Tar Singh and another vs State of Madhya Pradesh

This appeal has been filed by the appellants-accused Tarsingh and Unclesingh against the judgment and order of conviction dated 28/11/2001, passed by 1st Additional Sessions Judge, Barwani in S.T. No. 178/2000 whereby the learned trial Court convicted them u/s 302 read with Section 34 of IPC and sentenced to Life Imprisonment. Brief facts of the prosecution story is that on 4/03/2000 at about 05:00 PM in the evening, the first informant PW1 Bhaka, son of Amarsingh and his elder brother Raisingh were going to their sister''s place and when they reached near the house of appellants, both the appellants armed with bow and arrows obstructed their way and also exhorted them and thereafter started causing injuries by arrow. Bhaka (PW1) somehow manage to ran away from the place of occurrence whereas his elder brother Raisingh could not escape from the place of occurrence and went to the house of his sister Sigalibai (PW2) and when he was for drinking water, at that time both the accused persons came to the house of Sigalibai (PW2) and caused arrow injuries to Raisingh. Sigalibai, who was witnessing the incident asked them not to cause any injury but they did not stop and after causing arrow injuries to Raisingh ran away from the place of occurrence. Bhaka (PW1) came to the place of occurrence whee Raisingh was lying. He orally narrated the incident and stated that appellants Unclesingh and Tarsingh caused injuries to him because of old enmity with him. Bhaka (PW1) along with Nansingh (PW3) went to the Police Station and lodged the FIR(Ex-P/6) and vide Crime No. 30/2000 to Lalji Singh (PW9) who registered the case against the present appellants. Thereafter, spot map and inquest report were prepared, dead-body of the deceased was sent for postmortem to Dr. P.L. Patidar (PW7). Ex-P/1 is the postmortem report. The Doctor has opined that the deceased died due to shock resulting from severe haemorrhage (In abdominal cavity contain about 2 litres of blood). Duration of death is about 12 to 24 hours from the time of postmortem. As per statement of Dr. P.L. Patidar (PW7), the death was homicidal in nature.

After completion of investigation, the accused were prosecuted for commission of the aforesaid offence by the trial Court. Total nine witnesses were examined on behalf of the prosecution. The accused abjured their guilt and pleaded that they have been falsely implicated in the alleged offence. In defence, Dr.C.S. Rosaliya (DW1) was examined by the appellants. The defence of the appellants before the trial Court was that their injuries (Ex-D/4 & D/5) were not explained by the prosecution. They have also taken the plea of right of private defence.

The trial Court after having examined the evidence on record as well as the defence taken by the appellants passed the impugned judgment and convicted the appellants u/s 302 read with Section 34 of IPC and sentenced them as afore-noted.

Dr. C.S. Rosaliya (Dw1), who has examined the accused, found one lacerated wound 1 c.m. X 1/2 c.m. X 1/2 c.m. on left lower chest on the person of appellant Tarsingh and one lacerated wound 1/2 c.m. X 1/4 c.m. X 1/4 c.m. on left little finger and another 1/2 c.m. X 1/2 c.m. X 1/4 c.m. on left ring finger on the person of Unclesingh, which are simple in nature.

We have heard the arguments of Smt. Indu Rajguru, learned counsel for the appellants and Shri Deepak Rawal, learned Govt. Advocate for the respondent-State and perused the record.

It is submitted by learned counsel for the appellants that on the date of incident, Bhaka (PW1) and deceased had gone to the house of their sister Sigalibai(PW2) and while they were passing through the road and reached in front of the house of appellants, there was some altercation between them and the accused and both the parties started causing injuries to each other with bows and arrows. After that Bhaka (P1) ran away from the place of occurrence and deceased Raisingh ran away to their sister''s house. PW1 in para 7 of his cross-examination very categorically stated that except them nobody else was with them. He in para 8 also admitted that he ran away from the place of occurrence and Raisingh came to the house of his sister Sigalibai (PW2) and when he was drinking water, the accused came there and caused injury to him. It is not disputed by Bhaka (PW1) that he and accused persons are related to each other and both the parties were causing injuries to each other. This admission was made by him in Para 13 of his statement.

