^N HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. Jl Criminal Appeal No. 292 of 1995 f^) /<1>^ "^ Indro & Others Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT s Post for Judgment : /2--/05/201 1 Sd/- Sunil Kumar Sinha Judge ,.€S-"^ £:?S5g^i^-' HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, Jl Criminal Appeal No. 292 of 1995 APPELLANTS 1 Indro S/o Bhagi Kolta, aged 56 years 2 Suklal S/o Chiranjeev Kolta, aged 42 years 3 Amarnath S/o Chiranjeev Kolta, aged 35 years All R/o Village Girwa, P.S. Pithora Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) 1"-" (Appeal under Section 374 (21 of The Code of Criminal Procedure. 1973) Appearance: Mr. H.B. Agrawal, Sr. Advocate with Mrs. Meera Jaiswal, Advocate for the appellants. Mr. Satish Gupta, Govt. Advocate for the State. JUDGMENT (12.05.2011) (1) This appeal is directed against the judgment dated 8 of February, 1995 passed in Sessions Trial No. 292/92 by the Additional Sessions Judge, Mahasamund. By the impugned judQment, the appellants have been convicted u/s 304 Part-11 IPC and sentenced to undergo R.l. for 5 years. The 4th accused i.e. .,^".-^ £^" ff / t Criminal Aooeal No. 292 of 1995 Yudhistir was also convicted u/s 304 Part-11 IPC, however, he was released on probation. (2) The facts, briefly stated, are as under:- There was a dispute of land between the accused party and the complainant party. A mahuah tree was also there on the disputed land. Both the parties were claiming possession on the said land and tree. According to Suklal (PW-9), a civil dispute was also pending. On 3.6.92 at about 9.00 a.m., Suklal (PW-9), his father Chaturbhuj (deceased), Takelal (PW- 11) and Amritlal (PW-12) were pluckihg the fruits of mahuah tree. The allegations are that the accused persons came there, there was some altercation, and thereafter they assaulted the deceased by lathi and tangia. The appellants were holding tangia and accused- Yudhistir was holding lathi. Chaturbhuj received multiple injuries and succumbed to those injuries. The incident was witnessed by Suklal (PW-9), Takelal (PW-11) and Amritlal (PW-12). Suklal (PW-9) lodged the merg intimation (Ex.-P/17) and the First Information Repori: (Ex.- P/18). He named all the accused persons before the police with specification of the weapons carried by them. The Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/5) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Government Hospital, Pithora vide requisition Ex.-P/1-A. The post-mortem examination was conducted by Dr. Yogi Lal Shrivastava (PW-4). He found following injuries on the body ofthe deceased:- (i) Lacerated wound 13 x4 cm on the front portion of the neck; ^l (ii) Abrasion 5 x 3 cm on the right hand; 1 (iii) Abrasion 8 x3 cm on the dorsal surface of right 1 palm; ^^ 2^ '^ Criminal Appeal No. 292 of 1995 (iv) Abrasion 8x 5 cm on the inner side of right hand; (v) Abrasion 7x 3 cm on the left axilla; (vi) Abrasion 5x 3 cm on the right elbow; (vii) Abrasion 5 x4 cm on the dorsal side of left wrist; (viii) Lacerated wound 1x1x1 cmon the right eye-lid; (ix) Black spot 5x 3 cm on the right eye; (x) Lacerated wound 2x 1 x2 cmon the nose; (xi) Lacerated wound 4x 1 x3cm on left parietal region; (xii) Contusion 7 x 4 cm on left parietal region & (xiii) Lacerated wound on the middle of the scalp size 1 x .5 x 3 cm. On internal examination, he found fracture on the frontal bone and opined that the injuries were ante-mortem caused by hard and rough object and the cause of death was coma due to head injury. The post-mortem report is Ex.-P/l. In further investigation, the accused persons were taken into custody and their memorandum statements u/s 27 of the Evidence Act were recorded vide Ex.-P/10, P/11, P/12 & P/13 and the weapons of offence were seized at their instances. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Mahasamund, who in turn committed the matter to the concerned Sessions Court, from where, it was receivpd on transfer by the Additional Sessions Judge, Mahasamund, who conducted the trial and convicted & sentenced the appellants and their co-accused as above. (3) The conviction of the appellants is based on eye-witness \ account of Suklal (PW-9), Takelal (PW-11) and Amritlal (PW-12). .^ss^ ^^ :;te^«^ 1 Criminal Appeal No. 292 of 1995 (4) Mr. H.B. Agrawal, learned Sr. Counsel appearing on behalf of the appellants, argued that there was land dispute between the parties; the matter was subjudice; an altercation took place on account of picking of mahuah fruits from the disputed tree on which firstly the deceased assaulted accused Amarnath (A-3) who received multiple injures; his injuries were not explained by the prosecution; who caused injuries to the deceased is not proved; therefore, the conviction of the appellants is bad-in-law. (5) On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (6) I have heard learned counsel for the parties at length and have also perused the records of the sessions case. (7) Suklal (PW-9) is son of the deceased. He deposed that a civil matter was pending between the parties relating to the