1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Criminal Appeal No.778/2004 1/ Manohar S/O Narayan, Aged - 30 years, 2/ Kamal S/O Narayan, Aged - 25 years, 3/ Santosh S/O Motilal, Aged - 30 years, 4/ Sheela Bai W/O Kamal, Aged - 23 years, 5/ Sundar Bai W/O Manohar, Aged - 28 years, 6/ Shanta Bai Widow of Narayan, Aged - 50 years. All R/O - Oon. .... Appellants Vs. State of Madhya Pradesh Through P.S. Oon, District - Khargone, West Nimar. .... Respondent ------------------------------------------------------------------------------- Ms. Sharmila Sharma, learned counsel for the appellants. Shri Girish Desai, learned Dy. A.G. for the respondent/ State. ------------------------------------------------------------------------------- Whether approved for reporting:- JUDGMENT (Delivered on 8th April, 2011) Per Prakash Shrivastava, J :- 1/ This appeal is at the instance of six appellants, who have been convicted and sentenced by the impugned judgment dated 3.7.2004 passed by the First Additional Sessions Judge, 2 Khargone, District West Nimar in S.T. No.221/2003, in the following manner :- Conviction u/S Sentence 148 IPC one year RI 452/149 IPC one year RI and fine of Rs.1,00/- with default stipulation. 302/149 IPC Life imprisonment with fine of Rs.2,00/- and default stipulation. 323/149 IPC 6 month's RI 2/ The prosecution story is that appellants as well as deceased Radheshyam were residents of Talab Chowk, Mohalla Oon. Appellant Shanta Bai was panch in the village Panchayat. The relations between the appellants and Radheshyam were inimical. On 2.7.2003 at about 9.30 p.m. Radheshyam was having liquor in his house when the appellant no.1 Manohar armed with axe and appellant no.2 Kamal armed with Kharalya (thick wooden stick used in bullock cart) entered his house. Manohar gave axe blow on the head of Radheshyam and Kamal gave blow from Kharalya. When Rakesh came to intervene, Sundar Bai and Santosh caused injury to him with wooden stick. Sheela Bai also came and gave lathi blow. Hearing the noise, when Ramesh and Kunwar Bai came to intervene, the appellants fled away from the spot. FIR of the incident was lodged by Radheshyam in the police station Oon, district Khargone at 10.45 3 p.m. on the same day. Radheshyam was taken to the District Hospital, Khargone. The MLC of Radheshyam and Rakesh was done by PW-8 Dr. R. Joshi. During the treatment Radheshyam died on 3.7.2003. His postmortem was done by PW-9 Dr. Anil Kadiya and postmortem report is Ex.P/29. Police registered offence under Section 302 IPC along with the other offences against the appellants and after completing the investigation, filed Chalan. The trial Court framed charges under Section 148, 452/149, 302/149, 323/149 and under Section 506 IPC against the appellants, who abjured their guilt and the trial took place. 3/ During the trial the prosecution examined as many as 11 witnesses and proved 36 documents. The appellants proved 19 documents in defence and the statement of the appellants under Section 313 of the Code of Criminal Procedure were recorded. Trial Court acquitted the appellants for offence under Section 506 IPC but convicted all the appellants for offences under Section 148, 452/149, 302/149 and 323/149 IPC, and sentenced them in the manner mentioned above. 4/ We have heard the learned counsel for the parties at length and have minutely perused the record of the case. 5/ It is not in dispute that the death of Radheshyam was homicidal in nature which is also clear from the statement of 4 PW-9 Dr. Anil Kadia and Ex.P/29 the postmortem report of Radheshyam. 6/ All the accused persons have been convicted for offence under Section 302/149 IPC for causing murder of Radheshyam, therefore, it needs consideration if they have rightly been found guilty of the said offence. The FIR (Ex.P/30) was lodged by Radheshyam. It is mentioned in the FIR that at the time of the incident appellant Manohar was carrying an axe and he had caused injury to Radheshyam from the axe and that Kalu alias Kamal had caused injury from Kharalya on the head of Radheshyam. Since Radheshyam died thereafter, therefore, FIR can be treated to be his dying declaration but it is doubtful that Radheshyam had lodged the FIR. PW-1 Rakesh S/O Radheshyam who had accompanied Radheshyam to the police station has stated that on receiving the axe blow his father had become unconscious and when they had reached the police station, at that time Radheshyam was feeling dizzy. Though Rakesh has stated that at the time of lodging the FIR Radheshyam was in senses but he has also stated that due to dizziness Radheshyam had asked him to record the FIR. 7/ Out of the relevant witnesses examined by the prosecution to prove the offences, PW-7 Sohan and PW-10 5 Ashok have turned hostile. PW-6 Kunwar Bai is not an eyewitness of the incident because she has admitted that when she had reached the spot, the appellants had already left the spot and the incident was narrated to her by Rakesh. Trial Court has also found that Kunwar Bai was not an eyewitness of the incident. 