State of M.P. vs Mankhan and anothers

Navkar, J.—This is an appeal against the order of acquittal, dated 31.7.1972, passed by the Sessions Judge, Vidisha in Sessions Trial No. 19 of 1972 u/s 307 read with section 34 of the Indian Penal Code.

The facts of the case are that accused persons Mankhan and Ramesh were charged u/s 307 read with section 34 of the Indian Penal Code that on 4.4.1972 at village Barakheda, in furtherance of their common intention they attempted to commit murder of Ranjit Singh son of Umrao Singh.

The undisputed facts of the case are that Paijan Singh and Kamar Singh are sons of Ranjit Singh and Kerabai is his daughter. The Khalian of Sander Singh and accused Ramesh are near to each other. It is not disputed that Mankhan was examined for his injuries on 4-4-1972 and there were injuries on his head and left side of chin and left knee-joint. But the medical report shows that these injuries were simple in nature and were caused some 6 to 8 hours prior to his medical examination. It is also found that they were caused by blunt object.

The prosecution story is that in the morning of the date of the incident Ranjit Singh along with his son Kamar Singh, took their cattle to the field for grazing. After staying with the cattle for some time, Ranjit Singh was returning home, leaving Kamar Singh with the cattle. When Ranjit Singh was passing by the side of the barn of Ramesh, the two respondents were seen there. Respondent Ramesh was saying that the cattle entered his field and caused damage to the field. He was also enquiring about the labour which is used in the month of April for cutting the crop. Hearing this, respondent Mankhan suggasted that Ranjit Singh should be disposed of. There after, respondent Mankhan caught hold, of Ranjit Singh from the front side and respondent Ramesh, who was armed with ''Farsa''. The cries of Ranjit Singh attracted Gajraj Singh and Sander Singh and seeing them there, this respondents ran away. The prosecution alleges that Kerabai has also seen the incident and after seeing the incident, Kerabai called her brother Paijan Singh, who took injured Ranjit Singh to Vidisha and also reported the matter to the Police. There is a suggestion by the prosecution also that the weapon of offence was seized on the information given by respondent Ramesh. We may add here that the weapon of offence, even though it had blood on it, was never sent by the prosecution for chemical analysis for the opinion of the Serologist. Therefore, it cannot be said that the axe ''Farsa'' was used in committing the alleged offence. The respondents have pleaded that they did not commit the alleged offence. Mankhan has further stated that at the relevant time, he was in the service of respondent Ramesh and Kamar Singh but his cattle were grazing and doing harm to the crops of respondent Ramesh. When he stopped the cattle from doing so and prevented them together to take them to the cattle-pound, Kamar Singh gave beating to him and as they grappled with each/other, the alleged injuries were sustained by Ranjit Singh. When Kamar Singh wanted to injure Mankhan respondent with ''Fafsa'', Mankhan also had given two or three blows to him in his right Of private defence. Then, he came to Vidisha and reported the matter to the Police Station. He was also medically examined. The respondent Ramesh stated that at the time of the incident, he was not present at the place of occurrence. The learned Sessions Judge has found that from the cross-examination, it is clear that the respondent, are claiming right of private defence of person and property. Their submission before him was that they could not be held guilty under the said section.

Dr. U. C. Jain examined Kamar Singh and Mankhan on the date of the incident itself and he found the following injuries:--

Kamar Singh :

(i) Diffuse swelling right side scalp.

(ii) Abras on left unumb 1/4" x 1/6"

Mankhan :

(i) Small lacerated wound on vertex of scalp measuring 1/6" x "1/6" deep.

(ii) Abrasion on left side chin 1/3'''' x 1/4"

(iii). Swelling with braise on left knee joint, Swelling diffuse in nature and, bruise measuring 2-1/2'''' X'' 1". All movements normal and no fracture or bony injury detected.

