Sultan Singh vs State Of M.P.
2022 Latest Caselaw 6618 MP

                               1
                Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                   DIVISION BENCH

                   G.S. AHLUWALIA

                                 &

     RAJEEV KUMAR SHRIVASTAVA J.J.

                  Cr.A. No. 971 of 2011

               Sultan Singh and Others

                                 Vs.

              State of M.P.
_______________________________________
Shri Ashutosh Pandey Counsel for the Appellants No.1 and 2
None for Appellant No.3, therefore, in the light of judgment passed
by Supreme Court in the case of Suryabaksh Singh Vs. State of
U.P., reported in (2014) 14 SCC 222, this Court has gone through the
record.
Shri C.P. Singh Counsel for the State

Date of Hearing                 : 28-4-2022
Date of Judgment                : 04-May-2022
Approved for Reporting          :

                             Judgment

                         04th - May -2022

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the Judgment and Sentence dated 1-11-2011 passed by

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

1st Addl. Sessions Judge, Bhind in Sessions Trial No.255/2010, by

which the Appellants have been convicted for the following

offences :

Name of Appellant Conviction Sentence Sultan Singh and 302/34 of IPC Life Imprisonment and a fine of Jitendra Singh Rs. 5000 in default RI of 1 year 323/34 of IPC R.I. for one year and fine of Rs.

1,000 in default R.I. of 3 months Brijendra Singh 302 of IPC Life Imprisonment and a fine of Rs. 5000 in default RI of 1 year 323/34 of IPC R.I. for one year and fine of Rs.

1,000 in default R.I. of 3 months

All sentences to run concurrently.

2. According to the prosecution case, on 24-2-2010 at about 7:30,

the complainant Narottam, made a written complaint in an injured

condition that he is the resident of Barhad. Yesterday evening, a hot

talk had taken place with Sultan Singh on the question of discharge of

waste water. Accordingly, Sultan Singh called his sons namely

Jitendra and Brijendra who are residents of Gwalior. The appellants

started abusing them and started challenging that how he is

discharging waste water. When the complainant relied that it is his

place, then Sultan Singh gave an axe blow on the head of Prakash

Singh and Brijendra gave a hockey blow on the forehead of Ganga

Singh. Jitendra also assaulted Veeru and Ramu by hockey.

3. On this written complaint, police registered the crime for

offence under Sections 294, 323, 506B, 34 of IPC. The injured were

sent for medical examination. Ganga Singh died during treatment on

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

3-3-2010 in JA Hospital, Gwalior. Post-mortem was got done.

Statements of witnesses were recorded. The spot map was prepared.

Appellants were arrested. An axe was seized from Sultan Singh. The

police after completing the investigation, filed charge sheet under

Section 302, 294, 323, 506 (2), 34 of IPC.

4. It is not out of place to mention here that on the report of

Vinod, counter FIR in Crime No.31/2010 was registered under

Sections 294, 506(2), 323, 34 of IPC against the complainant party.

During the course of arguments, it was accepted by the Counsel for

the Appellants that the complainant party has been acquitted in the

said case.

5. The Trial Court by 11-10-2010, framed charges under Sections

302 or in the alternative 302/34, 323, 325, 294, 506 (2) of IPC.

6. The Appellants abjured their guilt and pleaded not guilty.

7. The prosecution examined Narottam Singh Bhadoria (P.W.1),

Dr. S.C. Gupta (P.W.2), Lakhan Singh (P.W.3), Krishna Murari Dubey

(P.W.4), Dr. B.S. Kushwah (P.W.5), Dr. Shailendra Bhadoria (P.W.6),

Jai Singh Kushwah (P.W.7), Ravindra Tiwari (P.W.8), Ramu Singh

Bhadoriya (P.W.9), Veeru (P.W.10), Prakash Singh (P.W.11), Dr. Vijay

Kumar (P.W. 12), and R.P. Sharma (P.W. 13).

8. Appellants examined Vinod Singh Chouhan (D.W.1) in their

defence.

9. The Trial Court by the impugned judgment has convicted and

sentenced the Appellants for the above mentioned offences.

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

10. Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the Appellants that there was

no common intention. The incident took place all of a sudden. There

was a cross case, therefore, it is clear that a free fight had taken place

and accordingly, every one would be responsible for his own act.

Even otherwise, the act of Brijendra would be punishable under

Section 304 of IPC.

11. Per contra, the Counsel for the State has supported the

prosecution case as well as the findings recorded by the Trial Court.

12. Heard the learned Counsel for the parties.

13. Before adverting to the facts of the case, this Court would like

to consider as to whether the death of Ganga Singh was homicidal in

nature or not?

