Peerushah @ Peer Mohammad and Another vs State of M.P.

S.L. Kochar, J.

For taking exception to the order of conviction and sentence passed against appellants by learned Addl. Sessions Judge, Shajapur in the matter of session Trial No. 121/1994, the appellants have approached this Court by preferring this appeal. Learned Addl. Sessions Judge, Shajapur had convicted the appellant Peerushah @ Peer Mohammed for the offence punishable U/S. 302 and 307 of IPC and sentenced him to undergo imprisonment for life with fine of Rs. 5000/-, in default whereof to undergo R.I. for three months and R.I. for ten years with fine of Rs. 3000/-, in default of payment of fine to undergo R.I. for one year, respectively and also convicted appellant Ishaq Khan U/S: 307 of IPC and sentenced to R.I. for ten years with fine of Rs. 2000/-, and in default of payment of fine to undergo R.I. for one year.

Briefly stated the prosecution case as unfolded before the trial Court was that complainant Iqbal (PW.7) and his nephew, deceased Zakir were doing chilly business. Acquitted co-accused Kallu @ Kalu entrusted 15 bags chilly to the brother of the complainant Iqbal for sale. These chilly bags were sold by Shariff, the brother of complainant Iqbal in Agra. Thereafter they also settled the account. But on the date of incident i.e. 4/3/1994, acquitted co-accused Kallu @ Kalu had some verbal talk on the issue of sale of chilly bags. According to him, complainant Iqbal and his brother sold the chilly bags on higher rate and kept the balance amount with them. On account of this dispute, on the same day on 4/3/1994 at 4.00 p.m. appellant No. 1 Peerushah called complainant Iqbal (PW.7) and deceased Zakir. Thereafter Peerushah caused Knife injury to Zakir on his honest. Iqbal (PW.7) tried to save deceased Zakir. He too was assaulted by knife by appellant No. 1 Peerushah which caused injury on his palm. The appellant No. 2 Iqbal Khan, thereafter reached on the spot with lathi and assaulted Iqbal by lathi. Ishaq had also assaulted deceased Zakir by lathi. Against acquitted co-accused, the allegation of exhortation was levelled. On exhortation by Kallu @ Kalu, Ishad had caused one injury on scapula region of Iqbal. Iqbal raised cry, which attracted his brother Jaan Mohammed, Shehjaad and Karim. They pacified the quarrel. Iqbal (PW.7) went to the police station, Shajapur and lodged the report on which Crime No. 103/1994 for the offence U/S. 307/34 of IPC was registered. Zakir died on the spot. Therefore, offence U/S.302 of IPC was also registered. After inquest, dead body of Zakir was sent for postmortem and the same was performed by Dr. N.K. Gupta (PW.3). His postmortem report is Ex.P.2 Dr. Gupta also examined Iqbal (PW7) His injury report is Ex.P.3 After necessary investigation, charge sheet was filed against the appellants and acquitted co-accused Kallu @ Kalu U/S.302 and 307/34 of IPC.

The appellants have denied the charges. In accused statement recorded U/.S.313 they took the plea of denial and false implication but during the course of cross-examination of complainant Iqbal (PW.7), eye witness Noor Mohammad (PW.1) Batulbai (PW.4) and Jamila (PW5) suggestions were given that deoeased Zakir was having lathi and Iqbal caused injury by farsi to appellant No. 1 Peerushah during the course of talk regarding sale of chilly bags on higher rate. According to the appellants, deceased and complainant were the aggressor and when they tried to assault them and complainant Iqbal caused injury by farsi to appellant No. 1 Peerushah at right wrist, at this moment they also acted in right of private defence of their body and assaulted the deceased and complainant. Appellants examined Head Constable Mahanbhau (DW.1) who proved rojnamcha sanha No. 285 dated 4/3/1994 recorded at the instance of Peer Mohammed and also got proved the injury report of appellant No. 1 Peerushah @ Peer Mohammed (Ex.D.2) and x-ray report (Ex.D.3) by Dr. N.K. Gupta (PW.3). The learned trial Court, relying on the eye witnesses account, medical evidence and other documentary evidence, while holding in paragraph 61 that appellants failed to prove their case of right of private defence of their body, convicted the appellants as mentioned hereinabove.

