---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & Mrs S.R. Waghmare, JJ.) Criminal Appeal No. 1148/2001 Mangilal S/o Poonamchand, Pavitrabai W/o Mangilal, Devkaran S/o Mangilal & Nandlala S/o Mangilal V/s State of Madhya Pradesh ************************************************************************* Shri A.S. Garg, Senior Advocate with Shri G.S. Yadav, Advocate for the appellants. Shri Raghuveer Singh Chauhan, Government Advocate for the respondent. ************************************************************************* J U D G M E N T (24.10.2011) Per P.K. Jaiswal, J. This appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment & order of conviction dated 12.9.2001 passed by the First Additional Sessions Judge, Shajapur, in Sessions Trial No. 205/2000, whereby the trial Court has convicted and sentenced each of the accused-appellants as under:- Conviction under Sections Sentence 148 of IPC 427 of IPC 302/149 of IPC 324/149 of IPC 1 year's rigorous imprisonment. 6 months' rigorous imprisonment. Imprisonment for life. 1 year's rigorous imprisonment. 2. It is an admitted fact that Appellant Mangilal (A1) is the husband of Pavitrabai (A2) while Devkaran (A3) and Nandlal (A3) are their sons. 3. As per prosecution story, on 8.10.2000, at about 5 PM in the evening, complainant Gokul Prasad (PW6), his brother Amritlal (PW1), uncle Kesarsingh and his son Bharatsingh were watering their agricultural field. Suddenly water stopped coming ---2--- from the pipeline, therefore, all the above 4 persons went to see the defect in the pipe line and when they reached at the well of Mangilal (A1), with whom they had a land dispute for last 4-5 years, they saw that near the well the pipe was broken and water was spreading over there. Mangilal (A1), his wife Pavitrabai (A2) and sons Devkaran (A3), Nandlal (A4) and Banesingh were harvesting their Soyabean crop. When complainant's uncle Kesarsingh asked Mangilal (A1) why he damaged his pipe line, Mangilal (A1), Pavitrabai (A2) and Devkaran (A3) armed with Dantla (Iron Sickle), Nandlal (A4) armed with Saliya and Banesingh armed with Dantla, came there and then Mangilal (A1) started abusing them and asked Kesharsingh to shift his pipe line to some other place. Kesarsingh replied and pointed out that his pipe line is at Government land. On hearing this, Mangilal (A1) started abusing him and exhorted to cut all of them into pieces and then all the five accused persons started inflicting injuries by Dantla and Saliya. Devkaran (A3), who was armed with Dantla also gave a blow on the right hand and stomach of the complainant (PW6). 4. On seeing this, Gokul Prasad (PW6) ran away from the spot and watched the incident from some distance. Due to injuries Bharatsingh and Kesarsingh fell down there. The accused persons continuously inflicted injuries on them. Amritlal (PW1), who accompanied with the complainant (PW6) on seeing the incident, ran away from the place of occurrence, reached his village and called the villagers. After calling them he came at the place of incident. When they were on the way they met Ramesh, who told that due to injuries sustained, Kesarsingh and Bharatsingh had died on the spot and their dead bodies are lying near the well of Mangilal (A1). 5. The matter was reported to the police by PW6. The police recorded statement of Gokul Prasad (PW6) and on that basis FIR (Ex. P/20) was lodged at Police Station Khujner and started ---3--- the investigation. During the course of investigation, the complainant (PW6) was referred to medical examination and both the dead bodies were sent for postmortem. On the basis of respective memos of the accused persons under Section 27 of the Evidence Act, the seizures were made and they were arrested. On completion of the investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Shajapur, who in turn committed the case to the trial Court. The trial Court framed the charge against the accused persons for committing an offence punishable under Sections 148, 302, 302/149, 307, 307/149 & 427 of the IPC. At the time of occurrence accused Nandlal was juvenile, therefore, he was tried before the Juvenile Court. 6. Accused persons abjured their guilt and pleaded that due to old enmity they have been falsely implicated and they have not committed the alleged offence. The learned trial Court, after trial, by the impugned judgment dated 12.9.2001 convicted and sentenced them to suffer imprisonment for life, as aforesaid. 