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TMI Blog2001 (10) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... PC and Section 27 of the Arms Act; accused Kashiram and Teekaram, each under Section 148 and Section 324/149 IPC; accused Suresh and Ratna, each under Section 147 and Section 323/149 IPC and sentenced each of them to various terms of imprisonment. Accused Ramesh, of course, has been sentenced to life imprisonment with a fine ₹ 5,000 for offence under Section 302/149 IPC, in default of payment of fine to rigorous imprisonment for six months, to one year R.I. under Section 148 IPC, and to one year RI under Section 27 of the Arms Act, all the sentences made to run concurrently. As to accused Prabhu, the High Court has held, that he inflicted a farsa injury on the head of Mahendra, but as the prosecution has not properly explained the injuries of Prabhu, he can be held to have acted in self-defence and therefore he deserves to be acquitted. His acquittal has not been challenged by State by filing an appeal. The complainant and the accused persons are all residents of Village Jaitpur, P.S. Bagchini, District Morena, Madhya Pradesh. Sundera, PW7 and Siya Ram, PW9 are real brothers. Lakhan and Bindawan who died in the incident were the sons of their another brother Jagannat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e village people started assembling on hearing the hue and cry whereupon the accused persons took to their heels and escaped away. At 3. p.m., a wireless message was received at Police Station Bagchini according to which a clash between two rival parties, resulting in murder, had taken place at Village Jaitpur. The official present at the police station flashed a message to the Station Officer, who had gone to Morena, the district head-quarters, requiring him to reach Village Jaitpur. The police force was kept ready to move to Jaitpur. ASI, S.M.Sharma left the police station for Village Jaitpur at 3.30 p.m. accompanied by police force and requisite arms and ammunition. Parallel to these movements, Ram Gopal, the village Sarpanch, who did not have any knowledge of the details of the incident had reached the scene of occurrence and found accused Prabhu lying injured near his house. Prabhu was unable to speak and to give any information about the incident. Sarpanch Ram Gopal took injured Prabhu to the police station wherefrom Prabhu was sent to a hospital at Bagchini so as to have him treated for the injuries as also for medico-legal examination. Though, this factum was recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veins, nerves and bones of thigh. The internal damage was confirmed on internal examination. The injuries were sufficient in the ordinary course of nature to cause death. The death was homicidal and had occurred due to excessive bleeding as a result of gunshot. At 11.20 a.m. on the same day, postmortem on the dead body of Brindawan was conducted. On external examination the following injuries were found :- 1. Wound of entry of pellets 37 in number on right thigh as a result of gunshot. The size of the wounds varied from 5 cm. to 5 inches. The shape of the injuries was rounded and margins were inverted. Some of the injuries superficial while some of the injuries were deep upto the mus-cles; 2. One lacerated wound, size 4 x 3.5 x 12.5 cms. on right thigh, margins inverted, 28 pellets and one foreign body were found in the rear side of the thigh, deep in the muscles; 3. An abrasion, 3 x 1 c.m., on ante medial aspect of right knee; 4. An abrasion, 2 x 1 c.m., on anterior aspect of patella; 5. An abrasion, 5 x 1.5 c.m., on the patella bone of the left knee. The first two injuries were gunshot wounds. The track of the wounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 present on ante surface of the left leg along with swelling. Injury no. 1 was caused by sharp cutting weapon while injuries no. 2 and 3 was caused by hard and blunt object. In the opinion of Dr. R.S. Sikarwar, all the injuries sustained by the three deceased and other three injured persons could have been caused at the time of the incident. Accused Prabhu was examined by Dr. N.K. Bhardwaj, Assistant Sur-geon, District Hospital, Morena (DW-2), on 2.10.1984, on being referred by P.S. Bagchini, accompanied by Constable Ram Dayal. He was found to have sustained the following injuries :- (1) Incised wound, size 3 x 1 x 1/2 , on the left side of head, caused by sharp edged weapon. (2) Contusion on left forearm size 3 x 3-1/2 , caused by hard and blunt weapon. (3) Contusion on left chest size 2 x 1-1/2 , caused by hard and blunt weapon. (4) Contusion on the right side of the chest 2 x 1 , caused by hard and blunt weapon. (5) Injury below the chin on the right side size 1/2 x 1/4 x 4 . Dr. Bhardwaj opined that injuries no. 3, 4 and 5 were simple in nature while injuries no. 1 and 2 were referred for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered was near a neem tree standing in front of, and just outside, the house of accused Ramesh. A few pellets of 12 bore were found embedded in the mud wall of Nadira adjacent to the house of Bhagwan Lal, which is in front of the house of accused Ramesh. Tika Ram, PW 10 who had reached the scene of occurrence soon after the incident had found