5-A (X-Ray plate); by Ex. D/2, Ex. D/3 and Ex. D/4, injury reports of the Appellants Shantabai, Ramnarayan and Hiralal respectively. Shantabai is the wife and the other two sons of Onkarlal. The Appellant Onkarlal sustained the following injuries:

(i) An incised wound present over the vertex 5 cm in length, sharp margins skin-deep, no bony injury.

(ii) An incised wound present-over Occipital region Bony skin-deep. No bony injury.

(iii) A swelling over the left forearm. Skin intact by Palpation bony inj. present. Present movements are restricted. Tenderness present. No other inj.

Ex. D/5 confirmed fracture of ulna.

c) An attempt was made to explain the injuries in First Information Report (Ex. P/27) saying that these were caused in the process of snatch and forcible seizing. The author of this First Information Report Mohanlal (PW-1), Anr. real brother but a member of Anr. family consequent upon his adoption, however, abandoned even this vague stand of explanation and d-posed on oath that he saw no injuries on the person of Onkarlal, Ramnarayan and Shantabai (para 24). He, even disowned the relevant portion marked A to X in the First Information Report (Ex. P./25).

d) The disputed field was ploughed and sown by the Appellant Onkarlal on one day; then by the deceased Tulsiram next day; and then again by Onkarlal next day. The incident is said to have occurred on the third day when the Appellants were busy in agricultural operations on this field as the story unfolded itself.

It emerges that the investigating officer fouled his function by declining to register the case, on the linchpin of the report (Ex. D/6) submitted by the Appellant Hiralal relating to the same incident although it did disclose cognizable offence. Little did he realise that he had no option but to register the case on basis thereof. Fair and full investigation was thus, obstructed. In State of Haryana and others Vs. Ch. Bhajan Lal and others, it it held that:

The condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in- charge of a police station satisfying the requirements of Section 154(1) the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

The trial of the present case thus, proceeded on one sided version. And one has to recall here the mandate of Article-21 of the Constitution of India:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

(Emphasis supplied)

Unfortunately the investigating officer blinded himself to the procedure mandated by the law and proceeded to flagellate the Appellants by self-serving version.

The aforesaid features are indicative of lack of due application of mind by the investigator who, instead of searching the truth, accepted one sided story just because one life in that side had been lost. He abdicated his function on easy, but not proper, explanation that the factum and feature both were stated in the First Information Report. It then remained the matter of mere speculation as to how he would have reacted if PW-1 had taken the stand as he eventually took in his statement, noticed above, before the Court. The investigation suffered the incompleteness on its own showing then.

It is once again the occasion to reiterate as to what an investigator was required to do when faced with the counter reports, supported by medical evidence, of the same incident. He ought to have proceeded to ascertain the ''truth''. In Giriappa''s case 18 Mys. L.J. 229 it is observed that:

It is improper for the police to prosecute at the same time two counter cases in regard to the same occurrence, one of which must be false and it is improper also and disrespectful to the Court and for the public prosecutor to conduct both the cases in the Sessions Court knowing that one must be false. Such counter case cannot both be prosecuted honestly either by the police or the public prosecutor. The powers of investigation given to the police by the Court are given for the purpose of ascertaining the truth.

PW 15 did precious little towards the requisite quest of truth of the matter. He only assumed and presumed in favour of the complainant party. May be he was right, but may be, proper and fuller investigation would have proved him wrong. He had to move to convert "may be" into "must be" without which credibility of his role would surely be in doubt.

In Mitter Sen and Others Vs. The State of U.P., it is laid down as under:

There was also no mention in the F.I.R. as to how the accused came to receive the injuries.

Held ; that the evidence of the prosecution witnesses cannot, therefore, be accepted at its face value and be relied upon implicitly.

Ex. P/27, First Information Report gave merely a lip service to this requirement and finally saw the voilation when the author deposed in the Court. Subsequent explanation would be labelled as vitiated being prompted by the urge of self- preservation. Yet PW-2 Kailash (para 9) PW-3 Shankarlal (para 4) and PW-4 Ayodhyabai (para 8) did not even come out with boldness to state facts about this and were contended to shy away from the reality of the case. PW-3 even went to the extent of saying that he saw no injuries on the persons of the Appellants. The witnesses thus suppressed the true version and withheld the genesis delivering dent on the warp and woof of the prosecution version.

It is trite law that non-explanation of injuries is a serious lacuna particularly when the same were not categoriesed as superficial ones. As back as on 10.9.1976, their Lordships of the Supreme Court very clearly laid down in Lakshmi Singh and Others Vs. State of Bihar, that:

It seems to us 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 injjries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The law enunciated in the aforesaid decision was again reiterated on 12.3.91 in State of Rajasthan Vs. Madho and another, in the following terms:

The fact remains that both the Respondents had sustained serious injuries. Kishana mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the Respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two Respondents in the course of the same transaction, the Respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW-2.