7. Learned Senior counsel for the appellants has submitted that the complainant (PW6), Amritlal (PW1) and the deceased entered the field of Mangilal (A1) and started abusing his wife Pavitrabai (A2), who at the relevant time was alone and they also caused injuries to her. On hearing the wordy quarrel and her shriek accused persons came there for help, in the right of private defence both the deceased and injured received injuries. It is also submitted that it was a free fight pursuant to old land dispute, wherein members of both the sides sustained injuries and two succumbed to it. The next submission of the learned Senior counsel is that Mangilal (A1), Pavitrabai (A2), Devkaran (A3), Nandlal (A4) and Banesingh (juvenile) also sustained injuries in the same incident. In their defence the appellants have been examined Dr. Surendra Kumar Sharma (DW2), who medically examined all the accused persons and has deposed that as per ---4--- injury report Ex. D/6A, injuries of A1 are abrasion on left shoulder and left loin near iliac crest, which are simple in nature. He has further deposed that injuries of A2 were tenderness, swelling and contusions and all the injuries were caused by hard and blunt object, as per MLC report Ex. D/8A. DW2 has further deposed that injuries of A3 and A4 are simple abrasions caused by hard and blunt objects. Ex. D/9A and Ex. D/10A are their medical reports. It is contended by learned Senior counsel for the appellants that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. The prosecution has not explained the injuries on the person of the A1, A2, A3 and A4 and, therefore, the conviction of the appellants suffered from infirmity and perversity. 8. In respect of statement of PW6 Gokul Prasad, it is submitted that this witness in his statement has very specifically admitted that when statements of other witnesses were recorded he was sitting in the Court room and, therefore, his statement is not reliable. In respect of statement of PW7, who is wife of deceased Bharatsingh, learned counsel for the appellants drew our attention to para 27 of her statement and submitted that she is a tutored witness and her statement is not admissible. It is also submitted that the statement of Gokulprasad (PW6) too cannot be believed because if there was a tutoring of one witness, it can safely infer that other witnesses must also have been tutored. To support the said contention he placed reliance on a Single Bench decision in the case of Narendra singh and Others v/s State of M.P, 1990 (1) JLJ 232. It is lastly submitted that the injuries which were found fatal to deceased Kesarsingh and Bharatsingh were caused by the appellants in self defence and also to protect the life of Pavitrabai (A2) from further assault from the deceased and thus, the appellants are entitled for their acquittal. 9. Learned counsel for the respondent – State, on the other hand, submitted that the reasons given by the trial Court ---5--- regarding order of conviction of the appellants are based upon proper appreciation of evidence led by the prosecution in the case. According to him the evidence of PW6 Gokulprasad, PW.7 Bhavribai, PW1 Amritlal and PW2 Rambabu, the eyewitnesses of the incident, is cogent and satisfactory with the hypothesis of the guilt of the accused and the accused had no right of private defence to cause the grievous injuries on the vital parts of the deceased with deadly weapons like Dantla and Saliya and, therefore, the plea of right of private defence of the accused persons is not tenable and acceptable. 10. We have heard the arguments of the learned counsel for the parties and perused the material available on record. 11. The prosecution case as narrated by Gokulprasad (PW6) is that deceased persons had a land dispute with the accused and there was old enmity between them. He in his statement has deposed that on the date of occurrence at about 5.00 PM in the evening he was in his agricultural field. Along with him deceased Kesarsingh, deceased Bharatsingh, Amritlal (PW1) and Vijaysingh (son of deceased Bharatsingh) were also in their agricultural field and they were watering their field. Suddenly water stopped coming from the pipeline. Kesarsingh and Bharatsingh had stated as to what had happened and why water was not coming from the pipe and then they went to check the pipeline and when they reached near the well of Mangilal (A1) and asked him as to why water had stopped coming from the pipeline. He along with other co accused persons who were present at the place of occurrence and were harvesting their agricultural field, started abusing them, they all were armed with Dantla and Saliya and started inflicting injuries to him, deceased Kesharsingh and Bharatsingh. PW6 in his statement has deposed that A1 exhorted to cut them into pieces and all the accused persons surrounded them and started causing