of M.P. Vs. Mishrilal & Ors @  Insc
210 (2 April 2003)
Sabharwal & H.K. Sema Sema,J.
appeal by special leave is preferred by the State against the judgment of the
High Court whereby and whereunder the sentences and convictions imposed by the
Trial Court have been set-aside by allowing the appeal, preferred by the
accused Mishrilal s/o Balmukund Jaiswal, Madhusudan s/o Mishrilal, Jamunaprasad
s/o Mishrilal, Radhakishan s/o Ganpat Kalal, Vinod Kumar s/o Babulal Kalal, Hukumchand
s/o Shankerlal Kalal, Jagdish s/o Shankarlal Kalal, Rajendrakumar s/o Babulal Kalal
and Ashok Kumar s/o Mishrilal Kalal were tried in Session Trial No. 73 of 1987
whereby the Second Addl. Sessions Judge, Devas convicted accused Ashok under
Sections 302, 307 read with Sections 149 and 148 IPC and Section 25 of Arms
Act.; accused Jamunaprasad under Sections 307, 302 read with Sections 149 and
148 IPC and the remaining accused under Section 302 read with Sections 149, 307
read with section 149 and section 148 of the IPC and sentenced all the accused
to pay a fine of Rs.250/- each and in default to undergo imprisonment for one
month under Section 148 IPC, sentenced accused Ashok to suffer imprisonment for
life under Section 302 IPC and to pay a fine of Rs.250/- and in default to
suffer three months imprisonment and to suffer RI for five years under Section
307 read with Section 149 IPC and to suffer RI for three years and to pay a
fine of Rs.200/- and in default to suffer one month imprisonment under Section
25 of the Arms Act, sentenced accused Jamnaprasad to suffer RI for five years
under Section 307 and imprisonment for life under Section 302 read with Section
149 IPC and to pay a fine of Rs.250/- and in default to suffer three months
imprisonment and sentenced remaining 7 accused to suffer imprisonment for life
and to pay a fine of Rs.250/- each and in default to suffer imprisonment for
three months under Section 302 read with Section 149 IPC and to undergo RI for
five years under Section 307 read with Section 149 IPC.
the pendency of this appeal, accused Mishrilal has expired and therefore, the
appeal qua him stands abated.
apple of discord, as revealed by the prosecution story, was over a trivial
matter about the passing of bullock-cart. The bullock-cart of Babulal (PW-1)
being driven by his servant Patiram (PW-3) was stopped by the accused in front
of the house of Mishrilal (since deceased). Babulal, thereafter, reversed the
bullock-cart, brought back his bullock-cart and reached his house by another
route. At that time Maharaj Singh (PW-2), uncle of Babulal (PW-1), Bhavarsingh
(the deceased), grand-father of Babulal and Gopal (PW-7) and others were
sitting in front of the house of Babulal, who questioned as to why the
bullock-cart had to be brought back by different route and at this Babulal
narrated to them the story of stoppage of bullock-cart by the respondents. At
this moment, accused Mishrilal armed with a Farsi, Jamunaprasad armed with a
twelve bore gun, accused Ashok Kumar with a desi Katta and rest of the
accused-persons having lathis with them came near the house of Babulal hurling
abuses, followed by heated exchange of words between both the sides. Then all
of a sudden Jamunaprasad fired a gunshot at Babulal. The pellets hit him in his
deceased Bhavarsingh, grandfather of Babulal tried to save him and stood in
front of Babulal, when accused Ashok Kumar fired at him with the desi Katta
hitting him on the chest. The deceased fell down on the ground and become
unconscious. PW-2 Maharaj Singh and Karan Singh PW-4 also came to save Babulal
but accused Jamunaprasad fired again hitting Maharaj Singh and Karan Singh.
