Nem Singh & Others vs State Of U.P.
2018 Latest Caselaw 3282 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R.
 
				JUDGMENT  RESERVED ON :  20.09.2018
 
				JUDGMENT DELIVERED ON : 24.10..2018
 

 
Case :- CRIMINAL APPEAL No. - 2549 of 1983
 

 
Appellant :- Nem Singh & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- N.K.Sharma,Hemendra Pratap Singh,P.K.Kashyap,R.P.Singh,R.S. Yadav,Rajendra Pal Singh,Virendra Saran,Virendra Singh
 
Counsel for Respondent :- A.G.A.,S.S. Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(By Om Prakash-VII, J.)

1. Present Criminal Appeal has been preferred by accused-appellants against judgment and order dated 21.10.1983 passed by IIIrd Additional Sessions Judge, Aligarh in Session Trial No. 395 of 1981 (State of U.P. Vs. Nem Singh & others) relating to crime no. 25 of 1980, Police Station Dadon, District Aligarh convicting and sentencing the accused Nem Singh, Sheodan, Kedari, Bhim Singh, Yad Karan, Biri and Mahendra for imprisonment of life for the offence under Sections 302/149 IPC. They have been further sentenced to undergo rigorous imprisonment for a term of one year each under Section 323/149 IPC on three counts for causing voluntarily simple hurt to Rishipal, Satyapal and Doongar Singh and further rigorous imprisonment for a term of one year each under Section 148 IPC. All the sentences were directed to run concurrently.

2. Prosecution story in nut shell, as unfolded in written report, moved by Malkhan-P.W.-1, are as follows:

3. P.W.-1 had been cultivating land of Smt. Surajmukhi on "Batai" and the area of the land was ten bighas. He had also entered into an agreement to sell (registered) with Smt. Surajmukhi to purchase the same land for an amount of Rs. 15,000/- one year prior to the occurrence. Part of the consideration i.e. Rs. 10,000/- had been paid and remaining amount of Rs. 5,000/- was to be paid to Smt. Surajmukhi at the time of execution of sale deed. In the aforesaid 10 bighas of land informant had raised crop of Chana and Laha. Chana crop was destroyed but laha crop was good. As per informant, Smt. Surajmukhi cheated him and she sold her share to accused persons despite agreement to sell with the informant. On 20.2.1980 at about 11 A.M. in village Chandiyana within the Police Station Dadon, district Aligarh while P.W.-1 Malkhan, P.W.-2 Satyapal and P.W.-3 Doongar, Kundan and Rishipal were harvesting Laha crop in that field then all seven accused persons came there and told them that they had obtained a sale deed, therefore, the Laha belonged to them and they would not let P.W.-1 Malkhan and others to take away the Laha. Informant told them that the crop had been sown by him and that he would harvest it. At this, Kedari abused them and asked his companions to kill P.W.-1 Malkhan and others. Kedari and Nem Singh had ballam and the other five accused had lathis. They started beating Satyapal, Doongar, Rishipal, Kundan and Malkhan. They raised alarm at which Rajendra, Lakhan, Charan Singh and other villagers came and saved them. Kundan, uncle of Malkhan, and Doongar suffered lathi and ballam injuries and Satyapal and Rishipal also suffered injuries of lathis. Injured were taken to Police Station by first informant where he handed over written report (Ext. Ka-1) to police concerned.

4. On the basis of written report,Ext. Ka-1 chik FIR (Ext. Ka-2), was registered at crime no. 25 of 1980, under Sections 147, 148, 324, 325 IPC against seven accused on 20.2.1980 at 3.10 P.M. G.D. entry was also made which is Ext. Ka-3. Investigation commenced. First of all Investigating Officer sent injured Kundan to Primary Health Centre, Chharra for medical treatment where P.W.-6 medically examined him and prepared injury report Ext. Ka-9. Since the condition of the injured was serious he was referred to Jawahar Lal Nehru Medical College, Aligarh where he was admitted and bed head ticket (Ext.Ka-8) was prepared. During treatment injured Kundan died at 10.50 P.M. on the same day i.e. 20.2.1980.

