MUNNA BASOR vs STATE OF MADHYA PRADESH

This criminal appeal under Section 374 (2) of the

Cr.P.C . filed on behalf of the appellants/accused persons

Shrichand and Shivcharan is directed against judgment dated

28.2.1998 passed by the Court of IIIrd Additional Sessions

Judge, Chhindwara in Sessions Trial No. 60/1997, whereby

accused Shrichand was convicted under Section 302 of the

I.P.C. and was sentenced to undergo life imprisonment and a

fine in the sum of Rs.5,000/-. In default of payment of fine,

he was directed to undergo rigorous imprisonment for a

further period of six months. Accused Shivcharan was

convicted under Section 326 of the I.P.C and was directed to

undergo rigorous imprisonment for a period of three and half

years and a fine in the sum of Rs.1,000/-. In default of

payment of fine, he was directed to undergo rigorous

imprisonment for a further period of three months.

The prosecution case before the trial Court may briefly

be stated thus: Accused persons Shrichand and Shivcharan

are real brother. Deceased Khoob Chand and injured Dwarika

Prasad were cousins. At about 5:30 p.m. on 28.9.1997,

deceased Khoob Chand was standing in front of Sarpanch

Munna Lal''s house. At that time, accused persons Shrichand

and Shivcharan arrived on the spot. Shrichand demanded the

price of sheaves grass said to have been supplied by him to

deceased Khoob Chand. Deceased Khoob Chand replied as to

on what account Shrichand was demanding money.

Consequently, they started abusing each other. Pursuant to

aforesaid altercation, accused Shrichand struck a blow with

an axe he was carrying, upon the back of the deceased Khoob

Chand. As a result, deceased fell down and started to bleed.

His cousin Dwarika tried to pull him up, he asked Shrichand

and Shivcharan as to why they had assaulted his brother;

whereon, accused Shivcharan exhorted Dwarika and asked

him to come and threatened that Shivcharan would also killed

Dwarika. Thereafter, Shivcharan struck a blow to Dwarika

with the axe he was carrying, near left elbow joint.

Consequently, Dwarika also started to bleed. Mohan, Munna

Lal and Malook Chand were present on the spot, they

intervened in the matter. If they had not protected Khoob

Chand and Dwarika, the accused persons would have killed

both of them. Since, Khoob Chand had sustained a serious

injury in the back, he was losing his consciousness. Deceased

Khoob Chand and Dwarika were taken on a bullock cart to

police out-post Newton, where the first information report

was lodged by injured Dwarika. Deceased Khoob Chand

succumbed to his injuries at around the time, they reached the

police outpost. During investigation, on the separate

disclosure statements made by accused persons Shrichand

and Shivcharan, axes with blood like stains were recovered

from the possession of accused persons.

The trial Court framed the charge under Section 302

read with section 34 of the I.P.C. against accused Shrichand

and a charge under Section 302 read with Section 34 and

Section 307 of the I.P.C. against accused Shivcharan. The

accused persons abjured guilt and claimed to be tried.

After the trial, the trial Court held that the prosecution

has succeeded in proving beyond reasonable doubt that

accused Shrichand had committed murder of Khoob Chand

by inflicting a blow with an axe; therefore, he was convicted

under Section 302 read with section 34 of the I.P.C. It was

further held that co-accused Shivcharan had not participated

in aforesaid act of accused Shrichand in any manner;

therefore, he was acquitted of the charge under Section 302

read with section 34 of the I.P.C. It was further held that the

prosecution had failed to prove that the accused Shivcharan

had attempted to commit murder of injured Dwarika;

however, the prosecution had succeeded in proving that

Shivcharan had caused grievous injury to Dwarika by a sharp

cutting objects like axe; therefore, the trial Court acquitted

Shivcharan of the offence punishable under Section 307 of

the I.P.C. but convicted him under Section 326 of the I.P.C.

thereof.

Conviction of appellant Shrichand under Section 302

and appellant Shivcharan under Section 326 of the I.P.C. has

been challenged before this Court mainly on the ground that

appellant Shrichand was demanding Rs.800/- from Khoob

Chand for sheaves of grass he had supplied to him. The

deceased was disputing the fact that any such amount was

due. Deceased Khoob Chand and his cousin Dwarika beat the

appellants with sticks. As a result, Shrichand sustained three

injuries caused by hard and blunt objects and Shivcharan

sustained five injuries also caused by hard and blunt objects.