There was yet Anr. significant feature in the case which perhaps was not noticed by the Trial Court PW-8 Bharat Singh, whose testimony is binding on the prosecution, had stated on oath that articles (blood stained and simple soil, Soyabean and fertiliser) were seized from the place five steps away from the corpse in the field of the Appellant Onkarlal. This convincingly puts a question (SIC) on the alleged place of occurrence. It further showed that Ex. P/9, the (SIC) zure-memo, was not faithfully documented. The record seemed to have been (SIC) trived to suit the story as was spun and shaped. The whole truth was not told. (SIC) who can dispute that half a truth was worse then total lie.?

It was but proper to have apprised and appreciated the evidence in this background. One FARSA was seized. The origin, however, could no'' be determined due to disintegration (Ex. P/34). PW-1 Mohanlal was interested to get his share in the agricultural property after death of the mother (para 8). His testimony was thus, not on the pledge of oath to speak the truth but on inspiration to satisfy this instinct which was perhaps better served by siding the complainant party. The injuries on his person denoted his collusion or say co-operation with the deceased. He, however, saw blood stains on the clothes of the Appellants (para 2). PW-2 Kailash is the son of PW-1 and his version too was clearly partisan in nature PW-3 Shankarlal is the son of the deceascd-PW-4 Ayodhyabai wife of the deceased, deposed in para 5 that she found her husband lying dead when she reached on the spot (para 5). Radheyshyam and Ramchandra are named in the First Information Report as eye-witnesses to the incident, but they have not been examined and this permitted drawing of an adverse inference against the prosecution. Of the three persons named in the First Information Report, only PW-12 Mangilal was examined. He faltered on many vital points. He could not have seen the incident when he was in his own field situated some 300 steps away from the disputed field and even ''MEND'' was not visible (paras 3 and 8). PW-13 Dayaram and PW-9 Chogalal are found to be untrustworthy because they even did not speak about the injuries sustained by the appellate. The Appellant right on the spot stated that he was assaulted (para 8). This conduct is significant. In Ganeshlal Vs. State of Maharashtra, it is observed that:

The conduct of an accused in an offence previous and subsequent to the crime are relevant facts.

The witnesses have thus, given one sided version. The information and seizure do not improve the case. The fact remained that on seeing father being beaten, sons and wife could legitimately be expected to participate in an urge t save him. In Bhagwan Swaroop Vs. State of Madhya Pradesh, it is held as under:

It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the Courts below on this point and hold that Bhagwan Swaroop fired the gun-shot to defend the person of his father.

In the face of these facts and circumstances the defence is rendered probable, throwing serious doubt on the prosecution case. The Appellants atleast appeared to have bonafide claim of possession of the disputed land fortified by acts of ploughing and sowing. They, thus, had the right of defending the property as well as person. Once this is found proved, it cannot be weighed in golden scale. The witnesses have not presented true version and as such, there was no material to hold whether it was exceeded as such.

"Thomas Fuller" in his Holy War had proclaimed long back that "possession is nine points in law". It appears that the Appellants spent money in an urge to be able to clench the ownership of the field owned by mother (para 8 of PW-1) and in that pursuit sowed the field. The deceased and PW-1 (both brOrs. ), sensing loss of property, aided actively by those injured on their side, proceeded to oust Onkarlal and members of his family. This is how, as logic informs hideous incident, totally unpalatable and unfortunate, was born claiming one precious life, and causing injuries to many Ors. on both the sides. The desire for property was found to be thicker than blood.

The prosecution, in our considered view, has thus, not proved the case beyond reasonable doubt which looms large in the mind. In Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, it is pointed out that-

It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.

In such kind of situation, we find it hazardous to place implicit reliance on the testimony of the prosecution witnesses and feel pursuaded to disagree with the conclusions of the learned Trial Judge and to vacate the convictions. The infirmities, noted above, are not liable to be brushed aside.

The ''manner'' of assault is thus, not free from doubt. The approach is evidently not fault-free. Homicidal death or injuries on Ors. are not disputed. But the origin of genesis were intentionally suppressed giving fatality to the case. Benefit of reasonable doubt thus, belongs to the Appellants. In Vijayee Singh and others Vs. State of U.P., it is held as under:

The phrase "burden of proof" is not defined in the Act. In respect of criminal jurusprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.

So viewed, we find that the prosecution has failed to discharge the burden of proof imposed on it by the law.

In the ultimate analysis, we are, placing reliance on State of Rajasthan Vs. Madho and another, (supra), obliged to give benefit of doubt to the Appellants on our evaluation of the prosecution evidence as indicated above. In this view of the matter, the impugned judgment deserves to be reversed.

Consequently, this appeal is allowed. The conviction as also the sentences as recorded by the Trial Court are quashed and the Appellants are acquitted of all the charges levelled against them. They are reported to be on bail. Their bail-bonds shall stand cancelled. Fine, if paid, shall be refunded.