http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:

Appeal (crl.) 489 of 1996

PETITIONER:

State of M.P.

RESPONDENT:

Mishrilal (dead) & Ors. @

DATE OF JUDGMENT: 02/04/2003

BENCH:

Y.K. SABHARWAL & H.K. SEMA

JUDGMENT:

SEMA,J.

This appeal by special leave is preferred by the State against the

judgment of the High Court whereby and whereunder the sentences and

convictions imposed by the Trial Court have been set-aside by allowing the

appeal, preferred by the accused.

The accused Mishrilal s/o Balmukund Jaiswal, Madhusudan s/o

Mishrilal, Jamunaprasad s/o Mishrilal, Radhakishan s/o Ganpat Kalal, Vinod

Kumar s/o Babulal Kalal, Hukumchand s/o Shankerlal Kalal, Jagdish s/o

Shankarlal Kalal, Rajendrakumar s/o Babulal Kalal and Ashok Kumar s/o

Mishrilal Kalal were tried in Session Trial No. 73 of 1987 whereby the

Second Addl. Sessions Judge, Devas convicted accused Ashok under

Sections 302, 307 read with Sections 149 and 148 IPC and Section 25 of

Arms Act.; accused Jamunaprasad under Sections 307, 302 read with

Sections 149 and 148 IPC and the remaining accused under Section 302 read

with Sections 149, 307 read with section 149 and section 148 of the IPC and

sentenced all the accused to pay a fine of Rs.250/- each and in default to

undergo imprisonment for one month under Section 148 IPC, sentenced

accused Ashok to suffer imprisonment for life under Section 302 IPC and to

pay a fine of Rs.250/- and in default to suffer three months imprisonment

and to suffer RI for five years under Section 307 read with Section 149 IPC

and to suffer RI for three years and to pay a fine of Rs.200/- and in default to

suffer one month imprisonment under Section 25 of the Arms Act, sentenced

accused Jamnaprasad to suffer RI for five years under Section 307 and

imprisonment for life under Section 302 read with Section 149 IPC and to

pay a fine of Rs.250/- and in default to suffer three months imprisonment

and sentenced remaining 7 accused to suffer imprisonment for life and to

pay a fine of Rs.250/- each and in default to suffer imprisonment for three

months under Section 302 read with Section 149 IPC and to undergo RI for

five years under Section 307 read with Section 149 IPC.

During the pendency of this appeal, accused Mishrilal has expired and

therefore, the appeal qua him stands abated.

The apple of discord, as revealed by the prosecution story, was over a

trivial matter about the passing of bullock-cart. The bullock-cart of Babulal

(PW-1) being driven by his servant Patiram (PW-3) was stopped by the

accused in front of the house of Mishrilal (since deceased). Babulal,

thereafter, reversed the bullock-cart, brought back his bullock-cart and

reached his house by another route. At that time Maharaj Singh (PW-2),

uncle of Babulal (PW-1), Bhavarsingh (the deceased), grand-father of

Babulal and Gopal (PW-7) and others were sitting in front of the house of

Babulal, who questioned as to why the bullock-cart had to be brought back

by different route and at this Babulal narrated to them the story of stoppage

of bullock-cart by the respondents. At this moment, accused Mishrilal

armed with a Farsi, Jamunaprasad armed with a twelve bore gun, accused

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

Ashok Kumar with a desi Katta and rest of the accused-persons having lathis

with them came near the house of Babulal hurling abuses, followed by

heated exchange of words between both the sides. Then all of a sudden

Jamunaprasad fired a gunshot at Babulal. The pellets hit him in his legs.

