Shyamlal and Others vs State of M.P. (Now C.G.)

Manindra Mohan Shrivastava, J.—This criminal appeal has been filed against the judgment of conviction and order of sentence dated 28th August, 1990 passed in S.T. No. 91/1987, whereby the learned 3rd Additional Sessions Judge, Raipur Camp Balodabazar, after holding the Appellants guilty for commission of offence punishable u/s 302 read with Section 34 of the IPC, sentenced them to undergo life imprisonment and to pay a fine of Rs. 100/- each in default of payment of fine to further undergo additional R.I. for 1 month.

Case of the prosecution, in brief, is that on 3.2.1987 at about 10-11 a.m. deceased-Ramlal was grazing his cattle, near the field of the Appellants, while the Appellants were harvesting Tiwara crop in their field. Moti was taking his cattle across the bund of the field of the Appellants and some of cattle entered the field of Appellants. At this, Appellants warned Moti and caught hold of him. It is said that Ramlal arrived at the spot in the field of Appellants to rescue Moti and resisted the Appellant to avoid quarrel, whereupon Appellants started assaulting Ramlal with the help of club leading to death of Ramlal on the spot. Jhabbu (P.W. 1), Panch of the village, at the relevant time was at his residence. Nandu informed him about the incident, upon which he proceeded to the place of incident. While on way, he met Firtu, who also informed him about the incident. When they arrived at the spot, they found Ramlal lying dead, whereupon, first information report of Ex.P-1 was lodged by Jhabbu (P.W. 1) in the police station. By the first information report it was reported by Jhabbu that while he was processing Rahar at home, Nandu came and told that the Appellants entered into quarrel with the deceased Ramlal. He was also told that the incident has taken place at Bharri Khar, whereupon he proceeded to the place of incident along with Hajari Rawat and on way Firtu and Gosai met and told that deceased Ramlal was assaulted by the Appellants and he has died. When they arrived at the spot they found that Ramlal was laying dead in the field at Bharri Kharr and blood was oozing out form hi s mouth. Whereupon after informing Kotwar, report was lodged in the police station vide Ex.P-1.

Inquest over the body of deceased Ramlal was prepared vide Ex.P-2 in the presence of witnesses. The body of the deceased Ramlal was sent for autopsy vide Ex.P-16 by G.S. Ojha (P.W. 11) Sub Inspector, to Govt. Hospital, Balodabazar. In the autopsy report of Ex. P. 12 prepared by Dr. H.N. Naik (P.W. 8) Asst. Surgeon, Govt. Hospital Balodabazar, one lacerated wound measuring 3 1/2 x 2 1/2 x 3/4 inch on the head towards right oblique in nature; one lacerated wound containing 3 parts measuring 1/2 x 1/2 x 1/2 inch on the right side in cheek; blackening of both the eyes; abrasion on various parts of the body were found. Upon examination, the doctor has found internal injuries namely fracture of frontoparietal bone; Jaws were broken from both the side and two uprooted teeth were found inside the mouth; clotting of blood (haemotoma) was also found in the parietal region up to brain and it was found congested. According to the autopsy report, cause of death was coma resulting from congestion caused by the head injury and the doctor opined that the death was homicidal in nature. One club was seized from Rohit vide Ex.P-5, one club was seized from Balaram vide Ex.P-5, whereas from Samaylal, a club was seized vide Ex.P-7. Blood stained Gamachha found on the face of the deceased, blood stained soil and plain soil were seized vide Ex.P-8 from the place of incident in presence of the witnesses. Vide Ex.P-9, slipper was seized from the spot. Handful of Tiwara and crushed Rahar was also seized from the field of Shyamlal, vide Ex.P-10. Map of the spot was prepared by Patwari (P.W. 9) vide Ex.P-13. Clothes worn by the deceased Ramlal and contained in packet were seized vide Ex.P-14 by Head Constable Abhinath, (P.W. 10) of Police Station - Palari. Seized articles namely Gamachha, blood stained soil, plain soil were sent to the State Forensic Science Laboratory, Sagar, whereupon, the report dated 16.6.1987 prepared by F.S.L. was sent vide Ex.P-17. In the report it was opined that Gamachka, stained soil and 3 clubs seized from the Appellants contained blood, whereas no blood was found on the plain soil sent for examination. It was also stated that the blood stains on the clothes were not suitable for further chemical examination.

