Sharad Chandra alias Mahipal and Another vs State of M.P.

Arun Mishra, J.

The present appeal has been filed by the Appellants who stand convicted for commission of offence u/s 307 I.P.C. and sentenced to R.I. for three years and fine of Rs. 100/- each and in default of fine to undergo further R.I. for one month.

The prosecution case, briefly stated, is that on 14.8.1985 at about 12.00 noon Jagjeewanlal, Ezaz and Gulzar were going together and when they reached near the shop of Dukodi kacher, accued Sharad Chandra, Satish Chandra and Jawaharlal came there on Rajdoot Motor and stopped their motor cycle. Accused Satish Chandra took out a 315 bore country-made revolver and fired at Jagjieewanlal which went escaped. Accused Sharad Chandra then took out a 12 bore country-made revolver and he also fired at Jagjeewanlal, but again the same missed. Thereupon accused Jawaharlal took out knives, one was handed over to Sharad Chandra and the other he kept with himself and both started stabbing Jagjeewanlal. Accused Ramakant and khiladi also reached there and all the five accused encircled and started beating Jagjeewanlal. Laxmichand Gupta came to intervene. Sharad Chandra tried to inflict an injury on his leg. Laxmichand caught hold of Sharad Chandra and suffered injury in his hands. Guljar was also inflicted a knife injury by Jawaharlal. The incident took place owing to old enmity. According to the prosecution Jagjeewanlal , Gulzar and Laxmichad suffered injuries and were taken to the dispensary for medical examination. Report Ex.P/1 was lodged from the hospital.

Dr. D.P. Pandey (PW 5) examined the injuries caused on the person of Jagjeewanlal, Gulzar and Laxmichand and submitted reports Exs.P/3 P/4 and P/6. Jagjeewanlal was referred for treatment to Gandhi Memorial Hospital, Rewa where he was treaed. Spot map Exs. P/8 was prepared vide Ex. P/8 and one knife was recobered and seized from accused khiladi vide Ex. P/10. Blood stained soil, plain soil, slippers and one old bag was seized. Motor cycle was also seized as per seizure memo Ex. P/13. Blood stained clothes were also recovered as per siezure memo Ex. P/3. Accused Jawaharlal was absconding, hence two sessions trials came to be registered i.e. S.T. Nos. 2 of 1986 and 26 of 1986. There was counter cases in the shape of S.T Nos. 126/85 and 60/86. Both the sessions trials were decided simultaneously.

In this Court also cross appeals have been preferred on behalf of Jagjeewanlal vide Cr.A. No. 787/89. Though the arguments were heard separately on different dates, while deciding the appeals it is noticed that they arise out of a commom incident hence due notice has been taken of the other appeal i.e. Cr.A. No. 789/89 in which separate judgment is being delivered which arises out of counter case i.e.S.T. Nos. 126/85 and 60/86.

The learned Counsel for the Appellantshas submitted that four persons were prosecuted in the case and two have been acquitted. There is no expanation of the injuries found on the person of Sureshchandra. It is submitted that the genesis of the incident has been suppressed and belated explanation has to be rejected. He has also submitted that the offence u/s 307 I.P.C. is not made out and at the most offence u/s 323/324 I.P.C. would be made out as none of the injuries inflicted could cause the death nor was shown to be dangerous to life, Alternatively learned Counsel has submitted that sentence be suitably reduced in the facts and circumstance of the case.

On the person of Jagjeewanlal the following injuries were found:

(1) Incised wound 2" � 1/2" � 1/2" on the left Delini region on posterior aspect;

(2) Incised wound 2 1/2" � 1/4" � 1/4" on the left side of chin ;

(3) Lacerated wound 2" � 1/4" upto bone deep on left side of scapula on the left parietal region;

(4) Lacerated wound 2" � 1/4" � bone deep on left side of scalp ;

(5) 3 Incised wounds (i) 2" � 1/2" � 1/4"; (ii) 1 1/2" � 1/2" x 1/4"; and (iii) 1 1/2" � 1/2" � 1/4" on the posterior aspect of body as scapular region

(6) Incised wound 2" � 1/2" � 1/4" on the right side of posterior aspect of chest

(7) Incised wound 2" � 1/2" � 1/4" on the right scapular region ;

(8) Incised wound 1" � 1/4" � 1/4" on the right acromian process of scapula;

(9) Incised wound 2" � 1/2" � 1/4" on the posterior aspect; Deltoid muscle

(10) Incised wound 1/2" � 1/4" � 1/4" below left clavical.