14. Dr. B.S. Kushwaha (P.W. 5) had conducted the Medical

Examination of Ganga Singh on 24-2-2010 and found the following

injuries :

      (i)     Contusion 2 inch X 2 inch on skull.
      (ii)    Contusion 1 inch x 1 inch on left upper eye brow
      (iii)   Contusion 1 inch x 1 inch on forehead
      (iv)    Swelling ½ inch x ½ inch on nose

15.    The M.L.C. is Ex. P.10.

16. In X-ray report, Fracture of frontal bone of right side was seen

in skull. The X-ray report is Ex. P.5.

17. Dr. B.S. Kushwaha (P.W.5) was cross-examined and in cross-

examination, he stated that four injuries were found on head of Ganga

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

Singh. Ganga Singh was referred to Bhind on the very same day. He

was referred after giving first aid. Ganga Singh was conscious at the

time of examination. The injured was brought at 8:25 A.M. He had

given injection of pain killer. The injuries sustained by him were

grievous, therefore, he was referred to District Hospital. He denied

that the injuries were simple in nature. In order to ascertain the

nature of injuries, x-ray was advised. Although the x-ray facility is

available in Mehgaon Hospital, but some time there is a power cut,

therefore, he was referred to District Hospital.

18. Ganga Singh was admitted in JA Hospital, Gwalior on 2-3-

2010 and he died on 3-3-2010.

19. Dr. Shailendra Bhadoria (P.W.6) conducted the post-mortem

and found following injuries :

Body of deceased lying supine on autopsy table in autopsy room wearing brown lower full sleeve, rapped in chadar, cuffed tracheotomy tube placed in neck, medicated bandage attached over right side temporal parietal and frontal lobe. Both eyes blackened, mouth closed. Surgical stitches present on right side of head 24 twenty Four in number. Rigormortis present and fixed. Abrasion over left posterior side of hip 6 x 5 cm in size.

On Internal Examination skull vault ecchymosed with clotted blood present all of the head fracture on right side parietal temporal lobes in multiple pieces, subdural and Subarachnoid hemorrhage present.

Cause of death is cardio-respiratory failure as a result of head injury.

The post-mortem report is Ex. P.12.

20. Dr. Shailendra Bhadoria (P.W. 6) was cross-examined. In

cross-examination he stated that copy of Panchnama was also

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

received along with requisition for post-mortem.

21. Thus, it is clear that the death of the deceased Ganga Singh was

homicidal in nature.

22. Now the next question for consideration is that whether the

Appellants are the author of the injuries caused to Ganga Singh or

not?

23. Narottam Singh Bhadoria (P.W.1) has stated that on 23-2-2010

at about 4:00 P.M., Prakash had hot talk with Sultan Singh on the

question of discharge of waste water. Sultan Singh called his sons by

making phone call. On 24-2-2010 at about 7:30 A.M., Sultan Singh,

Brijendra Singh and Jitendra Singh came to his house and started

abusing him. This witness came on the spot. Prakash is his uncle and

his house is quite nearer to the house of Prakash. Sultan challenged

Prakash and said that they would not allow the waste water to flow.

Prakash replied that the land belongs to him and the waste water

would flow from the same area. Accordingly, Sultan instigated other

Appellants. Sultan assaulted Prakash on his head by an axe whereas

Brijenda and Jitendra assaulted his uncle Prakash by hockey.

Brijendra also gave a punch blow on nose. When this witness

shouted, Jitendra assaulted on his left leg by a danda. Veeru and

Ramu intervened in the matter and they too were assaulted by the

Appellants. Thereafter, he came to Police Station Mehgaon along

with Gangadeen, Prakash, Uncle. FIR, Ex. P.2 was lodged. His

report is Ex. P.1. Spot map, Ex. P.3 was prepared. During the

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

treatment, the health condition of Gangadeen deteriorated and

accordingly he was referred to Gwalior. On 3-3-2010, Gangadeen

expired. Ganga Singh and Prakash are his uncles. Brijendra had

assaulted on the head of Ganga Singh by a hockey. No body else had

assaulted Ganga Singh. This witness was cross-examined.

24. In cross-examination, he stated that the houses of the

Appellants and this witness are situated at nearby places. He admitted

that the dispute arose on the question of waste water which is

discharged from the house. He denied that the waste water comes on

the road. He denied that the Appellants were restraining him from

discharging water, but clarified on his own that rainy water was

discharged from his house. He denied that the complainant party had

assaulted the Appellants on the question of discharge of water. He

admitted that he was facing criminal trial in the Court of J.M.F.C.,

Mehgaon, on the report of accused party. When abuses were being

hurled, he was standing at the door of his house. They had scolded

that the water should not be discharged. Brijendra had given a single

hockey blow on the head of Ganga Singh. He had used his both

hands. Thereafter, he had given a punch blow on the nose of Ganga

Singh. He admitted that they did not catch hold of Brijendra after

hockey blow was given by him. He stated that Jitendra had given a

lathi blow on his leg. Ramu and Veeru are brothers. Lakhan is also

his uncle. Blood started oozing out from the nose of Ganga Singh

and there was no bleeding from his head. He stated that the

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

complainant party was empty handed. He had shouted after his uncle

was assaulted.

