Shridhar & Anr vs State Of Madhya Pradesh

17.5.2002 passed by the Madhya Pradesh High Court dismissing the appeal

of the appellants against their conviction and sentences of imprisonment for

life under Section 302/149 as well as six months rigorous imprisonment

under Section 323/149 of the Indian Penal Code. In all seven persons have

been convicted by the Sessions Judge out of which Shankariya and Malkhe

died during the pendency of the appeal in the High Court. The remaining

five accused persons who have been convicted are : Munna, Shridhar,

Motilal, Sarman and Gopal out of these persons Shridhar and Motilal are

appellants before us in this appeal.

The prosecution case is that on 12.3.1983 at about 7.00 p.m.

deceased Hakimsingh and PW-1 Rajendrasingh on way to their field passed

through the house of Shankariya who is said to have accosted Hakimsingh

asking him as to why he had been visiting the wife of his brother

Ramcharan. Hakimsingh protested, upon which Shankariya and Malkhe with

lathis, accused Sarman assaulted with farsa. Gopal and Motilal are said to

have given lathi blows on the head of Hakimsingh. PW 1 Rajendrasingh

tried to intervene at which he was also assaulted by Shankariya and Gopal.

The alarm of Rajendrasingh attracted PW 4 – Mahaveersingh, PW3

Sagarsingh, PW5 Raghurajsingh and PW 6 Dildarsingh to the spot.

PW 1 – Rajendrasingh lodged the report of the incident upon

which a usual investigation was conducted by the police of P.S.Veerpur.

The weapons of the assault namely, lathi and farsa etc. are also said to have

been recovered during the course of investigation. On completion of the

investigation the police filed the charge-sheet. Rajendrasingh and

Hakimsingh were sent for medical examination. PW-8 Dr.K.K.Singh found

two injuries on the person on Rajendrasingh; one of which was a lacerated

wound on the forehead and the other a bruise on the left hand. On the

person of Hakimsingh he noted nine injuries most of which were lacerated

wounds and quite a number of them on the head. Hakimsingh however, later

died on 21.3.1983 in J.A.Group of Hospitals, Gwalior. The post-mortem

examination was conducted on his body and as many as ten injuries were

noted on his person including stitched wounds. The injuries were on the

face, head and other parts of the body.

The prosecution, to prove its case, has examined PW 1-

Rajendrasingh, PW 3- Sagarsingh, PW 4 – Mahaveersingh and PW 5 –

Raghurajsingh as eye-witnesses. PW 6 – Dildarsingh is also one of those

who is said to have rushed to the spot at the time of the incident. PW 8 –

Dr.K.K.Singh examined the injuries of Rajendrasingh and Hakimsingh and

PW 7 – Dr.V.K.Divan conducted the post-mortem examination on the dead-

body of Hakimsingh. The other former witnesses and the investigating

officers were also examined.

The defence of the accused persons was that they have been

falsely implicated in the case. According to them, the complainant party

wanted to grab the property and land of the appellants.

It also appeared that a cross report was lodged by late

Shankariya, accused at the same police station. According to them, late

Shankariya, accused Munna and Sarman had received injuries.

The learned counsel for the appellants has mainly emphasized

that the present appellants namely, Shridhar and Motilal were not present at

the spot. He further submitted that the prosecution case as initially taken up

has not been pursued as to how the incident occurred and the story of

Hakimsingh having illicit relations with the wife of the brother of

Shankariya has been given up at the stage of the evidence. We feel that it

would not be necessary to go into that aspect of the matter in view of the fact

that a fight had taken place at the time and date as indicated by the

prosecution is not in dispute. A cross report has also been lodged and it was

the case of the accused persons that Munna and Sarman had received

injuries.

It is true at the evidence stage the prosecution story was slightly

changed as to how the dispute had started. As it was stated at the end that a

quarrel took place as cattle of late Shankariya had entered into their fields.

