Shiv Prasad & Ors. vs The State Of M.P.
2023 Latest Caselaw 2836 MP

                                      1


     IN THE HIGH COURT OF MADHYA PRADESH

                             AT JABALPUR

                                 BEFORE

     HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                 ON THE 16th OF FEBRUARY, 2023

               CRIMINAL APPEAL No. 1545 of 1998


BETWEEN:-

1.   SHIV     PRASAD    &     ORS.,   AGED
ABOUT 46 YEARS, (MADHYA PRADESH)


2.   RANJIT S/O SHIVPRASAD MEENA,
AGED ABOUT 19 YEARS, SILARA PS
TAWANAGAR (MADHYA PRADESH)


3.   MURARILAL     S/O       SHANKARLAL
MEENA, AGED ABOUT 26 YEARS, GRAM
SILARI   PS    TAWANAGAR         (MADHYA
PRADESH)


4.   BRAJMOHAN         S/O   RAMPRASAD,
AGED ABOUT 25 YEARS, SILARAI PS
TAWANAGAR (MADHYA PRADESH)


                                                 .....APPELLANTS
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(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE)


AND


THE STATE OF M.P. (MADHYA PRADESH)


                                                          .....RESPONDENTS
(BY SHRI DILIP SHRIVASTAVA - GOVERNMENT ADVOCATE)


Reserved on         :       05.01.2023

Pronounced on        :

This Criminal appeal having been heard and reserved for judgment, coming on
for pronouncement this day, Hon'ble Shri Justice Rajendra Kumar (Verma)
delivered the following :
                                 JUDGMENT

This criminal appeal has been preferred under Section 374 (2) of the Cr.P.C,1973 against the judgment dated 11.07.1998 passed by First Additional Sessions Judge, District Narmadapuram the then Hosangabad (M.P.) in ST No.189/1990 whereby, learned Sessions Judge found the appellants guilty for the offence punishable under Section 307/34 of the IPC and sentenced them to undergo R.I. for 07 years respectively with fine of Rs.500/-, in default of payment of fine amount further R.I. for 02 months.

2. As per the prosecution case, on date 09.12.1994 at about 8 am, one person namely Bhura along with his Mama Manmohan entered into the field as alleged belonging to Manmohan, to sow the crop of Chana. During the harvesting of crops, appellants namely Shiv prasad, Brijmohan and Ranjit along

with other aggressors emerged at the scene of occurrence and stated that the field/land belonging to them, how they are sowing the crops on their land. It is further alleged that while this altercation, suddenly, appellants namely Ranjit, Murarailal and other appellants-accused inflicted the injuries through Axe, lathi, and Farsa on the head of Bhura. Shiv Prasad inflicted injury to Bhura on his right hand, Brijmoham inflicted injury by Lathi at the back of Bhura and Ranjit inflicted the injury through Axe. Due to such injuries, consequently, Bhura fell down on the earth and unconscious. Thereafter, local persons namely Roshan, Pappu, Sitaram and Manmohan picked him up and brought at his home. Bhura has lodged the FIR of the incident on the same day at about 10 am at police station Rampura Gurra, District Narmadapuram the then Hosangabad, M.P.

3. That, the complainant Bhura PW-4, has lodged the FIR as (Ex.P/7). The Complainant/injured Bhura got medically examined by Dr. Ziya Khan (PW-1). During the investigation, the investigating agency prepared spot map, recorded the statements of the witnesses under Section 161 of Cr.P.C and after following the due process, filed the charge-sheet before the competent Court of law against the appellants.

4. After committal the learned trial Court framed charges for offence punishable under Section 307/34 of the IPC against the appellants. They abjured their guilt and took a plea that they had been falsely implicated in the present crime. They further took a plea that Sitaram and Manmohan wanted to take illegal possession of their field. They also had taken the plea of previous enmity and pending litigation against each other. They also had taken a plea that Bhura sustained injuries by felling down to earth.