25. Dr. S.C. Gupta (P.W.2) had conducted the X-ray of Ganga

Singh and x-ray report is Ex. P.5.

26. Lakhan Singh (P.W.3) is also an eye-witness. He has stated

that it was 7:30 in the morning. He was dusting in front of his house.

After hearing the noise, when he went to the house of Prakash, he

found that dispute was going on. Ramu, Prakash and Veeru were also

present. Sultan gave an axe blow on the head of Prakash. All the

three shouted to assault Ganga Singh accordingly, Brijendra assaulted

on the head of Ganga Singh by Hockey. He also punched on the nose

of Ganga Singh. Thereafter, he intervened in the matter and the

Appellants went away. He again on his own stated that Jitendra had

assaulted Narottam by hockey on his knee. Jitendra had also assaulted

on the head of Ramu by Hockey. Jitendra had assaulted Veeru by

Lathi. Thereafter, the complainant party went to lodge the report and

Ganga Singh was referred from Bhind to Gwalior, where he died

during treatment. This witness was cross-examined.

27. In cross-examination, he stated that his house is situated on the

western direction of the house of Prakash and is situated after one

house. The doors of his house is towards Eastern Direction. The

houses of Narottam and Ramu are situated at nearby places. Well is

situated in front of his house. The injured were beaten in his

presence. Sultan Singh assaulted Prakash by an axe. Ganga Singh

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

was assaulted by Hockey, but he could not see as to whether the

Hockey was a new one or old. Ganga Singh had sat down after

sustaining injury. There was no previous dispute between the

complainant and accused party. However, clarified that the dispute

arose on the question of discharge of water. He denied that the water

was accumulating on the road. Road was made up of stones. He had

not gone to the police station.

28. Krishna Murari Dubey (P.W.4) is the scribe of the FIR. He has

stated that on the written complaint made by Narottam, Ex. P.1, he

had registered crime no.30/10 for offence under Sections 294, 506B,

323/34 of IPC, Ex. P.2. Ganga Singh died during his treatment at

Gwalior and merg intimation, safina form, Lash Panchnama etc. were

received from police station Kampoo. On their basis, merg intimation

no.7/10, Ex. P.6 was registered by him.

29. Jai Singh Kushwaha (P.W.7) had prepared the spot map, Ex.

P.3. In cross-examination, he admitted that on 24-2-2010, offence

was registered against Narottam and others. The main cause for

offence was that the water discharged from the house of complainant

was getting accumulated in front of the house of the Appellants.

30. Ravindra Tiwari (P.W.8) had arrested Jitendra Singh and Sultan

Singh vide arrest memo Ex. P.13 and P.14. An axe was seized from

Sultan Singh vide seizure memo Ex. P.15. This witness was cross-

examined.

31. In cross-examination, he stated that crime no.31/2010 was

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

registered on the report of Vinod for offence under Sections 294, 323,

506B, 34 of IPC against Narottam, Ramu, Raju and Sonu. While

Ganga Singh was admitted in Birla Hospital, Gwalior, he had made

an application for recording of dying declaration of Ganga Singh, but

the dying declaration could not be recorded as Ganga Singh was

unconscious. He further admitted that in the case diary, it is

mentioned that on 27-2-2010, the injured Ganga Singh was admitted

in Birla Hospital.

32. Ramu Singh Bhadoriya (P.W.9) is an injured eye-witness. He

has stated that on 23-2-2010, he was standing at the door of his

house. At about 4-5 P.M., a hot talk had taken place between his

uncle Prakash and Appellant Sultan. Sultan was abusing his uncle on

the issue of discharge of water. Brijendra and Jitendra who are sons

of Sultan Singh and reside in Gwalior were called from Gwalior by

making a phone call. On 24-2-2010 at about 6-6:30A.M., he was in

his stackyard. He heard the noise and therefore, he went to the house

of his uncle Prakash. Sultan Singh was abusing Prakash on the issue

of discharge of water. Sultan Singh gave an axe blow on the head of

Prakash. Brijendra was having hockey and Jitendra was having lathi

and were beating Ganga Singh. Brijendra gave a Hockey blow on the

head of Ganga Singh and Jitendra gave a lathi blow on the back of

head of Ganga Singh. Brijendra also gave a punch blow on the nose

of Ganga Singh. Ganga Singh fell down. When he tried to intervene

in the matter, then he too was assaulted by Jitendra on the back of his

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

head. Veeru and Narottam also tried to intervene, but they too were

assaulted. Brijendra gave a hockey blow on the left leg of Narottam

whereas Jitendra gave a lathi blow on the head of Veeru. This

witness was cross-examined.