But as observed above in the facts and circumstances of this case the

question as to how the fight started no more remains important since

admittedly the incident occurred resulting in injuries to Hakimsingh and

Rajendrasingh as a result of which later on Hakimsingh died. Cause of fight

therefore, is not a point to be much concentrated upon. The other relevant

question which may arise for consideration is as to which of the party was

aggressor and further if there was any right of private defence available to

the accused persons. The Trial Court as well as the High Court has

considered this aspect of the matter and has come to the conclusion that it

would not be possible to hold that Hakimsingh and Rajendrasingh would be

aggressors or they picked up a fight empty handed. As a matter of fact no

such arguments have been advanced on behalf of the appellants before us to

dislodge the findings arrived at by the two courts. The main stress on behalf

of the appellants has been that they were not present at the spot. Arguments

have mainly been advanced only in that direction.

It is submitted that so far the appellant Shridhar is concerned he

has not been assigned any role of assault to Hakimsingh or the injured

Rajendrasingh. One of the eye-witnesses has also not named him as an

accused person at the spot at the time of the incident. It is submitted that it

makes his presence doubtful. The submission in regard to Motilal is that he

is said to have given a lathi blow on the neck of the deceased Hakimsingh.

But there is no blunt weapon injury on the neck of Hakimsingh. Therefore,

it is submitted that his presence is also not made out at the relevant time of

the incident.

We have scrutinized the submissions made by the learned

counsel for the appellants and we notice that a role has been assigned to each

of the accused persons but Shridhar. It is said that Shankariya and Malkhe

started assaulting Hakimsingh. The FIR also indicates the role played by

different accused persons but so far accused Shridhar is concerned no role

has been assigned to him for assault either to Hakimsingh or to

Rajendrasingh. The other accused persons, namely, Sarman who has been

stated to have given farsa blow whereas Motilal and Gopal are said to have

given lathi blows to Hakimsingh. It is also to be noticed that one of the eye-

witnesses has also not named Shridhar as one of the accused in his statement

in the Court. This circumstance makes the presence of Shridhar doubtful

more so as a member of an unlawful assembly. Otherwise there was no

good reason as to why no role would have been assigned to him in the FIR

or in the statements of the prosecution witnesses and one of them having not

named him altogether. Learned counsel appearing for the State has,

however, drawn our attention to the fact that the lathi which is said to have

been recovered from Shridhar was blood stained. The submission is this

circumstance connects very much with the incident. But a perusal of the

report of the chemical examiner does not indicate that the weapons, namely,

lathi etc. were stained with human blood. Therefore, no aid can be taken

from this circumstance too. Therefore, we don't consider it prudent to infer

conclusively that Shridhar was one of the members of the unlawful

assembly. A doubt has also arisen, as indicated earlier, due to the fact that

one of the eye-witnesses does not name at all in his statement before the

Court.

So far the appellant-Motilal is concerned his case stands on a

different footing. He has been assigned a role of assault on Hakimsingh by

his lathi. This has been maintained through out in the FIR as well as in the

statements of all the witnesses. The learned counsel for the appellants has

vehemently urged that there is no injury by any blunt weapon on the neck of

the deceased Hakimsingh and the role which has been assigned to Motilal is

that he had given a blow on the neck. The injury report of Hakimsingh

shows that he has received a number of injuries on the front and back side of

the head which have also been caused by a blunt weapon. It is difficult in a

criminal case to go by exactly tallying the injuries blow by blow. Quite often

injuries may tally but it is equally possible that at times a blow aimed at a

particular part of the body may hit the other neighbouring part of the body

and not exactly the part where the blow is aimed at. It is a case where

Hakimsingh was being assaulted by lathis and farsa by a number of persons

which blow of which accused may land on which part of the body cannot be

stated with exactitude. Not much would turn upon it. Such a discrepancy as

indicated and mentioned above cannot said to be glaring or so diverse to the

manner of assault that normally it may not be possible to explain it. The

evidence on the point of assault by Motilal is concerned, it is also described

in the FIR. The FIR was lodged promptly within two hours of the incident.

Therefore, we are unable to accept the submission made on behalf of the

appellant-Motilal that his presence is also not established because of the fact

that no blunt weapon injury was found on the neck of the dead-body of

Hakimsingh.

In view of the discussion held above, we extend the benefit of

doubt to Shridhar. Thus, appeal on his behalf is allowed and the conviction

and sentence as awarded to him by the Trial Court and confirmed by the

High Court are set aside. He shall be set at liberty forthwith unless wanted

in connection with any other case. So far Motilal is concerned, his appeal is

dismissed. He shall serve out the sentence.