The deceased Bhavarsingh, grandfather of Babulal tried to save him and

stood in front of Babulal, when accused Ashok Kumar fired at him with the

desi Katta hitting him on the chest. The deceased fell down on the ground

and become unconscious. PW-2 Maharaj Singh and Karan Singh PW-4 also

came to save Babulal but accused Jamunaprasad fired again hitting Maharaj

Singh and Karan Singh. Accused Madhusudan assaulted Babulal by the

lathi hitting him on the right shoulder. On raising hue and cry, the accused

fled away. The deceased Bhavarsingh was taken to Kannaud Hospital where

he was declared dead. Injured Babulal, Maharaj Singh and Karan Singh

were admitted in the hospital and treated. Dr.G.D. Kashyap (PW-6), sent

intimation to Police Station, Karnnod. ASI Dharamraj Singh (PW-17)

reached the hospital and on being reported by Babulal (PW-1) ASI

registered the FIR (Ex.P-1). The police issued the requisition form of all the

injured persons marked as (Exs.P-30, P-31 and P-32). Thereafter, the police

case (Ex. P-33) was registered on the basis of (Ex.P-1). The post-mortem

was conducted by PW-6 embodying "the cause of death is from gunshot

wound and its mode is syncope". The post-mortem report is (Ex.P-6). The

injury reports in respect of Babulal, Karan Singh and Maharaj Singh are

marked as (Exs.P-7, P-11 and P-12). X-ray plates with regard to injuries

sustained by Babulal and Maharaj Singh are marked as (Exs.P-8 to P-10 and

P-13 to P-16) respectively. The investigating officer also prepared a spot

map (Ex.P-3). Accused Mishrilal also lodged the report as regards the

injuries sustained by him, Madhusudan and Jamunaprasad on the same day

i.e. 5.3.1987 and over the same incident. The report is marked as (Ex.D-8).

The police investigated the complaint lodged by Mishrilal and challan was

filed under Sections 147, 148, 149 and 324 IPC and registered a crime No.52

of 1987, which is pending before the learned Judicial Magistrate First Class

for disposal. The complaint lodged by the prosecution party vide (Ex.P-1)

was investigated and after completion of the investigation, the Court framed

charges against the accused parties under Section 302 and in the alternative

under Section 302/149, Section 307 and in the alternative under Section

307/149 and Section 148 of the Indian Penal Code. Accused Ashok Kumar

was also additionally charged under Section 25 of the Arms Act. The

accused pleaded not guilty to the charges and after the trial they were

convicted and sentenced as noticed above.

The High Court after re-appraisal of the evidence, set-aside the order

of conviction and acquitted the respondents of all the charges levelled

against them.

For the sake of convenience we have devised to categorize the case

under the following headings: (1) Cross cases be tried together; (2) Genesis

of occurrence; (3) Presence of Accused Ashok Kumar at the place of

incident; (4) Common object; (5) Right of private defence; and (6) Non-

explanation of the injuries, sustained by the accused, by the prosecution.

CROSS CASES BE TRIED TOGETHER

Undisputedly, accused Mishrilal lodged the report to the police vide

Ex.D-8 over the same incident happened on 5.3.1987, in which he had

clearly stated the injuries were sustained by him and his son Madhusudan at

the hands of prosecution party. It is also not disputed that on the strength of

the complaint lodged by Mishriulal, investigation was also carried out and

challan was filed namely crime case no.52/87 under Sections 147, 148, 149

and 324 IPC against the prosecution party which is pending for disposal

before the learned Judicial Magistrate First Class. In the said challan, the

prosecution party is stated to be an aggressor. This Court in Nathilal Vs.

State of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to be

followed by the Trial Court in the event of cross cases. It was observed

thus:-

"We think that the fair procedure to adopt in a matter like the

present where there are cross cases, is to direct that the same

learned Judge must try both the cross cases one after the other.

After the recording of evidence in one case is completed, he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

must hear the arguments but he must reserve the judgment.

Thereafter he must proceed to hear the cross case and after

recording all the evidence he must hear the arguments but

reserve the judgment in that case. The same learned Judge must

thereafter dispose of the matters by two separate judgments. In

deciding each of the cases, he can rely only on the evidence

recorded in that particular case. The evidence recorded in the

cross case cannot be looked into. Nor can the judge be

influenced by whatever is argued in the cross case. Each case

must be decided on the basis of the evidence which has been

placed on record in that particular case without being

influenced in any manner by the evidence or arguments urged

in the cross case. But both the judgments must be pronounced

by the same learned Judge one after the other."