5. Injured Doongar at 4.20 P.M., injured Satyapal, at 4.30 P.M. and injured Rishipal at 5.00 P.M. were medically examined by P.W.-6 on the same day. Injury report in respect of injured are Ext. Ka.-10 to Ext. Ka-12. Investigating Officer also recorded statement of Kundan (injured-deceased) under Section 161 Cr.P.C. (Ext. Ka-3) and other witnesses and after visiting place of occurrence prepared site plan Ext. Ka-4. Investigating Officer also took into his possession blood stained and simple earth and preparing fard prepared sample seal. On receiving information, local police reached the hospital concerned where dead body of deceased Kundan was lying and prepared inquest report and other connected papers (Ext. Ka-14 to Ext. Ka-18) and dispatched dead body for post mortem through Constables along with relevant documents. Post mortem was conducted by P.W.-6 Dr. S. C. Agarwal on 22.2.1980. Information given by Ward Boy Zafar Hasan Khan (P.W.-5) is Ext. Ka-7. Two accused were arrested through G.D. entry (Ext. Ka-24) on 20.2.1980. G.D. entry regarding information given by Ward Boy to the local police prepared in this matter is Ext. Ka-20 and Ext. Ka-21. Investigating Officer after interrogating witnesses, fulfilling entire formalities, adding Section 304 IPC submitted charge sheet (Ext. Ka-6). After arrest of accused Kedari, Yad Karan and Bajan Singh they were also medically examined on 20.2.1980 itself by P.W.-6 himself. Injury reports (Ext. Kha-1, Kha-2 and Kha-3) were prepared.

6. Injury report of injured-deceased Kundan (Ext. Ka-9) shows following injuries :

"1. Lacerated wound 3 cm x 1 cm x muscle deep on the right forearm 5 cm above from the wrist joint.

2. Lacerated wound 1 cm x ½ cm on the right fore-arm 3 cm above from injury no. 1.

3. abrasion 1 cm x 1 cm on the right fore-arm 3 cm above injury no. 1.

4. Lacerated wound 1.5 cm x .50 cm x muscle deep on the right hand dorsal aspect 1 cm . Above from the root of right finger. Advised X-ray.

5. Traumatic swelling 4 cm x 2 cm x left shoulder.

6. Punctured wound 5 cm x 3 cm x peritoneum deep x left side abdomen 15 cm below from the nipple. Abdominal viscera comes out of the wound.

7. Lacerated wound 2 cm x 1 cm on the left shoulder.

8. Contusion 3 cm x 2 cm on the left thigh.

9. Contusion 6 cm x 3 cm on the left leg.

10. Incised wound 2 cm x 1 cm on the left gluteal region.

11. Incised wound 1-1/2 cm x 1 cm muscle deep in the left thigh interior aspect 6 cm away from injury no. 10.

Injury no. 10, 11 and 6 were caused by sharp pointed weapon e.g. Ballam and the rest injuries were caused by blunt weapon e.g. lathi. All the injuries were simple except injury no. 6 which was dangerous to life."

7. Ext. Ka-10 injury report of injured Doongar shows following injuries :

"1. Lacerated wound 2.5 cm x 1 cm x muscle deep on the right hand at the root of index finger with traumatic swelling on the whole of right hand and deformity. Advised X-ray. Suspected fracture of index finger.

2.Contusion 5 cm x 2 cm on the left arm 16 cm above the elbow joint.

3. Contusion 3 cm x 2 cm on the left forearm 5 cm below from the elbow joint.

4. Traumatic swelling 5 cm x 2 cm on the wrist joint.

5. Contusion 5 cm x 4 cm on the right scapular region.

6. Contusion 3 cm x 2 cm on the right side back 2 cm below from the angle of scapula.

7. Three abrasions (1) 3 cm x 1 cm (2) 4 cm x ¼ cm (3) 1.5 cm x ½ cm on the chest.

All the injuries could come by blunt object and were simple. Injury no. 1 was kept under observation and the injuries could come at 11 A.M. and were fresh."

8. Injury report of injured Satyapal (Ext. Ka-11) shows following injuries :

"1. Lacerated wound 1.5 cm x ½ cm x scalp deep on the head 12.5 cm above from the left ear.

2. Contusion 8 cm x 3 cm on the left arm 10 cm below the left shoulder joint.

3. Contusion 4.5 cm x 2.5 cm on the left arm 4 cm below from injury no. 2.

4. Abraded contusion 2.5 cm x 1 cm on the left arm 3 cm above from the elbow joint.

5. Contusion 5 cm x 2 cm with lacerated wound 1.5 cm x .5 cm x muscle deep on the left arm 4 cm above from the elbow joint.

