Lallu @ Chhotelal and Others vs State of M.P.

S.P. Khare, J.—Appellants Lallu, Sheshmani and Ramraj have been convicted under Sections 304(II)/34 and 307/34, I.P.C. and sentenced to rigorous imprisonment for seven years and five years respectively. They have also been sentenced to pay a fine of Rs. 1000/- each on each count.

The prosecution case was that on 17-2-1991 at about 9 A.M. appellants Lallu, Sheshmani and Ramraj alongwith three other persons came in front of the house of deceased Chhotelal who was constructing a mud-wall. They were armed with lathis. Bishram was one of the labourers who was constructing the wall. The appellants asked him why his son Arjun had beaten Rambahore a day earlier. They threatened to cause injuries to him. Deceased Chhotelal asked the appellants that they should not commit breach of peace in front of his house. The appellants assaulted deceased Chhotelal with lathis causing two lacerated wounds on his head which proved fatal later. During this incident the appellants assaulted Jaglal (P.W. 10) causing head injury. Triveni (P.W. 1) lodged the report Ex. P-1 on the same date at 1.00 P.M. at Garh Police Station. Chhotelal and Jaglal (P.W. 10) were sent for medical examination. Chhotelal died in the hospital on 18-2-1991 at 2.10 A.M..

The appellants pleaded not guilty. Their defence was that they had gone to the place of incident to remonstrate Bishram for the unbecoming conduct of his son. It was also pointed out that appellants Lallu and Ramraj had also sustained injuries in this incident. Ramkali on their side was also injured. These injuries have not been explained by the prosecution.

The trial Court after appreciation of the evidence on record held that three appellants had formed common intention to cause injuries to Chhotelal and Jaglal (P.W. 10) and in furtherance of that common intention they actually caused injuries to the two persons. On this finding the appellants have been convicted and sentenced as stated at the outset.

In this appeal it has been argued on behalf of the appellants that the prosecution has failed to establish that there was common intention on the part of the appellants to cause injuries to Chhotelal and Jaglal (P. W. 10). It is also contended that the injuries sustained by the three persons on the side of the accused have not been explained by the prosecution witnesses and therefore, it must be held that they have suppressed true version of the incident. It is further pointed out that Jaglal (P.W. 10) who is said to be the victim of the offence has not supported the prosecution case and therefore, the appellants could not be held guilty for the offence u/s 307/34, I.P.C..

After careful scrutiny of the evidence on record this Court is of the opinion that the conviction of appellants Lallu and Sheshmani u/s 304(II)/34, I.P.C. is well merited. Triveni (P.W. 1) is brother of deceased Chhotelal. Chotki (P.W. 2) is wife of the deceased. They are eye witnesses to the incident. The incident took place in front of their house at about 9 A.M.. Therefore, the presence of these two witnesses at the time of the incident is quite natural. They have deposed that accused Lallu and Sheshmani assaulted Chhotelal with their lathis on his head. According to Triveni (P.W. 1) appellant Lallu mounted first attack and appellant Sheshmani dealt a second blow on the head of the deceased. There is a discrepancy on this point whether accused Lallu was first to strike the deceased or it was accused Sheshmani who did so. In the F.I.R. Ex. P-1 accused Sheshmani is said to have given the first blow on the head of the deceased whereas in his evidence Triveni (P.W. 1) has stated that the first attack was made by accused Lallu. This discrepancy is not very material in view of the categorical medical evidence to the effect that the deceased had two lacerated wounds on his head. Dr. A.K. Mishra (P.W. 4) has deposed that he conducted the autopsy on the body of deceased Chhotelal and found a lacerated wound 6.5 cms. on his right parietal region and a haematoma 2" x 2" on the left parietal region. There was fracture of the parietal bone. There was injury to the brain also. The post-mortem report is Ex. P-4.

Dr. G.P. Shrivastava (P.W. 9) has deposed that on 17-2-1991 he had examined Chhotelal and found a lacerated wound on his head. His report is Ex. P-19. Dr. A.K. Khare (P.W. 11) was C.M.O. in Gandhi Medical College, Rewa. He has deposed that on 17-2-1991 he had examined Chhotelal and he found him in unconscious condition. He had two lacerated wounds on his head as per report Ex. P-22. There was a contusion also on his right forearm.