33. In cross-examination, he admitted that the complainant party

belongs to one family. Prakash is his uncle. The house of Narottam

Singh is situated in front of the house of this witness. His stackyard

is about 2 fields away. His stackyard is after the field of Buddhe and

of this witness. First of all, Sultan Singh gave axe blow to Prakash.

Thereafter, Brijendra had given hockey blow on the head of Ganga

Singh. The Appellant Jitendra and Brijendra resides in Gwalior.

34. Veeru (P.W.10) is another injured eye witness. He has also

narrated the same theory. He further stated that Safina form Ex. P.16

was issued by the police and Lash Panchnama, Ex. P. 17 was

prepared. The dispute arose on the question of discharge of water.

35. This witness was also cross-examined in detail, but the cross-

examiner could not demolish his evidence, and nothing could be

elicited which may make his evidence unreliable or doubtful.

36. Prakash (P.W.11) is also an injured eye-witness. He has stated

that it was 4:00 P.M. He was clearing water in front of the door of his

house. Sultan Singh started abusing him and also extended a threat

to his life. In the night, he called his sons Jitendra and Brijendra

from Gwalior. On the next day i.e., 24 th, at about 7:30 A.M., all the

three Appellants came in front of his house and started abusing him.

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

The Appellant Sultan Singh gave an axe blow on the head of this

witness, as a result, he sat down on the ground. Jitendra gave a

hockey blow on the forehead of Ganga Singh. Brijendra gave a lathi

blow on the back of the head of Ganga Singh. Jitendra gave a punch

blow on the nose of Ganga Singh. Ram Singh, Narottam, Lakhan and

Veeru came on the spot. Jitendra gave a lathi blow on the head of

Veeru. Jitendra gave a danda blow on the head of Ramu. All the

Appellants went away. Thereafter, they went to Police Station

Mehgaon. Narottam had lodged the report. They went to Bhind

Hospital for treatment and Ganga Singh was referred to Gwalior and

on 3rd, Ganga Singh expired. This witness was cross-examined.

37. In cross-examination, he stated that Narottam Singh, Ramu are

his nephew. Lakhan Singh is his brother, whereas Veeru is his son.

He denied that waste water of his house flows towards the house of

Rustam Singh. He also denied that they have opened a hole in the

house of Rustam Singh for free flow of water. There is a road on the

Eastern side of his house. He denied that his waste water flows

towards Southern direction but claimed that it flows towards Eastern

Direction. The house of Sultan Singh is not just opposite to his house,

but is at some distance. He admitted that Rustam Singh had objected

to flow of water, and claimed that he had not discharged water

towards the house of Rustam Singh. He admitted that hot talk took

place on the question of discharge of water. On 24 th, he had

discharged water from his house and therefore, fight took place. He

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

had discharged water on his land. He denied that they too had caused

injuries to the Appellants. Sultan Singh had given an axe blow on his

head but was not in a position to say as to whether blunt side was

used or sharp side. He denied that he had fallen unconscious after

sustaining axe blow. After axe blow was given to him, Narottam had

intervened in the matter. He admitted that no repeat blow was given

by Sultan Singh. Jitendra and Brijendra had also assaulted him on his

hands, as a result, blood started oozing out. Brijendra had assaulted

Ganga Singh causing injury above his eye-brow. He claimed that in

his examination-in-chief, he had not stated that Jitendra had given

hockey blow and if it is written so, then it is wrong. He further

claimed that he had not stated in his examination-in-chief that

Brijendra had assaulted Ganga Singh by lathi, and also claimed that if

it is written so, then it is wrong. He denied that Jitendra and

Brijendra had given only one blow each, but claimed that 4-6 blows

were given.

38. From the evidence of this witness, it is clear that although in

the examination-in-chief, this witness had claimed that Jitendra

assaulted on the forehead of Ganga Singh and Brijendra gave a lathi

blow on the back of head of Ganga Singh, but it was got clarified by

the Counsel for the Appellants themselves, that in fact Brijendra had

assaulted on forehead of Ganga Singh. It is not out of place to

mention that according to prosecution case, Brijendra had given a

hockey blow on the forehead of Ganga Singh.

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

39. Dr. Vijay Kumar (P.W. 12) has stated that on 3-3-2010, he was

posted in Neuro Surgery Department of J.A. Hospital, and had given

the information regarding death of Ganga Singh, Ex. P.18.

40. R.P. Sharma (P.W. 13) has stated that he had received merg

intimation report along with dead body of Ganga Singh. The merg

intimation is Ex. P.19. Safina form Ex. P.16 was issued. Lash

Panchnama Ex. P.17 was issued. Requisition for post-mortem, Ex.