6. Abraded contusion 4 cm x 1 cm on the left fore-arm.

7. Double line contusion 9 cm x 3 cm on the left side chest on the fourth rib.

8. Contusion 9 cm x 3 cm on the left shoulder.

9. Contusion 8 cm x 3 cm on the left scapular region.

10. Contusion double line 7 cm x 3 cm on the right thigh anterior aspect 6 cm above the knee joint.

All the injuries could be caused by blunt object viz. lathi and were fresh and could come at 11 a.m."

9. Injury report of injured Rishipal (Ext. Ka-12) shows following injuries :

"1. Lacerated wound 5 cm x ½ cm x scalp deep on the left side head 7 cm above the left ear.

2. Double line contusion 7 cm x 2 cm on the right arm 12 cm above from the elbow joint.

3. Abrasion 1 cm x 1 cm on the right wrist joint.

4. Lacerated wound 1/10" x 1/10" x skin deep on the left elbow.

5. Double line line contusion 12 cm x 4 cm on the right side back at lumber region.

All these injuries could come by blunt weapon viz. Lathi at about 11 a.m. and were fresh."

10. Post mortem was conducted on the body of the deceased Kundan by P.W.-7 Dr. S. C. Agarwal and following injuries were found on his body :

"1. Penetrating wound 4 cm x 1.5 cm x abdominal cavity deep over the left hypochondrium region of abdomen. Margin clear cut. Loops of bowel and mesentery coming out of wound.

2. Incised wound 1 cm x .5 cm muscle deep over left injured area outer corner.

       3.  Incised wound 2 cm x .5 cm x muscle deep     	over left buttock 6.5 cm away from the injury no. 	2.
 
4.	Incised wound 2.3 cm x .5 cm x muscle deep at the nail bed over the terminal phalanx left thumb of the hand. Nail was badly cut.
 
5.	Incised wound 3 cm x 1 cm x muscle deep over right forearm back 18 cm below the right elbow.
 
6.	Incised wound .5 cm x .2 cm x skin deep over right forearm back 2 cm above the injury no. 5.
 
 	On internal examination heart right chamber was full and left was empty. The abdomen contained 300 cc partially clotted blood. Stomach wall was punctured at one place and it contains blood about 2 Ounces and spleen was punctured at one place."
 

 
11.	Injury report of injured (accused) Kedari (Ext. Kha-1) was prepared and following injuries were found :
 
"1.	Punctured wound 1.5 cm x .5 cm x bone deep on the left side chest 6 cm above the left nipple at 1 O'clock position. Injury kept under observation. Advised X-ray.
 
     2. Traumatic swelling 7 cm x 4 cm on the left 	elbow.
 
3.	Incised wound 4 cm x 1.5 cm x muscle deep.
 
4.	Incised wound 1.5 cm x .5 cm x muscle deep on the left leg anterior aspect.
 
5.	Abraded contusion 3 cm x 1 cm on the first toe of the left leg.
 
 	Injury no. 1 could come by pointed weapon e.g. Ballam and injuries no. 3 and 4 could come by some sharp weapon which hits body happening in a sleep manner. The other injuries by blunt object."
 

 
12.	Injury report of injured Yadkaran (accused) (Ext. Kha-2) was prepared and following injuries were found :
 
"1.	Lacerated wound 2 cm x 1 cm x scalp deep on the  right side head 12 cm above from the right ear.
 
        2.	Traumatic swelling on the whole of left hand. 	Suspected fracture. Advised X-ray."
 

 

 
13.	Injury report of injured Bhajan Singh (accused) (Ext. Kha-3) was prepared and following injuries were found :
 
"1.	Punctured wound 1.75 cm x .5 cm x muscle deep on the right hand lateral side.
 
      2.   Punctured wound 2 cm x .5 cm x muscle deep.
 
3.	Lacerated wound 1.5 cm x .5 cm x muscle deep on the right little finger second digit.
 
4.	Traumatic swelling 4 cm x 3 cm on the wrist joint left hand.
 
5.	Punctured wound 1.5 cm x .5 cm x muscle deep on the left first toe.
 
 		
 
 		Injuries 1 to 5 could come by some sharp 	pointed weapon e.g. Ballam and rest by blunt 	object."
 

