N.K. Gupta,J:
1. The appellants have preferred the present appeal being aggrieved with the judgment dated 3.1.2005 passed by the First Additional Sessions Judge, Hoshangabad in ST No.44/2003 whereby they have been convicted of the offences under Section 302/34 and Section 324/34 of IPC and sentenced to life imprisonment. No separate sentence was passed for the offence under Section 324 of IPC.
2. The prosecution's case, in short, is that on 4.8.2002 at about 9:00 PM, victim Gladvin along with his son deceased Gadvin and daughter-in-law Monika (PW-2) was present in his house situated at Deshbanhupura (Police Station Itarsi District Hoshangabad). At about 9:15 PM two patients had knocked the door of victim Gladvin and asked about the address of appellant No.l Mabel Harry. Victim Gladvin gave the address of appellant No.l to those patients. However, after a few minutes, appellant No.l visited the house of victim Gladvin and started quarrelling on the pretext that the complainant had prohibited the patients from visiting his house. Appellant No.2 Sunil Harry had followed the appellant No.1 in her visit to the house of the complainant. During the heated exchange of words between the parties, Sunil Harry went to his house and brought a dagger (gupti). Thereafter appellant No.1 along with her son Melbin (juvenile) held the victim Gladvin and appellant No.2 Sunil Harry gave some blows of dagger on the chest and abdomen of the victim Gladvin. When deceased Gadvin, son of the victim Gladvin intervened and tried to save his father, then he was also held by the appellant No.1 and her son Melbin and the appellant No.2 gave some blows of dagger to Gadvin causing him fatal injuries. Monika (PW-2) immediately informed Gideon (PW-4), brother of deceased Gadvin about the incident on phone and thereafter victim Gladvin and deceased Gadvin had been taken to the hospital by a rickshaw. Dr. Arun Kumar Shivani (PW-8) gave intimation Ex.P-8 to the Police Station Itarsi, whereafter ASI Makrand Singh Patel (CW-1) visited the hospital and recorded a Dehati-Nalishi (spot FIR) Ex.C-1. On the basis of the information given by Gideon (PW-4), Head Constable Arjun Singh (CW-2) registered a case by recording FIR Ex.C-2. Dr. Arun Kumar Shivani gave an MLC report Ex.P-9 and P-10 after recording the injuries of deceased Gadvin and victim Gladvin. Deceased Gadvin died during his treatment, and therefore his dead body was referred for the postmortem. The Investigation Officer had recovered a dagger from appellant Sunil Harry and also seized his blood stained clothes. These articles were sent for forensic science examination to the Forensic Science Laboratory, Sagar (for short "FSL"). After due investigation a charge sheet was filed before the JMFC Itarsi, who committed the case to the Sessions Court, Hoshangabad and ultimately it was transferred to the Additional Sessions Judge, Hoshangabad.
3. The appellants abjured their guilt. They took a plea that victim Gladvin visited their house in a drunken condition and started quarreling. He assaulted appellant No.1 and her husband appellant No.2. Appellant No.1 sustained some injuries with the point of a knife and appellant No.2 had also sustained some injuries. In defence, various documents relating to MLC report of the appellants, FIR Ex.D-6 lodged by the appellant No.l were produced on record. In defence K.W.Morya (DW-1), Constable Damodar (DW-2), Anjana Harry (DW-3), RP Tikariya (DW-4) and Dr. R.K.Damle (DW-5) were also examined.
4. The Additional Sessions Judge, Hoshangabad after considering the evidence adduced by the parties acquitted the appellants of the charges under Sections 307/334 of IPC, but convicted them of offence under Sections 324/34 of IPC in relation to injury caused to victim Gladvin. He also convicted the appellants for an offence under Section 302/34 of IPC for the homicidal death of Gadvin and sentenced them as mentioned above.
5. The appellant No.1 had expired during the pendency of the appeal, but since the appellant No.1 was a Government servant, therefore appellant No.2 had applied and received a permission to prosecute the appeal on behalf of appellant No.1.