injuries. PW6 also received grievous injuries. On hearing the verbal quarrel Amritlal ---6--- (PW1) left the scene of occurrence immediately and went to his village, narrated the incident to the villagers and returned to the place of occurrence along with the villagers. It is also stated by PW6 that when he tried to intervene to save their (deceased persons') lives A3 who was armed with Dantla caused injury on his left hand. As per statement of PW.6 all the accused persons inflicted number of injuries to the deceased. The impact of the injuries was such that both the deceased died on the spot. He was also sent to Khujner hospital for his treatment and thereafter he was referred to Civil Hospital, Rajgarh. There are certain omissions which are recorded in paragraphs 12 and 16 of his statement. 12. The postmortem examination of the dead body of the deceased Bharatsingh and Kesarsingh was performed by Dr. S.R. Dengare (PW3). As per the postmortem report (Ex. P/2) of deceased Bharatsingh, DW2, the doctor noticed five wounds on the deceased. The doctor also opined that all those injuries were caused by hard and sharp edged weapon like Dantla. Exhibit P/3 is the postmortem report of Kesharsingh. The doctor noticed six wounds the deceased and all the injuries were caused by sharp and hard weapon like Dantla. The death was due to excessive bleeding of blood from external and internal injuries received on the deceased. Exhibit P/5 is reply to the query report of PW3. PW3 examined all the four Dantla and opined that injures of both the deceased were caused by the said weapon. Exhibits P/6 to P/ 9 are diagrams of the weapons which were seized from the accused persons A-1, A-2 and A-3. Apart from the above injuries of the deceased PW6 Gokul also sustained injuries in the same commotion. PW3 in his statement has further deposed that he has medically examined the injured Gokul PW6 and deposed that as per MLC report (Exhibit P/10) the injuries no.1 to 4 of PW6 are caused by hard and sharp edged weapon, but they are simple in nature. PW3 in paragraph 17 of his cross examination has further deposed that deceased Bharatsingh and Kesharsingh had not ---7--- received any injuries of stick and Saliya. In respect of injury No.7 of deceased Kesharsingh, it is submitted that this injury received by him was after his death. As per the statement of PW3 Dr. Dengare all the injuries of deceased Bharatsingh and Kesharsingh were caused by sharp edged weapon like Dantla. As per statement of PW6, A-4 was armed with Danda (stick) whereas as per medical evidence no injury of Danda was found on the person of the deceased. 13. Amritlal (PW1) and Rambabu (PW4) in their statements have deposed that appellant No.4, Nandlal was armed with Danda (stick) and Banesingh (Juvenile) was armed with Saliya, but no injury of Saliya and Danda (stick) was found on the person of the deceased. Gokul (PW6) in his statement has deposed that A4 and Banesingh (Juvenile) had caused Saliya and stick injury to deceased Bharatsingh due to which he fell down and when Kesarsingh came to save his life AW1 and AW2 who were armed with Dantla and caused Dantla injury to Kesarsingh. Thereafter, A-3 also caused Dantla injury to Kesarsingh and thereafter A4 Nandlal took one Dantla and caused Dantla injury to Kesarsingh. 14. PW7 Bhanwaribai and PW13 Bhanwarlal in paragraph 11 and paragraph 6 of their statements have admitted that the work of A-4 and Banesingh was to graze the cattle of Mangilal. PW1 Amritlal in paragraph 16 of his cross examination has admitted that when he reached the spot at that time A-2 was harvesting Soyabean crop. Deceased Kesarsingh, Bharatsinghj and injured Gokul surrounded her and then deceased Kesarsingh caused injury to her. He has further admitted that blood of Kesarsingh and Bharatsingh was found on the clothes of A-2. PW1 Amritlal further in paragraph 17 of his cross examination has denied that A-2 fell down and when she cried for help at that time her son A-3 Devkaran came to save her life, but he was surrounded by the complainant party and complainant party also caused injuries to him. PW7 Bhanwaribai in paragraph 10 of her statement has ---8--- admitted that her father-in-law Kesharsingh gave a call to Gokul (PW6) and then they reached the agriculture field of her father-in- law and all the three persons started talking with each other, deceased Bharatsingh also reached there and started interaction with them and thereafter, all four persons went to the field of Mangilal (A1). She in her statement has denied that when they went to the field of Mangilal they were armed with Saliya (wooden stick which is used in Bullock cart). This witness