Madhya Pradesh High Court
Limji vs The State Of Madhya Pradesh on 10 November, 2021
Author: Vivek Rusia
1 CRA No.1361/2010
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.1361 OF 2010
Limji S/o Mangliya Bhil
Age-52 years, Occupation: Agriculturist,
R/o - Village - Ambapura, P.S. Tirla,
Tehsil and District - Dhar (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Tirla,
District - Dhar (MP)
...Respondent
--------------------------------------------------------------------------------------------------
Shri Vivek Singh, learned counsel for the appellant.
Shri Amit Singh Sisodiya, learned Government Advocate for
the respondent /State of Madhya Pradesh.
------------------------------------------------------------------------------------
JUDGMENT
(Delivered on 10th day of November 2021)
Per Shailendra Shukla, J.
This appeal under Section 374 of Code of Criminal
Procedure, 1973 has been preferred against the judgment
dated 17.09.2010 passed by First Additional Sessions Judge,
Dhar, in Session Trial No.96/09, whereby the appellant has
been convicted and sentenced as under:-
Conviction Sentence Fine Imprisonment in
lieu of payment of
fine
u/S. 302/34 IPC Life Imprisonment Rs.1000/- 06 Months RI
u/S. 307 (4 05 Years RI Rs.500/- (each 06 Months RI
Counts) IPC count)
25(1-b)(a) Arms 02 Years RI Rs.200/- 06 Months RI
Act
27 r/w 5 Arms 03 Years RI Rs.500/- ..........
Act
2. Succinctly speaking, the prosecution story is that on
30.10.2008, complainant Gaurabai had come along with her
husband deceased Budhiya to village Ambapura on festival
to her parental home. At about 4:00 pm, when her nephew
Anil, son of Dhumsingh was grazing his cattle, the appellant
Limji got incensed as the cattle had entered the agricultural
field of Limji. Thereafter Jaggu S/o Limji assaulted Anil with
a stick. Seeing this, deceased Budhiya intervened by saying
that the goats have not grazed the crop and questioned
them as to why they are assaulting Anil. The appellant -
Limji then went to his house and came with a gun and fired
from the same hitting Budhiya on his chest who fell down.
Gaurabai along with her aunt Narmadibai, brother
Khumsingh, Shaitan, Uncle Popadiya rushed to intervene
but appellant again fired from his gun resulting in pellet
injuries to Gaurabai, Narmadibai, Khuman, Khopadiya and
Shaitan. The other co-accused namely Igram and
Radheshyam assaulted with saria (rod) and falia (sharp
edged weapon) came rushing over and threatened the
complainant and others with life.
3. On hearing shouts of Gaurabai, Dhumsingh, Sheru
and Daliya came rushing to the spot and seeing them, the
accused fled from the spot. Meanwhile, the injured Budhiya
breathed his last. Thereafter report was lodged on
30.10.2008 by Gaurabai at Police-Station - Tirla, District -
Dhar at 6:30 pm and case was registered against the
accused persons and investigation ensued. Charge-sheet
was filed against appellant Limji and three other co-accused
persons. Inquest report was prepared, body of deceased
Budhiya was sent for postmortem examination and the
injured persons were sent for medical examination. Blood,
soaked soil and normal soil was collected from the spot,
thereafter the accused were arrested and on the
memorandum of Limji, Ex.P/30, gun and empty cartridges
was recovered from an enclosure meant for keeping milch
cattle and seizure memo vide Ex.P/31 was prepared.
Seizure of stick from co-accused Jaggu and Iron rod from
accused Igram was also made. The gun, spent cartridges
and pellets recovered from the body of deceased Budhiya
and clothes were sent to FSL vide Ex.P/34 which is the
draft. The report was obtained which is Ex.P/38. Sanction to
prosecute under Arms Act, 1959 was obtained vide Ex.P/5
and the recovered gun was got examined by Arms Moharir.
After completing the investigation, charge-sheet was filed
against the accused persons under Section 302, 307/34 of
IPC and Section 25 and 27 of Arms Act. Case was
committed to Sessions Judge, who transferred the case for
trial to first ASJ, Dhar.