The existence of these injuries upon the person of the

appellants have been proved by Dr. R.K. Bansod (PW-10)

and recorded in their M.L.C. reports Ex. D-2 and D-3. None

of the prosecution witnesses has admitted that the appellants

had suffered such significant and numerous injuries in the

incident. As such, no explanation is forthcoming from the

prosecution to explain the injuries sustained by the appellants

in the incident. In these circumstances, the trial Court ought

to have drawn following inferences:

(I) that prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version; (II) the witnesses, who have denied the existence of injuries on the person of accused are lying on a most material point and; therefore, their evidence is unreliable; (III) that the defence version which explains injuries on the body of accused persons is rendered probable so as to throw doubt upon the prosecution story.

For aforesaid contention, learned counsel for the

appellants has placed reliance upon the judgment in case of

Laxmi Singh and others vs State of Bihar AIR 1976 SC

2263; therefore, it has been argued that the appellants deserve

benefit of doubt.

The second argument that has been advanced on behalf

of the appellants is that the sole injury that is alleged to have

been caused by appellant Shrichand to deceased Khoob

Chand was inflicted upon his back, which is a non-vital part

of the body; therefore, the appellant Shrichand cannot be

attributed with intention to cause death of deceased Khoob

Chand. At worst, it can be said that he had knowledge that

such an injury may cause death of the deceased; therefore, the

act of the appellant Shrichand would fall under the category

of Section 304 (Part-II) of the I.P.C. For the aforesaid

contention, learned counsel for the appellants has placed

reliance upon the judgment rendered by the Supreme Court in

the case of Arjun Vs. State of Chhattisgarh (2017) 3 SCC

247.

Learned panel lawyer for the respondent/State on the

other hand has supported the impugned judgment.

On perusal of the record and after due consideration of

the rival contentions, we are of the view that this appeal must

succeed but only in part. The conviction of appellant

Shrichand under Section 302 of the I.P.C. is liable to be

modified into one under Section 304 (Part-II) and the

sentence is also required to be modified accordingly. The

conviction of appellant Shivcharan under Section 326 of the

I.P.C . does not deserve to be interfered with and is liable to

be affirmed. The reasons for our conclusions are as follows:

As per prosecution story, the incident is alleged to

have taken place in front of Sarpanch Munna Lal''s house.

Appellant Shrichand lives across the road. Prosecution has

examined two eye witnesses namely Mohan (PW-3) and

Munna Lal (PW-4), who are witnesses to the incident from

the beginning to end. They were sitting in Munna Lal''s house

waiting for the local MLA to arrive. Injured eye witness

Dwarika reached the spot when the appellant Shrichand

inflicted axe blow upon Khoob Chand. The sum and

substance of the deposition of aforesaid three prosecution

witnesses is that at about 5:00 p.m. on 24.1.1997, Mohan

(PW-3) and Munna Lal (PW-4) were sitting in the house of

Sarpanch Munna Lal. At that time, deceased Khoob Chand

arrived in the alley situated in front of Munna Lal''s house. He

came from the direction of tailor''s house. Appellant

Shrichand stopped deceased Khoob Chand and asked for the

price of grass sheaves supplied by him. Deceased Khoob

Chand protested and said that no money was due by him to

appellant Shrichand; whereon, Shrichand started to abuse

Khoob Chand and matter flared up. At that juncture, appellant

Shrichand delivered a blow to back of deceased Khoob

Chand with an axe that he was carrying. As a result, Khoob

Chand fell down and started to bleed from the wound.

Mohan (PW-3) has stated that after altercation with

deceased Khoob Chand, Shrichand had gone inside his house

and had returned with an axe. At that time, Dwarika also

arrived. During same altercation, accused Shivcharan

delivered a blow with an axe to the hand of Dwarika Prasad

as he tried to intercede on behalf of Khoob Chand. Dwarika

also to blead from his hand.

Munna Lal (PW-4) left immediately for police out-

post Newton to call the police. Meanwhile, deceased Khoob

Chand was lapsing into unconsciousness. The villagers took

deceased Khoob Chand and Dwarika in a bullock-cart

towards Newton police out-post. The police met them on their

way to police out-post Newton; thereafter, Dwarika lodged

the FIR at around 10:00 p.m.. At about the same time, Khoob

Chand succumbed to his injury.

Dr. R.K. Bansod (PW-10) has supported the

prosecution case and has stated that at about 11:00 p.m. on

24.1.1997, he had examined deceased Khoob Chand. He had

suffered incised wound admeasuring 4" X 1" which was very

deep and was bleeding profusely. As a result of aforesaid

injury, deceased Khoob Chand was gasping for breath. The

injury was surrounded by swelling. It was caused by hard and

sharp object. At that time, Khoob Chand was semi-conscious.

Dr. R.K. Bansod (PW-10) has further submitted that

he had conducted post-mortem examination on the dead body

of the deceased at about 10:30 p.m. on 25.1.1997. After

dissecting the body, he had found that under aforesaid injury,

5th, 6th and 7th ribs were broken. The muscles were cut and

there was a 4" X 1" cut in lung. In his opinion, the deceased

had died as a result of shock and hemorrhage resulting from

aforesaid injury.