in her cross examination has further admitted that Kesarsingh, Bharatsingh (PW1), Amritlal and Gokul (PW6) reached the agriculture field of Mangilal (A1), Pavitrabai was harvesting her crop. After sometime she fell down and asked for help, hearing her shriek A3 came there and thereafter fight started between them. From the statement of PW7 Bhanwaribai, it has not been proved that when complainant party reached the agriculture field of the Mangilal (A1) they were armed with the weapon like Dantla and Axe, but from her statement it has been proved that A2 and A3 were armed with Dantla. From the evidence it has come on record that PW2 Rambabu and PW5 Kamlabai on hearing their shriek reached the spot. As per statement of PW5 when she reached the spot the accused persons ran away from the place of occurrence. 15. As per statement of (DW2) Dr.S.K. Sharma,the injuries of accused A1 (Mangilal) and juvenile (Banesingh) were simple in nature. The trial Court has recorded this finding in para 34 of the impugned judgment. 16. Section 149 of IPC makes every member of unlawful assembly at the time of committing offence guilty of that offence. It is not necessary that all the persons forming an unlawful assembly must do some overt act. Here in the present case, the accused persons assembled together armed with Dantla and Sticks, and were party to the assault on the complainant party. The prosecution is not obliged to prove which specific overt act ---9--- done by which of the accused. 17. In the case of Narendra singh and Others (supra) the appellants were convicted and sentenced under Section 306 of IPC to a term of 7 years R.I. and fine of Rs.500/-. Shrada Devi mother of the deceased Saroj deposed that her uncle-in-law and aunt-in-laws harassed her and they did not give her food, nor allowed her to enter the kitchen. She was not given meals for three days. She categorically stated that she did not know as to how she died, whether she died out of poison given by others or she had herself taken poison. In her cross-examination she has specifically stated that when she came to give statement in the Court her counsel had made her understand and had read over to her as to what statement she has given, it, therefore, clearly goes to show that she is tutored witness and no reliance can be placed upon her testimony. Hate Singh PW1, to whom the deceased had stated that she had taken opium. The learned Single Judge has held that the evidence on record does not go to show that there was any harassment or danger within the meaning of cruelty, as given in Section 498-A. It is also held that the statement of mother of the deceased, Sharda Devi is a tutored statement, as stated by her and no reliance can be placed in this view of the matter on her statement. 18. Here in the present case, PW1, PW2 & PW6, eyewitnesses of the case in their statements very categorically stated that accused persons A-1, A-2, A-3, A-4 and juvenile were armed with Dantla and Saliya and inflicted number of blows on the deceased Keshar Singh and Bharat Singh. As per statement of eyewitnesses the deceased persons were surrounded by the appellants and thereafter when A1 exhorted to cut them in pieces, they started inflicting injuries to them due to which both the deceased fell down and became unconscious. In spite that the appellants continuously caused injuries to them. Besides the presumption that PW7, wife of the deceased was tutored, no ---10--- presumption can be raised that other witnesses were also tutored unless there are other circumstances which could facilitate the drawing of adverse inference, it should not be a mechanical process to draw an adverse inference. In the case in hand, all the circumstances as narrated by the eyewitnesses unerringly and irresistibly lead to the conclusion that the deceased received multiple injuries by the accused persons. The presumption of tutored witness of PW7 loses it significance and no adverse inference can be drawn against the prosecution that injured eyewitness and other material eyewitnesses were also tutored by their counsel. 