ia$m OOGWH;Ow 0mm>€€HmQ>wm wav>m¥dw a Am?Ha wwso? mania wrummEE N—Hawu mgr» h HSCWCSQ wmmwz.Emwmv mw OSPawm O <m. $5.8 om25955 vamgwmw A2o¢< W83 cmowrwEmmwHE hdUQEMZH. wow”mow LcgmBQ‘:a” we\0©\wowo a. mE- mEEW—E—E. mgr» u=gw¢ HIGH COURT OF CHHATTISGARH. BILASPUR (Single Bench: Hon’ble Shri Sunil Kumar Sinha.“ J) Criminal Appeal No. 579 of 1992 Mukund Pasar son of Bhim Pasar, aged Dead— 64 name years deleted vide order dated 27.9.2010) 2 Jogendra @ Jugge Pasar @ Jugge son of Mukund Pasar, Rawat, aged 22 years, occupation Cultivator APPELLANTS 1 ~ ‘ 3 Malkham @ Shobhéiram son of ‘ Bairagi Rawat, ’aged 22 years, occupation Cultivator 4 Raghunath @ Khuddu son of Bairagi Rawat, aged 25 years, occupation Cultivator All residents of Gram Indagaon, Uparpara Police Station Devbhog District Raipur (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh . (Now State of Chhattisgarh) Through Police Station Devbhog, District Raipur v- under Section 37412) of.’l‘he Code of Criminal (Appeal Procedure, 19731 Appearance: Ms. Sudha Agra‘Wal, Advocate for appellants 2 to. 4. Mr. SK. Mishra, Panel Lawyer for the State. 2 Criminal Appeal No. 579 of 1992 22 JUDGMENT (30.09.2010) Sunil Kumar Sinha, J. G (1) This appeal is~directed against the judgment dated 28th of April 1992 passed in Sessions Trial No. 41/90 by the Fourth Additional Sessions Judge, Raipur. (2) By the impugned judgment, the appellants have been g conviéted u/ss 3.07/34 8a 323 IPC and sentenced to undepjuRJ. for 7 years; and R.I. for 6 months respectively, with a further direction to run the sentences concurrently. ( 3) Appellant No.1— Mukund Pasar died during the pendency of the appeal, therefore, his name has been deleted from the cause— title of the appeal and the appeal filed on behalf of appellant No.1 has been dismissed as abated n 27.9.2010. o (4) The facts, briefly-stated, are as under:— On 21.1 1.89 at about 7.00 a.m., the appellants/accused persons were present on the disputed paddy field. Mahadeo (PW~1) also camé‘to the field along with his family members and 10~12 labours for harvesting the crop of the field. The allegations are that the appellants attempted the life of Mahadeo by assaulting him by tangia and lathi and they also assaulted Wife of Mahadeo and other persons; Mahadeo (PW—1) reported the matter to the concerned police station, one which, the First Information Report (EX.—P/ 1) was registered. Mahadeo (PW-1), his wife Panbhudi Bai (PW—2), Ghotram (PW-3) and Arjun (PW—4) were sent for their medical examinations and were examined m_.‘_ manamvai‘m,“.M_ Criminal Agpeal No. 579 of 1992 G (ii) by Dr. K.L. Banjare (PW-12). He noticed the following injuries on the injured persons:— Injured— Mahadeo (PW-1): (i) Lacerated wound over right parietal region, 8 cm xlcmxlcm; Lacerated would over left side of forehead, 3 cm x 1/2cmx1cm; (iii) Incised wound over left parietal region, 6 cm X 1 cmx 1 cm; g Bruise over antero—lateral aspect of middle of right upper arm, 5 cm x 1 cm, swelling and tenderness present; (v) Bruise over antero—lateral aspect of middle of left upper arm, 6 cm X 1 cm, swellinggand tenderness present; (vi) Bruise over middle scapular region, 19 cm x 3.5 cm, reddish bluish; t: (vii) Buise over left supra scapular region, 4 cm x 2 cm, swelling and tenderness present 8r, (viii) Abrasion over upper 1/3rd of anterior aspect of left leg, 2 cm X 1 cm. Dector opined‘that all the‘in‘’jufies‘Were simple injuries, injury No.3 was caused by hard and sharp object and other injuries were caused by hard a‘hd blunt object. Injury report is EX.-P/9—A. In'jnred- PanbhudiiBa‘i (PW—2): (i) Bruise over upper 1/3rd of antero—lateral aspect of rightmforearm, 6 cm X 2 cm, swelling and tenderness present; Th‘e injury was simple'i‘n nature caused by hard and blunt object. Injury report is EX.—P/ 10—A L I 4 5C9“ Criminal Appeal No. 579 of 1992 Injured— Ghotram IPW—3): (i) Lacerated wound over middle of mid parietal region, 2.5 cm x 1A cm x 1/2 cm; (ii) Bruise over right infra scapular regioGn, 10 cm x 1.5 cm, reddish bluish, swelling and tenderness present 85 (iii) Bruise over left shoulder region, 7 cm x 2 cm, reddish bluish. All the injuries were simple injuries. Injury report is Ex.