On the person of Laxmichand one incised wound 2" � 1/4" � 1/4" on the palm of left hand was found. On the person of Mohammad Gullzar the following injuries were found:

(1) Lacerated wound 1" � 1/4" � 1/4" on the right side of forehead:

(2) Incised wound 1/4" � 1/4" � 1/4" on the forehead ;

(3) Incised wound 1/4" � 1/4" � 1/4" on upper lip;

(4) Abrasion 1/4" � 1/4" on the right palm.

It was opined that the incised woulds were inflicted by sharp edged weapon.

On the body of accused Sarad Chandra one incised wound 1" � 1/2" (depth not measured) was found on the left side of chest. The accused was conscious. Pulse was not detectable, B.P. could not be measured, & beating was 30 per minute. Surgery was performed.

On the person of Satishchand four injuries were detected. Two were incised wounds and two were abrasions, one incised wound was on the back of the shoulder and another injury was above right hand thumb. Ramakant Tiwari was another co-accused who also suffered five incised wounds. They were on wrist, fore arm, right side of chest, above nose and right side of scalp. Ail the injuries were certified to be simple in nature. Injuries of Satishchandra were also certified to be simple. However, the injury of Sharadchandra was found to be grievous in nature.

As to the nature of injries found on the person of Jagjeewanlal, the doctor had referred the injured to Rewa hospital in order to seek the opinion of the doctor with respect to the nature of injuries. Injuries on Laxmichand were found to be simple.

Dr. G.K. Upadhyaya appears to have treated the injured at Rewa hospital. Dr. A.K. Verma (PW 9) has been examined in order to prove the signature of Dr. Upadhyaya in Ex.P/11 and P/12 which are summary sheets of treatment.

Injured Jagjeewanlal Tiwari has been examined as P.W.I. He stated that he was going with Gulzar and when they reached in front of the shop of Dukodi kacher from behind Jawaharchand, Satishchandraand Sharadchandra came on a motor cycle and stopped. Satishchandra took out a 315 bore countary made pistiol and fired at him (Jagjeewanlal). He bent and escaped the fire. Another shot was fired by Sharandchandra which also missed. Thereafter, Jawaharlal took out two knives and gave one to Sharandchandra and kept the other with himself. Sharadchandra inflicted injury with knife on his chest. When he tried to catch hold of Sharandchandra, another injury was inflicted on his neck. Jawaharlal also started inflicting knife injuries. In the meanwhile Ramakant and Khiladi also arrived armed with knives. Laxmichand tried to intervene, He was also assaulted by the accused persons and he sustained injuries on his hand. Jagjeewanlal fell in the shop of Dukodi Kacher. He could catch hold if a scissors from the shop and in order to save himself he started to wield the scissors. He was referred to medical College, Rewa. His further deposition is that on 10th August, 1985 while he was going to Mangawan in a bus, at Sirmour bus stop Sharadchandra alongwith others tried to pull him down from the bus and tried to assault, but as police arrived they ran away. He has stated that he was not aware how injuries were caused to Sharadchanra. However, he stated that while he was wielding the scissors in order to save himself. Sharadchandra might have suffered the injuries.

Another witness is Laxmichandra (PW 2). He stated that when he was standing at the shop of Balmik he heard the voice of gun shot and saw that Satishchandra was having country-made pistol in his hands. Thereafter Sharadchandra also fired but missed. Jawaharlal then took out two knives, one was handed over to Sharadchandra and kept the other with himself and both of them caused knife injuries to Jagjeewanlal, In the meantime, Ramakant and khiladi also arrived and they also assaulted Jagjeewanlal with knives. On seeing this, he (the witness) ran towards the spot carrying a bamboo. When he gave a beating with the bamboo, a knife injury was inflicted on his right hand by accused Sharadchandra. He has stated that injuty was sufferd by Appellant Sharadchandra also. He futther stated that Jagjeewanlal caught told of a scissor and was wielding it but this fact was not mentioned in his police statement. No altercation took place prior to firing and inflicging injuries on Jagjeewalal by the accused persons.

Mohammad Gulzar (PW 3) has stated that he was accompanying Jagjeewanlal. They met Mohammad Ezaz in the way. All the three then went to the shop of Raju tailor and thereafter they proceeded from the shop of Raju tailor and when they reached near the shop of Dukodi accused Sharadchandra, Jawahar and Satih came on a motor cycle and stopped the vechile 4 - 5 steps ahead of them. Satishchandra got down from the motor cycle and fired at Jagjeewanlal which did not hit Jagjeewanlal. Sharadchandra then fired another shot which also missed. Jawharlal then took out two knives from his pant and handed over one to Sharadchandra. Sharadchandra inflicted a knife blow on the chest of Jagjeewanlal. When Jagjeewanlal tried to catch hold of Sharadchandra another knife blow was inflicted on his face. Other accused Ramakant and khiladi also inflicted injury on the back of Jagjeewanlal. When the witness tried to invervene, Sharadchandra inflicted an injury on his upper lip. Laxmichand ran towards the accused with a bamboo. Jagjeewanlal fell down and caught hold of a scissor and started wielding it.