Dr. Jain has given, his opinion that the injuries were caused by sharp- edged as well as some hard weapon. About the duration of the injuries, we have already mentioned Above, The X-ray examination of the skull and the shoulder joint did not disclose any bony, injury. Therefore, the injuries found, the Doctor has said, were simple in nature Dr. Jain has opined that the injuries might have been caused by ''Farsa'' (Art. B) He has further stated that it is quite possible that the, injuries on Mankhan and Kamar Singh might have been caused at the same time. The learned trial Court after discussing the evidence, has come to the conclusion that the respondents had a right of private defence and the story put forward by the respondents is probable and, therefore, accepting the defence of the respondents, the learned trial Court has held that the respondents could not be held guilty u/s 307 read with section 34 IPC. Against that the present appeal is filed by the State.

Shri V.K. Saxena, learned Panel Lawyer, has taken us through the judgment of the trail court and his criticism is that the learned Sessions Judge has, passed the acquittal, saying that the story put forward by the respondents: is probable. He also has said that it is probable that the cattle might have strayed as suggested by the respondent in their defence He has also stated that it is probable that there must have been only one incident as alleged by the respondent and not two Incidents of Marpit as the prosecution wants the Court to believe. He has further stated it is also probable that the incident might have taken place not at about 7.00 but sometime earlier. In para 38, he has further stated that it is quite possible that Mankhan would have tried to collect the cattle for taking them to cattle pound and even Ramesh might have instructed him therefor In para 44 he further her says that "This is also quite probable that when Ramesh saw that Mankhan was being beaten by Ranjit, Kamar Singh, he would have come to the, place, of, quarrel, and in order to save Mankhan from Ranjit and Kamar, Singh, he would have given axe blows on the head of Ranjit." In para 46, the learned Judge has stated (sic) have already shown above that it is quite probable that Ranjit and Kamar Singh were using force against Mankhan in order to rescue the cattle and at that time Ranjit and Kamar Singh were armed with stick and (sic) It was therefor not wrong for the accused Ramesh to strike axe blows to Ranjit in right of private defence, more so when it is found that none of the injuries caused to Ranjit had resulted in any bony injury and thus injuries caused to Ranjit were only simple in nature."

The first grievance that the judgment is based on surmises and probabilities and connot be said to be a judgment according to a law and the learned trial Court should not have given its judgment of (sic) mere probabilities and conjectures seems to have some force. Therefore we asked the, learned Panel Lawyer to take us through the whole evidence led by the prosecution.

Shri J.M. Anand learned counsel for the respondents submitted before us that in an appeal against acquittal the acquittal should not be converted into conviction only because we might be inclined to take a different view from the view taken by the trial Court. But, in case, of an appeal against acquittal, we are of the opinion that if the story put forward by the prosecution is made out from the evidence and it clearly proves the guilt of the accused, then, an acquittal by a judgment based on probabilities can bet aside and the acquittal can be converted into conviction. It is not a case of taking a different view: but it is a case in which the basic facts are ignored by the trial Court.

Therefore the learned Panel Lawyer took us through the evidence. He has referred us to the statements given by Gajraj Singh (PW 3), Sander Singh (PW 8), Kerabai (PW 9) and Ranjit Singh (PW 2). We will consider the statements given by these witnesses.

Ranjit Singh (PW 2) has stated in his statement that the incident took place at about 8.00 a. m. in the morning when he went to the jungle to graze cattle belonging to Kamar Singh. When he was passing by the Khaliyan of Ramesh he said to Ranjit Singh that the cattle damaged to crop standing in the field. He also referred to some dispute regarding labour engaged for cutting crop in the month of Chait. Seeing this, Mankhan came there and caught hold of him and Ramesh gave ''Farsa'' blows to Ranjit Singh. As soon as he received injuries, he fell down on the ground and he regained consciousness after two days in the hospital.

The next witness on whom the learned Panel lawyer wanted us to rely is Gajraj Singh (PW 3). He has also supported the story put forward by the last witness. But in para No. 2 of his statement, he has stated that when the incident occurred, on the spot, there were two accused persons and Ranjit Singh and none else. If his statement is accepted to be correct, then we will have to hold that at that time Kamar Singh was not present on the spot. Similarly, he has stated that in para No. 6 of the statement that after he reached the spot, Sandar Singh came over there. This also excludes Sandar Singh seeing the incident. He further accepts the presence of Kerabai and says that she reached the spot when she came to know of the incident. He has also contradicted with the statement he has given to the Police.