 
14.	Cognizance was taken by concerned Magistrate. Case being exclusively triable by the Sessions Court was committed to the Court of Sessions.
 
15.	Accused appeared and prosecution opened its case describing entire evidence collected during investigation and proposed to be adduced against accused.
 
16.	Trial Court after hearing accused side also framed charges against accused persons for offence under Section 148, 307 read with Section 149 IPC and Section 302 read with Section 149 IPC to which accused denied and pleading not guilty claimed their trial.
 

17. In order to prove its case prosecution examined P.W.-1 Malkhan, scribe of the FIR; P.W.-2 Satyapal; P.W.-3 Doongar, injured witnesses; P.W.-4 Vijay Pal Singh Rana; P.W.-5 Zafar Hasan Khan, Receptionist, Jawahar Lal Nehru Medical College, Aligarh; P.W.-6 Dr. V. S. Dhariwal, Medical Officer, P.H.C., Chharra, who has examined injured Kundan, Doongar, Satyapal, Rishipal, Kedari (accused), Yadkaran (accused), Bhajan Singh (accused); P.W.-7 Dr. S. C. Agarwal, Medical Officer, who has conducted post mortem on the body of Kundan and P.W.-8 Farid Khan.

18. After closer of prosecution evidence statement of accused under Section 313 Cr.P.C. were recorded in which they denied the entire prosecution case and stated that charge sheet was submitted in this matter against them on the basis of concocted and false evidence. They also pleaded that disputed plot had been purchased by them from Surajmukhi and they were in cultivatory possession over it. Informant side was aggressor and they (informant side) were trying to illegally occupy the disputed land. When accused objected, informant side inflicted injuries with "lathi" and "ballam" and in exercise of right of self defence accused caused injuries to the injured.

19. In defence, accused persons have proved injury report of Kedari, Yadkaran and Bhajan Singh (Ext. Kha-1 to Kha-3). They also filed judgment passed in Original Suit No. 289 of 1980 on 16.3.1982 through Ext. Kha-4 whereby suit of Malkhan for specific performance of contract of sale was dismissed with cost. Accused filed extract of Khatauni of 1383 to 1388 Fasli of the village concerned relating to plot no. 544 showing that their names had already been mutated as Smt. Suraj Mukhi widow of Kitab Singh had transferred her share in disputed plot in their favour. Accused did not lead any oral evidence in their defence.

20. Trial Court after hearing parties and appreciating evidence adduced in the matter was of the view that prosecution was able to bring home guilt of accused for the offence under Section 148, 302 read with Section 149 IPC and also under Section 323 read with Section 149 IPC and convicted and sentenced accused appellants, as above.

21. Feeling aggrieved by judgment and order dated 21.10.1983 present appeal has been filed.

22. At the outset, it is clarified that out of seven appellants only appellant no. 2 Sheodan is surviving. Rest of the appellants namely Nem Singh; Kedari; Bhim Singh; Yad Karan; Biri and Mahendra have died and appeal filed on their behalf has already abated. Thus, Court proceed to decide present appeal in respect of appellant no. 2 Sheo Dan only.

23. We have heard Sri R. P. Singh, learned counsel for appellant and Sri Rishi Chaddha, learned A.G.A. for the State.

24. Submission of learned counsel for the appellant is that prosecution was not able to prove its case beyond reasonable doubt. In fact informant's side were cutting crop sown by accused appellant's side in the disputed land, when accused side objected they inflicted injuries with the weapon "lathi" and "ballam" upon the accused side. Kedari, Yad Karan and Bhajan Singh received serious injuries who were also examined on 20.2.1980 itself. At this juncture learned counsel appearing for the appellant referred to injury reports Ext. Kha-1 to Kha-3 and further argued that when informant side attacked upon the accused they also caused injuries to the informant side in their exercise of right of private defence. Injuries received by the accused have not been explained by informant side. It is next contended that informant has suppressed the genesis and origin of the case. Finding recorded by Trial Court about injuries sustained by accused persons is contrary to the evidence and also to law. Smt. Suraj Mukhi had sold disputed property in favour of accused persons and their name on the basis of sale deed had been recorded in the revenue record prior to the incident. There are major contradiction and improvement in the statement of prosecution evidence. Dying declaration of the deceased Kundan said to have been recorded by the Investigating Officer at Police Station concerned under Section 161 Cr.P.C. is suspicious document and cannot be relied upon. Lastly, it was submitted that prosecution witnesses themselves have admitted that share of Smt. Suraj Mukhi had been partitioned and sale deed had been executed by Smt. Suraj Mukhi in favour of accused prior to the incident. Thus finding recorded by Trial Court regarding possession of disputed plot on the date and time of occurrence is also illegal and perverse. Impugned judgment and order convicting and sentencing the appellant is also perverse, illegal and suffers from infirmity which requires interference by this Court.

