Murlidhar, Mukut and Tulsiram vs State of M.P.

S.R. Waghmare, J.—This appeal u/s 374 of the Cr.P.C., is filed by accused/appellants Murlidhar, Mukut and Tulsiram being aggrieved by judgment of conviction passed by First Additional Sessions Judge, Mhow District-Indore on 06.04.2002 convicting the appellant Tulshiram for offence u/S. 307 of the IPC and appellants Murlidhar and Mukut for offence u/S. 307/34 of the IPC and they were sentenced to life imprisonment with fine of Rs. 3,000/- each and in default of payment of fine they were to under go additional sentence of one year each. Brief facts of the prosecution case are that on the date of incident i.e. 16.02.2001 approximately 11:15 am at village Khedi police station Manpur the complainant Devkaran was working with his wife Parvati when accused Murlidhar, Mukut and Tulsiram started installing/removing the water motor of tube well from the iron stand (ghodi) since the stand had two legs, which were required to be set in the field of the complainant; however, complainant Devkaran refused permission and accused Murlidhar caught hold of Devkaran and accused Mukut cast a blow on the left shoulder with a lathi and accused Tulsiram assaulted him on the head with the axe, as a result of which, he started bleeding; since the wife of Devkaran approached shouting all the three accused ran away. Nanna @ Harish (P.W. 6) eye-witness of the incident and complainant Devkaran came up to the path way but Devkaran fell down. Thereafter Nanna (P.W. 6) and Jagdish (P.W. 7) put him on the motorcycle and took the injured Devkaran first to the police station and lodged a report at police station Manpur and crime was registered at crime No. 32/2001. Then the complainant was sent to the hospital for treatment. After completion of the investigation the accused were charged for offence u/S. 307/34 of the IPC and arrested and committed to their trial.

The accused abjured their guilt for offence u/S. 307/34 of the IPC and submitted that they were falsely implicated in the matter and stated that Devkaran was trying to takeover their agricultural land. They examined by Dr. Bardrilal (D.W. 1) and Dr. Mohd. Arif Khan (D.W. 2) as defence witnesses. The trial Court on considering the offence, however convicted and sentenced the appellants as hereinabove indicated and hence, this appeal.

Counsel for the appellants has vehemently urged the fact that trial Court had erred in convicting the accused Tulshiram for offence u/S. 307 of the IPC when at the most offence would fall u/S. 326 of the IPC and convicting the accused Murlidhar and Mukut for offence u/S. 307/34 of the IPC when the most of offence would be u/S. 325 of the IPC. Besides Murlidhar was not even present at the place of incident. Counsel submitted that upon examination of injured Devkaran; Dr. Arif Khan (D.W. 2) had only found one lacerated wound on the head and all the three accused should not be convicted for offence u/S. 307 of the IPC. Moreover the injury was not dangerous to life and hence offence u/S. 307 of IPC would not be made out against all the accused appellants. At most accused Tulsiram could be convicted for offence u/S. 326 of the IPC since there was no intention to commit murder as has been made out. The dispute arose all of sudden due to installation of electric water motor, the offence u/S. 307 of IPC could not be made out against the other two co-accused also since common intention could not be imputed to these two persons; more so the men rea can not be attributed to co-accused Murlidhar since suggestion has also been given by the defence that Murlidhar was not present at the place of incident; besides the prosecution witnesses are interested witnesses, due to close relation and Trial Court had erred in convicting the accused for offence u/S. 307 of the IPC. Considering the evidence of all the witnesses, Counsel urged that the important eye-witness Nanuram has not been properly examined by the prosecution and he has been declared hostile and the credibility of the entire prosecution case has been destroyed. Similarly the wife of the complainant Devkaran was not present on the spot at the time of the incident and arrived after incident took place and, therefore, she is a witness of res-gestae. Similarly, the Court has erred in relying on hostile witnesses in convicting the accused. Counsel submitted that the medical evidence also indicated that the injury of head could have occurred on Devkaran due to falling down of ghodi or stand of water motor and Counsel submitted that medical evidence on record was also contradictory especially regarding the accused Murlidhar, it has been stated that there are only allegations that this accused having held hand of Devkaran. Counsel submitted that the conviction of the accused be set aside. Besides Counsel submitted that use of the axe has not been properly considered and the medical evidence on record has been misread and the findings in this regard were full of conjecture and surmises. Counsel submitted that guilt of accused was not established and it would be crucial to convict the accused for offence u/S. 307 of the IPC. Counsel relied in the matter of A.C. Gangadhar Vs. State of Karnataka, , to state that there was a single injury on the head by axe and trial Court had held that conviction u/S. 326 of the IPC would be proper and sentence of one year rigorous imprisonment was appropriate under the circumstances.