4. The trial Court has framed charges against the appellant
Limji under the provisions of Section 302, 307 (5 counts) of IPC
and also under Section 25(1-b)(a) and Section 27 read with
Section 5 of Arms Act whereas the charges under Section
302/34 and 307/34 (5 counts) were framed against all the other
co-accused persons who abjured their guilt and claimed to
have been falsely implicated in the aforesaid offence.
5. The defense of accused was that Jaggu, Mannu, Annu,
Ramli and Birajbai were plucking groundnuts from the field
when they were attacked by complainant party i.e. by
Gaurabai, Narmadibai, Bhuribai, Dhumsingh and Khopadiya
and others. The persons so attacking were armed with bows
and arrows, stones and 'gofan'. The attackers specifically
charged upon Jaggu, who fled and had to hide himself in a
corn field. He was chased down and then the appellant Limji, in
self defense fired from his gun which he had brought from the
house of his uncle. This caused injuries to persons mentioned
earlier and had he not fired, the attackers would have killed
Jaggu. It has been mentioned that due to previous enmity such
attack was caused.
6. Prosecution went on to examine 22 witnesses, whereas
no defense witness was examined.
7. Vide impugned judgment, the Presiding Officer has
acquitted Jaggu, Igram and Radheshyam but has only
convicted and sentenced Limji (appellant).
8. In the appeal which has been preferred by the appellant -
Limji, it has been mentioned that material contradictions and
omissions were not considered by the trial Court before
convicting the appellant.
9. In oral submission, learned counsel for the appellant has
stated that it has not been proven by the prosecution that the
gun seized from the possession of the appellant was used in
firing at deceased Budhiya and that there was a blackening at
the place of gun shot injury, meaning thereby, that the gun was
fired from a close range but the witnesses have stated that the
gun shot was fired from about 150 feet distance. In the
alternative, it has been submitted that if at all the gun shot was
fired by the appellant, the same was fired in private defense
and had it not been fired, the complainant party which was in
attacking posture would have caused certain death to the
family members of the appellant.
10. The question for consideration before this Court is
whether in view of the aforesaid submission, this appeal
deserves to be allowed and the appellant ought to be acquitted
in this matter ?
11. Mr. A.R. Khan (PW/13) has stated that on 30.10.2008, he
was posted as Assistant Sub-Inspector in Police-Station Tirla
when Gaurabai had lodged an FIR at 6:30 pm. The report is
Ex.P/6 bearing signatures of the witness. Safina form Ex.P/10
was issued and inquest report of the body was prepared as per
Ex.P/11 which bears the signature of witness. The chest of the
body bore pellet injuries as per the witness. The body was sent
for postmortem as per the request letter Ex.P/14.
12. The postmortem of deceased Budhia was conducted by
Doctor Jitendra Choudhary (PW/17) who has stated that on
31.10.2008 on conducting the postmortem of Budhiya, he
found eight injuries on his person which are as follows:
(i) on the right side of the chest two injuries were found on
third inter-coastal space.
(ii) lacerated wound on the right lung size 3x2x3cm.
(iii) two injuries on third and fourth inter-coastal space of
left side of the chest.
(iv) two lacerated injury on the lung size 3x2x2 cm.
(v) an injury on the upper portion of the left thigh 2x2mm,
area around which was in a bore, signs of blackening and
singeing.
(vi) an injury behind the left knee.
(vii) an injury size 2x2 mm on the right portion behind the
left leg.
(viii) an injury size 2x2 mm on the left leg in the lower region
and these injuries were in round shape with inverted
margin and surrounding skin was found to be blackened
and singed.
As per the witness, two pellets were taken out from the
body of deceased Budhiya and were sealed and given to police
constable but in the internal examination injuries were found on
both the lungs with clotted blood inside. As per the information,
the death was the result of injuries caused to the lungs and the
duration of death was within 24 hours. The report is Ex.P/16. In
cross-examination, the witness states that injuries caused on
lungs were also gun shot injuries. The witness states that
blackening around the injuries showed that the fire was made
from close range i.e. at a distance of about 4 - 6 feet.
