HIGH COURT OF CHHATTISGARH. BILASPUR CriminalADDealNo.1215 of 1992 APPELLANT: Umesh Ram m RESPONDENT: Versus The State of M.P. (now the Stateof C-G^ ;:' . .. ','. ;-: ;':'--:;,/:'. •.." 1... PostforDronouncementofjudflmenton 2LS Audust 2010 Sd/- T.P. Sharma Judge .^ ^:. - 'L'- f ' ' (•''.•'..•''''• ^.;.^' •^; -^- HIGH COURT OF CHHAmSGARH. BILASPUR Criminal Appeal No.1215 of 1992 APPELLANT: (InJail) RESPONDENT: Umesh Ram son of Chinta Ram Pandey aged about 23 years, resident of yillage Saida, P.S, Chakarbhata Distt. Bilaspur^ Versus The State of M.P. (now the State 6f CW '•'••''-•^^':•<:.••.'.•. {Appeal ynder Sectiori 374 (2)of the Cpde of Criminal PrQcedure} Present: .: • :'•..• .:;.';. :.' .'11 .• ^ 1'": '1 • . •.••."':' Mr. V.C, Ottalwar, coynsel fpr the appellant. Mr. R.R. Sinha, Panel Lawyer for the State/respondent. Mr. R.S. Patel, counsel for the cpmplainant. SinaleBench: Hon'ble Mr. T.P. Sharma. J JUDGMENT (Deliv6red on _3^_August, 2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 1-12-92 passed by the 4l Additional Sessions Judge, Bilaspur in Sessions Trial No.319/87, whereby & whereunder learned Additjonal Sessibns Judge after holding the appetlaht guilty for commissionofoffenceunderSection307ofthel.P.C., sentenced himto undergo R.l. for threeyears. 2. Conviction is impugned on the grpund that without any iota of evidence,' the trial Court has convieted & sentenced the appellant and thereby committed illegality. •»• —. ••.;'••••' • . • • • ' ' . ' ' ' • ; •. • ..'•..•.* 3. Case of the prosecution, in brief, js that on 4-7-87 between 7 and 8 p.m. at village Saida, Distt. Bilaspur, injured Babulal (PW-2) along with Dev Kumarwas passing in front ofthe house of the appellant, the appellant used filthy language upbn injured Babulal and assaulted him, thereafter the appellant assauited Babulal with knjfe over his abdomen and caused serious injuries. Dev Kumar shifted Babulal to District Hospital, Bilaspur where Dev Kumar lodged Dehati Nalisi' vide Ex.P-1. Babulal was examjned by Dr. Rajiv Ratn Tiwari (PW-4) vide Ex.P-3 who found fbllpwingjnjuries:- (1>stab wound of 2 c.m. x 1 c.m. up to chest, deepover left side of ,.^'^ch^st;' , '.;-:', '.'. •. .:'••. ; ' " ;'.'. ' . '.'.:,':-;":-":'...: •-':-1. -:. ..' ;. (2) incised wound of 1 c.m.x 1 c.m. x 0.5 c.m; over left hand; (3) stabwound over ribs 6f 1 e.m.x 0.5 c.m.; and (4) contusion over right side pf chest of 6 c.m. x 3 c.m. x 4 c.m.. Patient was serious. He was admitted in the htbspital. Ifyuries were grievous in nature. Blood stained clothes having cut mark were seized from Babulal vide Ex.P-2. Finally, FIR was lodged vide Ex.P-14. House of the appellant was searehed vide Ex.P-17 on the basis of order Ex.P-' 16 and knife was seized from the accused/appellant vide Ex.P-15 which wasocamined bythe doctor. 4. Statements of_the witnesses were recorded under Section 161 of the Cr.P.C.. After cQmpletipn of inyestigatiQn, charge sheet was filed before the Court of Chief Judjcial Magistrate, Bilaspur who in turn, committed the case tp the Court 6f Sessibns; Bilaspur, frpm where learned Adclitipnal Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many asthirteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the eircumstances appearing against him, pleaded innocenGe and false implication. He has taken specific defence that at the time of incident injured Babulal along with Dev Kumar, Avinash, Radhey Shyam & Kunj Bihari entered 1n his hpuse and assaulted him & his mother with stick & crowbar, therefore, he went to the Police Statiori arid lodged report; doctor has examined him and his mother; thereafter, with a view t6 save themselves and to falsely implicatehim.Babulal&DevKumaFhavelodgedfalsereport. 6. After affording opportunity pf hearing to the parties, learned Additional' Sessions Judge convicted & sentenced the appellant in the aforesajd .manner.;1;1. ^ •.•:.'.;'"1:--. ;'-..•" ;-'/'-1;'." •':. .•,:' ''•..' "' .:'-'' '.•".':';, -;"' •' '•: 7. I haye heard leamed counsel for the parties, perused the judgment and record of the trial Court. S.Learnedcounselfortheappellantvehemeritlyarguedthatintheprese^^^ ease, the appellant has not caused any injury to Babulal vpluntarily, but when Babulal along with four other persons entered in the house of the appellant and assaylted hjm & his mother, in exercise of the right of private defence of person, the appellant has used minjmum force 1 ^^ Wi. K M B^ .••:.^s ^; ..