Appellant- Samaylal was sent for medical examination to Dr. Ghanshyam Agrawal (D.W. 1), Asst. Surgeon, Primary Health Center Palari, who after examination of the injuries found one bruise- size of 3 x 2 cm. present over left side of neck over the sterno mastoid muscle. It was remarked that the injury was simple in nature and likely to be healed within 7 days in case no complication occurs. The duration of injury was found to be 12 hrs. and that the same was caused by hard and blunt object. Appellant Balaram was also sent for medical examination vide Ex.P-20 and the doctor after examination has found a lacerated wound of 3 x 1/2 cm., scalp deep obliquely placed on the right parietal region 2 cm. away from the hare line. The doctor remarked that the injury is simple in nature and likely to be healed within 10 days if no complication occurs. The duration of injury was found to be 12 hrs., caused by hard and blunt object.

After completion of investigation, charge sheet was filed by the police in the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the case for trial to the Court of Sessions Judge, upon which the case was registered as S.T. No. 91/81. The learned 3rd Additional Sessions Judge, Raipur received the same on transfer. The learned trial Court framed charges against the Appellants for commission of offence u/s 302 read with Section 34 of the IPC. Appellants abjured their guilt.

The prosecution examined in all 11 witnesses. In the examination u/s 313 of the Appellants they denied allegation and stated that Moti and Toran intruded their cattle in their field and they also claimed innocence.

Learned trial Court vide impugned judgment of conviction and order of sentence, relying upon the testimony of Dr. H.N. Nayak (P.W. 8), held that the deceased Ramlal sustained head injury which was sufficient to cause his death in ordinary course of nature. The cause of death was homicidal in nature. The learned trial Court relying upon the testimony of Moti (P.W. 2), Firtu (P.W. 3) and Nandu (P.W. 4) held that all four Appellants caused death of Ramlal by assaulting him with club. It was recorded that while Moti was taking his cattlefrom nearby the field of Appellants, Samaylal caught hold of him and at that time Ramlal arrived at the spot and intervened. As the cattle were running away he ran behind to collect and catch them and after his return he found that the Appellants were assaulting Ramlal with the help of club. Ramlal fell down and died.

The defence of the Appellant was that they only acted in exercise of right of their private defence and were assaulted which is proved from injuries sustained by Samaylal and Balaram. The learned trial Court disbelieved the testimony of Bhuneshwar (D.W. 2). In the result the learned trial Court held that the Appellants murdered Ramlal by assaulting him with club causing fatal injuries: on his head by massive blow which resulted into his death.

Learned Counsel for the Appellants submits before us that the learned trial Court has grossly erred in holding the Appellants guilty of commission of offence u/s 302/34 of the IPC as both Samaylal and Balaram received injuries during the time when Ramlal entered into their field, and the Appellants have been falsely implicated. It has also been argued that from the report of Ex.P-18 given by Appellant -Balaram in the police station that cattle entered their field and Ramlal, Khoso Rawat, Moti Rawat and Toran Rawat and other persons came to their field. When the Appellants told them to take the cattle away from their field, Ramlal started assaulting and inflicted blow by club on the head and the Appellants acted only in exercise of their right of private defence of person and property. It was also argued that the prosecution has failed to explain injury sustained by the Appellants Samaylal and Balaram, which clearly leads to inference that two Appellants Samaylal and Balaram received injuries first and it is only thereafter that the Appellants acted in exercise of right of their private defence of person and property. According to him the prosecution case is liable to be disbelieved, as all the prosecution witnesses Jhabbu (P.W. 1), Moti (P.W. 2), Firtu (P.W. 3) and Nandu (P.W. 4) are related to the deceased and they have suppressed genesis of the quarrel as also the injuries caused on the persons of the Appellants. Their version does not inspire confidence as it is inconsistent with the proved circumstances. According to the Appellants, it is a case where the Appellants were reaping crop in their field when the deceased and other persons got their cattle trespassed and entered into field and when the Appellants objected, they assaulted on Samaylal and Balaram. They are aggressor and when blow by club was caused by Ramlal on the head of Balaram, Appellants acted in exercise of their right of private defence of person and property. It is submitted by learned Counsel for the Appellants that in the circumstances and from the evidence available on record, injuries sustained by the Appellants and manner in which the incident occurred, the place where incident occurred, no case for commission of offence u/s 302/34 of the IPC is made out against the Appellants. The judgment of conviction and sentence is illegal and unsustainable in law.