Mohammad Ezaz (PW 4) also supported the version of the three injured withnesses. He supported the version of firing and causing injuries by knife. Large number of injuries were suffered by Jagjeewanlal which were caused in the shape of incised wound. At least 11 incised wounds were found and two were lacerated wounds.

Somnath (PW 7) has stated that Sharadchandra was driving the motor-cycle. On seeing Jagjeewanlal he stopped the motorcycle and abused Jagjeewanlal and stated that he (Jagjeewanlal) was now found there. Thereafter all the three accused persons Sharadchandra, Satishchandra and Jawahar came down from the motor cycle and they fired a country made revolver. Thereafter knife injuries were inflicted, Jagjeewanlal went to the shop of Dukodi kacher and found one scissor and started wielding it. Other accused persons also joined in beating. This witness was also an accused in the counter case along with others.

Kamleshwar Prasad (PW 10) had recorded Dehati Natishi (Ex.P/1) and brought it to the police station in which the F.I.R. (Ex. P/2) was registered. Investigating Officer Lallulal Sharma (PW 11) has proved the omissions and contraditions in the investigation made by him.

It is to be examined in the instant case that who were the aggressors. The acused persons were going on a motorcycle and there is consistent evidence that they stopped the motor cycle ahead of Jagjeewanlal. It is not believable that the motor cycle was stopped by the complainants. If the intention of the accused persons was not to stop the motor cycle they would have very well gone from the spot. It appears that since they found their old enemy Jagjeewanlal the motor cycle was stopped ahead of him as narrated by the witnesses.

With respect to firing, the trial Court has given the benefit of doubt to the accused. It appears from the evidence that accused Sharadchandra had received injuries which were dangerous to life. However, it is clearly made out from the circumstances of the case that he was the aggressor and inflicted injuries on Jagjeewanlal first and thereafter others had also assaulted Jagjeewanlal. It is thereafter that injuries have been inflicted by Jagjeewanlal.

It is true that the injury to the accused has not been explained in the F.I.R. or in the police statement, but the facts go to show that the accused persons were on the motor-cycle and they had stopped ahead of the complainant. They were thus clearly the aggressors in the instant case. The non-explanation of the injury cannot be said to be fatal. Learned Senior Counsel Shri Rajendra Singh relied on the decision in Jumman and Others Vs. The State of Punjab, wherein it has been held that where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressors, it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and conflict and has to be dealt with u/s 300 IPC. In the instant case, there is evidence available as to who was the aggressor.

Learned Counsel for the Appellants further submitted that common intention is not made out in respect of Jawahar. The submission raised is devoid of substance, Jawahar was accompanying the other co-accused on the motor cycle and all of them got down and Jawaharlal was carrying two knives. Thus, there is clear evidence to show common intention. Accused Jawahar had handed over one of the knives to Sharadchandra. Thus, no help can be derived from the decision in Devi Lal and Another Vs. The State of Rajasthan, . The other decision with respect to common intention cited by the learned Counsel in Mohinder Singh and Another Vs. State of Delhi, turns on the facts of its own. Common intention has to be seen and judged on the facts brought on record of each case.

The learned Counsel has also placed reliance on Vijayee Singh and others Vs. State of U.P., to contend that in the present case right of private defence was clearly available. In the instant case it has been found that the Appellants were the aggressors and right of private defence was not available. They had themselves stopped to purchase the quarrel and started beating the injured-complainant first.

Evidence on record does not show that offence u/s 307 IPC is made out. Injured Jagjeewanlal was referred to the Medical College and was treated from 14.8.85 to 24.8.85 for about 10 days. He was surgically treated also. Thus, grievous hurt was caused within the meaning of Section 320 IPC. The incident of firing is not established beyond doubt as held by the trial Court. Thus, there is no evidence that the injuries were dangerous to life. As such, the conviction of the Appellants deserves to be altered to one u/s 326 IPC. Accused Sharadchandra himself suffered one stab injury which was grievous in nature.

For the aforesaid reasons, the appeal is partly allowed. The conviction and sentence passed against the Appellants u/s 307 are set aside. Instead, they are convicted u/s 326 of the IPC and for their altered conviction each of them is sentenced to R.I. for one year and fine of Rs. 3000/-. In default of payment of fine, they shall undergo further R.I. for six months.