Accused Madhusudan assaulted Babulal by the lathi hitting him on the right
shoulder. On raising hue and cry, the accused fled away. The deceased Bhavarsingh
was taken to Kannaud Hospital where he was declared dead. Injured Babulal, Maharaj Singh
and Karan Singh were admitted in the hospital and treated. Dr.G.D. Kashyap
(PW-6), sent intimation to Police Station, Karnnod. ASI Dharamraj Singh (PW-17)
reached the hospital and on being reported by Babulal (PW-1) ASI registered the
FIR (Ex.P-1). The police issued the requisition form of all the injured persons
marked as (Exs.P-30, P-31 and P-32). Thereafter, the police case (Ex. P-33) was
registered on the basis of (Ex.P-1). The post-mortem was conducted by PW-6
embodying "the cause of death is from gunshot wound and its mode is
syncope". The post-mortem report is (Ex.P-6). The injury reports in
respect of Babulal, Karan Singh and Maharaj Singh are marked as (Exs.P-7, P-11
and P-12). X-ray plates with regard to injuries sustained by Babulal and Maharaj
Singh are marked as (Exs.P-8 to P-10 and P-13 to P-16) respectively. The
investigating officer also prepared a spot map (Ex.P-3). Accused Mishrilal also
lodged the report as regards the injuries sustained by him, Madhusudan and Jamunaprasad
on the same day i.e. 5.3.1987 and over the same incident. The report is marked
police investigated the complaint lodged by Mishrilal and challan was filed
under Sections 147, 148, 149 and 324 IPC and registered a crime No.52 of 1987,
which is pending before the learned Judicial Magistrate First Class for
disposal. The complaint lodged by the prosecution party vide (Ex.P-1) was investigated
and after completion of the investigation, the Court framed charges against the
accused parties under Section 302 and in the alternative under Section 302/149,
Section 307 and in the alternative under Section 307/149 and Section 148 of the
Indian Penal Code. Accused Ashok Kumar was also additionally charged under
Section 25 of the Arms Act. The accused pleaded not guilty to the charges and
after the trial they were convicted and sentenced as noticed above.
High Court after re-appraisal of the evidence, set-aside the order of
conviction and acquitted the respondents of all the charges levelled against
the sake of convenience we have devised to categorize the case under the
Cross cases be tried together;
Genesis of occurrence;
Presence of Accused Ashok Kumar at the place of incident;
Right of private defence; and
Non- explanation of the injuries, sustained by the accused, by the prosecution.
CASES BE TRIED TOGETHER Undisputedly, accused Mishrilal lodged the report to
the police vide Ex.D-8 over the same incident happened on 5.3.1987, in which he
had clearly stated the injuries were sustained by him and his son Madhusudan at
the hands of prosecution party. It is also not disputed that on the strength of
the complaint lodged by Mishriulal, investigation was also carried out and challan
was filed namely crime case no.52/87 under Sections 147, 148, 149 and 324 IPC
against the prosecution party which is pending for disposal before the learned
Judicial Magistrate First Class. In the said challan, the State of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to
be followed by the Trial Court in the event of cross cases. It was observed
thus:- "We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same learned Judge
must try both the cross cases one after the other.
the recording of evidence in one case is completed, he must hear the arguments
but he must reserve the judgment.
he must proceed to hear the cross case and after recording all the evidence he
must hear the arguments but reserve the judgment in that case. The same learned
Judge must thereafter dispose of the matters by two separate judgments. In
deciding each of the cases, he can rely only on the evidence recorded in that
particular case. The evidence recorded in the cross case cannot be looked into.