P.12 was given. On 3-3-2010, he had received the cloths of the

deceased in a sealed packet, which was seized vide seizure memo,

Ex. P.20. The dead body was handed over to his brother Siyaram,

and its acknowledgment is Ex. P.21.

41. Vinod Singh Chouhan (D.W.1) is an auto rickshaw driver. He

has stated that about 1 year back, Prakash and Veeru had opened a

hole in his house as a result water accumulated in his house. When it

was objected by him, then they had abused him. On 24-2-2010 at

about 7;30 A.M., they started discharging water. His father Sultan

Singh and brother Jitendra Singh Chouhan objected to it, but they did

not stop. Thereafter, Ramu gave an axe blow on the head of his

father whereas Narottam gave lathi on head of his brother and Raju

gave a farsa blow on his head. Axe blow was given on the left hand

of this witness. Report was lodged. They were sent for medical

examination and the Trial is pending. Different order sheets of the

Trial Court, are Ex. D4, FIR is Ex. D.5, Spot map is Ex. D.6, MLC of

injured are Ex. D.7 to D.9, x-ray reports are Ex. D.10 and D.11. He,

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

his brother and father did not cause any injury to the complainant

party. This witness was cross-examined. In cross-examination, he

admitted that the present case as well as his FIR are cross-cases. He

admitted that there is a party fraction between his family and the

complainant.

Whether Narottam Singh Bhadoria (P.W.1), Lakhan Singh

(P.W.3), Ramu Singh Bhadoria (P.W.9), Veeru (P.W.10) and

Prakash Singh (P.W.11) are reliable witnesses.

42. It is submitted by the Counsel for the Appellants that Lakhan

Singh (P.W.3) is the brother of Prakash Singh (P.W.11), whereas

Narottam (P.W.1) and Ramu (P.W.9) are his nephews and Veeru

(P.W.10) is his son. Thus, it is clear that all the witnesses are related

witnesses. No independent witness has been examined.

43. Narottam Singh (P.W.1), Ramu Singh Bhadoria (P.W.9), Veeru

(P.W.10) and Prakash Singh (P.W.11) are injured eye-witnesses. Even

Vinod Singh Chouhan (D.W.1) has accepted the presence of Prakash

(P.W.11), Narottam (P.W.1) and Ramu (P.W.9) on the spot. Further, it

is well established principle of law that an injured eyewitness enjoys

a special status.

44. The Supreme Court in the case of State of U.P. Vs. Naresh

reported in (2011) 4 SCC 324 has held as under :

27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)

45. The Supreme Court in the case of Baleshwar Mahto v. State

of Bihar, reported in (2017) 3 SCC 152 has held as under :

12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed v. State of M.P. : (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : (SCC pp. 726-27,

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

46. The Supreme Court in the case of Balwan Vs. State of

Haryana reported in (2014) 13 SCCC 560 has held as under :

16. It is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

crime and because the witness would not want to let the actual assailant go unpunished.

47. The Supreme Court in the case of Jodhan Vs. State of M.P.

reported in (2015) 11 SCC 52 has held as under :

28......A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P., it has been observed that: (SCC p. 271, para 28) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."

It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Vishnu v. State of Rajasthan, Balraje v. State of Maharashtra and Jarnail Singh v. State of Punjab.

29. From the aforesaid summarisation of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt guarantee of his presence at the place of occurrence.....

48. Narottam @ Tej Pratap (P.W.1) was medically examined by Dr.

B.S. Kushwaha (P.W.5) who found following injuries :

(i) One Contusion 1inch x 1inch over left side of knee joint on lateral side

(ii) One Contusion ¼ inch x ¼ inch on chest. The MLC is Ex. P.7.

49. Ramu Singh Bhadoria (P.W.9) had sustained one contusion ½

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

inch x ½ inch on back of skull. The MLC is Ex. P.8 which has been

proved by Dr. B.S. Kushwaha (P.W.5).

50. Prakash Singh (P.W.11) was also medically examined by Dr.

B.S. Kushwaha (P.W.5) and following injury was found :

(i) Lacerated wound 3inch x ½ inch x ½ inch on front part of head. The MLC is Ex. P.9.

51. Veeru (P.W.10) was also medically examined by Dr. B.S.

Kushwaha (P.W.5) and found following injury :

(i) One Lacerated wound ½ inch x ½ inch x ¼ inch on left side of parietal region of skull. The M.LC. is Ex. P.11.

52. So far as the submission made by the Counsel for the

Appellants that all the witnesses are closely related is concerned, it is

suffice to mention here that the evidence of the witnesses cannot be

discarded merely on the ground that they are related. There is a

difference between Related Witness and Interested Witnesses.

53. The Supreme Court in the case of Rupinder Singh Sandhu v.

State of Punjab, reported in (2018) 16 SCC 475 has held as under :

50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.