On the other hand, learned Counsel for the State has supported the impugned judgment of conviction and sentence and stated that Ramlal died on account of head injury caused by the Appellants in furtherance of common intention, which has been proved from the testimony of Moti (P.W. 2), Firtu (P.W. 3) and Nandu (P.W. 4).

We have considered the submissions made by learned Counsel for the parties and have also carefully perused the entire records of the case.

From the testimony of H.N. Nayak (P.W. 8) who performed postmortem over the body of the deceased Ramlal, it is evident that Ramlal sustained fatal injury on his head which caused death. He has clearly stated that the injuries caused on the head was sufficient in ordinary course of nature to cause his death and the death was homicidal in nature.

Moti (P.W. 2) in his deposition before the Court has stated that while he was taking his cattle nearby the field of the Appellants and when Appellants Samaylal caught hold of him, Ramlal arrived at the spot and intervened. He further deposes that the Appellants assaulted Ramlal with the help of club upon which Ramlal fell and died. He also states that Firtu and Gosai were also present at about 100 steps from the place of incident.

In his cross-examination, he has deposed that while Shamaylal was reaping crop, cattle entered the field and he was behind them and at that stage, Samaylal caught hold of him and objected as to how cattle entered their field stating that the cattle are spoiling the crop and asked him to remove the cattle immediately form the field. At that time Ramlal came and intervened. He also states that Ramlal is resident of Junwani, but was grazing his cattle just by the side of field of the Appellants. During the course of his cross-examination he was given suggestion that no sooner Ramlal arrived at the spot he inflicted lathi blow on the head of Balaram and Samyalal. He was also given suggestion that Samay and Balaram were assaulted and said that he did not see any injury on the head of Balaram. He has stated that Ramlal was his Samadhi (in-law) and brother-in-law of Jhabbu.

From the testimony of this witness, it is proved that the incident occurred in the field of the Appellants where Ramlal had come and there was a dispute with regard to trespass of cattle into the field of Appellants. It is stated that in that course, dispute arose and Ramlal was assaulted.

Firtu (P.W. 3) has also stated in his testimony that while quarrel was going on and while Moti and Toran were quarreling with Samaylal and Shyamlal, and Samaylal and Shyamlal objected to trespass of cattle, Ramlal arrived at the spot and after some time they saw that the Appellants were assaulting Ramlal with the help of club. When he went to spot, Ramlal by that time had fallen to the ground and Samaylal and Shaymlal had left the place. Rohit had also left the field.

In cross-examination, he stated that Ramlal is his Samdhi and also that the incident occurred in the field of Shyamlal and found that the cattle of Moti and Toran having entered the field, were being collected by Moti and Toran. He further stated that he did not see any injury inflicted on Balaram but lateron Balaram went to police station, From his deposition it is found that there is omission in his statement given u/s 161 Code of Criminal Procedure before the police regarding the fact that when Ramlal fell down Balaram had inflicted injury on his face and head.

Nandu (P.W. 4) has also stated that the incident occurred in the field of Appellants and the Appellants inflicted injury on deceased Ramlal with the help of club.

In his cross-examination he stated that fight was going on between the parties, in the field and he also states that the police did not record statement in the manner stated by him. He further states that he did not see any injury over the persons of the Appellants and he is unable to explain as to how the Appellant received injury. He is unable to explain as to how the quarrel started and who started.