Sigalibai (PW2) in para 4 of her cross-examination has stated that when Raisingh was drinking water in front of her house, appellant No. 1 Tarsingh caused bow injury to him. As per para-5 of her statement, there is omission in her police statement (Ex-D/1). She in para-6 of her cross-examination further admitted that father of accused persons as well as father of Raisingh and Bhaka were read brothers. She also admitted that Bhaisingh was having one acre land, half acre land was given to Raisingh and Bhaka and half acre was given to the appellants and after that they were cultivating the same. She in para 7 of her cross-examination has deposed that accused persons as well as Bhaka (P1) and his brother Raisingh were causing injuries to each other. She also admitted that her brothers Bhaka (PW1) and deceased Raisingh were also having bows and arrows and they caused injuries to accused Unclesingh and Tarsingh. She further admitted that if accused persons could not have caused injuries to the first informant Bhaka(PW1)and deceased Raisingh, the appellants could have caused fatal injuries by them. Para 7 of Sigalibai (PW2) is very relevant which reads as under:

The prosecution witness Sigalibai (PW2) has not declared hostile by the trial Court and, therefore, her statement is admissible in evidence.

When accused persons were examined u/s 313, Cr.P.C., they pleaded that they were not guilty and put forward a version stating that deceased Raisingh and his brother Bhaka(PW1) abused them and caused injuries to them. Apprehending that they would be killed by them, the accused stated that there was a scuffle between them and, thereafter, they in the right of their private defence caused injury to the deceased. It is submitted that the appellants did not intentionally inflicted the injuries to the deceased. The trial Court could have accepted the evidence of Sigalibai (PW2) that the prosecution has suppressed the genuineness of the occurrence and the plea that Bhaka (PW1) and deceased Raisingh inflicted injuries on the accused but no proper explanation of the injuries found on the accused were given, and that both the accused have taken a specific plea which leads to an inference that they must have acted while exercising their right of private defence and, therefore, the accused are entitled to acquittal.

The General Exception which deals with the right of private defence lays emphasis on the reasonable apprehension in the mind of the accused while exercising the right of private defence. However, for the purpose of this case, we need not go into the various aspects that have to be kept in mind in giving benefit of the General Exception to the accused. Suffice it to say that where an injury is found on the accused and if the accused comes forward with a specific plea, the same has to be considered in the facts and the surrounding circumstances obtaining in the case. As per Ex-D/4 and D/5, the injuries were inflicted by Bhaka(Pw1) and deceased Raisingh to the accused and this fact has been very categorically admitted by Sigalibai (PW2) in her cross-examination. In such a situation, it cannot be said that the accused had no reasonable apprehension that some hurt, at least, would be caused to him. Further, as leaded by them, there were two persons who were armed with bows and arrows and inflicted injuries to them. In such a case, naturally, a reasonable apprehension would have been there in the mind of the accused. It is in this back-ground we have to consider the plea set up by the accused and examine whether the accused was justified in exercise of right of private defence. At least, a reasonable doubt arises in this case when we consider the prosecution version as well as the version put forward by the accused in the light of the facts and surrounding circumstances and the situation in which the occurrence had taken place.

As already mentioned, they are all closely related to each other. Though the trial Court has not satisfactorily dealt with the aspect of right of self-defence but we, having given our earnest consideration, are of the view that the plea set up by the accused cannot simply be brushed aside. Under these circumstances, it is quite reasonable to hold that the accused had the right of self-defence. However, having regard to the fact that they inflicted two injuries on the deceased in the right of their private defence, the appellants are in jail from a period of more than 11 years, even if we accept the prosecution case and statement of Bhaka(PW1), the appellants certainly exceeded the right of self-defence. Therefore, Exception (2) to Section 300 I.P.C. is attracted.

Accordingly, in the result, we set aside the conviction u/s 302, I.P.C. and sentence of life imprisonment awarded thereunder and convicted them u/s 304, Part-I, I.P.C. and sentence them to undergo 11 years'', 9 months and 7 days R.I. The appellants were in jail from 7/03/2004 to 19/04/2004 and since 28/11/2001 i.e. from the date of the judgment of conviction and sentence passed by the Additional Sessions Judge, Barwani. The appellants be released forthwith if they are not required in any other criminal case. The appeal is, thus, partly allowed.