8/ The only eyewitness of the incident is PW-1 Rakesh, who is an injured witness. Rakesh has stated that at the time of incident he was in his house which is 10-12 feet away from the house of Radheshyam. On hearing the shout of Radheshyam he came out and saw the appellants Kamal and Santosh beating Radheshyam. Manohar was having axe, Kamal was having Kharalya, Santosh and other appellants were having wooden stick. He has stated that Manohar had given blow from the axe on the head of Radheshyam, Kamal had caused injury to Radheshyam from Kharalya on the right hand and Santosh had caused injury from the stick. 9/ The MLC (Ex.P/24) of Radheshyam was done by PW-8 Dr. R. Joshi, who had found following injuries on his body :- (i) One lacerated wound measuring 6 x 2 x 1 c.m. on the right side of temporal region. 6 (ii) Swelling 6 x 6 c.m. on right wrist. (iii) Swelling 6 x 6 c.m. over back. All the injuries were caused by hard and blunt object. He has clearly stated that the injuries found on Radheshyam could not be caused by a sharp weapon. 10/ The autopsy of Radheshyam was done by PW-9 Dr. Anil Kadia, who had given the postmortem report (Ex.P/29), which corroborates the injuries noticed in the MLC. In the postmortem report he found stitched wound on right temporal region, on dissection he had noticed sub-dural hematoma. He had also found fracture of right radius and ulna bone and he opined that the death was caused due to the injuries in skull. 11/ It is worth noting that neither in the FIR nor in the statement of PW-1 Rakesh there is any allegation of causing any injury to Radheshyam by appellants Sheela Bai, Sundar Bai or Shanta Bai, who were allegedly carrying wooden stick. 12/ It is worth noting that FIR (Ex.P/30) was lodged by Radheshyam in police station Oon on 2.7.2003 at 10.45 p.m., whereas appellant Sheela Bai had lodged a cross FIR (Ex.D4C) in the same police station against Rakesh and Radheshyam on the same day at 10.25 p.m. PW-11 U.K. Tiwari, investigating 7 officer, has admitted this fact. He has stated that the report lodged against Rakesh and Radheshyam was not found to be false. 13/ The appellant Shanta Bai had also received injuries in the same incident. Her MLC was done by PW-8 Dr. R. Joshi and the MLC report is Ex.P/27. The statement of PW-8 Dr. R. Joshi as well as the MLC report Ex.P/27 indicate that Shanta Bai had received following injuries in the same incident :- (i) Lacerated wound measuring 10 x 4 x 2 c.m. on right temporal region. (ii) Lacerated wound measuring 5 x 2 x 1 c.m. on forehead. (iii) Two scratches measuring 3 x 2 c.m. above nose and upper limb. PW-8 Dr. R. Joshi on her examination had found that her condition was not good. She was semi conscious and had already vomited. He opined that all the injuries were caused to her by hard and blunt object, which could be caused by Musal or blunt part of axe and that at the time of admission her condition was critical. PW-11 U.K. Tiwari has also admitted that Shanta Bai remained admitted in the hospital for 15-20 days, her condition at the time of admission was critical and Shanta Bai 8 was brought to the police station in unconscious condition on a hand-cart, and that the report of the incident was lodged at first by Sheela Bai. Since Shanta Bai was unconscious, therefore, neither her report could be written nor her statement could be recorded at that time. The appellants Sheela Bai and Sundar Bai had also complained of receiving injuries in the incident but in their MLC (Ex.P/26 and P/27) no injury could be noticed by the doctor. 14/ In the present case the prosecution has failed to explain the injuries received by Shanta Bai. PW-11 U.K. Tiwari, investigating officer, has admitted that during the investigation neither Radheshyam nor Rakesh or any other witness had given any explanation in respect of the injuries received by the accused persons. 15/ The PW-11 U.K. Tiwari, investigating officer, has stated that at the time of incident Radheshyam and Rakesh were under the influence of liquor, there is no independent witness, the cross cases were filed by both the parties and at the time of incident there was no light since there was power cut from 6 p.m. to 10-12 p.m., there was blood on the sharp edge of the axe seized from Manohar but there was no blood on any other part of the axe and that the 161 statement of Rakesh were recorded thrice 9 in which he had given contradictory statement. 