In the instant case, it is undisputed, that the investigating officer

submitted the challan on the basis of the complaint lodged by the accused

Mishrilal in respect of the same incident. It would have been just fair and

proper to decide both the cases together by the same court in view of the

guidelines devised by this Court in Nathilal's case (supra). The cross-

cases should be tried together by the same court irrespective of the nature of

the offence involved. The rational behind this is to avoid the conflicting

judgments over the same incident because if cross cases are allowed to be

tried by two courts separately there is likelihood of conflicting judgments.

In the instant case, the investigating officer submitted the challan against

both the parties. Both the complaints cannot be said to be right. Either of

them must be false. In such a situation, legal obligation is cast upon the

investigating officer to make an endeavour to find out the truth and to cull

out the truth from the falsehood. Unfortunately, the investigating officer has

failed to discharge the obligation, resulting in grave miscarriage of justice.

GENESIS OF OCCURRENCE

As already noticed, the apple of discord is passing of the bullock-cart

belonging to PW-1 Babulal, in front of the house of the accused Mishrilal. It

is in the evidence on record that the bullock-cart of accused Mishrilal was

parked in the gali impeding the passage of bullock-cart of Babulal PW.1. In

the circumstances Babulal was asked to stop the bullock-cart which had to

be reversed and taken from the other route. PW-1 naturally took it as an

insult and felt bad and on being arrived at his place where Maharaj Singh,

Bhavarsingh etc. were sitting and on being questioned about the change in

the route, he narrated the incident of stoppage to the members of his family.

In such a situation, it is expected that they have reasons to raise grievances.

Whereas the accused party being succeeded in getting the bullock-cart

diverted, were victorious and there was no reason to revolt by following

Babulal armed with farsi, gun and desi katta and lathis as alleged by the

prosecution. This allegation is clearly against the logic. It is logically

improbable that the accused being able to stop and compel the bullock-cart

to retreat would have still opted to follow Babulal and initiate a quarrel. It is

logically improbable and unbelievable in the ordinary course of human

conduct because the grievance of the accused, if any, has been redressed by

preventing the bullock-cart to pass through the passage and accomplish in

retreating the bullock-cart through another route, would still follow the

prosecution party and assault them in front of their house. They have no

reason to be annoyed or unhappy which would compel them to go to the

house of the prosecution party and took up a quarrel with them. In the

evidence on record it is shown that the cartridges were found in front of the

house of PW-8 and blood stained earth was seized from the wall of the

house of PW-8. But in spot map (Ex.P-3) the position shown is contrary

and the house of PW-8 was omitted from this map. The testimony of

Ramnarayan (PW-8) is inconsistent with (Ex.P-3) spot map. This apart, the

learned Trial Judge made a spot inspection on 11.3.1991 under Section 310

Cr.P.C. However, the Trial Judge did not choose to record the memo of

inspection. The judgment was delivered on 16.3.1991. What had prompted

the learned Trial Judge to have recourse to spot inspection was not spelled

out because no memorandum of inspection was prepared. But it is clearly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

suggestive of deficiency of evidence with regard to place of occurrence. In

such a situation, it was incumbent on the part of the learned Trial Judge, to

have recorded the memo of inspection for proper appreciation of the

inspection. Undoubtedly, the mandatory provision has not been followed by

the Trial Court.

The prosecution party and not the complainant party were the

aggressors, is further made amply clear in the depositions of PWs 1 and 2.

PW-1 Babulal stated in para 9 of the statement as under:-

"All of them stood in front of my cart and they did not cry

lowdly and they used to tell only this that no cart will go from

here and please do not take away cart via this route. All of

them prevented my cart on the high way, for which I took bad."

Babulal further stated as under:

"Then I stated to my grandfather that all of these were not

allowing to bring my bullock cart from this side I stated while

rebuking that these mather chodon are not allowing to take out

the bullock cart then Maharaj Singh and Bhawar Singh stated

that we will make them understand and then they remained

stand there."

PW-2 Maharaj Singh also stated as under:-

"This is correct that Babu had stated this that salone did not

allow the cart to came out through the high way and due to this

fact we took it ill."