54. The Supreme Court in the case of Shamim Vs. State (NCT of

Delhi) reported in (2018) 10 SCC 509 has held as under :

9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

55. The Supreme Court in the case of Rizan v. State of

Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :

6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.

9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para

25)

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

10. Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.

56. Why a "related witness" would spare the real culprit in order to

falsely implicate some innocent person? There is a difference

between "related witness" and "interested witness". "Interested

witness" is a witness who is vitally interested in conviction of a

person due to previous enmity. The "Interested witness" has been

defined by the Supreme Court in the case of Mohd. Rojali Ali v.

State of Assam, reported in (2019) 19 SCC 567 as under :

13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

witness merely by virtue of being a relative of the victim.

This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three- Judge Bench decision in State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."

14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.

Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."

15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

57. There is no discrepancy in the role assigned to the Appellants.

Although Prakash Singh (P.W.11) had stated that it was Jitendra who

had assaulted on the forehead of Ganga Singh (fatal injury), but in the

cross-examination by the Appellants themselves, the allegations were

got clarified and Prakash Singh (P.W.11) stated that in fact it was

Brijendra Singh, who had given hockey blow on the forehead of

Ganga Singh.

58. In absence of any discrepancy in the FIR as well as the

evidence of the witnesses, this Court is of the considered opinion,

that the defence could not point out any discrepancy which may make

the evidence of Narottam Singh (P.W.1), Lakhan Singh (P.W.3), Ramu

Singh Bhadoria (P.W.9), Veeru (P.W.10) and Prakash Singh (P.W.11)

unreliable. Thus, it is held that the above mentioned witnesses are

reliable and trustworthy witnesses.

Whether the ocular evidence is contrary to medical evidence

59. It is submitted by the Counsel for the Appellants that according

to the prosecution case, Sultan Singh had given an axe blow on the

head of Prakash Singh (P.W.11), whereas Lacerated wound has been

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

found, therefore, it is clear that there is material variance in the

medical and ocular evidence.

60. Considered the submissions made by the Counsel for the

Appellants.

61. The Supreme Court in the case of Putchalapalli Naresh

Reddy v. State of A.P., reported in (2014) 12 SCC 457 has held as

under :

14........The doctor has opined that this injury could have been caused by a blunt object. According to the learned counsel the witness did not say that the accused reversed the axe while hitting the deceased on the head as the injury shows, and therefore he is lying or was not present.

15. In the first place, we find that other witnesses have given the same deposition. It is possible that the statement of the witness [PW 3] is slightly inaccurate or the witness did not see properly which side of the axe was used. It is equally possible that the sharp edge of the axe is actually very blunt or it was reversed just before hitting the head. It is not possible to say what is the reason. That is however no reason for discarding the statement of the witness that A-1 Puchalapalli Parandhami Reddy hit the deceased with a battleaxe, as is obvious from the injury. Moreover, it is not possible to doubt the presence of this witness, who has himself been injured. Dr M.C. Narasimhulu, PW 13, Medical Officer, has stated in his evidence that on 25-11- 1996 at about 3.30 p.m., he examined this witness PW 3 P. Murali Reddy and found the following injuries: "(1) Diffused swelling with tenderness over middle ? rd and back of left forearm.

(2) A lacerated injury skin-deep of about ½? over the back of head. Bleeding present with tenderness and swelling around."

(Underline Supplied)

62. Furthermore, unless and until the medical evidence completely

makes the ocular evidence improbable, the ocular evidence will have

primacy over the medical evidence. The Supreme Court in the case of

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

Bhajan Singh Vs. State of Haryana reported in (2011) 7 SCC 421

has held as under :

37. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law: (SCC p. 545, para 13) "13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

38. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (Vide Abdul Sayeed.)

63. The Supreme Court in the case of Ramanand Yadav v.

Prabhu Nath Jha, reported in (2003) 12 SCC 606 has held as

under :

17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the court has to draw adverse inference.

64. The Supreme Court in the case of Shamsher Singh Vs. State

of Haryana reported in (2002) 7 SCC 536 has held as under :

8. The authorities cited by the learned counsel for the appellant, on the point that when there is conflict between the medical evidence and the ocular evidence, the prosecution case should not be accepted, are of no help to him in this case. On deeper scrutiny of the evidence as a whole, it is not possible to throw out the prosecution case as either false or unreliable on the mere statement of the doctor that injuries found on the deceased could not be caused by a sharp-edged weapon. This statement cannot be

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

taken in isolation and without reference to the other statement of the doctor that the injuries could be caused by Ext. P-9 axe to disbelieve the evidence of the eyewitnesses. From the evidence available in this case the possibility of the blunt head of the axe or the stick portion coming in contact with the head of the deceased cannot be ruled out. These decisions cited by the learned counsel for the appellant are related to those cases where the medical evidence and the version of the eyewitnesses could not be reconciled or that the account given by the eyewitnesses as to the incident was highly or patently improbable and totally inconsistent with the medical evidence having regard to the facts of those cases and as such their evidence could not be believed.