The ocular version of Triveni (P.W. 1) and Chotki (P.W. 2) is fully corroborated by the medical evidence. The trial Court has rightly held that Chhotelal died on account of the head injury sustained by him at the hands of appellants Lallu and Sheshmani.

The injury reports Ex. D-3 to Ex. D-5 of Ramkali, Lallu and Ramraj go to show that Ramkali had one contusion on left knee and Lallu had a lacerated wound on his left ear and two abrasions and one contusion on left thumb, left knee and right thumb. Accused Ramraj had a contusion on left hand and a lacerated wound on the middle finger of the left hand. These three persons were examined by Dr. V.N. Satnami (D.W. 3). It is apparent that the injuries sustained by these persons were of minor nature. It is well settled that the prosecution is not bound to explain such minor injuries sustained by the accused persons in the same incident. These injuries are likely to be caused during the course of the scuffle. It has been held by the Supreme Court in Ayodhya Ram alias Ayodhya Prasad Singh and Others Vs. State of Bihar, that the prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score. Therefore, the trial Court has been right in its approach towards the non-explanation of the injuries of the three persons on the side of the accused. The appellant Lallu and Sheshmani arrived on the scene of occurrence armed with lathis and caused injuries to Chhotelal when he made entreaties to them to desist from their aggressive attitude. The offence u/s 304(II)/34, I.P.C. is clearly brought home to appellants Lallu and Sheshmani and they have been rightly convicted for this offence.

So far as appellant Ramraj is concerned, his complicity in this crime is not proved beyond reasonable doubt. The deceased had sustained two injuries on his head. It has been found that these injuries were caused by appellants Lallu and Sheshmani, Appellant Ramraj had not caused any injury on the head of the deceased. The deceased had minor contusion on his left fore-arm but there is no definite evidence on the point that this injury was caused by appellant Ramraj. There was no overt act on the part of appellant Ramraj to exhibit that he had formed common intention with the other two appellants to cause the grievous injury on the head of the deceased. Appellant Ramraj deserves benefit of doubt. Therefore, his conviction u/s 304(II)/34, I.P.C. cannot be sustained.

The peculiar feature of this case is that Jaglal (P.W. 10) who had sustained head injury in this incident has not supported the prosecution case for the reasons best known to him. He has deposed that someone hit him on his head from behind but he cannot say who had done so. That was not his version during the course of the investigation. In his statement u/s 161 Cr.P.C. marked as Ex. P-21 he had clearly stated that the injury on his head was caused by appellant Lallu. The trial Court has convicted the appellants u/s 307/34, I.P.C. on the basis of the evidence of Triveni (P.W. 1) and Chotki (P.W. 2) but their evidence could be of corroborative nature if Jaglal (P.W. 10) himself had deposed that he was assaulted by appellant Lallu. If the prosecution case had been from the beginning that Jaglal (P.W. 10) was not able to see at the time of the incident who had caused injury to him and it is only the two other eye witnesses had been appellant Lallu causing injury to Jaglal (P.W. 10) then the situation would have been different. Jaglal (P.W. 10) is said to be the victim of the offence and according to his own statement u/s 161 Cr.P.C. the injury was caused to him by appellant Lallu and if he does not support his own case during trial the Court is not in a position to render any justice to him. In such a case where the victim himself resiles from his earlier version, the appellants cannot be held to be guilty for the offence u/s 307/34, I.P.C. beyond reasonable doubt. Therefore, the conviction of the appellants u/s 307/34, I.P.C. also must be set aside.

In the result this appeal is partly allowed. The conviction and sentence of appellants Lallu, Sheshmani and Ramraj u/s 307/34, I.P.C. for attempting to commit murder of Jaglal (P.W. 10) are set aside. The conviction and sentence of appellant Ramraj u/s 304(II)/34 I.P.C. are also set aside. The conviction of appellants Lallu and Sheshmani u/s 304(II)/34 is maintained. According to the last para of the impugned judgment they have remained in jail for five years, two months and four days. They have remained in custody even after the judgment of the trial Court. Thus, they have spent more than five and a half years in judicial custody. That is sufficient punishment for the crime committed by them. Therefore, the substantive sentence of imprisonment of appellants Lallu and Sheshmani u/s 304(II)/34 is reduced to the period already spent by them in custody. They will be set at liberty forthwith if they are not required in any other case.