From the facts and circumstances, as adumbrated above, it is amply

clear that the prosecution party was the aggressor and the alleged incident

did not happen in front of the house of the prosecution party, rather the

prosecution party took offence to the stoppage of bullock-cart of Babulal,

but the prosecution has suppressed the genesis and origin of the occurrence.

We are clearly of the view, therefore, that the prosecution party was an

aggressor.

PRESENCE OF ACCUSED ASHOK KUMAR AT THE PLACE OF

OCCURRENCE

Accused Ashok Kumar was attributed of firing with desi katta at the

chest of the deceased Bhavarsingh which appears to have proved fatal. In

the instant case, the prosecution party went straight to the hospital from the

place of incident. Ex.P-29 is the intimation to the police station by the

doctor. It is silent about the authors of the injuries. It does not speak about

katta, farsi or lathi. Accused Ashok Kumar, from the very beginning of the

trial, took a defence that he was not present at the spot on the day of incident

and he has been falsely implicated on the ground that Ashok Kumar was

having some love affair with Suganbai, the sister of PW-7 Gopal. Accused

Ashok Kumar sustained no injury. In this background, the plea raised by

Ashok Kumar, that he has been falsely implicated on the ground of his

involvement with Suganbai, the sister of PW-7 Gopal, becomes significant.

PW-7 Gopal is undisputedly a member of the family of a complainant party

and in this background falsely implicating Ashok Kumar as an accused

cannot be ruled out. As noticed earlier, in Ex.P-29 there was no mention of

an attack by a desi katta. The necessary implication is that the name of

Ashok Kumar and katta were introduced only after arrival of the police

(PW-17) and after deliberation. Further, in Ex.P-29 only gun was

mentioned. Against Ashok Kumar one of the eyewitness account is given by

PW-5 Chagan. He was unable to say as from where katta was taken out.

The alleged eyewitness account of PW-5 Chagan is also not acceptable

because the name of PW-5 was not mentioned in Ex. P-1. His name also

appears to have been introduced after the arrival of PW-17 and after

deliberation. The alleged disclosure and recovery of Ex.P-20 and seizure

memo Ex.P-21 both prepared by one V.K. Silawat, Station House Officer of

Police Station, was not examined in the case. PW-9 Babulal - punch

witness, father of PW-5, did not prove the material recited in Ex.P-20. PW-

12 Lakhanlal - another punch witness, also did not testify the material

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

recited in Ex.P-20. The prosecution has also failed to prove that the desi

katta was in exclusive possession of the accused Ashok Kumar. This all

goes to show that the facts of seizure are not free from doubt. All the more

so, when the prosecution tried to suppress the genesis and the origin of the

occurrence. There is no guarantee that they are speaking the truth with

regard to the facts of seizure Ex.P-21. As already noticed, accused Ashok

Kumar was attributed of hitting on the chest of the deceased by desi katta.

Dr.G.D. Kashyap (PW-6) conducted the post-mortem. He found the

following external injuries:-

"External Injuries: (1) Gunshot (Firearm) wound. (A) wound of

entry size (irregular round shape) 2"x2"x18" on the front Right

chest 4" above the right (Illeg.) when a probe inserted in this

wound it comes out on posterior side on wound of exit.

Direction the wound is medialy Back wounds and downwords

(B) wound of exit Gun shot size 2 " x2"x18" situated 1" Rt.

Lateral to 10th Thoracic vertebra, Direction lateraly (Illeg.) and

upwords. It is continuous to the wound of entry. The edges of

both wounds are irregular oral shape. But edges of entrance

wound in inverted and edges of exit wound is everted. Both the

wounds are antemortem wounds. From both these wounds

oozing of blood is too much."

The doctor also found irregular shaped six small chharas stained with

blood from the right chest of the deceased.

From the post-mortem report as noticed, PW-6 described the injuries

as gunshot and not from the pistol. It is strenuously urged by Mr. Jaspal

Singh, learned Senior counsel, that the pistol uses bullets and not chharas.