The third witness is Kamar Singh (PW 4). Much stress was laid on the statement of this witness by both the counsel. In para 2 of the statement, this witness says that Mankhan said that the complainant party should be done away with any Weapon Mankhan started beating him with Parena. Further he says that when he though that Mankhan is going to do away with him, he gave three to four lathi blows to Mankhan. This incident is reported to the Police on 4-4-1972. The report is Sanah No. 233. After the report was made, he was sent for medical examination and Doctor examined him. But, when we read his cross-examination, we have no doubt in our mind that the witness is not a truthful witness. He states that he never mentioned the names of Pulua and Ramesh. Similarly, he has stated that the mention in the report that he came at about 8.30 is not correct and it should be at about 11.00. The respondents of this witness and it is in para 10 of his statement. He was asked as to whether it is correct or not that he and his father beat Mankhan and cattle belonging to his father were damaging the crop and seeing this damage being done Mankhan wanted to take the cattle to cattle pound and he and his father wanted to free the cattle from Mankhan. To these questions, he has replied in the negative and has stated that these suggestions are wrong and false. From his statement, the learned counsel for the respondents submitted before us that Mankhan was given beating. So also, he submits that Kamar Singh is not a witness of truth. After going through the evidence, we also are of the opinion that Mankhan was given beating and if Mankhan is given beating, then it is urged by the learned counsel for the respondents that his master, the other respondent to save Mankhan, gave beating to Ranjit Singh and Kamar Singh in defence of person and property.

Next witness is Sander Sing (P. W. 8). He says that Gajraj Singh came after him. But, he accepts the presence of Kerabai. He further states that he has no idea as to why beating was given by Ramesh to Ranjit Singh and also he feigns ignorance regarding the injuries on the body of Mankhan. He denies that Ranjit Singh gave beating to Mankhan. Kerabai is P. W. 9, In her statement, she has stated that when she reached the Khalian, her father was lying there injured and Gajraj Singh also came there and he lifted the injured father. She further says that Mankhan was not given beating by any one. But, she says that she has no idea as to how the incident took place. From her statement and from the statement of the Investigating Officer, it is clear that the incident took place in the Khalian of respondent Ramesh. The statement of the station Officer also and the spot map which he has prepared and in which he has shown the spot from where he has taken the blood-stained earth, also go to show that the incident took place in the Khalian belonging to Ramesh. If the incident has taken place in Khalian of Ramesh, then in our opinion, the defence of the respondents appears to be probable and looking to the facts of the case, we are of the opinion that there was only one incident of beating and not two as submitted by Shri V. K. Saxena learned Panel Lawyer. If Mankhan was given beating, then his master, i.e. Ramesh has every right to defend the person of Mankhan and the injuries inflicted are simple in nature. Therefore, we feel that they cannot be convicted for any offence. Therefore, we think that the acquittal recorded by the learned trial Court in favour of the respondent is correct and we see no reason to interfere in that finding.

The result is that the appeal fails and it is dismissed. We confirm the finding of the trial Court that the respondents cannot be convicted of any offence because they acted in defence of their person and property. The respondents are already on bail Their bail bonds shall stand discharged.

Before parting with the Judgment, we would like to mention here that we have seen in many Criminal Trials that prosecution avoids sending the blood stained articles for chemical analysis or to Serologist for their opinion regarding existence of human blood on the weapon of offence. In our opinion, that is the most important piece of evidence to show that the weapon was used in the said incident. Similarly, we find that while recording the contradictions of the witnesses, the trial Court only indicates the statements by marking ''A'' to ''A'', but it will be better if the whole sentence is written in the statement to show what is the contradiction. If this is done we feel, that it will be convenient for us to decide the veracity of the witness and as to how far the statement given by the witness is true. Similarly we would like to add that by non-sending the blood-stained articles for chemical analysis or to Serologist, it is difficult to connect the weapon of offence with the alleged crime and because of this defect many accused persons get benefit to which they are not entitled normally. Otherwise, we think that the prosecution will take enough care in seeing that this is done while investigating a crime.