5. In support of the case of the prosecution, the prosecution has examined as many as 8 witnesses. There were certain witnesses who were present at the time of such incident as eye witness namely Bhura (PW-4/injured), Pappu (PW-3), Manmohan (PW-5), Sitaram (PW-6), Dr. Ziya Khan (PW- 1) who has examined the injured and Amar Singh (PW-7) and Pradeep Mishra (PW-8) who were the police witnesses. Thereafter, examination of appellants/accused were conducted under Section 313 of Cr.P.C. In their defence appellants have not examined any witnesses.

6. Learned trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellants for the offence punishable under Section 307/34 of IPC and sentenced them as mentioned in para No.1 of this judgment. Being aggrieved with the said judgment of conviction and order of sentence, appellants have preferred this appeal for setting aside the impugned judgment and prayed for acquitting them from the charges levelled against them.

7. Learned Counsel for the appellants submits that the allegations alleged against the appellants cannot be said to be proved beyond reasonable doubt. Learned trial Court has committed a legal error while appreciating the evidence available on record. It is further submitted that the prosecution unable to prove the essential ingredients of section 307 of IPC. It is further submitted that the learned trial Court has failed to appreciate about the findings of Medical expert witness who opined that the injuries inflicted to Victim Bhura are simple in nature. It is further submitted that the learned trial Court has failed to appreciate about the version of defence and plea of private defence in order to protect the lawful possession of the land by the appellants. It is further submitted that the learned trial Court has failed to appreciate the antecedent of Bhura being

hooligan element of the vicinity. It is further submitted that the learned trial Court has failed to appreciate the testimony of (PW-3) Pappu being interested witness who was an employee of Bhura failed to point out the specific role of the appellants while commission of alleged offence.

8. It is further submitted that the learned trial Court has failed to appreciate about the ingredients of section 34 of IPC and mens rea are missing. It is further submitted that the learned trial Court has failed to appreciate about the actual status being injured and interested witness Bhura PW-4 and imposed excessive punishment. Thus, the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law and the same be set aside and the appellants may be acquitted from the charges alleged again them.

9. Per contra, learned public prosecutor for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that the judgment was passed by the learned trial Court after proper appreciation of evidence available on record. There is nothing available on record, on the basis of which, statement of witnesses can be disbelieved or doubted, the prosecution has very well proved its case beyond reasonable doubt and the same is well reasoned judgment establishing the guilt of the appellants. Therefore, confirming the impugned judgment and order of sentence, the appeal filed by the appellants may be dismissed.

10. I have heard learned counsel for the parties at length and perused the record.

11. The prosecution has examined all 8 prosecution witnesses including who were present at the time of such incident as eye/injured witnesses namely Bhura

(PW-4), Pappu (PW-3), Manmohan, (PW-5), Sitaram (PW-6), and Dr. Ziya Khan (PW-1) Amar Singh (PW-7) Pradeep Mishra (PW-8). After examining the testimony of aforesaid eye witnesses Pappu (PW-3), Bhura (PW-4), Manmohan (PW-5) and Sitaram (PW/6). It is considered view of this Court that the factum of incident has been duly proved beyond reasonable doubt. Since, the prosecution has proved that on date 09.12.1994 at about 8 am Bhura along with his Mama Manmohan entered into the field as alleged belonging to the appellants to sow the crop of Chana. During the harvesting of crops, appellants namely Shiv Prasad, Brijmohan and Ranjit along with other aggressors emerged at the scene of occurrence and stated that the field/land belonging to them, how they are sowing the crops on their land. It is further found that while this altercation, suddenly, appellants namely Ranjit, Murarailal and other appellants- accused inflicted the injuries through Axe, lathi, and Farsa on the head of Bhura. Shiv Prasad inflicted injury to Bhura on his right hand, Brijmoham inflicted injury by his Lathi at the back of Bhura and Ranjit inflicted the injury through Axe. Due to such injuries, Bhura fell down on the earth and unconscious. Thereafter, local persons namely Roshan, Pappu, Sitaram and Manmohan picked up him and brought at his home. Bhura has lodged the FIR of the incident on the same day at about 10 am. at police station Rampura Gurra, District Narmadapuram the then Hosangabad, M.P.