Per contra, Counsel for the respondent/State has vehemently opposed the submissions of the Counsel for the appellants and fully supported the judgment of the trial Court referring to the X-ray report of Radiologist Dr. Arvind Jain (P.W. 4). Counsel contended that there was a fracture of right parietal region of skull and also fracture of radius and ulna bone of right hand. Referring to the testimony of Dr. Ravi Verma (PW. 11), Counsel submitted that according to Ex. P/17 the query report of Dr. Ravi Verma had certified that the injury was grievous in nature and was dangerous to life. In this view of the matter, it cannot be stated that there was no evidence on record to justify the conviction u/S. 307 of the IPC. Moreover Counsel urged that the axe has been recovered from the possession of accused Tulsiram and recovery witness (P.W. 9) Jitendra Pathak has supported the prosecution case and from accused Mukut a lathi was recovered vide Ex-P/12 and from accused Murlidhar nothing was recovered, suggestion has been given of this witness that Murlidhar was not present at the spot and he however denied the same.

In the reply, Counsel for the respondent/State also referred to Subramani and Others Vs. State of Tamil Nadu, , whereby it is held that the accused had the right of private defence when he reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property could be extended u/s 103 of the IPC to voluntarily causing the death of the aggressor only subject to restrictions mentioned in Section 99 of IPC. In the present case also Counsel submitted that although there is evidence on record to indicate that complainant party had encroached the land of the accused and were preventing the accused from installation of water motor and free fight may have ensued caused injury but both the sides but there is no evidence on record. Thus Counsel submitted that the conviction was proper and called for no interference. He prayed that the appeal was without merit and the same be dismissed.

Considering the above submissions, evidence on record and impugned judgment, we find that the questions that arise for our consideration in this appeal are whether the conviction of the accused/appellants has been in accordance with law and whether upon the single injury on the head all the three accused can be convicted for offence u/s. 307 of the IPC simpliciter and whether common intention can be imputed to co-accused/appellant No. 1 Murlidhar and co-accused appellant No. 2 Mukut. Considering the submissions of Counsel for the appellants, it is evident that the dispute arose all of sudden on the spot regarding the installation/removal of water motor and on refusal by the complainant Devkaran, it appears as the accused/appellant No. 3 Tulsiram lost his temper and stuck Devkaran on his head with an axe.

At this juncture, it is essential to consider whether the prosecution has successfully proved that the motive or men rea to commit murder, existed regarding all the three accused persons. Looking to the injury sustained by Devkaran, we find that there are only two injuries, one on the head and one on the right hand, which were grievous in nature. In this light, defence has been prompt to take up defence of alibi that accused Murlidhar was not present on the spot at all.

Considering the testimony of injured complainant Devkaran (P.W. 1) he has stated in para No. 3 of his deposition that accused Murlidhar, who was present on the spot held his hands and accused Tulsiram assaulted with the axe and accused Mukut assaulted with lathi. This fact is also corroborated by Nanna (P.W. 6), who has stated in impugned para No. 1 of his deposition that all the three accused were removing the water motor, however this witness has turned hostile in Court and has not been found to be reliable. The wife of the complainant Parvati (P.W. 2) has also failed to mention the name of accused Murlidhar in her examination-in-chief. However in the FIR Ex-P/6, it is indicated that accused Murlidhar was present on the place of the incident then in this light the defence of the accused raises a doubt whether Murlidhar was actually present at the place of occurrence since no overt act has been ascribed to this accused by any of the prosecution witnesses. Then the fact that rivalry existed between the parties and all the brothers have been roped in cannot be marginalized or blinked away. And benefit of doubt regarding his presence at the place of the incident must accrue to him. Besides even if testimony of the injured witness Devkaran (P.W. 1) is considered, he only stated that Murlidhar had held his hands and there is no evidence on record to indicate that the present accused had accosted the injured witness in any way and hence in our humble opinion benefit of doubt must accrue to this accused Murlidhar and hence we have no hesitation in setting aside the conviction of accused Murlidhar for offence u/S. 307/34 of IPC.

