Judgment:
D.K. Jain, J.
1. In this appeal under section 374 of the Code of Criminal Procedure, appellant Arjun son of Mohan challenges his conviction and sentence of imprisonment for. life and fine of Rs. 1,000/- and, in default, rigorous imprisonment for six months under section 302 of IPC and rigorous imprisonment for six months under section 323 of IPC - directing the aforesaid sentences to run concurrently; while appellant Dhanni alias Dhaniram son of Mohan, challenges his conviction and sentence of rigorous imprisonment for six months under section 323 of IPC, awarded in Sessions Trial No. 20 of 1986, arising out of Chhatarpur Sessions Division, and decided on 25-10-1989.
2. Undisputed facts are that Suresh (P.W. 8) is the nephew of None (P.W. 1). Deceased Choude was the grand-father of Suresh. Ghanshyam is the paternal Baba of Suresh. Mohan is the uncle (Kaka) of None. Accused-appellant and deceased Choude and None are adjacent cultivators of village Sukwan and the incident had taken place on 30-7-1985. The bullocks of complainant None had trespassed into the field of Arjun. In the incident, .the accused persons, i.e. Arjun and Dhanni, had also received injuries, while Choude son of Parichchat had died.
Besides the aforesaid undisputed facts, the prosecution case, in short, is that, on the day of incident, i.e. 30-7-1985, at about 4.30 in the evening, None was grazing his bullocks in Jhinna-Haar-when the accused Arjun and Parmanand came near him and threatened him. None then went home and. after tying his bullock, as soon as he came out, he found accused Arjun armed with a Farsa and accused Dhanni armed with a Lakdi standing outside and abusing him. Accused Dhanni dealt a Lakdi blow on None and Arjun also came to assault None with a Farsa and, thereupon, in his defence, None struck Dhanni with a Lakdi and, at that very time, Arjun dealt a Farsa blow to None on his left wrist - which started bleeding and, while running away, Arjun dealt two or three Lathi blows to None. None ran and hid himself in the house of Mathura Kurmi - after locking the doors from inside. At that very time, accused Arjun and Dhanni started assaulting Choude father of None, with Farsa and Lathi. None did not go near his father on account of fright, but a number of villagers had collected there. None's nephew Suresh was also there and Suresh had come to inform None that Arjun had dealt Farsa blows on the. neck of his grand-father and there was much bleeding on account of which Choude may die. Upon this information given by Suresh, None came out of the house of Mathura and immediately ran to the police- station Nowgaon - where he lodged the F.I.R. at 6.30 P.M. and, upon this report (Ex.P-1), an offence under section 307, read with section 34 of I.P.C. was registered at Crime No. 76/85. While the injured Choude was being taken in a bullock-cart to Nowgaon, on the way, they met the Thana-Prabhari Shanoo Ali, who took action to send Choude to the hospital for medical examination. While Choude was being taken to Primary Health Centre, Nowgaon, he expired on the way, and, on the basis of information.(Ex. P-7) given by Constable Ghanshyam, the offence was converted into one under section 302/ 34 of IPC.
Inquest was held and inquest-memo (Ex.P-2) was recorded and, thereafter, the dead body of Choude son of Parichchat Kurmi, aged about 65 years, was sent for post-mortem examination. Autopsy on the dead body of Choude was performed by Dr. R. K. Khare (P.W. 10) on 31-7-1985 and he found the following external injuries over his body :-
(i) incised wound, 1' x 1/2' x 1/4', over right temporal area of scalp. Margins of the wound were regular, smooth, clean cut. Clotted blood was present - caused by hard and sharp object; ante-mortem in nature. This injury leads into the - fracture of right temporal bone of skull, caused laceration of the brain matter;
(ii) Incised wound, 2' x 1/2' x 1/6' - right parietal area of scalp, leading into the fracture of right parietal bone of skull, caused by hard and sharp object. Clotted blood was present; and the injury was ante-mortem in nature;
(iii) Fracture dislocation of the left wrist joint, caused by hard and blunt object.