25. Learned A.G.A. argued that although Smt. Suraj Mukhi had executed sale deed in favour of accused persons but an agreement to sell (registered) had been executed by Smt. Suraj Mukhi in favour of Malkhan before executing sale deed of the disputed property in favour of accused persons. Possession was also delivered to informant side. Crop in question had been sown by informant. They had every right to harvest crop and on that basis they were harvesting crop. Accused persons armed with deadly weapon attacked upon them. Since injuries on the person of accused are simple in nature, therefore, non explaining the same by informant side is not fatal to the prosecution case. Finding recorded by the Trial Court that injuries found on the person of accused persons might have been caused with the use of "sickle" is in accordance with law and evidence. Date, time and place of occurrence is admitted to both parties. Presence of accused persons at the place of occurrence is also admitted to them. Therefore, there is no illegality or infirmity in the impugned judgment and order.

26. We have considered rival submissions made by learned counsel for parties and have also gone through the entire record.

27. In this matter, as is evident from record, offence is said to have been committed on 20.2.1980 at 11 A.M. FIR was lodged on 20.2.1980 at 3.10 P.M. Distance between place of occurrence and Police Station is five miles. Four persons belonging to informant side including deceased were injured in the present matter. Similarly three persons belonging to accused side also received injuries. They were also examined by same Doctor on the same day. Date, time and place of occurrence is not disputed to either of the parties. Prosecution case is that they were in actual possession over the disputed property on the basis of agreement to sell executed in their favour by Smt. Suraj Mukhi as possession had already been delivered to them and they had sown laha crop and on the day of occurrence they were harvesting the same. Accused applicant armed with deadly weapon forming unlawful assembly came there and attacked upon them. Plea of the informant side is also that they were also cultivating the land on the basis of "Batai". It is also evident from the prosecution case that Suraj Mukhi also belonged to family of informant side. Her husband Kitab Singh had died.

28. Nothing is mentioned in agreement to sell to show that possession of disputed plot was delivered to the informant side at the time of execution of agreement to sell.

29. Kundan Singh who also belonged to informant side received injuries in the incident and during treatment at Jawahar Lal Nehru Medical College, Aligarh he died. When Kundan Singh was examined firstly at Primary Health Centre, Chharra eleven injuries were found on his body. Injury no. 6 is punctured wound, injury no. 10 and 11 are incised wounds. In the post mortem report only six injuries are shown on the body of Kundan. Out of them injury no. 1 is penetrating wound and injury no. 2 to 6 are incised wounds.

30. Ext. Ka-10 discloses seven injuries upon the body of Doongar. According to Doctor all the injuries could come by blunt object and were simple in nature.

31. Injuries found on the body of Satyapal were nine in number and in the opinion of Doctor all the injuries could be caused by blunt object and were fresh. Similarly injuries found on the body of injured Rishipal were five in number and these injuries could also come by blunt weapon and were fresh.

32. Defence version is that one suit for specific performance of contract had been filed in the year 1980 by Malkhan Singh against Suraj Mukhi and accused persons which was dismissed on merit. On the basis of sale deed executed in favour of accused persons by Suraj Mukhi name of accused persons were mutated over the disputed property and they were in actual possession over it. Informant side were cutting crop having no right and title.

33. Injuries found on the body of accused Yadkaran were lacerated wound and traumatic swelling. Injuries found on the body of accused Bhajan Singh were five in number. Out of them injury no. 1, 2 and 5 were punctured wound and in the opinion of Doctor injury no. 1, 2 and 5 could come by sharp edged weapon and rest by blunt object. Injuries found on the body of accused Kedari, are five in number and in the opinion of Doctor injury no. 1 could come by pointed weapon i.e. Ballam and injury no. 3 and 4 could come by some sharp edged weapon and rest of the injuries were caused by blunt object.