Shri R.K. Trivedi, learned counsel for appellants have submitted that there is clear and cogent evidence on record that appellants acted in right of private defence of their body and deceased and complainant Iqbal were the aggressor, when they assaulted appellant No. 1 Peerushah, only thereafter appellants acted in their defence and caused injury to deceased and Iqbal. Learned counsel has submitted that the appellant No. 1 Peerushah lodged the report (Ex.D.8) on the same day and in the said report, he has mentioned the fact of self defence. He explained the injury found on the person of complainant party as well as his own injury whereas the complainant party has failed to explain the injury sustained by appellant No. 1 Peerushah in the same incident. The injury report is also proved by the same Doctor Dr. N.K. Gupta (PW.3). Injury report of appellant No. 1 Peerushah is Ex.D.2 and x-ray report is Ex.D.3. Dr. Gupta found incised wound on the right wrist of appellant Peerushah and in x-ray examination, fracture of right lower portion of ulna was present. The learned counsel has submitted that when appellants have explained the injuries sustained by both the parties and pleaded clear case of right of self defence and complainant party did not explain the injury sustained by accused persons and giving one side version, in such situation, the learned trial Court should have accepted the defence version.

The learned P.P. Shri Manoj Dwivedi, appearing for respondent State has submitted that the prosecution has proved its case beyond all reasonable doubt. F.I.R (Ex. P.S) was lodged by injured witness Iqbal (Pw.7) immediately after the incident and version of eye witnesses are fully corroborated by the medical evidence. The learned trial Court has rightly discarded defence plea and convicted the appellants as mentioned above. In sum and substance, he has vehemently supported the judgment and finding arrived at by the trial Court.

On going through the F.I.R (Ex.P.5) lodged by Iqbal (PW.7),Ex.D.8 recorded at the instance of appellant No. 1 Peerushah, eye witnesses account of Noor Mohammed (PW. 1) Batulbai (PW.4) Jamila (PW.5) and medical evidence of Dr. N.K. Gupta (PW.3) as well as statement of Investigating Officer D.K. Mishra (PW.9), it emerged that appellants and complainant party were having their houses in front of each other and were also having cordial business relations. There is no evidence on record about any previous enmity between the parties. The prosecution story itself is that the complainant party had entrusted chilly bags to the appellants for sale and after sale, appellants paid the sale proceeds but thereafter complainant party had some doubt about disclosure of actual sale price by the appellants and there was some sort of talk in the noon on the date of incident and again in the evening they assembled on this issue. During the course of verbal talk on the point of sale of chilly on higher price and making the payments at the rate of low price by the appellants, it is said that appellants started beating the deceased Zakir and Iqbal by Knife and lathi. The eye witness account about causing injury by the appellants by lathi to deceased Zakir and complainant-injured witness Iqbal (PW.7) is not corroborated by the medical evidence. Dr. N.K. Gupta (PW.3) did not find any injury on the person of deceased Zakir caused complainant party. In Court statement also, Iqbal (PW.7) who is the injured witness and other witnesses Noor Mohammed (PW.1), Batulbai (PW.4) and Jamila (PW.5) have not explained the injury sustained by appellant No. 1 Peerushah in the same incident. The statement of injured witness Iqbal as well as all other three eye witnesses (supra) are not duly corroborated by the medical evidence regarding use of lathi or any hard and blunt object by the appellants because on the person of deceased Zakir and injured witness Iqbal, not a single injury was noted by the medical expert caused by hard and blunt object. This shows that the prosecution witnesses had exaggerated the incident and did not give true and clear picture before the Court whereas the appellants have explained the injuries on the person of deceased as well as injured witness Iqbal (PW.7) vis-a-vis injury sustained in the same incident by appellant No. 1 Peerushah @ Peer Mohammed.

In this connection, the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar, has held as under :-

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 injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution.