According to him, since six chharas were found from the chest of the

deceased, the shots were fired from the 12 bore gun and not from the pistol.

Learned counsel for the appellant, however, contended that in desi katta 12

bore cartridges can also be fired. The prosecution has failed to obtain the

opinion of ballistic expert. The prosecution also did not explain as to

whether in desi katta 12 bore cartridges can also be fired. In the absence of

explanation by the prosecution, it is difficult to accept that in desi katta 12

bore cartridges can be fired in the instant case. In the present case, a doubt

has been created as to whether a desi katta can also fire 12 bore cartridges,

which has not been explained by the prosecution. As already noticed, Ashok

Kumar did not sustain any injuries on his body. In the ordinary course of

human conduct, when his father Mishrilal is inflicted as many as five injuries

which are stated to be dangerous to life, a son is expected to intervene in

order to salvage his father and in the process he would receive injuries on his

body, if he was present at the place of occurrence. The other two sons

Madhusudan and Jamunaprasad who were with the father Mishrilal received

simple injuries. In the FIR. (Ex.D-8) lodged by Mishrilal also, the presence

of Ashok at the place of occurrence was not mentioned. It is in these

circumstances, the presence of Ashok Kumar at the place of incident is not

free from doubt. He must, therefore, be entitled to the benefit of doubt.

COMMON OBJECT

We have noticed that in Ex.P-1 accused Mishrilal, Jamunaprasad,

Madhusudan and Ashok Kumar have been mentioned, but the remaining five

accused Radhakishan, Vinod Kumar, Hukumchand, Jagdish and

Rajendrakumar were not mentioned. It is also in the evidence on record that

five accused were standing at the back and did not participate. The five

accused were roped in aid of Section 149 IPC. In the Ex.P-1 itself, it is

stated that others were having lathis. Who were the others and who were

having lathis, has not been described in the complaint. It is in the evidence of

PWs 1 and 2 that they were standing behind at a short distance. No

participation of each of the accused, overt act or otherwise, has been

attributed to them. They could be passive onlookers. It is difficult to accept

that they were members of unlawful assembly and the offence was

committed in prosecution of common object of that assembly. Their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

conviction with the aid of Section 149 is, thus, clearly impermissible. Their

conviction under Section 148 would also go.

RIGHT OF PRIVATE DEFENCE.

As already noticed, Mishrilal, Madhusudan and Jamunaprasad

received injuries in the incident. According to Dr. G.D. Kashyap (PW-6) the

injuries sustained by Madhusudan and Jamunaprasad were simple in nature,

while the injuries found on the person of Mishrilal would be dangerous to life

being on the sensitive part of the body - head. Accused Mishrilal received as

many as five injuries - one incised wound and one lacerated wound on vital

part like head. The doctor opined that the injuries were dangerous to life.

The other three accused were all the sons of Mishrilal. We have doubted the

presence of accused - Ashok Kumar at the place of incident. The remaining

two sons Madhusudan and Jamunaprasad received injuries on their bodies.

In the ordinary course of human conduct, if the father receives as many as

five injuries in the presence of sons, the sons are not expected to be moot

spectators. Firing from 12 bore gun is attributed to accused Jamunaprasad,

the pellets of which hit the legs of Babulal PW-1 causing injuries which were

simple in nature. Since we have already held that the prosecution party was

the aggressor, we do not think that accused Jamunaprasad has exceeded the

right of private defence. The fact that PW-1 Babulal received the bullet

injuries on his legs would clearly show that Jamunaprasad fired from 12 bore

gun to free his father and themselves from the clutches of the accused. One

should not forget that Mishrilal has received as many as five injuries which

were dangerous to life and the accused Jamunaprasad at that time reasonably

apprehending the danger to the life of his father had fired the gunshot at that

point of time in self-defence, which is quite justified. It is in these

circumstances that we hold that the accused did not exceed the right of

private defence.

NON-EXPLANATION OF THE INJURIES SUSTAIBED BY THE

ACCUSED

The last and which appears to be fatal to the prosecution case is

non-explanation of the injuries sustained by the accused.

