Sheru vs The State of Madhya Pradesh

P.K. Jaiswal, J—The appellant Sheru s/o Bhoor Singh Bhil has assailed the impugned judgment dated 17.12.2004 passed by the 2nd Additional Sessions Judge, Jobat, District Jhabua in Sessions Trial No. 281/1999, whereby convicting him under Section 302 of the Indian Penal Code, 1860 and sentencing him to suffer rigorous imprisonment for life with fine of Rs. 1,000/-. In default of payment of fine, he shall suffer additional rigorous imprisonment for three years.

According to the prosecution case, on 03.03.1999, in the evening between 05.00 to 06.00 PM, in village Arandi, complainant Paru, his wife Hetri and daughter Rajli were sitting outside their house. At that moment, co-accused Meeru with appellant Sheru having Falia and accused Gur Singh and Rukhali having stones, reached there and accused Sheru asked as to why Ter Singh came to the house of complainant Paru? Co-accused (Meeru s/o Bhur Singh) also alleged that Hetri was a witch and with this allegation, they tried to assault Ter Singh, but Ter Singh ran away towards the field of one Takadia. Hetri also followed them to save Ter Singh. At that juncture, appellant Sheru dealt a blow by Falia causing injury on the head of Hetri. Hetri fell down on the ground. Co-accused Meeru also assaulted Ter Singh by Falia causing injury on face. Because of assault, Ter Singh fell down on the ground. Other accused Rukhali and Gur Singh caused injury to Ter Singh by stone. All the four accused assaulted Ter Singh and Hetri by Falia (hard and sharp iron object) and stones. The incident was witnessed by villagers named Dhavriya, Vesta, Ren Singh, Rajli, Kalu and Sarpanch Richhu. Village Choukidar was informed about the incident. It was alleged that before one year, daughter of appellant Sheru had died and they had doubted on deceased Hetri regarding playing fraud. On this account, they were having inimical terms and assaulted the deceased persons. Report Ex.P/1 of the incident was lodged by PW-1 Paru, on the basis of which, PW-12 Investigating Officer Vijay Kumar registered the offence under Section 302/34 of the Indian Penal Code, 1860. Investigating Officer prepared the spot map Ex.P/10 and on completion of inquest inquiry, sent the dead body of both the deceased persons for postmortem examination, which was conducted by PW-7 Dr. Kashinath. Ex.P/4 and Ex.P/5 are the postmortem reports of deceased Ter Singh and Hetri. Blood stained and controlled earth were collected and seized from the spot and the Investigating Officer recorded the statements of the witnesses, who were acquainted with the facts of the case. Accused persons were arrested and on their disclosure statements, weapons were seized. Seized articles were sent for chemical examination to Forensic Science Laboratory and it''s report is Ex.P/25. On completion of investigation, charge sheet was filed against four accused persons for offence punishable under Section 302 / 34 of the Indian Penal Code, 1860.

Appellant Sheru s/o Bhoor Singh Bhil and co- accused Meeru s/o Bhur Singh absconded, therefore, their case was separated and learned trial Court decided the trial of co-accused Gur Singh and Rukhali by judgment dated 22.07.2003 and both the co-accused persons have been acquitted. Appellant Sheru was arrested and after completion of trial, judgment of conviction and sentence was passed by the learned trial Court on 17.12.2004.

Appellant Sheru s/o Bhoor Singh Bhil filed the present appeal against the judgment of conviction and sentence. During the pendency of this present appeal, co- accused Meeru s/o Bhur Singh was arrested and learned trial Court sent a request letter for sending record. Co-accused Meeru refuted the charges and tried by the learned trial Court. Learned trial Court finding co-accused Meeru guilty of the offence convicted him under Section 302 of the IPC and sentencing him to suffer RI for life with fine of Rs. 1,000/-; in default of payment of fine, additional RI for three years.