—P/ 1 1—A. Injured— Arjun (PW—4) (i) ‘Lacerated wound over middle of forehead, 5.5 cm Xlcmxlcm’; (ii) Lacerated wound over right parietal region, 4.5 cmxl/zcmxlcm; (iii) Lacerated wound over anterior aspect of lower ‘1/3rdof1eftleg,2 cmx1/4cmX1/4cm85 (iv) Bruise over right infra scapular region, 12 cm X 4 cm, reddish colour. All the injuries were simplein nature caused by hard and blunt object. Injury report is EX.—P/ 12-A. i. a The appellants/accused persons also received injuries in the same transaction. They were also examined by Dr. K.L. Banjare (PW—12). According to their MLC reports, they received following injuries:— Mukund Pasar (A-1): (i) Laceratéd‘ wound over occipital part of right parietal region'of scalp, 3 cm x 1 cm X 1 cm. Blood clots present; 5 (ii) Bruise over ght nfra m clevicul’ar region at the level of 5th & 6th ib, 7 cm X 3 cm, swelling and tenderness present; (iii) Bruise over right supra scapular region” 5 cm x 2 cm, swelling and tenderness present 86 (iv) Bruise over dorsal aspect of lateral side f right hand, 4 cm x 3 cm, swelling and tenderness present. All te injuries were siple injurs aused by hard and blunt bjeé.‘ Inry reprsExsP A. - L e c 1 c w (ii Lacerated wond over eft sde ange of mandible, 11/2 cm X 1A cm X % cm. Blood clots present; Jogendra @ Jugge (A2): (i) aeerated wound over lft supra orbital region, 2‘5 crnk 1A m x /2 m, selling present & ): u l i l Injuries were simple in nature caused by hard and blunt object. Injury rort is X.-P/ l8—A. - (i) Bruise over perior part of igt shoulder joint, 5 cm X 2 cm, swelling and tenderness present, bluish in. colour. a Inury was simple aused b hard and blunt object. Injury report is EX.P/ 19-A After completion of usual investigati, the charge- sheet was tiled in the Court Judicial Magistrate First Class, Gériyabandn/ss 307/34 8L 323/34 IPC, who in turn committed the matter to the concerned Sessions Court, from where, it was received en transfer by the Fourth Additional Sessions Judge, Raipur, who conducted the trial and convicted 85 sentenced the appellants as aforementioned. l I / gk Criminal Awal No. 579 of 1992 ri i id rs o h m ie c ot ju Otii/ 174 ep E Malkham (é), Shobharam (A3): su rh j c y on of 6 55% Criminal Appeal N0. 579 of 1992 (5) Ms. Sudha Agrawal, learned counsel appearing on behalf of appellants 2 to 4, argued that it was a case of free fight; the complainant party came to the field for harvesting the crop; the accused party was already present there; the accused party resisted the harvesting of crop by the complainant party, on l which, the complainant party attacked over the accused party and members of both the groups received injuries. She also argued that the injuries sustained by the appellants have not been V. explained, therefore, the prosecution suppressed the genesis of crime. §he further argued that even otherv'vfse injured Mahadeo (PW—1) sustained simple injuries and no offence u/s 307 IPC would be made out. (6) On the other hand, Mr. S.K. Mishra, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. g. a (8) In State of Guirat —Vs- Bai Fatima and another, (1975) 2 SCC 7, the Supreme Court held that when the prosecution fails to . explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. It makes the prosecution version of the occurrence doubtful and the charge against the riminal Agpeal No. 579 of 199 C 2 accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at gall. decisions, it has been held by the (9) Further in catena of Supreme Court that if it is shown that accused sustained injuries n the course of the occurrencexprosecutio‘n has duty to offer an explanation so as to satisfy the court about the circumstances under t V which ’ the injuries were caused. If the prosecution fails to do so, it may mean that: (1) ithe prosecution has suppressed the genesis and development and truth of the occurrence and has not presented the true version; or (2) The witnesses who denied the presence of such injuries are lying in regard to a material part of the occurrence and therefore cannot be believed; l . OI‘ (3) The defence version which explains the injuries is rendered probable, so as to throw doubt on the truth of the prosecution case. These. inferences may not be drawn if (a) the injuries are not serious; or'(b) if the evidence as a Whole is so cogent,,clear,‘consistent, credit worthy that it ' outweighs the effect of omiSsion on the part of prosecution witnesses to explain the injuries. g. (10) Now reverting to the case on hand, Mahadeo (PW—1) deposed that when he reached to the field for harvesting the crop along with 12 labours, he found that the appellants were already npresent on the filed. The~appellants said that they will not allow to harvest the crop. They further said that last year the crop was harvesting but this year they Will not allow to do so.' Thereafter they assaulted him by lathi 8L tangia. He claimed that the disputed i hat he reached ating to the said rt and one party to the dispute d Pasar and other party to the dispute 1s h1s 1n the sald dispute and he n the power of attorney of his father. He denied the knowledge that some ex—parte order was passed in the matter in favour 8 Criminal Agpeal No. 579 of 1992 _ to the f1eld when the appellants were harvesting rthe crop He further admitted that a dlspute rel field ls pendmg 1n Ganyaband Co 1s appellant Mukun father Brahamdatta He rs not a party appears in the court o injury {on the ‘person of appellant—Muku'nd spe01f1cally denied that he d1d not of appellant-Mukund Pasar. He denied to see any .Pasar. He very see any lacerated wound on his head. 1n the last paragraph of his ev1dence he very spec1f1cally g between themzin Gariyaband Court. is wife of PW—l— Mahadeo. She also (11) Panbhudi Bai (PW—2) He deposed in y as to how Mukund Pasar amination that she cannot s admitted that he had gone to take poss because a case was pendin deposed about the 1nc1dent She very spec1f1cally deposed in cross— received injuries. Ghotram (PW 3) 1s an another injured Witness. cross-examination that he along with Arjun, Mahadeo and Maksiro had assaulted the appell Para-7 of the cross-examination, he denied to see any injury ‘On the persons of Mukund—A-l, Jogendra—A—2 and were fighting. All were having lathis 8L dandas. ants. However in Shobharam—A—3. thepersons of both the parties reached to the place of‘occurrienc‘e‘. field was in his possession. In the cross—examination, he admitted ess1on of the disputed field Arjun (PW—4) admitted in the cross—examination that when he 3&w 9 2) n d at eve d p (1 O ue appreciion of entire idenc on recor, it apears ‘ th there was a land dispute between both the arties; matter at p a was ending before the concerned Court in ariyaband and the of incdet tooplac n accoutLharvtig of paddy rop of the in k‘e ~o nesn c disuted land. It further appars tha the apellants were p e t p havesting the crop and the coplaint party also reached there for r m havesting the rop and a free fight too place between them as r c k both of tem were claiming their rights over th disputed land. In l i h e u‘ th said free fight, the persons of both the grou reived e ps ce injries. However, the njuries received by the apellants/accused pes have o d byrysur nred wiesses of the prosecuti. I cannot be said that the injuries tn on t sutained by the appellants were not serious or that the ijurie s ns we not like th whih would no have been noticed y the er at c t b prsecuti itnes. he inrieser also no elf—inflicted. oon wses T juwe t s Threfore an adverse inference can be drawn agait the e ns prsecution and it can be safely infeed that the prosecution o rr ineses are ling in r aerialkpa t ouence wts y regard to mtrt of he ccrr nld th ved fo ! a erefore they cannot be belie r the entire incident as arra by them. According to the prosecutin, the appellants wre 4 in number, whereas, the complainant party was group of 1:42 ersns Sne he omlainan prty we h 0 po. ic. t cpt a er aving more nmbe of persons n ty were aggressor to the field, where the ur ad he aused paty already sent and, as appears from the evdence on rord, a free fight ook place between them in which i ec t 3 accuse ersons lso sustained injuries which was not u i p . rons nt beenexplaine ltheppoec‘tionothe iju Criminal Appeal No. 579 of 1992 p G l l I nited o e a cc r was pre l d p a : 10 Criminal Appeal No. 579 of 1992 explained by the prosecution, it was not safe to hold the appellants guilty of the aforesaid offences and to punish them on l above set of evidence. t i . r u l . (13) lFor the foregoing reasons, the appeal is allowed. The convi<::tion and sentences imposed upon the appellants are set- l z wLe ' aside.’ Theyzacquitted of the charges framed against them. It is! stated that the appellants are on bail. Their bail bonds are cancelled. and sureties stand discharged. ,,.,’«/ sdi: Sunn Kama? 5mm g/ Jude i:\