Nor can the judge be influenced by whatever is argued in the cross case. Each
case must be decided on the basis of the evidence which has been placed on
record in that particular case without being influenced in any manner by the
evidence or arguments urged in the cross case. But both the judgments must be
pronounced by the same learned Judge one after the other." In the instant
case, it is undisputed, that the investigating officer submitted the challan on
the basis of the complaint lodged by the accused Mishrilal in respect of the
same incident. It would have been just fair and proper to decide both the cases
together by the same court in view of the guidelines devised by this Court in Nathilal's
case (supra). The cross- cases should be tried together by the same court
irrespective of the nature of the offence involved. The rational behind this is
to avoid the conflicting judgments over the same incident because if cross
cases are allowed to be tried by two courts separately there is likelihood of
instant case, the investigating officer submitted the challan against both the
parties. Both the complaints cannot be said to be right. Either of them must be
false. In such a situation, legal obligation is cast upon the investigating
officer to make an endeavour to find out the truth and to cull out the truth
from the falsehood. Unfortunately, the investigating officer has failed to
discharge the obligation, resulting in grave miscarriage of justice.
already noticed, the apple of discord is passing of the bullock-cart belonging
to PW-1 Babulal, in front of the house of the accused Mishrilal. It is in the
evidence on record that the bullock-cart of accused Mishrilal was parked in the
gali impeding the passage of bullock-cart of Babulal PW.1. In the circumstances
Babulal was asked to stop the bullock-cart which had to be reversed and taken
from the other route. PW-1 naturally took it as an insult and felt bad and on
being arrived at his place where Maharaj Singh, Bhavarsingh etc. were sitting
and on being questioned about the change in the route, he narrated the incident
of stoppage to the members of his family.
such a situation, it is expected that they have reasons to raise grievances.
the accused party being succeeded in getting the bullock-cart diverted, were
victorious and there was no reason to revolt by following Babulal armed with farsi,
gun and desi katta and lathis as alleged by the prosecution. This allegation is
clearly against the logic. It is logically improbable that the accused being
able to stop and compel the bullock-cart to retreat would have still opted to
follow Babulal and initiate a quarrel. It is logically improbable and
unbelievable in the ordinary course of human conduct because the grievance of
the accused, if any, has been redressed by preventing the bullock-cart to pass
through the passage and accomplish in retreating the bullock-cart through
another route, would still follow the prosecution party and assault them in
front of their house. They have no reason to be annoyed or unhappy which would
compel them to go to the house of the prosecution party and took up a quarrel
with them. In the evidence on record it is shown that the cartridges were found
in front of the house of PW-8 and blood stained earth was seized from the wall
of the house of PW-8. But in spot map (Ex.P-3) the position shown is contrary
and the house of PW-8 was omitted from this map. The testimony of Ramnarayan
(PW-8) is inconsistent with (Ex.P-3) spot map. This apart, the learned Trial
Judge made a spot inspection on 11.3.1991 under Section 310 Cr.P.C. However,
the Trial Judge did not choose to record the memo of inspection. The judgment
was delivered on 16.3.1991. What had prompted the learned Trial Judge to have
recourse to spot inspection was not spelled out because no memorandum of
inspection was prepared. But it is clearly suggestive of deficiency of evidence
with regard to place of occurrence. In such a situation, it was incumbent on
the part of the learned Trial Judge, to have recorded the memo of inspection
for proper appreciation of the inspection. Undoubtedly, the mandatory provision
has not been followed by the Trial Court.
prosecution party and not the complainant party were the aggressors, is further
made amply clear in the depositions of PWs 1 and 2. PW-1 Babulal stated in para
9 of the statement as under:- "All of them stood in front of my cart and
they did not cry lowdly and they used to tell only this that no cart will go
from here and please do not take away cart via this route. All of them
prevented my cart on the high way, for which I took bad." Babulal further
stated as under:
I stated to my grandfather that all of these were not allowing to bring my
bullock cart from this side I stated while rebuking that these mather chodon
are not allowing to take out the bullock cart then Maharaj Singh and Bhawar
Singh stated that we will make them understand and then they remained stand
there." PW-2 Maharaj Singh also stated as under:- "This is correct
that Babu had stated this that salone did not allow the cart to came out
through the high way and due to this fact we took it ill." From the facts
and circumstances, as adumbrated above, it is amply clear that the prosecution
party was the aggressor and the alleged incident did not happen in front of the
house of the prosecution party, rather the prosecution party took offence to
the stoppage of bullock-cart of Babulal, but the prosecution has suppressed the
genesis and origin of the occurrence.
clearly of the view, therefore, that the prosecution party was an aggressor.