65. Thus, merely because a lacerated wound was found on the

skull of Prakash Singh (P.W.11), it cannot be said that there was

material variance in the ocular and medical evidence, thereby

completely ruling out the ocular evidence. Either the blade of the axe

must have become blunt or the blunt part of the axe must have come

in contact at the time of assault, therefore, the ocular evidence has to

be given preference over the medical evidence. Thus, it is held that

the evidence of witnesses cannot be discarded merely on the ground

that although it was alleged that the Appellant Sultan Singh had used

an axe, but lacerated wound was found.

Whether the Appellants were sharing common intention

66. The Supreme Court in the case of Dani Singh v. State of

Bihar, reported in (2004) 13 SCC 203 has held as under :

19. The section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well-

recognised canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire even if it were possible, as to the part taken by each

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

in the crime. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of the law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. The leading feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. (See Ramaswami Ayyangar v. State of T.N.) The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that: (i) there was common intention in the sense of a prearranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.

20. "Common intention" implies prearranged plan and acting in concert pursuant to the prearranged plan. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a prearranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra.) In Amrik Singh v. State of Punjab it has been held that common

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

intention presupposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Maqsoodan v. State of U.P. it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Sarma v. State of Assam it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of design is proved against him. (See Malkhan Singh v. State of U.P.) In the Oxford English Dictionary, the word "furtherance" is defined as "action of helping forward". Adopting this definition, Russell says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russell on Crime, 12th Edn., Vol. I, pp. 487 and 488.) In Shankarlal Kacharabhai v. State of Gujarat this Court has interpreted the word "furtherance" as "advancement or promotion".

67. From the spot map, Ex. P.3, it is clear that the house of

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

Appellant Sultan Singh is situated just opposite to the house of

Prakash Singh (P.W.11). There is a road made up of stones in between

the houses of Appellant Sultan Singh and Prakash Singh (P.W.11). It

is true that as per the spot map, Ex. P.3, the incident took place just in

front of the house of Prakash Singh (P.W.11), but Prakash Singh

(P.W.11) has also admitted that one day prior to the incident, hot talk

had taken place with him and Sultan Singh on the question of

discharge of waste water by Prakash Singh (P.W.11). The Appellants

were objecting to the discharge of waste water by Prakash Singh

(P.W.11) but inspite of that, he was discharging the same. Prakash

Singh (P.W.11) in para 4 of his cross-examination, stated that on 24 th

also, he had discharged waste water and only on that issue, fight took

place. Thus, it is clear that although on 23 rd, hot talks had taken place

between the Appellant Sultan Singh and Prakash Singh (P.W.11) on

the question of discharge of waste water, but on 24 th also, Prakash

Singh (P.W.11) discharged waste water as a result, the incident took

place. Thus, it is clear that the incident took place all of a sudden for

the reason, that Prakash Singh (P.W.11) inspite of objections by the

Appellant Sultan Singh was continuously discharging waste water of

his house, which was causing annoyance to the Appellant Sultan

Singh. It is not the case of witnesses, that there was any drain for

discharge of waste water. Under these circumstances, this Court is of

the considered opinion, that since the incident took place all of a

sudden due to discharge of waste water by Prakash Singh (P.W.11),

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

therefore, it is difficult to hold that all the Appellants were sharing

common intention.

68. Therefore, it is held that all the Appellants are guilty of their

own act and are not vicariously liable for the act of others.

Whether act of the Appellant Brijendra is punishable under

Section 304 of IPC

69. This Court has already come to a conclusion that since, the

incident took place all of a sudden on the trivial issue of discharge of

waste water by Prakash Singh (P.W.11), therefore, the question is that

whether the act of Appellant Brijendra would be punishable under

Section 304 of IPC or under Section 302 of IPC.

70. The Supreme Court in the case of Raj Paul Singh v. State,

reported in (2012) 10 SCC 144 has held as under :

9. In Narayanan Nair Raghvan Nair v. State of Travancore- Cochin, a three-Judge Bench of this Court speaking through Bose, J. held: (AIR p. 101, para 11) "11. ... It is enough to say that the Exception requires that no undue advantage be taken of by the other side. It is impossible to say that there is no undue advantage when a man stabs an unarmed person who makes no threatening gestures and merely asks the accused's opponent to stop fighting. Then also, the fight must be with the person who is killed."

This view on Exception 4 to Section 300 IPC, has also been taken by this Court in Kikar Singh v. State of Rajasthan wherein it has been held: (SCC p. 243, para 9) "9. ... Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302."

Thus, in a case where a man stabs another person, unless it is established that there was some threat from that person to the offender, the court cannot possibly hold that the

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

offender by stabbing that person has not taken any undue advantage or has not acted in a cruel or unusual manner.