Co-accused Meeru s/o Bhur Singh challenged the judgment of conviction and sentence by filing Criminal Appeal No. 325/2010. The Division Bench of this Court vide judgment dated 5th July, 2010 acquitted co-accused Meeru s/o Bhur Singh, on account of the fact that causing of injury by stone is not mentioned and he failed to explain this material contradiction in his statement. The Division Bench also held that in all six injuries of deceased Ter Singh, out of which Injuries No. 1, 4, 5 & 6 were lacerated wounds on head and face whereas Injuries No. 2 and 3 were abrasions and depressed fractures of zygomatic bone and left side of jaw. Looking to the nature of injuries, it is held that all were caused by hard and blunt object and none could be caused by hard and sharp edged weapons. There is direct conflict between medical evidence and ocular evidence of these two witnesses, so the Division Bench of this Court was of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against co-accused Meeru s/o Bhur Singh and allowed the criminal appeal by setting aside his conviction and sentence passed by the learned trial Court. Paragraphs No. 4 to 10 of the judgment passed in Criminal Appeal No. 325/2010 are relevant, which reads, as under: -

"4. We have heard learned counsel for the parties and also perused the entire record carefully. Conviction of the appellant is based on testimony of 3 eye witnesses PW-1 Paru, PW-3 Rajlibai and PW-4 Kalu. Learned trial Court sought corroboration to the testimony of these witnesses by medical evidence and testimony of Paru by his FIR Ex.P/1.

Before the trial Court as well as before this Court the homicidal death of both the deceased have not been disputed by the learned counsel for the appellant. Even otherwise, it is fully proved on the basis of the evidence of PW-7 Dr. Kashinath who found in all six injuries on the person of deceased Ter Singh and in his opinion, Ter Singh met homicidal death because of injury on head and face. Deceased Ter Singh suffered fracture on jaw bone, zygomatic bone, nasal bone and injury on skull. On internal examination, there was damage to internal organ of head. Deceased Hetribai suffered one incised injury including lacerated wounds and abrasions. Incised injury was on head and there was fracture of occipital bone. The brain was fully damaged. Deceased died because of intra cerebral hemorrhage due to brain injury.

On visualization of the evidence of eye witnesses PW-1 Paru and PW-3 Rajli, it is clear that appellant was assigned role of causing injuries to deceased Ter Singh by sharp edged weapon i.e. Falia. But, on the person of deceased Ter Singh, out of six injuries, PW-7 Dr. Kashinath did not find a single injury caused by any sharp and hard object. In postmortem report as well as in Court statement, doctor has nowhere given opinion about nature of weapon by which injury could have been caused. Therefore, it is for this Court to form opinion whether injury sustained by Ter Singh could be caused by which kind of weapon. In all six injuries, out of which injury Nos. 1, 4, 5 and 6 were lacerated wounds on head and face, whereas injury Nos. 2 and 3 were abrasions and depressed fractures of zygomatic bone and left side of jaw. Looking to the nature of injuries, it can easily be said that all were caused by hard and blunt object and none could be caused by hard and sharp edged weapons. There is direct conflict between the medical evidence and ocular evidence of these two witnesses. Supreme Court has considered this aspect in case of Thaman Kumar Vs. State of Union Territory of Chandigarh, AIR 2003 SC 3975 : (2003) CriLJ 3070 : (2003) 4 JT 478 : (2003) 4 SCALE 531 : (2003) 6 SCC 380 : (2003) 3 SCR 1190 : (2003) AIRSCW 2837 : (2003) 4 Supreme 206 . In this judgment the Supreme Court has categorized the conflict and held that when there is total absence of injuries which are normally caused by a particular weapon, the conflict between eye witness account and medical evidence would go in favour of the accused. In the instant case also same situation is present.

The third eye witness Kalu has deposed that appellant Meeru had assaulted Ter Singh by stone, but in cross-examination Paragraph-8, he was contradicted with his case diary statement Ex.P/4 wherein the fact of causing injury by stone is not mentioned and he failed to explain this material contradiction in his statement.