&^^,. S '::: .I^^i^,. f ^ l.- t<;- required to save himself and his mother, therefor6, he has not committed any pffence punishable under Section 307 of the I.P.C.. Learried' counsel further argued thatthe appellant has also sustajried injury and it was the duty of the prosecution to explain the injury but for the reasons best known to th& prpsecution, the prosecytion has nbt explained the injury found over the appellant which itself is sufficient for rejecting the evidence of the prosecution. Leamed counsel placed reliance in the m^er ofBala Prasad Dhansukh y. State1 in whichthe Migh Courtof Madhya Pradesh has held that no specific mode of prbving exception available under Sections 96 & 97 of the I. P.C. is reciuired to the defence, even casting doubt on the case pf the prosecutioh is sufficient evidence forexercising the rightofprivate defence. Ifaccused inflicts little^m force than absolutely necessary, then he is not liable for commission of any offence. Learhed counsel further placed reliarice in the matter of Om Parkash v. State of Pun|ab2 in whjch the Apex Cpurt has held that the prosecution is required to prove the intention t6 commit murder and, in pursuance of that intention, does an act towards its cQmmission irrespective bf the fact whether that act is the penultimate act or not. Learned counsel also placed reliance in the matter pf Baidyanath Prasad Srivastaya v. State of Bihar3 in whichthe Apex Court has held that in criminal ease aecused is not requrred to prov^ his case and the prosecution is required t6 prove its case. Learned eounsel relied upon thematterofBoddellaBabulReddyv.PublicProsecutor,HighCourt of Andhra Pradesh4 jn which the Apex Court has held thgt the proseeytion is requiFed to explain the injuries found over the body of the accysed. Learned counsel further relied upon the Inatter of Lakshmi SinglT and others v. State of Bihar5 in which the Apex Court has lield that the prosecution js requjred to explain the injuries found over the body of the accused and in case the prosecution fails to explain the jnjuries on the accused then Jt may be presumed that the evidence of the prosecutjon witnesses is untrue and the^injuries probabilise the pfea' taken by the accused. 9, Qn the other hand, learned State counsel vehemently opposed the appeal and submitted that the evidence adduced on behalf of the 11961 M.P.L.J. 71 2AIR1Q61SC1782 31968Cri.L.J.1650 4(2010)2SCC(Cn)427 51976SCC(Cri)671 : !t. .'.t. •.(""'.•. •"•' .it,' .(";'1.'. • '"'''• • .-•",;:.:"-.' K ii;' RI^" ^ 1: ' 1:-: proseeution is sufficieht for drawing inference that the appellant has attemptedto committhe murder of injured Babulal and thetriaICourthas rightly convicted & senteneed the appellarit, 10. In order to appreciate the arguments advanced on behalf of the parties, l have examined the evidence addueed pn behalf of the prosecution and ^thedefence. ','•;.''. :/'1:'^ '"••''.'".'•'..''•'-.";'.."'•. "', •. ::i 1/.'•1 ::':1';.'.'1;'',.;-'•;1'/:.:'.1: 11.1n thepresentcase,injuriesfoundoverthebodyofBabulal(PW-2)have not been substantially clisputed on behalfof the defence. On the other band, the defence has taken specific plea that firstly the complainant along with pther persons commjtted house trespass and assaulted the appellant and his mother, thereafter, in order to save themselves and in exerciseof the rightofprivatedefericeQfperson,theappellanthasused minimum force required to save themselves. Even otherwise, injuries of' complainant Babulal (PW-2) alsb established by the evidence of Babulal (PW-2), Dr. Rajiv Ratn Tiwarj (PW-4), Ahmad Ali (PW-6), Durga Prasad (PW-7), Dr. Vishal Nath Dubey (PW-10) and medical reports Exs:P-3, P- 4, P-5 & P-7, were on vital parts, but the injuries themselves are not grievous or dangerous, however on the basis of tresttment reports and condition of BEibulal (PW-2), the injuries were grievous in nature. Definitely, as per the medical reports, jnjuries were not dangerous or '':fatalto'life.',''-:.'..,-ll-::..';;^'••"'.;..: ;';. ,. •• '.- ' ••'••"•:"i-:..'-::--'i':.i-':ii' 12.As perthe defence of the accused, the accused also sustained injuries.,, Dr. C.S. Sharma (DW-1) has deposed in his evidence that pn 8-7-87, he has conducted X-ray of leftleg ofihe appellant vide E)<.D-4 and as per the reportEx.D-3, no bone injurywas found. . 