71. The Supreme Court in the case of Lavghanbhai Devjibhai

Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held

as under :

7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

72. If the facts of the present case are considered, then it is clear

that inspite of objection by Appellant Sultan Singh, Prakash Singh

(P.W.11) again discharged waste water of his house. As a result, the

Appellants came to the house of Prakash Singh (P.W.11) which is

situated opposite to the house of Appellants. The Appellant Brijendra

was allegedly armed with Hockey. Hockey cannot be said to be a

lethal weapon. Single blow was given by Brijendra on the forehead

of Ganga Singh which proved fatal. Thus, under the facts and

circumstances of the case, this Court is of the considered opinion,

that the incident took place all of a sudden and without any pre-

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

meditation. The appellant Brijendra did not take undue advantage of

the situation and no repeated blows on the head were given by him.

He did not act in cruel manner. Although the Appellants had proved

that there was a cross case, but during the course of arguments, it was

accepted by the Counsel for the Appellants that the complainant party

has been acquitted in the cross-case. Under these circumstances, this

Court is of the considered opinion, that the act of Appellant Brijendra

would be punishable under Section 304 Part 1 of IPC and not under

Section 302 of IPC.

73. Accordingly, the conviction of the Appellants Sultan Singh and

Jitendra under Section 302/34 of IPC is hereby set aside. However,

their conviction under Section 323 of IPC as recorded by the Trial

Court is hereby affirmed.

74. The Appellant Brijendra is acquitted of the charge under

Section 302 of IPC, but he is convicted for offence under Section 304

Part I of IPC.

Whether Appellants Sultan Singh, Jitendra and Brijendra had

assaulted Narottam Singh (P.W.1), Ramu Singh Bhadoria (P.W.9)

and Veeru (P.W.10)

75. According to prosecution witnesses, Sultan Singh gave an axe

blow on the head of Prakash, whereas Jitendra and Brijendra

assaulted Ramu Singh Bhadoria (P.W.9) and Veeru (P.W.10). Dr. B.S.

Kushwaha (P.W.5) have found simple injuries. Accordingly, the

Appellants Sultan Singh, Jitendra and Brijendra are held liable for

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

causing simple injuries to Prakash (P.W.11), Ramu Singh Bhadoria

(P.W.9) and Veeru (P.W.10). Therefore, they are convicted under

Section 323 of IPC.

Sentence

Appellants Sultan Singh and Jitendra Singh

76. The Trial Court has awarded 1 year R.I. and a fine of RS.

1,000/- with default imprisonment for offence under Section 323/34

of IPC. The Appellants Sultan Singh and Jitendra had remained in

jail from 14-4-2010 till 30-8-2010 as an under trial prisoner and they

were granted bail by this Court by order dated 10-5-2012. Thus, they

have remained in jail for a period of 7 months and 10 days after their

conviction. Therefore, it is clear that they have already undergone the

jail sentence of 11 months and 26 days out of total jail sentence of

one year. After including remission, they must have completed entire

jail sentence of 1 year. Even otherwise, the maximum sentence for

offence under Section 323 of IPC is 1 year. Therefore, they are

sentenced to the period already undergone by them (if not completed

the sentence of one year including remission).

Appellant Brijendra

77. The Appellant Brijendra had remained in jail from 4-9-2010 till

25-1-2011 as an under trial prisoner and he is in jail from the date of

judgment i.e., 1-11-2011. Offence under Section 304 Part I IPC is

punishable with imprisonment for life, or imprisonment of either

description for a term which may extend to ten years. The Appellant

Sultan Singh & Ors Vs. State of M.P. (Cr.A. No. 971 of 2011)

Brijendra has already undergone the jail sentence of more than 10

years. Accordingly, he is convicted for the period already undergone

by him and a fine of Rs.10,000/-, in default 6 months R.I. Both the

sentences shall run concurrently.

78. With aforesaid modifications, the Judgment and Sentence

dated 1-11-2011 passed by 1st Addl. Sessions Judge, Bhind in

Sessions Trial No. 255/2010 is hereby Affirmed.

79. Since, Appellants Sultan Singh and Jitendra have already

undergone their jail sentence, therefore, they are no more required in

the present case. Their bail bonds are cancelled.

80. The Appellant Brijendra is in jail. He be released immediately,

if not required in any other case.

81. Let a copy of this judgment be immediately provided to the

Appellants, free of cost.

82. The record of the Trial Court be sent back along with copy of

this judgment, for necessary information and compliance.

83. The Appeal succeeds and is hereby is Allowed to the extent

mentioned above.

(G.S. Ahluwalia)                                  (Rajeev Kumar Shrivastava)
          Judge                                                       Judge

                    ARUN KUMAR MISHRA
                    2022.05.04 18:00:34 +05'30'