13. However, it is seen that pellet injuries on Budhiya were
caused from chest to legs showing scattering of pellets, which
does not depict firing from very close proximity.
14. The appellant - Limji in his accused statements had
admitted to have fired from his gun. He states that he did it in
order to defend the life of Jaggu who was being chased by the
complainants who had earlier discharged an arrow on Jaggu.
Despite the aforesaid admission, it would be appropriate to
consider the evidence of eye-witnesses because the
prosecution story had to stand on its own feet.
15. Eye-Witness Dhuma alias Dhumsingh (PW/1) has stated
that Anil is his son and on the date of incident, his son Anil had
gone to graze the cattle and the cattles' were passing through
the boundary between two agricultural fields when Jaggu
rushed over and started assaulting Anil. On seeing this,
deceased Budhiya sowing grams in nearby field came running
to intervene. The appellant Limji then came armed with gun
along with other co-accused persons also wielding various
arms and fired from his gun resulting in death of the deceased
Budhiya on the spot. In para-8 of cross-examination, the
witness has denied suggestion that in fact Jaggu had been
attacked by the complainant and others and Jaggu had to save
himself by hiding in a corn field and appellant Limji then had
fired from his gun. The witness only admits that appellant Limji
had fired from his gun but denies that gun was fired in self
defense. Thus, this witness has also been given same
suggestion as admitted in his accused statements.
16. Gaurabai (PW/6) has also similarly stated that it was the
appellant Limji who had fired from his gun and she has been
given suggestion in para 12 that appellant has fired from his
gun in defence. The same suggestion has been given to other
eye-witnesses Khumsingh (PW/7) and Anil (PW/8). This
suggestion has been denied by the witnesses.
17. Thus, all the eye-witnesses have been given suggestion
that appellant Limji had indeed fired from his gun but he has
done so to save life of Jaggu in private defense of his life and
that the appellant Limji had fired only once from his gun and
not twice or thrice as per the prosecution story.
17(A) Witness F.S. Chouhan (PW/22) has stated that Limji
was arrested on 3.11.2008 and was interrogated who in his
memorandum has stated that the 12 bore gun was hidden
beneath the pile of hay in room meant for tying up the cattle
and the empty cartridges were also hidden in the same room.
The memorandum is Ex.P/30. As per the witness on the basis
of memorandum, a 12 bore single barrel gun and two empty
cartridges were seized vide seizure memorandum Ex.P/31.
The witness states that these items were sent to the FSL vide
draft Ex.P/35 and the report is Ex.P/36 and Ex.P/37. The gun
Article A/1 was also produced before the Court. In cross -
examination, no questions have been asked regarding
recovery of gun and cartridges from the accused. A perusal of
the FSL report which is Ex.P/37 shows that there was presence
of nitrite in the barrel indicating of same having been fired. The
two cartridges were also examined and the gun was also fired
from test cartridge and on comparison of the test cartridge and
empty cartridges, it was found that one of the empty cartridge ,
ie., EC-1 has not been fired from the gun Ex.A/1. However,
regarding other cartridge, ie., EC-2, no definite opinion could
be given.
18. In view of this evidence compounded with the evidence of
eye-witnesses along with accused statements, it is proved
beyond reasonable doubt that deceased Budhiya had died due
to gun shot injury fired by appellant - Limji. The blackening at
entry wound shows that gun was fired from close range as
stated by Dr. Jitendra Choudhary (PW/17).
19. The question now for consideration is whether appellant
Limji was compelled to fire in private defense ?