19. In the case of Babu Ram and Others v/s State of Punjab, (2008) 3 SCC 709 the accused, Indraj pleaded that when he was preparing shoes by cutting leather with Rambi, Antram came there and started abusing Indraj for not supporting Sohan Lal. They exchanged abuses and a quarrel started. Antram had a Kapa with him. He gave blows to Indraj and his wife with Kapa from its sharp and blunt side. Indraj pleaded that in order to defend himself and his wife he gave a Rambi-blow to Antram. Antram fell down. He was taken to civil hospital where he was declared dead. The Apex Court held that the prosecution has not explained the injury on the person of accused Indraj and his wife Smt. Maya Devi. The Apex Court has held that evidence of PW2 and PW3, who are interested witnesses and who have not given true genesis and origin of the occurrence in their testimony. Thus, non-explanation of the injuries on the person of the accused Indraj and his wife Smt. Maya supports the version of the defence that the accused Indraj inflicted single blow with Rambi on the person of Ant Ram in private defence of his body and also the person of his wife who had suffered several injuries at the hands of Ant Ram with a weapon called Kapa, though the injury received by the deceased Ant Ram turned out to be fatal in nature but it was not inflicted by the accused with the intention of causing death of the deceased or with the intention or knowledge that the ---11--- injury would, in all probability, cause his death. The Apex Court held that in such a situation the accused Indraj could necessarily apprehend danger to his life and to the life of his wife in the hands of Ant Ram and in that process if one blow was inflicted by the accused on the person of Ant Ram which has proved fatal, the accused had the right of private defence to his body as well as to the person of his wife Smt. Maya. 20. In the present case, when deceased persons came to the place where the pipe was broken and water was spreading all over the ground, they saw that A1 was standing there and when deceased Kesharsingh asked him as to why his pipe was broken he started abusing him and when he asked as to why he was abusing and stated that his pipeline is at Government land. A1 along with A2, A3 and A4 started exhorting him and then exhorted to cut them in pieces. A1, A2, A3 and A4 surrounded them and started inflicting injuries to him. From the above facts, it cannot be said that the accused acted in self defence in the beginning, but once both the deceased persons were surrounded by them, the accused persons started inflicting injuries by Dantla and Saliya continuously which shows that assault continued. The trial Court held that the accused had exceeded right of defence. No question as to the exercise of the right of private defence can arise unless and until the prosecution has proved what would, but for the exercise of this right, be an offence. If and when the prosecution have established that, then and then only the question of right of private defence will arise. It is not the case of the appellants that the deceased persons entered the agriculture field of A1 with an intention to commit the offence. They simply asked A1 as to why he had broken the pipe line. The accused persons immediately started abusing them and exhorted and gave a number of blows with the Dantla and Saliya mercilessly and when both the deceased persons fell down they did not stop their act and continuously inflicted injuries to them. The trial Court has rightly convicted them and negatived their plea of right of ---12--- private defence. The right of private defence can be exercised and can be availed by the accused only when circumstances justified the exercise of such right. 21. In the case of State of Punjab v/s Ajaib Singh (1995) 2 SCC 486, the accused was charged for killing two personnel of police department with his service revolver. The plea of the accused was that both the deceased persons attacked with their Dandas (sticks) and consequent to which he had developed reasonable apprehension that if fire armed was not used, then death would only be the consequence. The Punjab & Haryana High Court acquitted the accused on the ground that the act of shooting was within the scope of exception contained in Section 100. On appeal Hon'ble Supreme Court held that since deceased was assaulted by three persons with Dandas, so reasonable apprehension of death being caused thereby was developed and this imminent danger could not have been averted without using the fire arm. 22. In order to determine the question whether the accused exceeded the right of private defence the Court must consider the part played by the accused persons, gravity of the offence committed and the nature of attack made by the accused persons. In the instant case, postmortem report shows that there were large number of injuries. Almost all injuries were of serious nature. On the other hand, the injuries, sustained by the accused persons were simple and some of them were superficial. Having regard to the fact that accused were in large numbers and had attacked two deceased persons inflicting a large number of injuries, it can be said that they exceeded the right of private defence. 23. In view of