HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No.3367/1999 (1) Bhupat, son of Gorelal Lohar, aged about 25 years, (2) Prakash, son of Gorelal Lohar, aged about 23 years, (3) Sunderlal, son of Gorelal Lohar, aged about 36 years, (4) Gorelal, son of Tijwa Lohar, aged about 60 years, All residents of Village Patha, P.S. Laundi, Distt. Chhatarpur ...Appellants vs. State of M.P., through SHO, P.S. Laundi Distt. Chhatarpur …Respondent ---------------------------------------------------------------------------------------------------------------------------------------- Shri Arvind Singh, Advocate for the appellants. Shri Umesh Pandey, Govt. Adv. for the respondent/State. ---------------------------------------------------------------------------------------------------------------------------------------- Date of Hearing : 13-10-2011 Date of Judgment : 28-11-2011 J U D G M E N T This appeal has been preferred against the judgment-dated 29.11.1999 passed by Second Additional Sessions Judge, Chhatarpur in S.T. No.141/97, whereby each one of the appellants was convicted and sentenced as under – Convicted under Section Sentenced to 307 read with 34 of IPC undergo S.I. for three years 341 read with 34 of IPC undergo S.I. for three months 323 read with 34 of IPC undergo S.I. for six months 294 of the IPC undergo S.I. for three months 506 of the IPC undergo S.I. for three months with the direction that the sentences shall run concurrently SPECIAL LEAVE PETITION PREFERRED AGAINST THE JUDGMENT AND REGISTERED AS SLP(CRI.) NO.6306/12 HAS BEEN DISMISSED BY THE APEX COURT ON 7.9.2012. :: 2 :: Criminal Appeal No.3367/1999 2. Learned trial Judge, on the same day, delivered judgment in counter-case numbered as S.T. No.83/99, acquitting Harju, Makundi and Bablu (examined respectively as PW3, PW2 and PW11 in the instant case) of the offences punishable under Sections 323 and 325 read with 34 of the IPC. Revision preferred by Bhupat, the appellant no.1 here, against the order of acquittal [registered as Cri. Revision No.12/2000] is being decided simultaneously. 3. Prosecution story, in short, may be narrated thus – (i) At the relevant point of time, the complainant party and the appellants were residing in Village Patha. Even after partition of the agricultural holdings jointly possessed by Harju (PW3), father of complainant Makundi (PW2) and Gorelal, the appellant no.4 and the father of the other appellants, (hereinafter referred to as ‘A4’), there existed animosity between the parties for one reason or the other. (ii) Against this backdrop, on 23.4.1997 at about 7 p.m. after getting the construction work done in the Well dug in his field, Makundi was returning home along with his father Harju and companions Gannu (PW1), Virendra and Lallu. As they reached near Bala’s field, the appellants, who were armed with axes and dandas, obstructed their way; hurled filthy abuses and exhorted each other to kill them. In the course of joint attack, appellant no.1 Bhupat (for short ‘A1’) dealt an axe blow on the head of Makundi whereas appellant no.2 Prakash (for brevity ‘A2’) also struck Makundi's left hand with an axe. A1 and appellant no.2 Sunderlal (for short ‘A2’) wielded lathis on the head of Makundi. Gannu and Harju tried to intervene but Gannu was hit with an axe whereas Harju was assaulted with a lathi. Ultimately, Virendra and Bablu (PW11) came forward to the rescue of the victims. :: 3 :: Criminal Appeal No.3367/1999 (iii) Upon the FIR (Ex.P-2) lodged by Makundi at Outpost Patha of Police Station Laundi, a case under Ss.307, 341, 323, 294 and 506 read with 34 of the IPC was registered against all the four appellants. Injured persons Makundi, Gannu and Harju were sent to PHC, Laundi where they were examined by Dr. S.S. Chourasia (PW10). He advised X-ray examination of skull and left hand of Makundi. Radiologist Dr. Satish Choubey (PW4) noticed fracture in Makundi’s left parietal bone. (iv) During investigation, ASI S.D. Shukla (PW14), In-charge of the Outpost, inspected the spot and seized ordinary & bloodstained soil from two points depicted as No.2 and 4 in the spot map (Ex.P-1). He also seized bloodstained clothes of Makundi and other injured persons. The appellants were apprehended and at their instance, respective weapons of offence viz. axes and dandas were recovered. The control & bloodstained earth, pant and shirt worn by Makundi and axes allegedly recovered from A1 and A2 were forwarded to FSL, Sagar for forensic examination. Corresponding report (Ex.P- 22) indicated presence of blood on the bloodstained soil and the clothes. 