said land. On the fateful day, he along with his father (deceased- Chaturbhuj) and the above eye-witnesses had gone for plucking mahuah fruits from the tree which was situated on the disputed land. Suklal (A-2) came there from the village side having a tangia and bicycle. Amarnath (A- 3), Yudhistir (accused released on probation) and Indro (A-1) also came there. Yudhistir was holding a lathi and the appellants were holding tangia. There was an altercation between them and his father. The accused persons assaulted his father by tangia. Criminal Apneal No. 292 of 1995 Yudhistir assaulted his father by lathi. The other eye-witnesses namely Takelal (PW-11) and Amritlal (PW-12) also deposed in similar fashion. None of the eye-witness deposed about the injuries sustained by Amarnath (A-3). We find from the evidence of Dr. Yogi Lal Shrivastava (PW-4) that accused- Amarnath had also received following injuries:- (i) Lacerated wound 2x 1 x .5cm on the upper portion of lefteye; (ii) Contusion 4 x2 cm on the left eye-lid & (iii) Contusion 4 x4 cm on the left portion of face. He found that the above injuries could be caused by hard and blunt object and were caused within 24 hours from the time of examjnation i.e. 10.00 p.m. on 3.6.92. The injury report of Amarnath (A-3) is Ex.-D/1. (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: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. (9) Further in catena of decisions, it has been held by the Supreme Court that if it is shown that accused sustained injuries in -s^,, w. Criminal Appeal No. 292 of 1995 x'" the course of the occurrence, prosecution has duty to offer an explanation so as to satisfy the court about the circumstances under which the injuries were caused. If the prosecution fails to do so, it may mean that: (1) (2) (3) the prosecution has suppressed the genesis and development and truth of the occurrence and has not presented the true version; or The witnesses who denied the presence of such injuries are lying in regard to a material pari: of the occurrence and therefore cannot be believed; or 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. (10) In the present case, on account of non-explanation of the injuries sustained by Amarnath (A-3), it appears that the prosecution has suppressed the genesis and development and truth of occurrence and has not presented the correct versibn. In appreciation of evidence of the above 3 eye-witnesses, we find that they had deposed that the appellants were holding tangia and they had inflicted injuries to the deceased by tangia, whereas, we do not find any incised wound on the person of the deceased.It is-not the case of the prosecution that these appellants had used blunt portions of tangia. On the contrary, the prosecution came with the case that the 4 accused namely Yudhistir was holding lathi. Out of -'r^. Criminal Aopeal No. 292 of 1995 the above 13 injuries sustained by the deceased most of the injuries were abrasions and superficial lacerations and only one injury (lacerated wound) on the frontal region was fatal as the underlying frontal bone has sustained fracture. Amritlal (PW-12) also'admitted in his cross-examination, Para-10, that when Indro (A-1) apprehended them, they ran away from the place of occurrence and they witnessed the occurrence from some distance and they could not say as to who was assaulting whom. This creates a doubt that, in fact, the accused persons opened the assault and caused above injuries to the deceased. On appreciation of entire evidence on record, we find that on account of picking of mahuah fruits, a quarrel begun between the 2 parties in which the persons belonging to both the parties sustained injuries and it could not be established as to who took the lead and who assaulted in which fashion. (11) In free fight, between the 2 groups, all the accused persons cannot be held responsible and everyone would be liable for punishment for his individual act. In the instant case, according to the prosecution, the appellants were holding tangia. There is no injury on the person of the deceased which could have been caused by tangia. In this manner, there is discrepancy in between the ocular version and the medical testimony, therefore, there was no reliable evidence to hold that any of the appellant caused injuries to the deceased, on which, he may be convicted for his individual act. :<-^ Criminal Appeal No. 292 of 1995 (12) In the above facts and circumstances of the case, l am of the view that the prosecution has utterly failed to establish the individual acts of the appellants for which they could have been convicted under the appropriate Section of IPC and thus the appellants were entitled to benefit of doubt. R^ (13) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants u/s 304 Part-11 IPC are set-aside. The appellants are acquitted of the charges framed against them. The appellants were taken into custody on 4.6.92 and were directed to be released on bail on 5.4.95. Presently, they are oh bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Sunil Kumar Sinha Judge vatti