Consequently common intention can not be imputed to co-accused Mukut also since it is accused Tulsiram who has been convicted for offence u/s 307 of IPC simpliciter. This brings us to the next question whether Mukut would be liable for offence u/S. 307 of IPC. Considering the nature of dispute; it has been taken up in defence that the iron stand (ghodi) or the water motor was basically installed in the field of accused Mukut and Murlidhar and the complainant Devkaran was the aggressor and had come towards the field of Mukut this is the evident from the testimony of Nanna (P.W. 6)., author of the FIR. And the alleged eye-witness Nanna has stated that he was working in his field and irrigating them when all the accused persons were removing the water motor, which had been burnt and he saw that there was verbal altercation between them regarding installation of water motor, which had encroached on the land of Devkaran and suddenly the fight erupted. However this witness has been declared hostile by the prosecution. Considering the testimony of injured witness Devkaran (P.W. 1), we find that he stated that the accused were removing the water motor and hence he (complainant Devkaran) had asked them to remove the stand from his field. He categorically stated that it was accused Tulsiram, who wielded the axe and assaulted him on the head whereas accused Mukut wielded the lathi and assaulted him on right hand. He agreed that there a common ''med''(raised path) between the field of the accused and that of Devkaran. And for quite some time there was a dispute between both of them, regarding the same. The defence has been quick to take up a plea that the nature of the injury as opined by the doctor of the MLC was such that it could have occurred if the iron stand (ghodi) had fallen on his head and hence the resulting injuries. Whereas complainant Devkaran categorically denied this fact in paragraph No. 8 & 9 in his deposition. He deposed that he did not go to the field of Mukut for removing iron stand (ghodi). However the medical evidence on record indicates that there was a fracture of right parietal region of skull and also fracture of radius and ulna bone of right hand according to Dr. Ravi Verma (P.W. 11) and Dr. Arvind Jain, Radiologist (P.W. 4). Under the circumstance, if would be fallacy to convict the accused appellant Mukut u/S. 307 of IPC and hence the conviction of accused Mukut also u/S. 307 of IPC is hereby set aside. However medical evidence on record and recovery of lathi Ex.-P/12 and corroboration of the fact that it was accused Mukut who assaulted with lathi, by Parvati (P.W. 2), Devkaran (P.W. 1) the injured witness and FIR Ex-P/6 and Nanna (P.W. 6) and we find that there is no doubt that the fracture on the hand of injured Devkaran was caused by accused Mukut. Hence the conviction of the accused Mukut is converted to one u/s u/S. 325 of the IPC and he is hereby sentenced to undergo three years rigorous imprisonment.

Finally considering the conviction of the accused Tulsiram, we find that there is unimpeachable testimony that accused Tulsiram has wielded the axe and caused the grievous injury on the head of the complainant Devkaran, however men rea to commit murder of Devkaran is also absent in his case as already stated above. It is defence of the accused that it was the injured witness Devkaran, who was the aggressor when he came to the field of accused Mukut and asked him to remove the iron stand (ghodi) and the accused Tulsiram has acted in self defence. However, the nature of the injury as certified by Dr. Arvind Jain, Radiologist (P.W. 4) and Dr. Ravi Verma (P.W. 11) indicated that the appellant has exceeded his right of private defence and hence he would guilty for offence u/S. 326 of the IPC and hence the conviction of the accused Tulsiram for offence u/S. 307 of the IPC is hereby set aside and instead he convicted for offence u/S. 326 of the IPC and sentenced to seven years rigorous imprisonment. The Trial Court has already awarded fine to the accused, which does not call for interference.

The accused appellants are on bail. Accused Mukut and accused Tulsiram shall surrender themselves on or before 12th November 2013 to under go the remaining part of jail sentence. The bail bonds of accused Murlidhar are hereby discharged. With the aforesaid observations, the appeal is partly allowed to the extent hereinabove indicated.

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