4. The appellants abjured the guilt and asserted that it was the complainant party that was the aggressor. According to them, a counter case under Sections 323 and 325 read with 34 of the IPC was registered against Harju, Makundi and Bablu upon the report lodged by A4 and after noticing injuries on the bodies of A1, A2 and A4, Dr. S.S. Chourasia also advised X-ray examination wherein a fracture was noticed on the left ulna bone of A4. 5. To bring home the charges, the prosecution examined 15 witnesses in all. However, learned trial Judge, losing sight of the fact :: 4 :: Criminal Appeal No.3367/1999 that Chandrabhan had already been examined as a prosecution witness, permitted the appellants to examine him as a defence witness despite a well-settled position of law on the point that such a juxta-position is not contemplated under Section 233 of the Code of Criminal Procedure. 6. Legality and propriety of the convictions have been challenged primarily on the following grounds - (i) The FIR (Ex.P-2), leading to registration of the case, was shrouded with doubt in view of the admission made by complainant Makundi (PW2) and his father Harju (PW3) that after sustaining the injuries, he (Makundi) was rendered unconscious. (ii) Dr. S.S. Chourasia (PW10) clearly admitted that the cut injuries could not be inflicted by the axe, exhibited in evidence as Article ‘D’, because it was not sharp enough to cause the injuries. Further, no blood stain was found on anyone of the axes (Article ‘A’ and ‘D’) said to have been discovered at the instance of A1 and A2. (iii) No independent witness was examined to substantiate the prosecution version. (iv) Probability of the defence, that the complainant party was the aggressor, was established from the evidence on record. Even otherwise, Section 34 of the IPC had no application simply because it was a free fight. In response, learned Govt. Advocate, while making reference to the incriminating pieces of evidence, has submitted that the impugned convictions are justified on merits. 7. Before entering into the merits of the rival contentions in a right perspective, it would be necessary to first advert to the medical :: 5 :: Criminal Appeal No.3367/1999 evidence on record. Dr. S.S. Chourasia (PW10) proved existence of the following injuries - On the person of Makundi (as described in the report Ex.P-5A) (i) Incised wound anterio-posteriorly spindle shaped 6 cm x 1 cm x bone deep on left parietal region. (ii) Contusion 4 cm x 2 cm on left forearm. (iii) Contusion 3 cm x 2 cm on left arm (iv) Abrasion 1 cm x 1 cm on left dorsum of hand. (v) Abrasion 1 cm x 1 cm on left knee joint. (vi) Contusion 3 cm x 2 cm on right arm. On the person of Gannu (as described in the report Ex.P-6A) (i) Incised wound spindle shaped 6 cm x 0.2 cm x skin deep on right scapular region. (ii) Incised wound 3 cm x 0.2 cm x skin deep on left arm. (iii) Abrasion 1 cm x 1 cm on the right hand palmar aspect. On the person of Harju (as described in the report Ex.P-7A) (i) Lacerated wound 3 cm x 0.3 cm x skin deep on vertex of scalp. (ii) Abrasion 2 cm x 1 cm x skin deep on left forearm. (iii) Contusion 3 cm x 2 cm on left arm. 8. According to Dr. S.S. Chourasia, the incised wounds were inflicted by a hard and sharp object whereas other injuries were caused by hard and blunt object. He further deposed that he advised X-ray examination of skull and left hand of Makundi. Dr. Satish Choubey (PW4), Officer-in-charge of the Radiology Department, testified that Makundi had received a fracture in his left parietal bone. X-ray plate and the corresponding report (Ex.P-4) were also tendered in evidence. 9. Admission made by Dr. S.S. Chourasia that the incised wounds could not be caused by means of the axe (Article ‘D’) did not assume any significance as he clearly opined that the other axe (Article ‘A’) could be the weapon used for inflicting such wounds. Moreover, non-existence of any bloodstain on anyone of these axes :: 6 :: Criminal Appeal No.3367/1999 was also immaterial. It is relevant to note that due to inadvertence, no charge of the offence under Section 324 of the IPC was framed against the appellants for causing injuries to Gannu by means of axe despite the fact that the injuries received by him included two incised wounds. 