OF ACCUSED ASHOK KUMAR AT THE PLACE OF OCCURRENCE
Ashok Kumar was attributed of firing with desi katta at the chest of the
deceased Bhavarsingh which appears to have proved fatal. In the instant case,
the prosecution party went straight to the hospital from the place of incident.
Ex.P-29 is the intimation to the police station by the doctor. It is silent
about the authors of the injuries. It does not speak about katta, farsi or lathi.
Accused Ashok Kumar, from the very beginning of the trial, took a defence that
he was not present at the spot on the day of incident and he has been falsely
implicated on the ground that Ashok Kumar was having some love affair with Suganbai,
the sister of PW-7 Gopal. Accused Ashok Kumar sustained no injury. In this
background, the plea raised by Ashok Kumar, that he has been falsely implicated
on the ground of his involvement with Suganbai, the sister of PW-7 Gopal,
is undisputedly a member of the family of a complainant party and in this
background falsely implicating Ashok Kumar as an accused cannot be ruled out.
As noticed earlier, in Ex.P-29 there was no mention of an attack by a desi katta.
The necessary implication is that the name of Ashok Kumar and katta were introduced
only after arrival of the police (PW-17) and after deliberation. Further, in
Ex.P-29 only gun was mentioned. Against Ashok Kumar one of the eyewitness account
is given by PW-5 Chagan. He was unable to say as from where katta was taken
alleged eyewitness account of PW-5 Chagan is also not acceptable because the
name of PW-5 was not mentioned in Ex. P-1. His name also appears to have been
introduced after the arrival of PW-17 and after deliberation. The alleged
disclosure and recovery of Ex.P-20 and seizure memo Ex.P-21 both prepared by
one V.K. Silawat, Station House Officer of Police Station, was not examined in
the case. PW-9 Babulal - punch witness, father of PW-5, did not prove the
material recited in Ex.P-20. PW- 12 Lakhanlal - another punch witness, also did
not testify the material recited in Ex.P-20. The prosecution has also failed to
prove that the desi katta was in exclusive possession of the accused Ashok
Kumar. This all goes to show that the facts of seizure are not free from doubt.
All the more so, when the prosecution tried to suppress the genesis and the
origin of the occurrence. There is no guarantee that they are speaking the
truth with regard to the facts of seizure Ex.P-21. As already noticed, accused Ashok
Kumar was attributed of hitting on the chest of the deceased by desi katta.
Kashyap (PW-6) conducted the post-mortem. He found the following external
injuries:- "External Injuries:
Gunshot (Firearm) wound.
wound of entry size (irregular round shape) 2"x2"x18" on the
front Right chest 4" above the right (Illeg.) when a probe inserted in
this wound it comes out on posterior side on wound of exit.
the wound is medialy Back wounds and downwords
of exit Gun shot size 2 " x2"x18" situated 1" Rt.
to 10th Thoracic vertebra, Direction lateraly (Illeg.) and upwords. It is
continuous to the wound of entry. The edges of both wounds are irregular oral
shape. But edges of entrance wound in inverted and edges of exit wound is everted.