12. The presence of appellants and about altercation between appellants and Complainants has been duly proved by the testimony of aforesaid witnesses along with the plea taken by the defence itself. The appellants have themselves taken a plea that they were protecting the lawful possession of their field while the opposite party were harvesting the crops in the field. Therefore, presence of appellants and altercation between both parties has been duly established beyond reasonable doubt.

13. In the context of argument about nature of injury inflicted to victim Bhura, the testimony of Dr. Ziya Khan (PW-1) is very important who has conducted the medical examination of Bhura (PW-4). Dr. Khan stated that injury no. 1 to 4 inflicted to Bhura by sharp edge object and injury no. 5 to 8 inflicted by hard blunt object. Although there was no fracture found during medical examination and medical examination report submitted as (Ex. P-1). Dr. Ziya Khan (PW-1) further stated that the injured Bhura was admitted in the hospital from 09.12.1994 to 03.01.1995 i.e. more than 20 days but there is nothing on record which established that during his admission in the hospital injured Bhura was unable to follow his ordinary pursuits. Dr. Khan stated in report that injuries inflicted to Bhura are simple in nature. After perusal of Medical report (Ex. P-1), this Court has considered view that such injury cannot be self inflicted, therefore, the arguments about injury being self inflicted has been duly rejected. Moreover, during the cross examination of Dr. Ziya Khan (PW-1) nothing is elicit to disbelieve the version of the medical expert witness.

14. From the statement of aforesaid witnesses as well as medical evidence and specific plea of private defence taken by the appellants, there remains no doubt that at the commission of incident. Therefore, argument advanced by the learned Counsel for the appellant about false implication has been ruled out. Moreover, the presence of appellants/accused at the place of incident on 09.12.1994 has been also established by oral testimony of eye witnesses (PW-

3), (PW-4) and (PW-5). However, Pappu (PW-3) has not been point out specific role of each appellant. In this regard, it is settled law declared in Hari chand Vs State of Delhi, (1996) 9 SCC 112 :-

"While appreciating the evidence of eye witnesses in a criminal trial especially in a case of eyewitnesses the maxim falus in uno, falus in omnibus can not apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of the trial and has tried to involve many more accused and if the part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon."

Having gone through and considered the aforesaid judgement, this court has a view that the testimony of (PW-3) cannot be rejected merely on the ground that the said witness was unable to tell before the trial Court each and every minute details of the incident. Therefore, this argument has been duly rejected.

15. With respect to argument about the veracity of injured eye witness Bhura (PW-4). It is required to be noted that (PW-4) is the injured eye- witnesses. As held by the Apex Court in the case of State of M.P. vs. Mansingh, (2003) 10 SCC 414 para 9 :-

"The evidence of an injured eye-witness has great evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly."

Since there is nothing in the testimony of PW-4 which can be discarded.

On the contrary, the findings about the veracity of injured eye witness of trial court are proper and legal. Therefore, this argument has been duly rejected as stated above.

16. Learned counsel for the appellants argued that the learned trial Court failed to appreciate about plea of self defence taken by the appellants. In this regard the question which needs to be considered is the alleged exercise of right of private defence. It is settled law that Section 96 of IPC provides that "nothing is an offence which is done in the exercise of the right of private defence" Section 96 does not define the expression right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person can legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self- defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea.

17. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act'), the

burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself by adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence, he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.

18. In this regard, it is law declared by Supreme Court in Raghbir Singh & Ors. Vs State of Haryana, Criminal Appeal No. 1776/08 that:-

"14. The right of private defence is essentially a defensive right circumscribed by the governing statute ie the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of 15 offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be pretence for killing A right to defend does not include a right to

launch an offensive, particularly when the need to defend no longer survived."

19. In the instant case, considering the background facts as highlighted above when tested in the backdrop of the legal principles noted the inevitable conclusion is that the Appellants had not established that they were exercising right of private defence. Having gone through and considered the aforesaid judgement, this court has considered view that the appellants were themselves gone at the place of incident and the assaults were made by them, therefore, argument qua plea of self defence has been duly rejected.