In this view of the matter, statement of child witness Kalu is also not sufficient to base conviction.

In view of the above discussion, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the appellant, therefore, he is entitled to get benefit of doubt and his appeal is allowed. Conviction and sentence as passed by the learned trial Court against the appellant are hereby set aside. Appellant is in jail. Learned trial Court is directed to release him forthwith, if not wanted in connection with any other criminal case.

Office is directed to send a copy of this judgment immediately to the trial Court along with its record for necessary compliance."

In the present case, allegation against appellant Sheru and co-accused Meeru is that they were armed with Falia and inflicted injuries to Hetri and Ter Singh. As per postmortem report of Hetri (Ex.P/5) and Ter Singh (Ex.P/4), they sustained the following injuries: -

Learned counsel for the appellant submits that even if the prosecution story is accepted in toto, then also because of injuries to Hetri, who fell down and thereafter Ter Singh inflicted injuries to him, which was dangerous to life and the same has not been explained by the prosecution. Dr. Kashinath (PW-7) in paragraphs No. 16 and 18 of his statement has deposed that appellant Sheru was examined by him on 03.03.1999 and he sustained arrow injury towards right side of iliac region (Ex.D/4-A). He further admits that for further treatment, appellant Sheru was referred to District Hospital, Jhabua. Learned counsel for the appellant submitted that appellant was treated at District Hospital, Jhabua for a period of 2 1/2 months and on the basis of the complaint lodged by the appellant, first information report was registered against the complainant party and offence under Section 307 of the Indian Penal Code, 1860 was registered and learned trial Court convicted the complainant party under Section 307 of the Indian Penal Code, 1860. He submitted that in such circumstances and considering the fact that appellant has completed around 14 years'' of jail sentence, his case would fall under Section 304 Part-I of the Indian Penal Code, 1860 and placed reliance on paragraph No. 9 of the decision of the Apex Court in the case of Vijayee Singh and others Vs. State of U.P., AIR 1990 SC 1459 : (1990) CriLJ 1510 : (1990) 2 Crimes 584 : (1990) 2 JT 596 : (1990) 3 SCC 190 : (1990) 2 SCR 573 .

In reply, learned Deputy Advocate General for the respondent / State has drawn our attention to paragraph No. 2 of PW-1 Paru, PW-3 Rajli and PW-4 Kalu (eye witnesses of the case). As per their statement, appellant was aggressor and when he committed the murder of Hetri by causing Falia injury, the deceased Ter Singh inflicted arrow injury to him. Ter Singh also sustained injury from co-accused Meeru and died on the same day. He submitted that in the aforesaid facts and circumstances of the case, the appellant is not entitled for any right of private defence, because he was aggressor. Learned trial Court rightly appreciated the evidence of PW-1 Paru, PW-3 Rajli and PW-4 Kalu and convicted the appellant.

We have heard the arguments of the learned counsel for the parties at length and perused the record.

Exercise of right of private defence, if not specifically asserted by accused in examination under Section 313 Cr.P.C., reiterated, can be ascertained from facts and circumstances.

The right of private defence rests on three ideas: first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence; and, thirdly, the right does not commence until there is a reasonable apprehension.