20. The prosecution story is that it was Jaggu (co-accused
since acquitted) who had initiated the attack upon Anil. The
evidence of Anil becomes important on this aspect. Anil (PW/8)
is eleven years of age and has been initially asked questions to
determine his level of understanding. The witness thereafter
states that on the date of incident he had gone to graze his
cattle and the cattle had traveled up-to the boundary and
thereafter Ikram, Radhu and Jaggu assaulted him. While he
was being assaulted and being dragged to the house, the
deceased (Budhiya) who is his uncle ( QwQk) intervened and it
was at that point of time that the appellant Limji brought his gun
from his house and fired at Budhiya. The witness states that he
cried aloud and Khumsingh, Popadiya, Dhumsingh, Gaurabai
etc came to the spot and then second gun shot was fired by
appellant Limji which injured Humsingh, Popadiya, Narmadibai
and Gaurabai. The witness denies that the incident had
occurred in an agricultural field in which the groundnut crop
was growing. He states that the incident had occurred at the
boundary of the aforesaid agricultural field. He admits that the
said field pertains to Jaggu. He denies that the deceased
(Budhiya) had fallen on the agricultural field and states that
deceased had dropped down besides the boundary.
21. F.S. Chouhan (PW/22) who is SHO, has prepared a map
Ex.P/1. The spot marked as (+) is placed where the deceased
has been shown to have fallen down. This place situated near
the boundary ('Med') of the agriculture field. Witnesses Khum
Singh (PW/7) and Narmadibai (PW/15) both have stated that
the cattle of Anil had entered in Jowar ('Sorghum') growing in a
field belonging to Jaggu and his father Limji and it was then
that Jaggu assaulted Anil. Thus, admittedly the cattle of Anil
entered into agriculture field of appellant which led to the
incident. All the witnesses have stated that when the assault
was made by Jaggu, Budhiya working nearby came to
intervene and seeing this Limji brought gun from his house and
shot Budhiya. The defence of the appellant is that he had fired
in private defence of the person of Jaggu who was being
chased down and who was trying to save himself. However,
this defence does not appear to be correct. If Jaggu was being
chased down by the attackers then firing would not have
occurred at the spot shown in the map. There is nothing to
indicate that Jaggu had been attacked with bows and arrows
and other weapons by the complainants. No cross FIR had
been filed on behalf of the appellant. The only question which
remains to be considered is whether the shot was fired from
the gun only once or more than once. All the eye-witnesses,
ie., Anil (PW/8), Dhuma @ Dhum Singh (PW/1), Khumsingh
(PW/7), Gaura Bai (PW/6), Narmadibai (PW/15) have stated
that gun was fired more than once. The first shot was fired at
Budhiya and when these witnesses came to intervene the
second shot was fired resulting in injuries to the witnesses.
22. It has already been found proved that the shot was fired
at Budhiya. Some of the witnesses stated that the gun was
fired from a range of 150 Fts. Regarding the other injured
witnesses, three doctors have examined them. Dr. S.K. Modi
(PW/12) has stated that he had examined Narmadi Bai
(PW/15) and there was punctured wound on her right thigh
which appeared to have been caused by gun shot. Dr. N.D.
Saraf (PW/3) has examined Narmadi Bai (PW/15) who has not
given a definite opinion as to whether the injury of Narmadi Bai
(PW.15) was caused due to gun shot or not. Her X-ray report is
Ex.P/3. In cross - examination, his attention has been drawn to
a round shaped figure seen in the X-ray to which he states that
the same could be a pallet or an artificial shadow. A perusal of
the evidence of these witnesses show that in all probabilities
Narmadi Bai (PW.15) had suffered gun shot injury.
23. Dr. S.K. Modi (PW.12) has stated that he has examined
Gaura Bai also and had found 2 pallet injuries on her right thigh
each measuring 1 x 4 inch x 4 inch around the gun shot entry.
24. Dr. R.S. Prabhakar (PW.9) has examined Khum Singh
(PW.7) and has stated that Khum Singh (PW.7) has suffered
gun shot injuries.The injuries were as followed :-
(i) Gun shot injury on side of sternum of the chest.
(ii) Pallet injury on the middle part of right thigh.
(iii) Pallet injury above the left knee.
(iv) An injury 4 cm above the left thigh.
(v) A pallet injury on the base of left thumb.
There was blackening around the injuries. This witness
had also examined injured Topadiya, the relative of the
deceased and complainants. Topadiya had received a round
shaped injury on his neck which was 0.5 inch in circumference.