According to the Autopsy Surgeon, as per the post-mortem report (Ex.P18), the cause of death was due to excessive haemorrhage and shock because of the inflicted head injuries. According to the Autopsy Surgeon, the injuries found on the head were sufficient in the ordinary course of nature to cause death.
During investigation, spot map was prepared and statements of the witnesses were recorded. Complainant None, who had also received injuries, had been got medically examined and report (Ex. D-3- A) regarding his injuries had been written. The articles seized in the case, had been sent for chemical examination to F.S.L., Sagar, and the report received from the Chemical Examiner, Sagar, is Ex. P- 22. Report of the Serologist was also received and filed in the case.
After completing the usual investigation, a charge-sheet had been put up against both the accused persons, i.e. Arjun and Dhanni alias Dhaniram.
3. Both the accused-appellants had pleaded not guilty to the charges levelled against them by the trial Court. The defence of the accused persons was that their field and the field of the complainant were close to each other and when Arjun was grazing his bullocks, the bullocks of None had strayed into the field of Arjun. According to the defence, complainant None and his father Choude had caused injuries to Dhanni with Lathi and Farsa and None had also assaulted Arjun with Lathi - causing injuries to them. The hand of Dhanni had been broken - as a result of injuries caused to him. Dr. J. P. Tiwari, who had examined the injuries of Dhaniram and Arjun, had been examined as a defence witness.
4. The learned trial Judge, placing reliance on the prosecution evidence, reached the conclusion that the accused Arjun was guilty of having committed the offence under sections 302 and 323 of IPC and he was convicted and sentenced as aforesaid. Charge under section 324 of IPC levelled against accused Arjun, was not found proved against him and he was, therefore, acquitted of the said charge. :
As regards accused Dhanni, the trial Court held that the charges under section 302 read with section 34 and 324 read with section 34 of IPC were not. found proved against him and he was, therefore, acquitted of the said charges, but he was found guilty of the offence under section 323 of IPC, for which he was convicted and sentenced as aforesaid.
5. On behalf of the appellants, the submission was that Suresh (P.W. 8) was the nephew of None and he was the only eye-witness regarding the incident and that, although he was present at the police- station when the report was lodged by None, but still his statement was not recorded at that time and, instead, his statement was recorded by the police on 1-8-1985, i.e. two days after the incident and that, prior to this, Suresh had not told to any one else about the incident, and regarding the delay in recording the statement of the eye-witness Suresh, reliance was placed on : 1979CriLJ51 (G.B. Patel v. State of Maharashtra). It was further submitted, on behalf of the appellants, that, according to the version of the eye-witness Suresh, the deceased Choude was assaulted by both the appellants Dhanni and Arjun with Lathi and Farsa, respectively, but the medical evidence in this regard shows that only two incised wounds were found on the head, along with one abrasion, which could have been caused by a fall, and, in case, the version of Suresh was to be believed, then there ought to have been many more injuries on the person of the deceased. It was further submitted that, although, according to the report lodged by None, None had also been assaulted with' Farsa and Lathi, and although he had been sent for medical examination of his injuries by the Police, but the injury report of None was not got proved by the prosecution, from which an adverse inference should have been drawn against the prosecution that None had not received any injury, or his version regarding injuries having been inflicted on him, was false. It was also submitted that the origin or the genesis of the quarrel had been suppressed by the prosecution. Lastly, the submission, made on behalf of the appellants, was that the appellants, in right of private defence of their person, had inflicted injuries on the deceased, because, it was the complainant None who had first assaulted appellant Dhanni - causing more than eight injuries on his person - including two incised wounds on the head as also two lacerated wounds on the left parietal part of skill and on occipito parietal part of skull, besides other contusions, and that, appellant Arjun had also received one lacerated wound on the right fronto parietal region and contusion on left scapular region and that, the aforesaid injuries received by the appellants, had not been duly explained by the prosecution. In support of the aforesaid submissions, regarding right of private defence and non-explanation of the injuries found on the appellants, reliance Was placed on (1) : 1976CriLJ857 (Mitter Sen v. State of U.P.); (2) : 1976CriLJ1736 (Lakshmi Singh v. State of Bihar); (3) : 1980CriLJ459 (Yogendra Morarji v. State of Gujarat); (4) : 1992CriLJ777 (Bhagwan Swaroop v. State of Madhya Pradesh); and (5) : 1994CriLJ2188 (State of Rajasthan v. Sughad Singh).