34. Thus, on the basis of above factual back ground, we have to analyse which version is correct and who was in actual cultivatory possession over the disputed property. Whether plea taken by accused that they have acted in their self defence is correct or the version taken by the informant is correct. It is also to be seen whether findings recorded by Trial Court on the aforesaid issues are based on correct appreciation of evidence and law.

35. Since date, time and place of occurrence is admitted to both the parties, thus, we do not find necessity to discuss about existence of FIR at the time mentioned in the chik, preparation of injury reports as well as post mortem report in regard to the injured and deceased belonging to informant side and also injury reports of accused side. Injured-deceased Kundan at the time of lodging of FIR was present at Police Station concerned. As per Investigating Officer he was interrogated at Police Station concerned in presence of witnesses and his statement was reduced in writing in the case diary. There is no dispute between the parties that at the time of occurrence laha crop had been ripe in the disputed property. Both the parties are claiming that they were in actual possession over the disputed property. Trial Court after analysing evidence was of the view that "since no partition took place between the co-sharer of the disputed property by its metes and bounds, informant had sown laha crop in the disputed property on "Batai", possession had also been delivered to them by Smt. Suraj Mukhi, therefore, execution of sale deed subsequently by Smt. Suraj Mukhi in favour of accused persons will not make any difference regarding possession of the informant side over the disputed property. All the fact witnesses examined in the matter on behalf of prosecution have consistently and clearly supported this fact. No proper recourse was adopted to obtain possession of the disputed property available in law by the accused persons. Therefore, prosecution case that informant was in cultivatory possession is correct." If the finding recorded by Trial Court regarding possession over the disputed property is minutely analysed with the facts available on record following facts are emerged in the matter.

36. In the FIR informant Malkhan Singh has mentioned that he was cultivating the disputed property on the basis of "Batai". Agreement to sell had also been executed by Smt. Suraj Mukhi regarding disputed property in favour of informant side and at the time of execution of the agreement to sell Rs. 10,000/-, out of the total sale consideration of Rs. 15,000/-, had been paid to her and actual possession was also given by her to the informant. P.W.-1, informant, when examined did not say anything in examination in chief about delivery of possession of disputed property to the informant at the time of execution of sale deed but only this fact was stated that he was cultivating the disputed land on the basis of "Batai" and was in cultivatory possession. In cross examination he admitted that he had not moved any application before any authority regarding cultivation of the disputed property on the basis of "Batai". He has also admitted that sale deed had been executed in favour of accused appellant by Smt. Suraj Mukhi of her share prior to the present incident and he was aware about this fact at the time of incident. Mutation application had also been moved by accused to mutate their names in the revenue records, objection was also filed by informant which was rejected and name of accused were mutated. P.W.-2 Satya Pal in cross examination has admitted that share of Smt. Suraj Mukhi was ear marked on the spot only but informant side have sown laha crop in the disputed land. Judgment passed in Suit No. 289 of 1980 (Ext. Kha-4) reveals that suit for specific performance had been filed by Malkhan Singh, informant, on the basis of agreement to sell on 10.8.1979 executed in his favour arraying Smt. Suraj Mukhi and accused persons as defendants. In that suit Smt. Suraj Mukhi has admitted execution of agreement to sale but has pleaded that informant was not ready and willing to obtain sale deed. Extract of Khatauni (Ext. Kha -5) also reveals that name of accused persons were recorded over the disputed plot in the mutation proceedings. Thus in the present matter both the parties claimed their possession over the disputed property. Since nothing is mentioned in the agreement to sell said to have been executed in favour of the informant regarding actual delivery of possession over the disputed property to the informant nor legally it can be delivered, there is no documentary evidence regarding cultivation of the disputed plot by informant on the basis of "Batai", thus findings of Trial Court that informant side were in actual and cultivatory possession over disputed property is against the facts and evidence. Prosecution witnesses have changed their version on this point stage to stage and prosecution case is false on the point of delivery of actual possession over the disputed property at the time of execution of agreement to sell. Factum of "Batai" is based on only oral evidence which has been impeached in cross examination by accused side. P.W.-1 in cross examination has admitted that sale deed had been executed by Smt. Suraj Mukhi in favour of accused prior to the incident and name of accused persons had also been mutated and objection raised by informant was rejected. Thus merely on this basis that an agreement to sell had already been executed it cannot be held that informant side was in actual possession over the disputed property and they have sown laha crop. Findings recorded by Trial Court is not based on correct appreciation of facts and evidence. Since possession of informant over the disputed property at the time of occurrence was not proved by the prosecution beyond reasonable doubt and there was dispute between the parties regarding possession over the disputed property, accused side also claimed possession over the disputed property on the basis of registered sale deed, thus, it emerges that both parties have peached the battle for possession. Three persons belonging to accused side have also received injuries in the same incident. This fact has been proved by the defence side. Some of the injuries found on the body of accused are grievous in nature which would be clear by the nature of injuries shown in Ext. Kha-1 to Kha-3 itself and have been caused by spear and sharp edged weapon which have not been explained by the prosecution.