As per the witness, the injured had stated that he has received
gun shot injuries. The reports are Ex.P/8 and P/9. Injured
Popadiya was referred to the Surgery Department, M.Y.
Hospital at Indore. Dr. D. Paramhans (PW.21) has stated that
Popadiya was admitted in M.Y. Hospital in which the witness
was posted as Associate Professor in Surgery Department.
Popadiya had received deep wound in his throat and after
treatment was discharged. His reports are Ex.P/22 and P/23.
Dr. R.S. Prabhakar (PW.9) has stated that injury to Khum
Singh (PW.7) had been caused due to frontal firing. However,
the witness cannot for sure as to the distance from which the
gun was fired. He has been asked as to when blackening take
place around the wound and the witness has not been able to
provide the specific answer to this query. Thus, the blackening
of the skin had been found in respect of gun shot injuries
caused to Budhiya as well as Khum Singh (PW.7). Dr. Jitendra
Choudhary (PW.17) who had conducted postmortem of
Budhiya has stated that blackening was due to fire from close
range. This shows that blackening which had occurred on the
person of Khum Singh also is indicative of firing being made
from close range. This implies that both the persons Budhiya
and Khum Singh had received the injuries from the same
range. However, all the witnesses have stated that Budhiya
was first fired upon when he came to intervene and then other
witnesses, on seeing / hearing the firing of gun, rushed to the
spot and were again fired upon by Limji. Only Narmadi Bai
(PW.15) has stated that gun was fired by Limji 3 times whereas
the others have stated that gun was fired twice. In view of the
consistent statements of the eye-witnesses, it is proved that it
was Budhiya who arrived to intervene and was fired upon and
then others rushed to the spot and appellant Limji fired again.
Thus in all probabilities, the gun was fired twice. Learned
counsel for the appellant has invited the Court's attention to
treatise called "Law and Principles of Forensic Ballistics" with a
specific reference to gun shot wounds and specially skin
around the gun shot entry. At page 295 a figure has been
drawn which shows that greater is the distance, more
numerous pallet injuries would be caused.
25. In this case, it has been found that deceased Budhiya
had received injuries on various parts of his body which shows
that the fire was made not from extremely close range but from
such range which resulted in scattering of pallets and resulting
in multiple pallet injuries. Same thing happened with other
injured persons. However, it is very clear that it was Budhiya
who had first arrived at the spot and was fired at and then other
witnesses came and gun was fired again by Limji. There was
no right of private defense in this case because there was no
apprehension that Jaggu would be fatally attacked by
attackers. Hence, the right of private defense was not available
to Limji. Thus, no benefit of Exception 2 to Section 300 of IPC
would be available to appellant Limji. He had fired on Budhiya
who was unarmed and there was no provocation on the part of
Budhiya who was barely trying to prevent Jaggu from
assaulting Anil. Under these circumferences neither there was
right of private defense available to Limji nor there was any
grievance of sudden provocation. Defense of sudden fight is
also not available because Limji had acted in cruel manner by
firing at deceased and others who did not pose any grave
danger to the kin of Limji. Budhiya had received such serious
injuries due to gun shot that he has died on the spot, which
clearly shows that the injuries were sufficient in the ordinary
course of nature to cause death. Hence, Budhiya had been
rightly convicted under Section 302 of IPC and also under
Section 307 of IPC (4 counts) for causing life threatening
injuries to Khum Singh, Narmadi Bai, Gaura Bai and Topadiya.
He had no license for possessing the firearm and sanctioned to
prosecute him under Arms Act has validly been obtained as per
the evidence of Purushottam (PW.5). Thus, his conviction
under Section 25(1-b) (a) of Arms Act and Section 27 read with
Section 5 of Arms Act is also affirmed. The sentences imposed
upon appellant Limji also do not called for any intervention as
they are appropriate and adequate in the facts and
circumferences of the case.
26. The appeal consequently stands dismissed.
27. A copy of this judgment with the original record be sent to
the concerned trial Court for compliance.
28. The property shall be disposed of as directed by the trial
Court.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2021.11.12
11:03:14 +05'30'