6. On behalf of the respondent-State, the submission was that the prosecution had fully proved its case against both the appellants and that, the injuries received by the appellants, had also been explained and also that the injuries received by the appellants, were simple in nature and, as against this, the injuries inflicted on the deceased Choude, on his head, had resulted in fracture of right temporal bone and right parietal bone of the skull and also laceration of the brain matter - resulting in his death. It was also Submitted that the learned trial Judge had committed no mistake in placing reliance on the testimony of the eye-witness Suresh, which also stood corroborated by the medical evidence on record. It was, thus, submitted that this appeal was liable to be dismised.
7. Record has been carefully perused and we have also been taken through the relevant evidence during the course of arguments by the learned counsel for the appellants. The submission was that the child witness Suresh Kumar (P.W. 8), aged about 12 years, was the only eye-witness to the incident, but his statement was recorded by the police on 1-8- 1985; whereas, the incident had taken place on 30- 7-1985, at about 4-30 in the evening. According to None (P.W. 1), when he had gone to the police- station, he had not been accompanied by Suresh and that, on that night, Suresh had not gone to the police- station, but this version of None is belied by the version of Suresh (P.W. 8), who had clearly stated that he had accompanied his Chacha None to the police-station, and that, Daroga Sahab was present at the Thana - when they had reached there. Thus, if Suresh was present at the Thana when the report was lodged and he had witnessed the incident, then his statement ought to have been recorded at that very time, but, instead, the same was recorded on the third day. The prosecution had not offered any plausible explanation for the delay in recording the statement of the eye-witness Suresh. Suresh ((P.W. 8) has denied that he had informed the police about the incident on the third day and, according to him, he had told about the incident to the Daroga Sahab on the day of the incident itself, and his statement was recorded on that very day, but the evidence shows that his statement had been recorded not on the day of the incident, but on the 2nd or 3rd day, i.e., on 1-8-1985.
8. None (P.W. I) has stated before the Court that, in the evening at about 4-00, after tying his bullock in the cattle-shed (Bagar), when he came out, accused Dhanni and Arjun were standing near the door and after abusing him, Dhanni struck him with the Lathi, i.e...Lakdi. which had iron ring, and, then, he had snatched the Lakdi from dhanni and, upon this, Arjun struck him with the farsa on his left hand on the wrist - which had started bleeding, and when Dhanni ran to catch him, then he had struck Dhanni with the Lakdi and when he was running towards the village, he was chased by Arjun who dealt 2-3 blows with the handle of the Farsa and, thereafter, he ran and entered the house of Mathura Kurmi and locked the doors from inside. Suresh (P.W. 8) has also stated that Dhanni had given one Lakdi blow to None and, then, None had snatched the Lakdi from dhanni and, then, Dhanni sat down and, at that very time,. Arjun gave a Farsa blow on the left hand wrist of None and, thereafter, his Chacha None had run towards the village and he was chased by Arjun. Thus, according to Suresh also, None had been assaulted by both Dhanni and Arjun and he had received - injuries. From the version of None (P.W. 1), it appears that after he had lodged the report (Ex. P-1), he had been locked up in the Thana where he had remained for two days and, then, he had been sent to jail and, during this period, he had also been sent to the hospital. However, although None had received injuries according to the prosecution, but those injuries have not been proved by the prosecution by examining the Doctor who had examined the same.
9. From the evidence on record, it is clear that None (P.W. 1) is not an eye-witness to he incident, and even according to the report (Ex. P-1) lodged by him, as per which he had been informed by his nephew Suresh that Arjun had assaulted Babba with the Farsa on the neck (Gheench) and that, he was bleeding and that, he had fallen down and he may die. None had not gone on the spot - where his father Choude had been assaulted, but he had gone straightway to the police-station and had lodged the report.