6. We have heard the learned counsel for the parties.
7. In the present case, victim Gladvin (PW-1) and Monika (PW-2) were examined as eye-witnesses. Jitendra Shrivastava (PW-7) was examined but he turned hostile. He did not support the prosecution's story. The complainant has stated that on receiving information, he went to the house of his father Gladvin. He met with his sister-in-law Monika on the way, who described to him the incident and he had lodged a Dehati-Nalishi Ex.C-1 on the basis of information received from eye-witness Monika. The Dehati- Nalishi Ex.C-1 was recorded within 50 minutes of the incident and it is duly proved by the Court witness ASI Makrand Singh Patel (CW-1). No cross examination of ASI Patel was done, and therefore the version, which is recorded by him, was the first version given by the complainant according to the information received from witness Monika.
8. Dr. Arun Kumar Shivani (PW-8) examined victim Gladvin and gave his report Ex.P-9. He found four injuries on Gladvin. Similarly, Dr. Arun Kumar Shivani (PW-8) examined Gadvin and gave his report Ex.P-10. He found three injuries on the person of Gadvin.
9. At about 10:50 in the night Gadvin expired due to injuries, and therefore Dr. Shivani sent a marg intimation Ex.P-11 about his death. Dr. A.K.Mittal (PW-9) had performed the postmortem on the body of deceased Gadvin and gave his report Ex.P-13. He found almost the same injuries on deceased Gadvin, which were mentioned in the MLC report Ex.P-10. However, he found one incised wound on the left shoulder of size 2 x x " and an incised wound on the right forearm measuring 2 x ". He found that the membrane of right lung, the liver and the spleen were cut, and therefore 700 mls. of blood was found in peritoneum cavity. The deceased died due to internal hemorrhage caused by the injuries. He also found that omentum was coming out of the abdomen.
10. After considering the MLC report and the postmortem report of the deceased Gadvin, it appears that he sustained three major and two minor injuries. Out of them, the injuries caused in the chest and abdomen were fatal in nature. Dr.Mittal did not say that such injuries could be self inflicted or could be caused in an accident, and therefore the death of Gadvin was homicidal in nature. Also, the MLC report Ex.P-10 as recorded by Dr. Arun Kumar Shivani (PW-8) and the postmortem report Ex.P-13 recorded by Dr. Mittal confirmed the statements of eye- witnesses Gladvin and Monika. The injuries as described by these witnesses as being caused by the appellants were found on the body of the deceased, and therefore the testimony of the eye-witnesses should be relied upon on the basis of timely lodged FIR and corroboration of the medical evidence.
11. Similarly, the injuries caused to victim Gladvin are duly corroborated by Dr. Arun Kumar Shivani (PW-8). He found four injuries to victim Gladvin. Out of them, in the first injury omentum was coming out from the wound and that could not be cured without any surgery and if surgery would not have been done, victim Gladvin could have died. However, the trial Court did not convict the appellants of the offence under Section 307 of IPC and no counter appeal has been filed by the State, therefore, it is not necessary here to discuss about the nature of injury No.1, but it is proved by Dr. Shivani (PW-8) that victim Gladvin sustained four injuries caused by a sharp cutting weapon and by corroboration of this medical evidence, the evidence of eye- witnesses Gladvin (PW-1) and Monika (PW-2) is duly corroborated.
12. The appellants took a defence that the appellant No.1 had lodged an FIR immediately after the incident, which was recorded in Rojnamcha Ex.D-6 and brought before the Court by the Constable Damodar (DW-2). According to the appellants, the dying declaration of victim Gladvin was recorded by the Tahsildar K.W.Morya (DW-1) to show that victim Gladvin gave a contradictory statement as dying declaration. If the dying declaration Ex.D-1 and D-2 are perused, then there may exist a minor contradiction relating to description of the incident. Dying declaration Ex.D-2 was recorded in a brief manner whereas the dying declaration Ex.D-1 was recorded in detail. However, victim Gladvin did not accept in those dying declaration that he visited the house of the appellants. According to the Rojnamcha Ex.D-6, appellant Mabel Harry had lodged an FIR that victim Gladvin came to her house, abused and thereafter tried to assault the appellants with a knife one by one. Anjana Harry (DW-3) has stated in detail about that incident. She is the sister-in-law of appellant Sunil Harry and his presence is not shown in the FIR document Ex.D-6, and therefore, it appears that being sister of appellant No.2, she claimed herself to be an eye-witness.