Ramlal (P.W. 6) son of Makadu in his cross-examination has stated that Ramlal was quarrelsome and used to get his cattle trespassed in the field of others. He also deposed that he had seen that Bala and Samay had sustained injury.

Hiralal (P.W. 5) examined to prove seizure of club vide Ex.P5 and P-6 has turned hostile. So also Kartikbai (P.W. 7), who stated that she had not seen the alleged incident. In her cross examination she has stated that she had stated before the police that Moti brought his cattle in the field of Appellants. She has been declared hostile. In her cross examination she has further stated that Ramlal came running with lathi and went to field of Shyam. She has also stated that Firtu stated that we should not look into others dispute and she and Firtu were along working in their field.

From the evidence on record brought by the prosecution it is proved that the deceased Ramlal sustained injures on account of lathi blow on his head which resulted in his death. Three prosecution witnesses namely Moti (P.W. 2) Firtu (P.W. 3) and Nandu (P.W. 4) have proved this fact in their testimony that Ramlal was assaulted by the Appellants.

Dr. Ghansyam Agrawal (D.W. 1) who examined Appellant-Balaram and Samaylal has clearly deposed that Samaylal sustained injury on the left side of his neck in sterno mastoid muscle of 3 x 2 cm. size. Balaram sustained injury and he found lacerated wound 3 x 1/2 cm. scalp deep caused within 12 hrs of examination by hard and blunt object. He has also deposed that if injury on his head would have been caused forcefully, it might result in internal injury which might lead to death. The prosecution has failed to explain the injuries found on the person of Appellants Samaylal and Balaram. Balaram sustained injury on his head which was scalp deep. The manner in which the incident happened and as deposed by the prosecution witnesses, it is also proved, that cattle trespassed in the field of the Appellants and when there was a dispute between Moti and Appellants and when Moti and Toran were quarreling with the Appellants, Ramlal came running on the spot with club. Taking into consideration the totality of the evidence on record and the injury sustained by the Appellant, sudden quarrel in the heat of passion, the prosecution has failed to prove that there was any common intention on the part of the Appellants to cause death and that they inflicted blows by club on the head of the deceased-Ramlal with the common intention to cause his death. On the contrary, it is inferred from the testimony of the prosecution witnesses itself that Ramlal was aggressor. Their cattle had entered in the field of Appellants and when the Appellants objected, quarrel began at which Ramlal came running into the field with club. As the Appellants have proved injury on the person of Samaylal and Balaram and the prosecution has failed to explain those injuries, the testimony of prosecution witnesses relating to the manner in which the incident happened cannot said to be wholly true. It creates serious doubt and suspicion regarding the independence of the prosecution witnesses. Prosecution witnesses thus suppressed the genesis and origin of occurrence and have not deposed true version and cloud is cast on the entire case of the prosecution.

It is established that the occurrence leading to death of Ramlal took place without premeditation, in a sudden fight, in the heat of passion and it is not a case of premeditated or calculated act. As the incidence itself took place suddenly, it cannot be held that there was a common intention on the part of Appellants to murder the deceased Ramlal. On the contrary, on the basis of proved fact that the incident occurred in the field of Appellants and Ramlal came running with club and the prosecution failing to explain injury on the person of Samaylal and Balaram, right of private defence of person and property did accrue the Appellants. The important fact that the occurrence took place in a sudden and unpremeditated manner resulting in injury to two of the Appellants, though they exceeded in exercise of right of private defence in giving lathi blow on the head of the deceased, we are inclined to hold that Exception 2 to Section 300 of the IPC is attracted and thus this act would only constitute offence punishable u/s 304 Part-I of the IPC and not u/s 302 read with Section 34 of the IPC.

In the result, the appeal is partly allowed. We set aside the conviction of the Appellants u/s 302 read with Section 34 of the IPC and convict them u/s 304 Part-I of the IPC and sentence them to undergo R.I. for 7 years. The Appellants are on bail, therefore, their bail bonds are cancelled and they be taken into custody forthwith to serve out remaining period of their sentence.