16/ The Supreme Court in the matter of Lakshmi Singh and others etc. V. State of Bihar reported in AIR 1976 SC 2263 has held that in a murder case the non explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw following inferences :- (Para-11) “(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probabilities with that of the prosecution one. There may be cases where the non- explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 17/ In AIR 2009 SC 1262 in the matter of Ravishwar 10 Manjhi & Ors. V. State of Jharkhand, Supreme Court has held that if the injuries on the accused are grievous in nature, prosecution owes duty to explain it and the Court should take serious notice of the nature of injuries suffered by the accused. 18/ In the present matter the evidence discussed above though establishes that Shanta Bai had received grievous injuries at about the same of the incident and was admitted in critical condition in the hospital but the prosecution could not explain as to how she had received those injuries. 19/ In the matter of Ranjha and another V. State of Punjab reported in AIR 1996 SC 2741, the Supreme Court in a case where the accused were alleged to be armed with deadly weapons had caused injuries and the injuries were found to be simple and inflicted on non vital parts except one fatal injury, had altered the conviction from 302/34 IPC to 304(Part-II)/34 IPC and sentenced each of the accused to suffer seven years' RI. 20/ Considering the aforesaid position in law and the nature of evidence which has come on record and the fact that only one injury was found on the vital part of the deceased Radheshyam and that the members of the accused party have also received grievous injuries, we are of the opinion that it would not be safe to convict the appellants for offence under Section 11 302/149 IPC, instead, in view of the evidence on record the appellants Manohar, Kamal and Santosh are convicted of offence under Section 304 Part-II/34 of IPC and sentenced for 7 years' RI. So far as appellant Sheela Bai, Sundar Bai and Shanta Bai are concerned, there is no evidence that they had caused any injury to deceased Radheshyam and there is also no evidence on record that these appellants had formed unlawful assembly for the common object of causing murder of Radheshyam, therefore, they are acquitted of the offence under Section 302/149 IPC. 21/ The appellants have also been charged and convicted for offence under Section 323/149 IPC for causing injury to Rakesh. In the MLC (Ex.P/23 ), PW-8 Dr. R. Joshi had found 3 simple injuries on Rakesh caused by hard and blunt object. From the statement of PW-1 Rakesh it is clear that the appellants had not gone to the spot to cause any injury to Rakesh but he had received injury when he had tried to save Radheshyam. Thus the common object of the appellants to cause injury to Rakesh is not established. No injury was caused to Rakesh by appellants Manohar, Kamal and Santosh. As per the statement of PW-1 Rakesh the injuries from wooden stick were caused by Sheela Bai, Sundar Bai and Shanta Bai but his statement is not corroborated by any other witness. Considering the evidence, 12 nature of injuries received by Rakesh and the fact that appellant Shanta Bai had received grievous injuries in the same incident which have not been explained by the prosecution, the conviction of these appellants for offences under Section 323/149 IPC cannot be upheld and they are acquitted of the said offence. For same reasons the conviction of the appellants for offence under Section 148 IPC also set aside and they are acquitted of the said offence. 22/ So far as the offence under Section 452/149 IPC is concerned, none of the witnesses have stated that the fight had taken place inside the house of Radheshyam. PW-1 Rakesh has stated that at the time of incident he was in the adjoining house and he came out and saw the incident. He has not stated that the appellants had entered the house of Radheshyam and caused injury to him inside his house. PW-6 Kunwar Bai has stated that the injuries were caused by the appellants to Radheshyam on the road. Though in the FIR (Ex.P/30) it is mentioned that the appellants had entered the house of Radheshyam armed with weapon but FIR is not a substantive piece of evidence and since it is not corroborated by the other evidence, therefore, offence under Section 452/149 IPC is not made out against the appellants. 23/ In view of the aforesaid analysis all the accused 13 persons are acquitted of the offence under Section 148, 452/149, 302/149 and 323/149 IPC. Appellants Manohar, Santosh and Kamal are convicted for offence under Section 304 (Part-II)/34 IPC and sentenced for seven years' RI. If they have already completed the sentence awarded, they will be set at liberty, otherwise, on completion of the period of sentence, they will be set free. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-