10. Coming to the other evidence on record, it may be observed that Makundi (PW2) substantially reiterated the allegations as recorded in the FIR (Ex.P-2) scribed by Head Constable Barelal Ahirwar (PW6) at his instance only. As per his statement, while returning home along with his father Harju and labourers Gannu, Virendra, Bablu, as he reached near embankment of Jai Singh's field, the appellants who, being armed with axes and dandas, were standing there; rushed towards him and A1, while hurling abuses, expressed intention not to spare him and on being forbidden from hurling abuses, A1 dealt a blow with an axe on his head whereas A2 assaulted on his left arm by using blunt side of another axe. According to him, when Gannu, Virendra and Bablu came forward to intervene, they were also assaulted and in the course of the joint assault, A2 struck at both the shoulders of Gannu with the axe and thereafter, A4 had wielded lathi on his father Harju. 11. Makundi (PW2) was cross-examined at length. In Para 7 thereof, he clearly admitted that immediately after sustaining head injury, he fell down and lost consciousness and could regain the same after three days whereas in the next paragraph, he asserted that he was able to regain some consciousness at Laundi. Moreover, his father Harju, one of the injured witnesses, was emphatic in stating that he did not regain consciousness upto Laundi. However, fact of the matter is that Head Constable Barelal (PW6), who claimed to have recorded the FIR (Ex.P-2) as per details given by :: 7 :: Criminal Appeal No.3367/1999 Makundi only, denied the suggestion that he was brought to the Outpost Patha in an unconscious condition and his evidence drew ample corroboration from the testimony of Dr. S.S. Chourasia (PW10) inasmuch as he testified that Makundi was fully conscious and was able to speak at the time of medical examination. Relevant report (Ex.P-5A) indicating that the examination was conducted in the night intervening 23rd and 24th of April, 1997 at 1:30 was also tendered in evidence. 12. In such a situation, learned trial Judge did not commit any illegality in arriving at the conclusion that the FIR (Ex.P-2) was not a fabricated document. Even otherwise, the FIR, by itself, is not substantive piece of evidence and it can only be used to either contradict or corroborate the maker thereof. 13. Evidence of Makundi (PW2) drew ample support from the statement of injured witnesses Gannu (PW1) and Harju (PW3) as well as Bablu (PW11) named as one of the eyewitnesses in the FIR. Gannu asserted that both A1 and A2 had assaulted him with their respective axes and Harju also deposed that he was hit by A4 with a danda. Defence was not able to elicit any serious infirmity in their cross-examinations. Harju clearly admitted that in the partition, equal shares in the Bagicha Wala Khet were allotted to him and A4. 14. It is true that related witnesses have a tendency to exaggerate or add facts and their evidence should be examined with great care and caution to find out whether what they had stated was true or not. Gannu (PW1), though related to Makundi as cousin, was fair enough in acknowledging that (a) Makundi was responsible for initiating the dispute between the parties by encroaching upon the piece of land, that had fallen in the share of A4 and (b) the :: 8 :: Criminal Appeal No.3367/1999 dispute was also referred to the Panchayat. Chandrabhan (PW7) also admitted that sole cause of enmity was the dispute as to the Khet only that could not be resolved even after the intervention of Panchayat. However, enmity is a double-edged weapon that may provide a motive for crime and also for false implication. 