Both the wounds are antemortem wounds. From both these wounds oozing of blood
is too much." The doctor also found irregular shaped six small chharas
stained with blood from the right chest of the deceased.
the post-mortem report as noticed, PW-6 described the injuries as gunshot and
not from the pistol. It is strenuously urged by Mr. Jaspal Singh, learned Senior
counsel, that the pistol uses bullets and not chharas.
to him, since six chharas were found from the chest of the deceased, the shots
were fired from the 12 bore gun and not from the pistol.
counsel for the appellant, however, contended that in desi katta 12 bore
cartridges can also be fired. The prosecution has failed to obtain the opinion
of ballistic expert. The prosecution also did not explain as to whether in desi
katta 12 bore cartridges can also be fired. In the absence of explanation by
the prosecution, it is difficult to accept that in desi katta 12 bore
cartridges can be fired in the instant case. In the present case, a doubt has
been created as to whether a desi katta can also fire 12 bore cartridges, which
has not been explained by the prosecution. As already noticed, Ashok Kumar did
not sustain any injuries on his body. In the ordinary course of human conduct,
when his father Mishrilal is inflicted as many as five injuries which are
stated to be dangerous to life, a son is expected to intervene in order to
salvage his father and in the process he would receive injuries on his body, if
he was present at the place of occurrence. The other two sons Madhusudan and Jamunaprasad
who were with the father Mishrilal received simple injuries. In the FIR.
(Ex.D-8) lodged by Mishrilal also, the presence of Ashok at the place of
occurrence was not mentioned. It is in these circumstances, the presence of Ashok
Kumar at the place of incident is not free from doubt. He must, therefore, be
entitled to the benefit of doubt.
have noticed that in Ex.P-1 accused Mishrilal, Jamunaprasad, Madhusudan and Ashok
Kumar have been mentioned, but the remaining five accused Radhakishan, Vinod
Kumar, Hukumchand, Jagdish and Rajendrakumar were not mentioned. It is also in
the evidence on record that five accused were standing at the back and did not
participate. The five accused were roped in aid of Section 149 IPC. In the
Ex.P-1 itself, it is stated that others were having lathis. Who were the others
and who were having lathis, has not been described in the complaint. It is in
the evidence of PWs 1 and 2 that they were standing behind at a short distance.
No participation of each of the accused, overt act or otherwise, has been
attributed to them. They could be passive onlookers. It is difficult to accept
that they were members of unlawful assembly and the offence was committed in
prosecution of common object of that assembly. Their conviction with the aid of
Section 149 is, thus, clearly impermissible. Their conviction under Section 148
would also go.
OF PRIVATE DEFENCE.
already noticed, Mishrilal, Madhusudan and Jamunaprasad received injuries in
the incident. According to Dr. G.D. Kashyap (PW-6) the injuries sustained by Madhusudan
and Jamunaprasad were simple in nature, while the injuries found on the person
of Mishrilal would be dangerous to life being on the sensitive part of the body
- head. Accused Mishrilal received as many as five injuries - one incised wound
and one lacerated wound on vital part like head. The doctor opined that the
injuries were dangerous to life.
other three accused were all the sons of Mishrilal. We have doubted the
presence of accused - Ashok Kumar at the place of incident. The remaining two
sons Madhusudan and Jamunaprasad received injuries on their bodies.
ordinary course of human conduct, if the father receives as many as five
injuries in the presence of sons, the sons are not expected to be moot
spectators. Firing from 12 bore gun is attributed to accused Jamunaprasad, the
pellets of which hit the legs of Babulal PW-1 causing injuries which were
simple in nature. Since we have already held that the prosecution party was the
aggressor, we do not think that accused Jamunaprasad has exceeded the right of
private defence. The fact that PW-1 Babulal received the bullet injuries on his
legs would clearly show that Jamunaprasad fired from 12 bore gun to free his
father and themselves from the clutches of the accused. One should not forget
that Mishrilal has received as many as five injuries which were dangerous to
life and the accused Jamunaprasad at that time reasonably apprehending the
danger to the life of his father had fired the gunshot at that point of time in
self-defence, which is quite justified. It is in these circumstances that we
hold that the accused did not exceed the right of private defence.
