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CASE NO.: Appeal (crl.)  282 of 2003

PETITIONER: Shridhar & Anr.                                          

RESPONDENT: Vs. State of Madhya Pradesh                                   

DATE OF JUDGMENT: 18/08/2003

BENCH: Y.K.Sabharwal & Brijesh Kumar.

JUDGMENT: JUDGMENT

BRIJESH KUMAR, J.

               This appeal is preferred against the judgment and order dated  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 â\200\223 Mahaveersingh, PW3  Sagarsingh, PW5 Raghurajsingh and PW 6 Dildarsingh to the spot.                   PW 1 â\200\223 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 â\200\223 Mahaveersingh and PW 5 â\200\223  Raghurajsingh as eye-witnesses.  PW 6 â\200\223 Dildarsingh is also one of those  who is said to have rushed to the spot at the time of the incident.  PW 8 â\200\223  Dr.K.K.Singh examined the injuries of Rajendrasingh and Hakimsingh and  PW 7 â\200\223 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

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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

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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.