13. In this case the Investigation Officer D.S.Markam (PW-10) had prepared a spot map Ex.P-14 in which he had shown the spot of the quarrel in front of house of victim Gladvin. He also collected the blood stained soil and plain soil from the spot and prepared a seizure memo Ex.P-2. The soil was sent to the FSL and as per the report of the FSL, the soil taken from the spot was stained with blood, and therefore according to the Investigation Officer DS Markam, the incident took place in front of house of victim Gladvin and not in the house of the appellants. Under these circumstances, the testimony of eye-witnesses Gladvin (PW-
1) and Monika (PW-2) is duly corroborated by the timely lodged FIR Ex.C-1, MLC reports Ex.P-9 and P-10 as well as postmortem report and it is proved beyond doubt that the appellant No.2 gave blows with a dagger to deceased Gadvin as well as to victim Gladvin.
14. The learned counsel for the appellants has submitted that the quarrel was initiated by the complainant and his son. He further submitted that the injuries were caused to the appellants No.l and 2, which were not explained by the prosecution evidence, and therefore the appellants could not be convicted of offence under Section 302 of IPC. In this connection, he has placed his reliance upon the judgments of Hon'ble the Apex Court in the case of "Laxmi Singh and others Vs. State of Bihar", (AIR 1976 SC 2263) and in the case of "Vidhya Singh Vs. State of MP", (AIR 1971 SC 1857) where it is held that if the injuries are found to the accused and he claims right of private defence or it appears that he exceeded the right of private defence, then explanation should be given by the prosecution about the injuries caused to the accused. Non- explanation of injuries sustained by the accused at the time of occurrence or in the course of altercation is a very important circumstance from which the Court can infer that the prosecution suppressed the genesis and origin of the occurrence. Since the witnesses did not give any explanation about the injuries, then a doubt is created on the prosecution's case.
15. On the other hand, the learned counsel for the State has submitted that inference of intention should be considered on the basis of injuries caused to the deceased and the victim. In this connection, he has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "Virsa Singh Vs. State of Punjab" (AIR 1958 SC 465) and in the case of "Ram Vishambhar Vs. State of UP", [(2013) 2 SCC 71]. If the facts of the present case are examined in the light of the aforesaid judgments, then it would be apparent that soon after the incident, appellant Sunil Harry had absconded, and therefore his medical examination Ex.P-7 could be done six days after the incident. Dr. R.K.Damle (DW-5) examined appellant Sunil Harry and found two old scratches on his left hand and he was complaining of pain. The injuries were found to be caused within last seven days of the examination, and therefore it is possible that appellant Sunil Harry could have sustained such injuries due to some other reason. Dr. Damle did not opine that such injuries could have been caused by a hard and sharp object. On given a suggestion, he has accepted that he could say about the exact nature of injury only when it was fresh. After healing of injury, he could not say definitely that such an injury could be caused by a sharp cutting weapon. Under these circumstances, appellant Sunil Harry could not prove that his injuries were caused in the incident.
16. Dr. Arun Kumar Shivani (PW-8) had examined appellant No.1 Mabel Harry on 5.8.2002 and gave his report Ex.D-4. He found an abrasion on her right chest and right hand. She was complaining of pain in her right forearm, left forearm and abdomen. According to Dr. Shivani (PW-8), the abrasion could have been caused by a hard and blunt object, whereas in the FIR Ex.D-6 appellant No.1 Mabel Harry had mentioned that she was pushed, and therefore she fell down on the floor of the room. It was not suggested to Dr. Shivani (PW-8) that such a long abrasion could be caused due to the fall of appellant Mabel Harry. In the FIR Ex.D-6, appellant Mabel Harry had stated that when victim Gladvin was causing injuries to her husband Sunil Harry, she also sustained injuries in her hands while she had intervened. However, it appears that some superficial injuries were found on appellant Mabel Harry soon after the incident.