10. The submission, on behalf of the appellants, was that the appellant Dhanni had received 10 injuries in the incident, and that, his injuries were examined by Dr. J.P. Tiwari (D.W. I) on 30-7-1985 in the evening, and, out of the aforesaid injuries, there was one incised wound on right parietal region. 3' x 1/2 whole skin and muscles layer had been cut, and the bones exposed and the artery was also cut and bleeding was present; another incised wound on right parietal region; two lacerated wounds also on the skull region and besides a number of contusions on different parts of the body - as per report (Ex. D- 2-C). Further, Dr. Tiwari had found that the patient was semi-conscious, pulse was feeble and blood pressure was not recordable and the patient was in shock and that, the Injury No. 1 was dangerous to life if surgical and medical aid was not given at proper time.
It was further submitted that the appellant Arjun had also received one lacerated wound on right fronto parietal region, 3 1/2' x 1/4' x 1/2 in which blood clots were present and a contusion on left scapular-region and that, the injury was caused by hard and blunt object and was simple in nature and the aforesaid injuries were also proved by Dr. Tiwari (D.W. 1) whose report is Ex. D-3-C.
The submission was that, looking to the aforesaid injuries received by the present appellants, the appellants had the right of private defence to defend their person and, even in case they had exceeded the right of private defence, they would not be liable for having committed the offences with which they had been charged. It was, then, submitted that the prosecution had failed to explain the serious nature and number of injuries received by the appellant - .Dhanni - which implies that the prosecution had suppressed the genesis and the origin of the occurrence and had, thus, not presented the true version.
After considering the evidence on record, there appears to be some substance in the aforesaid sub- missions made on behalf of the appellants by their learned counsel.
11. None (P.W. 1) is admittedly not an eye- witness and he had lodged the report on the basis of the information given to him by his nephew Suresh (P.W. 8). None had tried to explain the injuries on Dhanni by stating that he had dealt 4 to 6 Lakdi blows on Dhanni in his self-defence, but he or his father (deceased) had not assaulted Dhanni with Farsa. None denied the suggestion given to him during his cross-examination that he and his father Choude (deceased) had assaulted Dhanni with Lathi and Farsa - as a result of which he had fallen down and had become unconscious. None has also denied the suggestion that when Arjun came to save Dhanni, then he had assaulted him on the head and other parts of the body with Lathi. He also denied the fact that, when his father went ahead with the Farsa to assault, then Arjun had given a Farsa blow to him. Further, according to None, no one had assaulted Dhanni with the Farsa and that, the injuries received by him on his body, were caused by Lathi
12. Suresh (P.W 8), who is supposed to be an eye-witness, has also staled in his cross-examination that Arjun had not been assaulted by his uncle None or his Babba Choude. He also denied the suggestion that Dhanni had also been assaulted by his Chacha None and Babba Choude. According to this witness Suresh, his uncle None had given 3-4 Lathi belows to Dhanni, but, according to him, Arjun had not been assaulted by any one. This witness Suresh has also denied that, in their defence, Arjun and Dhani had assaulted Choude (deceased) and None.
The aforesaid version of None (P.W. 1) and Suresh (P.W. 8) regarding the injuries of Dhanni and Arjun, does not appear to be reliable, because, admittedly. Dr. J.P. Tiwari (D.W. 1) had found two incised wounds on the head of Dhanni - which could have been caused by the sharp end of the Farsa and not by Lathi. Besides this, both the aforesaid witnesses have tried to suppress the injuries received by Arjun which were duly proved by the defence witness Dr. Tiwari. The defence version cannot be altogether ruled out looking to the serious nature of the injuries inflicted on Dhaniram. The non-explanation by the prosecution of the incised wounds inflicted on the head of Dhaniram and the large number of injuries found on his person, suggests the possibility that, on seeing the injuries of Dhaniram, appellant Arjun, in order to save his brother Dhaniram, may have inflicted injuries, in the right of private defence of Dhaniram and himself, on the deceased Choude - which resulted in his death. Thus, considering the evidence on record, the possibility of the defence version being true, also cannot be altogether ruled out.