37. In Lakshmi Singh Vs. State of Bihar (1976) 4 SCC 394 Court has held that where the prosecution fails to explain 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. It has also been held that omission on the part of the prosecution to explain 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 version which competes in probability with that of the prosecution. It further held that there may be cases where non explanation of injuries by prosecution may not affect the prosecution case. This principle at this stage would apply to cases where the injuries sustained by the accused are minor and superficial.

38. In Waman Vs. State of Maharashtra (2011) 7 SCC 295, Court has also held that ordinarily the prosecution is not obliged to explain each and every injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature. However, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident.

39. In Raghubir Singh Vs. State of Rajasthan (2011) 12 SCC 235, in para 16 Court has held as follows :

"16. In the light of the facts that have been enemuerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case1 that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act."

40. Coming to the injuries sustained by accused side. We have analyzed the entire evidence in this regard. It is evident that three persons belonging to accused side had also received injuries in this incident. Findings of Trial Court is that it might be possible when accused attacked upon informant side they would have caused injuries in their self defence with the sickles. If the finding recorded by Trial Court about injuries sustained by accused side is compared with the evidence available on record it appears improbable and unacceptable that injuries could be caused with the use of sickles by informant side to the accused when accused persons armed with spear and lathi were causing injuries upon informant side. It may be noticed that maximum length of sickle in no case would be more than 1-1/2 ft. If attack was being made by accused side by "ballam" and "lathi" which generally were of length of not less than 5 ft to 6 ft, injuries could not be caused by sickle to accused. Findings recorded by Trial Court about injuries caused to accused appellant is based on conjectures and surmises and on the basis of hypothesis which is not befitting with the fact and circumstances of the present matter. Nothing is on record to show that informant side had used sickle in their right of private defence. Injuries on the person of accused could only be caused with the sickles when accused were not attacking on informant side and were not using "lathis" and "ballam" and also they were in close range to the informant side. Keeping in view the peculiar facts and circumstances of the case, finding returned by Trial Court that acucsed were aggressor is also not based on correct appreciation of facts and evidence. Punctured and incise wounds are found on the person of accused side, which have not been explained by the prosecution side and it was obligatory to the prosecution to explain the injuries sustained by the accused side because in the manner and style stated by prosecution witnesses in which present incident is said to have been committed, injuries found on the body of accused could not come with the sickles. Thus, it is clear that prosecution has suppressed the origin and genesis of incident.

41. Thus, in this view of the matter defence has legitimately raised suspicion that the genesis of the incident was shrouded in mystery and the prosecution has suppressed a part of the proceeding. It is true that each and every injury on an accused is not required to be explained and more particularly if all the injuries caused to the accused are simple in nature. Examining the incident in the light of the settled proposition of law on this issue, we find that injuries in the present case were required to be explained as there was serious dispute as to the possession of the land regarding which incident had happened, more particularly if the informant Malkhan himself was uncertain as to the nature of possession, as would be clear from his statement recorded before Trial Court on oath.