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 consist of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

In view of the above proposition of law laid down by the Supreme Court, the case of the appellants fall within the category of inference No. 3. The prosecution has not explained the injuries on the person of appellant No. 1 Peerushah whereas defence has explained the injuries on the person of the deceased, injured witness as well as on the person of appellant No. 1 Peerushah which competes in probability with that of the prosecution one.

The law is well settled about burden on the prosecution to prove its case beyond all reasonable doubt and burden on the defence to prove their case by preponderance of probability as per provision U/S. 105 of the Evidence Act. The learned trial Court has also, in paragraph 61, while dealing with the question of acting of the appellants in their self defence, has held that even if it is accepted for the sake of arguments that the appellants had right of self defence and they used force in their defence but they could not use more force in their defence than the required one.

In view of this finding and the evidence as discussed by us hereinabove, we are of the opinion that the appellant No. 1 Peerushah had acted well within the provision of sec.100 of IPC which gives him right to cause death or of any other harm to the deceased who cause grievous injury to him as mentioned hereinabove. The case of the appellant No. 1 Peerushah is fully covered U/S.100 Clause Second of IPC which says that right of private defence of the body extends to causing death. When the appellant No. 1 Peerushah was caused grievous injury by sharp edged weapon by the deceased Zakir and immediately thereafter appellant dealt a solitary blow by knife which landed on the left side of chest of the deceased. Therefore, the appellant No. 1 Peerushah has not exceeded his right of private defence and it cannot be said that he used more force than required. The over fact attributed to the appellant No. 1 Peerushah for causing injury by him to complainant Iqbal (PW.7) by knife is not corroborated by medical evidence. Therefore his conviction U/s.307 of the IPC is also not sustainable.

So far as causing simple injury by appellant No. 2 Ishaq Khan to complainant Iqbal is concerned, his conviction U/S.307 of the IPC is not sustainable because there was no evidence of motive for attributing intention to the appellant No. 2 Ishaq for causing such bodily injury because of which if injured would have died, the appellant Ishaq would have been guilty of commission of culpable homicide amounting to murder. Dr. N.K. Gupta (PW.3) has opined in unequivocal term that both the injury sustained by Iqbal could be caused by one blow and version of Iqbal that appellants caused three separate injuries by knife is not duly corroborated by the medical evidence. Therefore, the appellant Ishaq can be held liable only for the act of causing simple hurt to Iqbal (PW.7)

In the result, on the basis of the aforesaid factual and legal discussion, the conviction of the appellant No. 1 Peerushah @ Peer Mohammed U/Ss. 302 and 307 of IPC are not sustainable. Therefore, same are hereby set aside, The trial Court is directed to release him forthwith, if not wanted in any other criminal case. The conviction of appellant No. 2 Ishaq U/S.307 of the IPC is also set aside, instead thereof he is convicted U/S.324 of IPC. The learned counsel for appellant has submitted that parties have compromised their dispute amicably and Iqbal has filed I.A.No. 3089/2005 for grant of permission to compound the offence with appellant No. 2 Ishaq. Since the complainant Iqbal is not present today before this Court to verify this application, we are unable to consider the same. The appellant Ishaq was 28 years of age at the time of incident which had occurred on 4/3/1994. Today he may be aged about 40 years. The learned counsel has submitted that he is a married person having responsibility to maintain his wife, children, old mother and father. He has also no criminal antecedents and his sentence was suspended by this Court. After his release, there is no complaint against him during the period of this 11 years for his involvement in any other criminal case. Therefore, ends of justice would be served to sentence the appellant Ishaq Khan for the period already undergone and fine of Rs. 3,000/- (rupees three thousand). He remained in jail during the trial for one month and 24 days, after conviction for two months and five days, and in total he remained in jail for three months 29 days. In default of payment of fine, he shall undergo further R.I. for six. Months. The learned counsel for appellants has informed that appellant Ishaq Khan has already deposited the fine amount of Rs. 2,000/-. If this is so, his bail bond and surety bond stand cancelled after depositing the remaining fine of Rs. 1,000-/ Out of this fine amount, Rs. 1,500/- be paid as compensation to the complainant Iqbal.

The appeal is partly allowed on the terms indicated hereinabove.