In the back drop of aforesaid prosecution evidence,

when we examine the defence taken by the appellants, we

find that all three prosecution witnesses namely Dwarika

(PW-1) Mohan (PW-3) and Munna (PW-4) have

categorically denied that deceased Khoob Chand and

Dwarika had caused any injury to Shrichand or Shivcharan.

They have stated that if at all Shrichand and Shivcharan have

suffered any injury, they do not know how it was caused.

However, it is significant to note that Dr. R.K. Bansod (PW-

10) had admitted in his cross examination that at about 11:50

p.m. on 24.1.1997, he had examined Shrichand and had found

following three injuries on his person:

(i) One lacerated wound admeasuring 1/4" X 1/4" on left eyebrow. Blood had clotted over that injury;

(ii) a contusion admeasuring 3"X 4" upon lips;

(iii) a contusion admeasuring 2" X 1" on right side of neck; -Aforesaid injuries were caused by hard and blunt

object. Duration of aforesaid injuries was 5 to 9 hours. His

M.L.C. Report in this regard is Ex. P-3.

Dr. Bansod (PW-10) had also stated in his cross

examination that at 11:30 p.m. on 24.1.1997, he examined

appellant Shivcharan and had found following injuries:

(i) a red contusion admeasuring 4"X1" between 5th and 8th rips. The injured was complained of pain;

(ii) a contusion ad measuring 5" X 1" red in colour, on outer aspect of right thy;

(iii) a contusion admeasuring 4"X1"/ red in colour, on outer aspect of right elbow;

(iv) an abrasion below naval admeasuring 2"X1/4",

(v) an abrasion admeasuring 1.5"X 2.5"/ right side of throat.

All of aforesaid injuries were caused by hard and blunt

object within 5 to 8 hours of the examination. Appellant

Shivcharan was refereed for X-ray examination of injury

number 1. His M.L.C. Report is exhibit D-2.

Thus, it is clear that at least 5 injuries on the body of

appellant Shivcharan and three injuries on the body of

appellant Shrichand were present, which could have been

caused in the incident. The prosecution witnesses, had failed

to explain any of these injuries. In fact, they denied having

seen any such injury on the person of the appellant. In these

circumstances, relying upon the judgment rendered by the

Supreme Court in the case of Laxmi Singh and others vs

State of Bihar AIR 1976 SC 2263, learned counsel for the

appellant has contended that the appellants deserve benefit of

doubt. In the case of Laxmi Singh (supra), the Supreme Court

has relied upon the judgment rendered by an earlier case of

Supreme Court Mohan Rai Vs. State of Bihar AIR 1995

S.C. 1674. It has been held in substance, in the case of Laxmi

Singh as follows:

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 altecaration 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 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 procession one.

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 it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.

However, we may note that none of the injuries

sustained by appellant Shivcharan was visible, as none of

them caused any bleeding. Likewise, there was only one

injury on the person of appellant Shrichand, which was

1"x1/4" on left eyebrow, wherein the blood had clotted and

which could be said to be visible. Moreover, none of

aforesaid injuries was grievous in nature. The fact that these

injuries were caused during the incident did not find place in

the examination of the accused persons under Section 313 of

the Cr.P.C. Moreover, a suggestion was made to Mohan (PW-

3) in his cross- examination that after the incident, the

appellants were tied up in the courtyard of Sarpanch Munna

Lal and Munna Lal, Mohan or some other persons had beaten

up the appellants. In these circumstances, the possibility that

aforesaid injuries were not caused by the Khoob Chand or

Dwarika during the course of the incident also cannot be

ruled out. It may further be noted that the injuries found on

the person of the appellants pale into insignificance when

compared to conspicuous and serious injuries sustained by the

victims. In this regard, a three Judge Bench of the Supreme

Court in the case of Takhaji Hiraji Vs. Thakore Kubersing

Chaman Singh (2001) 6 SCC 145 has substantially held as

hereunder:

The view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.

Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions:

(1) that the injury on the person of the accused was a serious nature; and

(ii) that such injuries must have been caused at the time of the occurrence in question.

Non-explanation of injuries assumes greater significance when

- the evidence consists of interested or partisan witnesses or

- where the defence gives a version which competes in probability with that of the prosecution.

Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood - the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.

The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons."

Likewise, another three Bench of the Supreme Court

in the case of Rajendra Singh Vs. State of Bihar AIR 2000

SC 1779 has also held as follows:

The question whether non-explanation of the injuries on accused Rajender ipso facto cannot be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident.