42. If in the light of the settled legal proposition propounded in the aforesaid decisions, findings of Trial Court as well as fact and evidence available on record are minutely analysed, it is evident that three persons belonging to the accused appellant side also received injuries during course of the same incident. Prosecution side did not explain the same either in the FIR or before the Court in their statement recorded on oath. Defence has proved injuries sustained by accused persons. Some of injuries found on the person of accused Kedari (since died) were punctured and incised wound. Similarly accused Bhajan Singh (since died) has also received three punctured wound which were caused by informant side during the course of incident. If such was the position and injuries were serious in nature, prosecution must give explanation of those injuries sustained by the accused persons. Findings of Trial Court that informant side caused injuries in their self defence with the use of sickle is based on conjectures and surmises. As we have discussed here-in-above, if the manner and style of the incident stated by the prosecution witnesses are compared with the findings of Trial Court, it also emerges that injuries found on the body of accused could not come with the use of sickle. Thus on close scrutiny of entire evidence in the light of the settled legal proposition and comparing the same with the findings of Trial Court, we are of the view that Trial Court has erred in concluding that accused persons were aggressor and injuries found on the body of accused might have been caused with the use of sickle. Findings of Trial Court, for the reasons discussed herein above is palpably wrong and is strange to the facts and evidence. We are also of the view that both the parties have come to pitch battle and started free fight for the possession over the disputed property. Prosecution did not explain the grievous injuries sustained by the accused appellant Kedari and Bhajan Singh (since died) during the course of same incident. Thus one and only one conclusion shall be drawn that prosecution suppressed the genesis and origin of the incident. On analysis of the entire evidence it also emerged that it was a free fight case and both sides had come forward and prepared to do battle to ensure their possession over the disputed property, there is no documentary evidence to establish the possession of the prosecution side at the time of occurrence over the disputed property, prosecution witnesses themselves have admitted that informant P.W.-1 had moved objection in mutation proceeding in the sale deed executed by Smt. Suraj Mukhi in favour of the accused persons which was rejected and name of accused persons were mutated, nothing is mentioned in the agreement to sell about the delivery of possession, it is also evident that on the basis of mutual partition, share of Smt. Suraj Mukhi in the disputed property is said to have been ear-marked on the spot, thus we are of the view that findings recorded by Trial Court about the guilt of the accused appellant Sheo Dan for committing present offence under Section 302 read with Section 149 IPC and 148 IPC is perverse and illegal. In the present matter accused could only be punished against the role played by him individually. It is clear from the prosecution evidence itself that accused appellant was armed with lathi. Post mortem report of Kundan Singh reveals that injuries found on the body of deceased at the time of post mortem were either incised wound or penetrating wound. Although in the injury report prepared at initial stage lacerated wounds are also shown on his person yet keeping in view the injuries shown in the post mortem report and statement made by Dr. S. C. Agarwal accused appellant Sheodan cannot be punished in the present matter for the offence under Section 302 read with Section 149 IPC as well as for the offence under Section 148 IPC. Conviction and sentence of the accused appellant for the offence under Section 302 read with Section 149 IPC as well as for the offence under Section 148 IPC is liable to be set aside. It is pertinent to mention that conviction and sentence of the accused appellant for the offence under Section 323 read with Section 149 IPC is also liable to be modified under Section 323 IPC simplicitor. Appeal is also liable to be allowed partly.

43. Thus on the basis of discussion made here-in-above, appeal is allowed in part. Conviction and sentence of the accused-appellant Sheodan vide impugned judgment and order for the offence under Section 302 read with Section 149 IPC and 148 IPC is set aside but conviction and sentence of the accused-appellant for the offence under Section 323 read with Section 149 IPC is modified to the offence under Section 323 IPC simplicitor. Accused-appellant has already served out some period in jail in this matter and no minimum sentence is provided for the offence under Section 323 IPC. Thus he is sentenced for the offence under Section 323 IPC for the period already undergone in this matter.

44. Accused appellant if in jail be released forthwith, if not required in any other case. If he is on bail, need not to surrender. Bail bonds and surety bonds, furnished by him are hereby cancelled and sureties are discharged from their liability.

45. Keeping in view provisions of Section 437-A Cr.P.C., appellant Sheo Dan is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

46. Copy of this judgment along with lower court record be sent forthwith to the Sessions Judge concerned for compliance. A copy of this order be also sent to appellant through concerned Jail Superintendent. Compliance reports be also sent by all concerned to this Court.

Order dated : 24-10-2018

Sachdeva