17. The injuries caused to appellant Mabel Harry were not of such nature that any special explanation would have been given by the prosecution. Such injuries could be caused due to her fall or otherwise if she was helping appellant Sunil Harry by holding victim Gladvin or deceased Gadvin. In the case of Ram Vishambhar (supra) Hon'ble the Apex Court found that the injuries of the accused were simple and superficial in nature, and could be self inflicted, and therefore by such minor injuries, it cannot be said that the complainant party was the aggressor. Hence, in the present case, after considering the injuries of appellant No.1 Mabel Harry, it appears that the appellants were the aggressors and since blood stained soil was found in front of house of the complainant, the story as mentioned in the FIR Ex.D-6 appears to be incorrect. The victim Gladvin and the appellants were close relatives. Sunil Harry is brother to the wife of victim Gladvin, and therefore, there was no possibility of false implication by the complainant. If it is presumed that appellant Mabel Harry went to the house of the victim and a heated exchange of words took place between them, and the complainant pushed appellant Mabel Harry on the ground, then still appellant Sunil Harry had no right of private defence justifying him to give four blows of dagger to victim Gladvin on the vital portion of his body. Also, it is not urged by the defence that deceased Gadvin assaulted either appellant No.1 Mabel Harry or appellant No.2 Sunil Harry, but Sunil Harry gave five blows of dagger to deceased Gadvin without any reason. There is no allegation in the FIR Ex.D-6 that deceased Gadvin started quarrel or that he visited the appellants' house or that he gave any blow to any of the appellants, and therefore no right of private defence had accrued to appellant Sunil Harry while he was giving blows of dagger to deceased Gadvin. Hence, in the light of judgment of Hon'ble the Apex Court in the case of Ram Vishambhar (supra) the intention of appellant Sunil Harry is very well established that he intended to kill the deceased Gadvin. The trial Court has rightly held appellant Sunil Harry guilty of offence under Section 302 of IPC relating to the death of Gadvin.
18. Similarly, it would be apparent that no right of private defence was accrued to appellant Sunil Harry against victim Gladvin, and therefore, he intended to cause injuries to victim Gladvin by a sharp cutting weapon. The trial Court has rightly convicted the appellant No.2 Sunil Harry of offence under Section 324 of IPC.
19. So far as the intention of appellant No.1 Mabel Harry is concerned, it is apparent that there is no allegation against appellant Mabel Harry that she assaulted either victim Gladvin or deceased Gadvin. It was alleged by victim Gladvin that when appellant Sunil Harry came with a dagger, she held the complainant and thereafter Sunil Harry gave some blows of dagger to the victim Gladvin. Similarly, victim Gladvin has stated that when appellant Sunil Harry was giving blows of dagger to deceased Gadvin, appellant Mabel Harry held deceased Gadvin. The statement given by victim Gladvin was confirmed by Monika (PW-2) in her examination-in-chief, but in the cross examination she has accepted that in the beginning a heated exchange of words took place between appellant No.1 Mabel Harry and her father-in-law Gladvin. In para 6 of her cross examination, she has accepted that when appellant No.1 was abusing her father-in-law Gladvin, then appellant Sunil Harry came to the spot and he also scuffled with victim Gladvin. The victim Gladvin and the appellants went out of the house to the garden situated in front of her house. Monika (PW-2) had narrated the entire story to the witness Gideon (PW-4) who in turn narrated the same story to the police officer, who recorded the Dehati-Nalishi Ex.C-1. If the Dehati-Nalishi Ex.C-1 is perused, then it is mentioned that appellant Mabel Harry assaulted victim Gladvin with fists whereas appellant Sunil Harry assaulted him with a dagger. In the document Ex.C-1 it is not mentioned that appellant Mabel Harry held either victim Gladvin or deceased Gadvin when Sunil Harry was giving blows of dagger to them respectively.