15. Evidence of Makundi (PW2), Gannu (PW1), Harju (PW3) and Bablu (PW11) suffered from following infirmities with regard to the offences punishable under Sections 294 and 506 of the IPC - (a) As per statements of Gannu and Makundi, it was only A1 who had uttered obscene abuses at Makundi whereas Harju categorically stated that the abuses were hurled by all the appellants at all the members of the complainant party. But, Bablu clearly deposed that the abuses were uttered by all the appellants as against Makundi only. (b) According to Gannu, A1 expressed his intention to kill Makundi whereas Makundi asserted that A1 had conveyed his determination not to spare him. But, as per statement of Harju, all the appellants were exhorting each other to kill all the members of complainant party while Bablu did not state any incriminating fact regarding intimidation against anyone of the appellants. 16. This apart, mere utterance of filthy abuses is not sufficient to constitute the offence under Section 294 of the IPC. Further, as already indicated, prosecution evidence regarding the offence of criminal intimidation was not only inconsistent but also inadequate to prove that the appellants had well founded determination to carry the threat into execution. The convictions of the appellants for the offences under Sections 294 and 506 of the IPC deserve to be interfered with. :: 9 :: Criminal Appeal No.3367/1999 17. Contents of the FIR (Ex.P-2) reflected that Bablu was not able to witness the incident from its inception. In such a situation, even though, the eyewitness account given by him is ignored, evidence of injured witnesses Gannu and Harju, whose presence at the place of occurrence could not be doubted, lent sufficient corroboration to the testimony of Makundi. As indicated already, the medical evidence was also in conformity with the ocular testimony. As such, any discrepancy in regard to lodging of the FIR could not be a ground to reject otherwise reliable prosecution version based on the testimony of complainant, eyewitnesses to the incident and a consistent medical evidence. Further, non-examination of any independent witness, by itself, did not give rise to any adverse inference against the prosecution as the evidence of injured witnesses was found to be reliable. 18. Statement of Investigating Officer S.D. Shukla (PW14) related to recovery of respective weapons of offence from the possession of the appellants. According to him, after apprehending the appellants on 23.4.1997, he was able to recover (i) an axe from the possession of A1 (ii) an axe from the possession of A2 (iii) a danda from the possession of A4 and (iv) a danda from the possession of A3. Corresponding memoranda (Ex.P-8, P-9, P-14 and P-10) and seizure memos (Ex.P-12, P-11, P-15 and P-13) were also exhibited in evidence. Although, none of the panch witnesses namely Chandrabhan (PW7), Pragilal (PW8) and Pula (PW13) came forward to support the respective version yet, in absence of any cogent reason for his interestedness, evidence of S.D. Shukla (PW14), Officer-In-Charge of Police Outpost Patha, was sufficient to prove the factum of recovery of weapons of offence. :: 10 :: Criminal Appeal No.3367/1999 19. Prosecution evidence comprising evidence of complainant and the injured witnesses, a promptly lodged FIR and the circumstantial medical evidence was rightly considered as sufficient to establish that the appellants, in furtherance of a common intention, had not only obstructed the way of Makundi and his companions but had also assaulted them with respective weapons. 20. Investigating Officer S.D. Shukla (PW14) clearly admitted that after due investigation into the FIR lodged by A4, a charge-sheet for the offences punishable under Sections 323 and 325 of the IPC was also presented against Makundi, Harju and Bablu. The judgment in the counter-case would be relevant for a limited purpose that is to know what was held in that case on the evidence appearing in that case only. In other words, each case has to be decided on the basis of evidence adduced in that case only. Although, due to ignorance of these niceties of law relating to appreciation of evidence in counter- cases, the defence counsel could not bring the corresponding reports on record of this case yet, Dr. S.S. Chourasiya clearly admitted that on 24.4.1997 only at about 2:40 a.m. he had the occasion to examine A1, A2 and A4 and advise X-ray examination of both the hands of A4. However, fact of the matter is that existence of any more serious injury on the body of anyone of the appellants than those received by Makundi & Gannu could not be established. 21. Now, the question that arises for consideration is as to whether the offending acts in question were protected by the right of private defence of person ? 