It may be noted in this regard that not only the injuries

found on the person of the appellants are insignificant and

superficial, the eye witnesses in the case are neither interested

nor partisan. There is no defence version which competes in

probability with that of prosecution version; therefore, non-

explanation of injuries found on the person of the appellants,

does not dent the prosecution case in any manner.

The last question that remains for consideration is

whether the act of appellant Shrichand would constitute

murder punishable under Section 302 of the I.P.C? and if not,

whether it would constitute an offence under Section 304

(Part-II).

It may be noted in this regard that the weapon used by

appellant Shrichand for causing injury was an axe, which per

se, is a dangerous weapon. Though, Mohan (PW-3) has stated

that after the altercation between appellant Shrichand and

deceased Khoob Chand started, appellant went home and

returned with an axe in his hand. On the basis of aforesaid

statement, learned panel lawyer for the respondent/State has

argued that aforesaid act on the part of appellant Shrichand

betrays his intention to cause death or at any rate, to cause

such bodily injury; as is sufficient in the ordinary course of

nature to cause death. However, it may be seen that Munna

(PW-4), who was present on the spot throughout, has clearly

stated that the axe used in the incident was all along in the

hands of appellant Shrichand. Thus, on this point, the

testimony of Mohan (PW-3) has been contradicted by Munna

(PW-4). In such circumstances, the Court would prefer the

statement that goes in favour of the accused. Munna (PW-4)

has also admitted that preceding the incident, there was an

altercation between appellant Shrichand on one hand and

deceased Khoob Chand on the other on account of price of

grass sheaves purportedly sold by appellant Shrichand to

deceased Khoob Chand, with the deceased denying his

liability to pay; as such, there was a sudden fight and the

appellant was in the heat of passion upon a sudden quarrel

and he inflicted solitary injury, without any premeditation

upon the back of the deceased. It goes without saying that

back is a non-vital part of the human body. If the appellant

had intention either to cause death of the deceased or to cause

him such bodily injury as is sufficient in the ordinary course

of nature to cause death, he could easily have dealt a blow to

his head, neck, chest or stomach which are vital parts. In

these circumstances, it cannot be said that he had an intention

to cause death or cause such bodily injury as was sufficient in

the ordinary course of nature to cause death; therefore, his act

would fall under exception No.4 of Section 300 of the I.P.C.

However, the blow was so severe that it cut through the ribs

and caused a 2 inch deep wound in the lung. The injury was

caused by a dangerous weapon like axe. Thus, the appellant

Shrichand can certainly be attributed with the knowledge that

aforesaid act was likely to cause death; therefore, his act

would not come under the purview of Section 304 (Part-I) of

the I.P.C. but 304 (Part-II) thereof.

On the basis of foregoing discussion, we are of the

view that the trial Court erred in convicting appellant

Shrichand under Section 302 . His act falls under Section

304 (Part-II) of the I.P.C.; therefore, his conviction is liable to

be modified accordingly.

So far as the appellant Shivcharan is concerned, he

inflicted a blow with sharp side of the axe to victim Dwarika;

as a result, he suffered an incised wound admeasuring 3"x1"

from which a lot of blood was gushing out. This fact has been

proved by Dr. R.K. Bansod (PW-10). His report in this regard

is Ex.P-17. In the X-ray examination of the left elbow joint of

victim Dwarika, a fracture was detected. The X-ray plate is

Ex.P-19, which had been admitted by the accused persons.

Thus, it is proved beyond reasonable doubt that appellant

Shivcharan had caused an incised wound to left elbow of the

victim Dwarika causing fracture of shaft of ulna bone. Thus,

he has been rightly convicted under Section 326 of the I.P.C.

for causing grievous injury to the victim Dwarika with a

sharp cutting object.

On the basis of foregoing discussion, this appeal is

allowed in part. The conviction of appellant Shrichand under

Section 302 of the I.P.C. is modified to one under Section 304

(Part-II) of the I.P.C. The sentence of life imprisonment is

reduced to one of rigorous imprisonment for a period of 10

years. Appellant Shrichand shall appear before the trial Court

to undergo remaining part of his sentence (if any) on 10-7-

2017. In case he fails to appear before that Court as directed,

the trial Court shall issue coercive process to make him

undergo the modified sentence imposed upon him.

The appeal filed by appellant Shivcharan is dismissed.

His conviction and sentence under Section 326 of the I.P.C. is

affirmed. He has already been released from jail after

undergoing the entire jail sentence. (please refer to order

dated 15.9.2008 passed in criminal appeal No.908/1998).

For the able assistance rendered by Shri Yogesh Soni,

Advocate to this Court as amicus curiae, we direct the M.P.

State Legal Services Authority to pay a sum of Rs.5,000/-

(Rupees five thousand) to the learned amicus curiae as

honorarium for defending the appellants in the present appeal.