13. Suresh (P.W. 8) is the only eye-witness to the incident, but much reliance on his evidence cannot be placed, because, although he had accompanied None (P.W. 1), his uncle, to the police-station, and was present there when the report was lodged by None, but still his statement was not recorded by the Investigating Officer at that very time, but was recorded on 1-8-1985, i.e., after quite some delay and this delay has not been satisfactorily explained by the prosecution. The possibility of the genesis and the origin of the occurrence having been suppressed by the prosecution, cannot be ruled out, because, it has come in the evidence that, initially the incident had taken place in the morning when the bullock belonging to None (P.W. 1), had strayed into the field of Arjun - as a result of which exchange of abuses had taken place, but, at that time, one Dasaiya Kurmi and Ghanshyam had intervened. The second incident, according to the prosecution, took place in the evening at about 4-00, when None, after tying his bullocks, had come out of the cattleshed (Bagar) and, at that time, Dhanni had assaulted None with a Lathi (Lakdi) and Arjun had assaulted him with Farsa on his left hand on the wrist and when he was running away, he was further assaulted by Arjun, who had chased him, with the wooden part of the Farsa.
The injuries, alleged to have been inflicted on None (P.W. 1), were not got proved from the Doctor who had examined the same - although, from the version of Dr. J.P. Tiwari (D.W. 1), it appears that the original injury report of None was filed in Sessions Trial No. 66 of 1986 (State v. None) and its copy was Ex. D-2-C. This would go to show that None (P.W. !) was also being prosecuted for an offence under Section 307 of I.P.C., on the report lodged by the present appellants - as is clear from the version of the Investigating Officer Shanoo Ali (P.W. 11). The Investigating Officer had admitted in his cross-examination that Dhani had also received injuries and he had been sent to the hospital for examination and had also been admitted there. It is also clear from the evidence of the Investigating Officer that, prior to 1-8-1985, when he had recorded the statement of Suresh, the said Suresh had not told him anything about the incident - although (P.W. 8) had given a different version in this regard ----- which has already been discused above. It also appears from the - version of the Investigating Officer that, at the time he had prepared the spot map (Ex. P-19), at that time, none of the witnesses had shown him that particular place where the deceased Choude had been assaulted and that, he had not shown that particular place in the aforesaid spot map.
14. The prosecution had examined Nathuram Patwari (P. W. 5) and, in the spot map (Ex. P-9) prepared by him, at No. 1, he had shown that place where Dhanni Kurmi had been assaulted and where there was blood also, and this would also go to support the defence rather than the prosecution.
15. After considering the evidence on record, in our considered opinion, the learned trial Judge was not justified in holding that the appellants were not - entitled to the right of private defence of their person and that, the prosecution has substantially explained the injuries found on the person of both the appellants. The trial Court was also not justified in placing reliance on the testimony of the sole eye- witness Suresh (P.W. 8), whose statement had been recorded on the third day - for which no plausible explanation had been given by the prosecution: Looking to the nature of injuries received by both the appellants, and which were positively proved by Dr. J.P. Tiwari (D.W. 1), in our considered opinion, the appellants would be entitled to the right of private defence of their person, and, more so, because, looking to the serious nature of the injuries, i.e., incised wounds and lacerated wounds, found on the person of Dhanni, and also the injuries found on the head of appellant Arjun, and which had not been explained, because, according to the prosecution, no injury with the Farsa had been inflicted on the head of Dhanni by None or his father Choude. The sub- missions, made on behalf of the appellants, deserve to be accepted.
16. In the result, this appeal is allowed and the conviction and sentence of both the appellants, as aforesaid, awarded in Sessions Trial No. 20 of 1986, is set aside and they are acquitted of the aforesaid charges. Appellant No. 1 Arjun is reported to be in jail. He shall be set at liberty forthwith, unless wanted in any other case. Appellant No. 2 Dhani alias Dhaniram is reported to be on bail. He is directed to appear before the Chief Judicial Magistrate, Chhatarpur, on 5-7-1995 to hear the result of this appeal.