20. Also if the injuries of victim Gladvin and deceased Gadvin are examined, then such injuries are caused in a haphazard manner. If victim Gladvin and deceased Gadvin would have been held by appellant Mabel Harry and her son Melbin then appellant Sunil Harry would have given all the blows on the vital parts of the body of Gladvin and Gadvin and in the result victim Gladvin would have died due to the injuries. Under these circumstances, when there is material contradiction between the statements of eye-witnesses and the description given in the Dehati-Nalishi, then the testimony of the eye-witnesses cannot be accepted to the fact that appellant Mabel Harry held either victim Gladvin or deceased Gadvin when appellant No.2 Sunil Harry was giving blows of dagger. The document Dehati-Nalishi Ex.C-1 though, is not lodged by the eye-witness, and therefore that description could be considered as hearsay evidence for the purpose of evidence to the incident, but it is admissible and relevant while considering the previous statement of eye- witness Monika (PW-2), and therefore when the witness Monika did not inform complainant Gideon that the appellant No.l had held the deceased or victim Gladvin while the appellant No.2 assaulted them with a dagger, then certainly the aforesaid conclusion can be drawn that it is not proved beyond doubt that appellant No.1 had held either victim Gladvin or deceased Gadvin.
21. According to the evidence given by Gladvin and Monika (PW-2), it appears that a quarrel took place between the appellant No.1 and victim Gladvin initially on a trifling matter that victim Gladvin misbehaved with the patients of the appellant No.1, and therefore when the appellant No.1 came to the spot and abused victim Gladvin, she did not have any weapon with her. The appellant No.2 did not accompany her from very beginning. He came with a dagger after the quarrel had started, and therefore the appellant No.1 had no apprehension that the appellant No.2 would assault victim Gladvin or deceased Gadvin in such a manner. Gladvin in para 9 has accepted that he had already stated before the police that appellant No.2 Sunil Harry went to his house and brought a dagger. Witness Monika (PW-2) has also accepted in para 6 of her statement that when the heated exchange of words took place between victim Gladvin and appellant No.1 Mabel Harry, appellant No.2 Sunil Harry came to the spot and initially he scuffled with Gladvin and assaulted him with kicks and fists.
22. Under these circumstances, it would be apparent that there was no prior enmity between the parties. The appellant No.1 came to the spot and abused victim Gladvin because he misbehaved with her patients. There is no allegation that she assaulted either victim Gladvin or deceased Gadvin. The appellant No.2 came after sometime with a dagger and assaulted victim Gladvin and deceased Gadvin, whereas the appellant No.1 had no knowledge about such overt-act of the appellant No.2. It is not proved beyond doubt that the appellant No.1 held either victim Gladvin or deceased Gadvin when the appellant No.2 was giving blows by a dagger. On the contrary, the injuries found to victim Gladvin and the deceased Gadvin indicate that both of them were free and therefore appellant No.2 Sunil Harry gave blows of a dagger in a haphazard manner. Under these circumstances, it cannot be said that the appellant No.1 had any common intention with appellant No.2 to kill deceased Gadvin or to cause any injury to victim Gladvin, and therefore the appellant No.1 cannot be convicted of offence under Section 302, 307 or 324 of IPC or any inferior offence of same nature under the provisions of Section 34 of IPC. The learned Additional Sessions Judge has committed an error in convicting the appellant No.1 for the aforesaid offences.
23. So far as the sentence of appellant No.2 is concerned, the trial Court has given the minimum sentence for the offence under Section 302 of IPC, and therefore there is no need to make any interference in that sentence. The trial Court did not impose any separate sentence for the offence under Section 324 of IPC. However, looking at the sentence for the offence under Section 302 of IPC, there was no need to pass any additional sentence for the offence done by the appellant No.2 against victim Gladvin because both the sentences would have run concurrently.
24. On the basis of the aforesaid discussion, it is found that the appellant No.1 (expired during the pendency of this appeal and her matter was contested by the appellant No.2), did not assault either victim Gladvin or deceased Gadvin by herself and neither she did any overt- act so that her common intention can be presumed with the appellant No.2. Under these circumstances, the appellant No.1 cannot be convicted of the aforesaid offences. Hence her appeal deserves to be allowed. Consequently, the appeal filed by the appellant No.1 is hereby allowed. Her conviction and sentence under Sections 302/34, 324/34 of IPC are hereby set aside. She is acquitted from all the charges appended against her. Whereas the present appeal filed by the appellant No.2 has no force, and therefore it is hereby dismissed by maintaining his conviction as well as sentence imposed by the trial Court for the aforesaid offences.
25. A copy of this judgment be sent to the trial Court along with its record for information and compliance.