In the case in hand, appellant Sheru was armed with Falia and inflicted Falia blow to Hetri. As per postmortem report of Hetribai Ex.P/5 and statement of doctor, the injuries sustained by the deceased may be caused by sharp, hard and cutting object as well as by hard and blunt weapons. When the appellant caused Falia injuries to Hetribai thereafter, Ter Singh inflicted injuries to the present appellant. On seeing this, co-accused Meeru inflicted injuries to Ter Singh. In Criminal Appeal No. 325/2010, this Court, after considering the statement of Dr. Kashinath, found that not a single injury was caused by any sharp and hard object to deceased Ter Singh. In postmortem report as well as in court statement, Dr. Kashinath has nowhere given opinion about nature of weapon by which injury could have been caused and this Court was of the opinion that all the injuries to deceased Ter Singh were caused by hard and blunt object and none could be caused by hard and sharp edged weapons. This Court also considered the contradiction in the statement of third eye witness Kalu with his case diary statement Ex.P/4 wherein he failed to explain this material contradiction, and therefore, benefit of doubt was given to co-accused Meeru s/o Bhur Singh and acquitted him from the charges, whereas the case of the present appellant Sheru is entirely different. As per the statement of eye witnesses, the present appellant was aggressor and he gave Falia blow to the deceased Hetribai and thereafter, deceased Ter Singh inflicted injuries to the present appellant and thus, we are of the view that the present appellant was aggressor and he had not acted in right of his private defence.

The question now requires to be determined is as to what is the nature of the offence that the accused has committed. It is true that the injuries sustained by the present appellant was dangerous to life. He was admitted in hospital for a period of more than 2 1/2 months. The evidence on record also establish that the injuries caused on the body of the appellant are grievous in nature. The Apex Court in the case of Rajendra Singh and Others Vs. The State of Bihar, (2000) CriLJ 2199 : (2000) 4 JT 293 : (2000) 3 SCALE 137 : (2000) 4 SCC 298 : (2000) 2 SCR 1073 : (2000) AIRSCW 1314 : (2000) 4 Supreme 435 has held as follows: -

"non-explanation of the injuries on the person of the accused, ipso facto, cannot be held to be fatal to the prosecution case. Ordinarily, the prosecution is not obliged to explain each and every injury on the person of the deceased even though such injuries might have been caused during the course of the occurrence and they are minor in nature. But where the injuries are grievous, non-explanation of such injuries would attract the Court to look at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident."

On due consideration of the statement of eye witnesses, which are trustworthy, when read together, we find that non-examination of the injuries on the person of the appellant cannot be held to be fatal to the prosecution case. As per the statement of Rajli (PW-3), on the date of occurrence, when Ter Singh maternal uncle of PW-3 came to sister''s place (Hetribai) to take her to her parents house along with him, at the same time, appellant Sheru and other accused persons came there and stated that his sister is witch (DAKAN). Sheru, who was armed with Falia, inflicted Falai injuries to his mother Hetribai on her head and neck. Co-accused Meeru was also armed with Falia, inflicted injury to Ter Singh. When Sambai, sister of Rajli (PW-3) tried to save her mother Hetribai, accused persons started causing injuries to her. Ter Singh and Hetribai died on the spot. Child witness Kalu (PW- 4) supported the statement of Rajli (PW-3) and in paragraph No. 2 of his statement, he very categorically stated that Sheru, who was armed with Falia, inflicted Falia injuries to his mother Hetribai.

On due consideration of the statement of both, Rajli (PW-3) and Kalu (PW-4), ingredients of murder, as defined in Section 300 of IPC, have been established against the present appellant. In our opinion, appellant Sheru is guilty of committing murder of deceased Hetribai and his case is entirely different from the case of co-accused Meeru s/o Bhur Singh, whose criminal appeal has been allowed.

Considering the aforesaid, we are of the view that the case of appellant would not fall under Part-I of Section 304 of the Indian Penal Code, 1860. The decision cited by the learned counsel for the appellant in the case of Vijayee Singh and others Vs. State of U.P., AIR 1990 SC 1459 : (1990) CriLJ 1510 : (1990) 2 Crimes 584 : (1990) 2 JT 596 : (1990) 3 SCC 190 : (1990) 2 SCR 573 is quite distinguishable on facts.

For these reasons, we affirm the judgment of conviction passed by the learned trial Court.

Consequently, Criminal Appeal No. 77/2005 is dismissed.

Copy of this judgment be sent to the trial Judge.