13,DevKumar (PW-1) & Babulal (PW-2) have admitted in their cross- examination thatat the instance of appellant Umesb Ram, criminal case is pending agajnst them relating to some crime, but they have not caused any injury to Umesh Ram, This shows that the appellant has also systained some injuries at the time of incident. .? • ". ••..'': ' . '• 14.As regards cQmplicity of the appellant ir> the crime in questibn, Babulal< (PW-2) has deposed in his evidence that while healong with Dev Kumar was passjhg in front of the hbtise of the appellant, theappell^nt abused them ancj assaulted him with knife, and then Dev Kumar took tiim from the spQt His evidence has been substantially corroborated by the evidenee of Dev Kumar (PW-1) & Avinash Tiwari (PW-3). As per the •^; ^ 'M l^ evjdence of these witnesses, the incident took place in frbnt of the house oftheappellant.Defencehascross-examinedfhesewitnessesindetaJI. In par9 7 of his cross-examinatioh, Dev Kumar (PW-1) has firstly admitted that blpod of Babulal (PW-2) fell down insrde the house of the appellant and also outside the houseoflhe appellant, thereafter, he has corrected his version and deposed that there was no blobd ihsjde the house of the appellant. Babulal (PW-2) has denled the aforesaid suggestion in para 8 of his cross-examination. These witnesses had alsoadmittedpreviQusenmifypfBabylal(PW-2)withfheappellant 15. In the present case, virtually the defence has not disputed the fact that the appellant has caused injury to jnjured Babulal (PW-2), but the appellant has not caused injury to Babulal voluntarily. In these circumstances, yirtually in the present case, both the partjes have admitted that the accused has causedjnjuryto Babulal; 16.As regardsthe question of voluntarily causing injyry pr injury caused in the right bf exercise of private defence, admjttedly, the aforesaid three, witnesses namely Dev Kumar (PW-1), Babulal (PW-2) & Avinash Tiwari (PW-3) are facing trial relating tp the same incident and the inci^ent t6ok place not only in front of the house of the appellant, but within the close distance of the house of the appellant where pFesence of the appellant wasquite natural. As per^he evidence of Dev Kumar (PW-1) & Babulal (PW-2), firstly the accused assaulted Babulal by fists, thereafter he took knife and assaulted Babulal with knife, at that time, the accused was alone whereas the complainant party was three in number and all tfte three persons are facing trial for causing injury to the accused/appellant. The appellant has examined Dr. C.S.; Sharma (DW-1) regardihg' conduction of X-ray whpse evidence reveals that no grievous injury was fbundQverthebodyoftheappellant. 17.A& hekl by the Apex Court in the matter of Lakshmi Singh (supra), if injury found over the body of the accused is not explalned, then the fbllowing three inferences may be drawn: - (1) that the prosecutjon has suppressed the genesis and the origin 6f the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the irijuries pn thepersonoftheaccusedarelyingpnamosim^ therefore their evidence is unreliable; and / * • .f' '^. Br^.ffs?; ,.l '^i. •^^ --7 (3) that in case there is a defence versjon which explains the injuries on the person ofthe accused it is rendered probable so as to throw doubt on the prosecution case. 18.Wbjle dealing with same question, the Apex Coyrt in the matter of BpddellaBabulReddy(supra)hasheldthus, . "20. As held in Ra/7? Sunder Yadav v. State of BihaiB, this Court has held that though in all the cases, the prosecutiori was not obliged to explain the injuries, the prosecution has to however explain the injuries on the accused, where the evidence consists of inteFested and inimical witnesses and where defence alleges a version whjch competes jn probability with that of the prosecutiQn. Therefore, the trial court came to the conclusion that the injuries on Ypddula Sankar Reddy (A-8) and Yeddulg Prabhakar Reddy (A-14) were not ' explained by the prosecutipn. It is on this basis that the trjal court entertained a doubt about the version of the .'prosecution." '':.•";- ^•1';-. 7 1\': '.":1;".11/:. /' .: 1. .'..•'"': ':'.',' .