22. Upon a conspectus of leading decisions on the subject, the Apex Court, in State of M.P. v. Ramesh (2005) 9 SCC 705, :: 11 :: Criminal Appeal No.3367/1999 proceeded to re-affirm the following principles – (i) Number of injuries is not always a safe criterion for determining who the aggressor was (ii) It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. (iii) The burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence. 23. Evidence on record established that (a) members of the complainant party were restrained and attacked on a public way at the time when they were returning home, (b) sharp-edged weapons were used in inflicting the injuries on the persons of Makundi and Gannu and (c) the injuries caused to Makundi and Gannu were more serious than those received by A1, A2 and A4. 24. Thus, even the broad features could not show that the complainant party was the aggressor. On the contrary, it was proved beyond a reasonable doubt that the appellants had shared a common intention to attack and kill Makundi in anticipation of his arrival at the scene of occurrence. If members of the complainant :: 12 :: Criminal Appeal No.3367/1999 party had attacked the appellants to defend themselves, that would not afford any right of private defence to the appellants. Thus, the preponderance of probabilities, even coupled with the injuries sustained by them, were not sufficient to make out a plea of private defence in favour of the appellants. 25. Accordingly, the question posed above is answered in the negative. Section 34 is applicable even if no injury has been caused by the particular accused himself. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Since the axe blow, aimed at the head of Makundi, resulted into fracture of left parietal bone, it had endangered his life and therefore, the conviction for the offence of attempt to murder does not call for any interference (State of Madhya Pradesh v. Imrat AIR 2008 SC 2967 referred to). For these reasons, convictions of each one of the appellants under Sections 341, 323 read with 34 and 307 read with 34 of IPC deserve to be affirmed. 26. Coming to the question of sentence, it may be observed that while sentencing the appellants to undergo R.I. for 3 months in re- spect of the offence under Section 341 of the IPC, learned trial Judge completely overlooked the fact that it is punishable with a maximum imprisonment for one month. The Supreme Court in Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532 has re- emphasized the need for imposition of a just and appropriate sen- tence having regard to the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used. Considering all the relevant facts and attending circumstances in- :: 13 :: Criminal Appeal No.3367/1999 cluding that a considerable period of more than 14 years has already elapsed after the incident in question, interests of justice would be met if the terms of sentence of imprisonment under Sections 307 and 323 of the IPC are reduced to two years and two months re- spectively. 27. Consequently, the appeal is allowed in part. In the result, - (i) The convictions of the appellants under Sections 294 and 506 of the IPC and the consequent sentences are set- aside. Instead, the appellants are acquitted of the offences. (ii) Their conviction for the offence under Section 307 read with 34 of the IPC is hereby affirmed. However, the term of custodial sentence is reduced from 3 years to 2 years. (iii) Their conviction for the offence under Section 323 read with 34 of the IPC is maintained. However, the period of custodial sentence is reduced from 6 months to 2 months. (iv) Their conviction for the offence under Section 341 of the IPC is also upheld. However, the term of custodial sentence is reduced from 3 months to 1 month. with the direction that the sentences thus affirmed shall run concurrently. 28. The appellants are on bail. They are directed to surrender to their bail bonds before the trial Court on or before 28.01.2012 for being committed to custody for undergoing the remaining part of the sentence. 29. A copy of this judgment be sent to trial Judge wherever he is posted for information and guidance. Appeal partly allowed. (R.C. Mishra) :: 14 :: Criminal Appeal No.3367/1999 JUDGE 28-11-2011