20. Be it noted, there can be no iota of doubt that the prosecution has been proved its case beyond reasonable doubt about the commission of an alleged offence by appellants/accused on the basis of injured/eye witnesses i.e. Bhura (PW-4), Pappu (PW-3) and Manmohan (PW-5). The alleged offence has proved by corroborating medical evidence of Dr. Ziya Khan (PW-1). Therefore, on the basis of aforementioned reasons this Court has a considered view that the incriminating evidence established by the prosecution which do not permit any confusion or doubt with regard to the involvement of the appellants/accused in this offence. In the above view of the matter, this court is constrained to hold that the learned trial Court has not committed any error in assessing the evidence on record for convicting the appellants/accused.

21. It has further been submitted by the appellants that the learned trial Court has failed to appreciate that the ingredients of Section 307/34 of IPC are missing. Therefore, the impugned judgement should be set aside. In this regard firstly, this court deals with Section 34 of IPC. Section 34 IPC creates a deeming fiction by infusing a criminal act constituting an offence committed by one, into

others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.

22. In Chhota Ahirwar v. State of M.P. [(2020) 4 SCC 126] The Supreme Court held that:-

"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1

SCC 268. There must be a common intention to commit the particular offence. To constitute common intention it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."

In the light of aforesaid judgement, with respect to the argument about section 34 of IPC the presence of appellants at the place of incident and doing criminal act in furtherance of common intention has been duly proved as stated above. Therefore, this argument has been duly rejected.

23. As far as about the essential ingredients of section 307 of IPC stated as Attempt to murder.

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned Attempts by life convicts-2[ When any person offending under this section is under sentence of imprisonment for life], he may, if hurt is caused, be Punished with death.]

In this regard, it is law declared by Supreme Court in Sadakat Kotwar & Anr. Vs State of Jharkhand. Criminal Appeal No. 1316/21 that:-

"As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused."

In the light of aforesaid judgement, with respect to the argument about Section 307 of IPC. This court has a considered view that the learned trial Court is in error to appreciate the factum of medical report wherein stated that all the injuries are simple in nature. Moreover, the alleged weapon i.e. Lathi, Farsa and Axe which are commonly in the possession of village farmers which were actually not falls under the category of deadly weapons, therefore, the essential ingredients of "intention or knowledge" under such circumstances that, if he by that act caused death, are missing. Consequently, the impugned judgement needs to be modified accordingly in the interest of Justice. Moreover, the instant appeal is pending since 1994, and the appellants are defending their instant matter from past 29 years which in itself is likely to punishment.

24. Analysing the evidence in the background set out above, the inevitable conclusion is that conviction of appellants has to be altered from Section 307/34 IPC to Section 324/34 IPC. Custodial sentence of 01 years with enhanced fine of Rs. 10,000/- to each appellants with default condition of 02 months RI would meet the ends of justice.

25. Resultantly, the impugned judgment dated 11.07.1998 is modified as above and the appellants are directed to surrender before the trial Court on or before 16.03.2023 accordingly, to serve the remaining period of punishment.

Their bail bonds shall be discharged. In case, if any of the appellant have already undergone above sentence, he shall be released immediately, subject to deposit of enhanced amount.

Copy of this order along with record of the learned trial court be sent to the learned trial court for information and compliance.

(RAJENDRA KUMAR (VERMA)) JUDGE

DevS

DEVESH Digitally signed by DEVESH K SHRIVASTAVA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH

K COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=f9f9fd534b488e99cc397814 31e66e6f9ab730d08ba53688e7bfce

SHRIVAS b51e910309, pseudonym=189C30593CA67DDF17 E656B56C0460BDDD05B290, serialNumber=AB2E2619A26EF3A26

TAVA F61D56D9B887CD260345F7158F373 E8FB42DAE3E07A154F, cn=DEVESH K SHRIVASTAVA Date: 2023.02.17 15:31:48 +05'30'