••'":,:', '.'' •':• 19.Virtually, the prosecution is not required to explain the injyries in all cases, especially where the injuries are trifle in nature and may be caused in the ordinary course of nature. In the preseht case, the accysed/appellant was alone and the complainant party was three in number and all the three persons are faeing trial for causing injury to the appellant. In these circumstances, the prosecution was under obligation to explairi the injuries found over the body ,of the accused, though those witnesses Dev Kumar (PW-1), Babulal (PW-2) & Avinash Tiwari (PW-3), have specjfically denjed that they have not caused any injury and the appellant himself has also not stated anything relating to his injuries that how many injuries were found over his body. As per the defenee of the appellant, the appellant was examined by the doctor,but for the reasons best knpwn to him, he has npt filed any medical repprt or has not examined the doctor who has examined the injuries. We must remember that in suitable cases the prosecution is required toexplain the injuries found over the bpdy of the accused, but at least the accused is under obligatipn to establish that he sustejned this much injuries on his> bQdyatthe time pfincident. Howeyer, in the present case, the accused has not adduced any evidence to show that how many and what kind of injuries he has sustained at the time of such incident. But on the basis of the evidence ofthe prosecution that too on the basis of F.I.R. lodged by^ the appellant relatjng to such injury, it can be safely inferred thatthe nt', \ ,;-..':. •'.'•' (1998)7SCC365:1998SCC(Cri)l630 '.^^^ l"^!;l.:"®Bi^ 'v :JIS:S^-; '•:SSi^:- ^ijSBI^I ^SSHy. ggglllgg 1 @ '^-^1. appellant has sustajned some injuries at the time of cpmmissiQn of the ,.:,offence.'-,'/•..'..,/. '•. ••'••.•'•.:.".':• • ":'"-'.. . '' 1'••.••...'..'.;1'.-.'-;'.1' •';•':• 20/Cjrcumstances of commission of the incident sh^ place between fhe appellaht & the aforesaid three wjtnesses where firstly, the appellant assaulted Babulat by fists and thereafter, he has usedtheallegedknife.KnifehasbeendescribedinEx.P-6whichshows that it was pocket knife hayihg blade of the size 6f 6.15 c.m. i.e, about' 21/^". If one person is surrounded by three persons and assaulted by three persons, it would be natural fbr that person to use any amount of forcetosave himselfand to rescuefromtheir grip. All the injurie'sfound on the body of injured Babulal are not deep-rooted. The trial Cdurt has considered the gravity of injuries on the basis of ajr like sourid coming from chestofinjured Babylaland has presumed that jtwas asa resulto^ jnjury on lungs, but the doctbr has not found any such injury or injury over lungs. Although the injuries were found on chest; but the said injuries are not deep-rooted and have notaffected the internal organs, forensjc or abdominal cavity or peritoneum. In these circumstance^, it can be safely inferred that simple injuries were caused t6 Babulal by •.'.•.•."smallknife.' :':;'.":;'''. ,'.' ••..•." '•:'- :'^: :'.'..:'•.:.".'••.: 21.1n exerctseofthertghtQfprivate defence, a person is required to use minimum forcetosavehjm pf force necessary Gannot be weighed in golden scales. The accused eannot be held liable for commission of Qffence only on the ground that little more force than absolutely necessary has been used. Whde dealihg with same question, the High Court of Madhya Pradesh in the matter of Bala Prasad (supra) has held that infliction of injury with little more force' than absolutely necessary, amount of force necessary eannot be wejghed in golden scales and therefore, the accused cannot t?e held liable for commission of such offence. 22.The aforesaid cjrcumstances reveal that when the appellant was surrounded by three persons and when they caused injuries tp him pr even when life of the appellaht was in danger, with a view to save himself, the appellaht has caused simple injuries by small knife only to one person that too in exercise of the right of his private defence of body. Whjle convicting the appellant under Section 307 ofthe I.P.C. learnfed^ Additional Sessions Judge has nbt consJdered the aforesaid .!l'- ^ ~-^%i^ "I Spma circumstances and the right available to the appellant for causing such injuries, and thereby commjtted lllegality. ./ 23.For the foregoing reasons, injuries caused by the appellant to the compiainant in exerdse of the right of his private defenee cannot be termed as .commission of offence punjshable under Section 307 of the '^P.C;..',':[.;'.\./;.;;-'': './^-.^•;^ -;,. .' ^ .' '•"•.\-:;';'-^..'•••..'^•••:- 1 24.Consequently, the appeal is allowed. ConvictiQn & senterice of the appellant under Section 307 of the I.P.C. are hereby sef aside ahd the appellant is acquitted of the said charge. The appellant be set at liberty forthwith, if not required in any other case. Sd/- T.P. Sharma Judge •f{ ''.c;:'..':"•':