As already said, accused Mishrilal received as many as five injuries, which

were dangerous to life. Madusudan and Jamunanprasad received simple

injuries. In Ex.P-1 as well as in the entire deposition of PWs, the prosecution

has not explained the injuries sustained by the accused. In the background of

the defence, as set up by the accused, it was incumbent on the part of the

prosecution, to have explained the injuries sustained by the accused. The

defence version is that on being retreated the bullock-cart of Babulal, the

complainant party - Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish,

Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit

Mishrilal's head with the farsa and Babulal, Maharaj Singh and Karan Singh

beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and

they also beat him. When Jamunanprasad came to save, he was also beaten

up and on that Jamunaprasad ran towards the house and made two fires in the

air to save his father. It is the case of defence that the bullet, which struck

Bhavarsingh, came from towards the house of Babulal. In the face of

defence version, which competes in probability with that of the prosecution

case, it was mandatory on the part of the prosecution to have explained the

injuries sustained by the accused and non-explanation of the injuries is fatal

to the prosecution case. In Lakshmi Singh and others vs. State of

Bihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai v.

State of Bihar, (1968) 3 SCR 525: AIR 1968 SC 1281: 1968 Cri LJ 1479, it

was held by this Court:

"where the prosecution fails to explain the injuries on the

accused, two results follow: (1) that the evidence of the

prosecution witnesses is untrue; and (2) that the injuries

probabilise the plea taken by the appellants

in a murder case, the non-explanation of the injuries

sustained by the accused at about the time of the occurrence or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

in the course of altercation is a very important circumstance

from which the court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the

origin of the occurrence and has thus not presented the true

version;

(2) that the witnesses who have denied the presence of the

injuries on the person of the accused are lying on a most

material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the

injuries on the person of the accused it is rendered probable so

as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the

injuries on the person of the accused assumes much greater

importance where the evidence consists of interested or inimical

witnesses or where the defence gives a version which competes

in probability with that of the prosecution one.

However there may be cases where the non-explanation of

the injuries by the prosecution may not affect the prosecution

case. This principle would obviously apply to cases where the

injuries sustained by the accused are minor and superficial or

where the evidence is so clear and cogent, so independent and

disinterested, so probable, consistent and creditworthy, that it

far outweighs the effect of the omission on the part of the

prosecution to explain the injuries."

In State of Rajasthan Vs. Madho, AIR 1991 SC 1065 at

page 1067 this Court held as under:

"The fact remains that both the respondents had sustained

serious injuries, Kishna mainly on the skull whereas Madho on

the skull as well as scapular region. If the prosecution

witnesses shy away from the reality and do not explain the

injuries caused to the respondents herein it casts a doubt on the

genesis of the prosecution case since the evidence shows that

these injuries were sustained in the course of the same incident.

It gives the impression that the witnesses are suppressing some

part of the incident. The High Court was, therefore, of the

opinion that having regard to the fact that they have failed to

explain the injuries sustained by the two respondents in the

course of the same transaction, the respondents were entitled to

the benefit of the doubt as it was hazardous to place implicit

reliance on the testimony of the injured PW-2."

In Ex.P-1, as already noticed, there is no explanation about the

injuries sustained by the three accused. None of the prosecution witnesses

explained the injuries sustained by the accused. The injuries sustained by

Mishrilal were dangerous to life. The prosecution witnesses consist of

interested and inimical witnesses. We are, therefore, of the view that the

prosecution has not presented the true version on most material part of the

story. Their evidential value does not inspire confidence and it cannot be

accepted on its face value and relied upon. It is in these circumstances that

non-explanation of the injuries sustained by the accused proved fatal to the

prosecution case.

We may also note that the learned Trial Judge has disbelieved the

opinion of Dr.G.D.Kashyap (PW-6) that the injuries sustained by Mishrilal

being in the sensitive part of the body head were dangerous to life, albeit

without any valid reasons. To us, to say the least, the prosecution case too

appears to be one sided.

For the afore-stated reasons this appeal is dismissed. The accused are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

on bail. Their bail bonds stand cancelled and sureties discharged.