OF THE INJURIES SUSTAIBED BY THE ACCUSED
last and which appears to be fatal to the prosecution case is non-explanation
of the injuries sustained by the accused.
already said, accused Mishrilal received as many as five injuries, which were
dangerous to life. Madusudan and Jamunanprasad received simple injuries. In
Ex.P-1 as well as in the entire deposition of PWs, the prosecution has not
explained the injuries sustained by the accused. In the background of the defence,
as set up by the accused, it was incumbent on the part of the prosecution, to
have explained the injuries sustained by the accused. The defence version is
that on being retreated the bullock-cart of Babulal, the complainant party - Maharaj
Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came
with lathis and farsa. Mathura Lal hit Mishrilal's head with the farsa and Babulal,
Maharaj Singh and Karan Singh beat Mishrilal with lathis. Madhusudan ran to
save his father Mishrilal and they also beat him. When Jamunanprasad came to
save, he was also beaten up and on that Jamunaprasad ran towards the house and
made two fires in the air to save his father. It is the case of defence that
the bullet, which struck Bhavarsingh, came from towards the house of Babulal.
In the face of defence version, which competes in probability with that of the
prosecution case, it was mandatory on the part of the prosecution to have
explained the injuries sustained by the accused and non-explanation of the
injuries is fatal to the prosecution case.
Lakshmi Singh and others vs. State of Bihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai v. State
of Bihar, (1968) 3 SCR 525: AIR 1968 SC 1281: 1968 Cri LJ 1479, it was held by
the prosecution fails to explain the injuries on the accused, two results
follow: (1) that the evidence of the prosecution witnesses is untrue; and (2)
that the injuries probabilise the plea taken by the appellants in a murder
case, the non-explanation of the injuries sustained by the accused at about the
time of the occurrence or in the course of altercation is a very important
circumstance from which the court can draw the following inferences:
the prosecution has suppressed the genesis and the origin of the occurrence and
has thus not presented the true version;
the witnesses who have denied the presence of the injuries on the person of the
accused are lying on a most material point and therefore their evidence is
in case there is a defence version which explains the injuries on the person of
the accused it is rendered probable so as to throw doubt on the prosecution
omission on the part of the prosecution to explain the injuries on the person
of the accused assumes much greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one.
there may be cases where the non-explanation of the injuries by the prosecution
may not affect the prosecution case. This principle would obviously apply to
cases where the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it far outweighs the effect of the
omission on the part of the prosecution to explain the injuries." page
1067 this Court held as under:
fact remains that both the respondents had sustained serious injuries, Kishna
mainly on the skull whereas Madho on the skull as well as scapular region. If
the prosecution witnesses shy away from the reality and do not explain the
injuries caused to the respondents herein it casts a doubt on the genesis of
the prosecution case since the evidence shows that these injuries were
sustained in the course of the same incident.
gives the impression that the witnesses are suppressing some part of the
incident. The High Court was, therefore, of the opinion that having regard to
the fact that they have failed to explain the injuries sustained by the two
respondents in the course of the same transaction, the respondents were
entitled to the benefit of the doubt as it was hazardous to place implicit
reliance on the testimony of the injured PW-2." In Ex.P-1, as already
noticed, there is no explanation about the injuries sustained by the three
accused. None of the prosecution witnesses explained the injuries sustained by
the accused. The injuries sustained by Mishrilal were dangerous to life. The
prosecution witnesses consist of interested and inimical witnesses. We are,
therefore, of the view that the prosecution has not presented the true version
on most material part of the story. Their evidential value does not inspire
confidence and it cannot be accepted on its face value and relied upon. It is
in these circumstances that non-explanation of the injuries sustained by the
accused proved fatal to the prosecution case.
also note that the learned Trial Judge has disbelieved the opinion of Dr.G.D.Kashyap
(PW-6) that the injuries sustained by Mishrilal being in the sensitive part of
the body head were dangerous to life, albeit without any valid reasons. To us,
to say the least, the prosecution case too appears to be one sided.
the afore-stated reasons this appeal is dismissed. The accused are on bail.
Their bail bonds stand cancelled and sureties discharged.