dead body of Jamuni Dhoban lying at the door of Bhagwan Lal which is in front of the house of Ramesh and Brindawan. Injured Brindawan and Lakhan were also lying at a distance of 4 to 5 yards away from Jamuni Dhoban. This indicated that injuries of all the three persons who died in the incident were caused when they were in front of the house of the accused Ramesh and in all probability the gun and the mouser were fired from or near the house of accused Ramesh. The prosecution case that the place of incident was situated near the houses of prosecution witnesses Sundera, Siyaram and Mahendra Singh was thus circumstantially belied. The trial Court held that there was an unsuccessful attempt on the part of the prosecution witnesses to shift the place of incident from near the house of accused Ramesh to a distant place near the houses of the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'not dared to examine himself as a defence witness'. Vide para 57, the High Court has expressed an opinion that even taking the worst side of the prosecution case and the probable defence of the accused-respondents as sug-gested to the prosecution witnesses, if it is presumed that any of the injured had caused some injuries to accused Prabhu and accused Ramesh was compelled to fire at deceased Brindawan in defence of accused Prabhu even then there was no justification to fire another gun shot by accused Ramesh towards complainant Sundera which accidentally hit Jamuni Bai and therefore by no stretch of imagination it can be presumed that accused Ramesh had fired in self-defence of his brother Prabhu. The High Court has concluded by saying since none of the accused-respondents had taken a specific plea in their examination underSection 313 Cr.P.C. that the injured had come to assault them at their house and they were compelled to fire in self-defence, the theory of self- defence all the more becomes baseless and false . Strangely enough, vide para 63, the High Court holds - further in our opinion although it is alleged against accused respondent Prabhu that he inflicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan wit- nesses or where the defence gives a version which competes in probability with that of the prosecution. . We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can re-appraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is - if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would threfore indirectly succeed. It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence which is reasonable . The High Court was also not right in criticising and discarding availability of plea of self defence to the accused persons on the ground that the plea was not specifically taken by the accused in their statements under Section 313 Cr.P.C. and because the accused Prabhu did not enter in the witness box. Though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge common way where the accused Ramesh had tried to unload from the tractor-trolley and spread the mustard straw. There was only some verbal exchange at that place. The accused Ramesh had returned to his house. It is Brindawan, Lakhan, Siya Ram, Sundera and Mahendra, the members of the prosecution party who had assembled near the house of the accused persons and were armed with such weapons as had resulted in injuries on the person of accused Prabhu. At least one of the persons of the prosecution party was armed with a sharp weapon with which was caused an incised wound on head, a vital part of the body, coupled with fracture of frontal bone of accused Prabhu. One of the injuries caused to accused Prabhu could have been the result of a gun shot leaving a pellet embedded below mandible area. Other injuries caused to him could not have been self-inflicted. A grievous hurt was caused and therefore an apprehension that the prosecution party would persist in assault which could have resulted in further grievous hurt or death being caused was reasonably caused in the mind of accused Prabhu. Accused Ramesh, real brother of Prabhu and other persons present there were justified in exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. The High Court has on appreciation of evidence, so far as the injuries caused by the accused persons and the specific roles assigned to them are concerned held that accused Ramesh and Inder Lal resorted to firing towards the victim who were running for shelter and therefore their offences fell under Sections 148 and 302/149 IPC and Section 27 of the Arms Act. As to accused Inder Lal, the High Court has refused to record any specific finding in view of his having expired during the pendency of the appeal. As to accused Nanak Ram the High Court held that although he had fired aiming at injured Mahendra who had a narrow escape but as there was no charge under Section 307 IPC framed against him he could not be convicted thereunder though he was liable to be convicted under Section 148 IPC and Section 27 of the Arms Act. Accused Suresh and Ratna having been found to have caused some simple injuries by lathi, have been convicted under Section 147 and 323/149 IPC. Accused Prabhu has been found to have inflicted a farsa inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad ceased to be available. The only accused whose act needs to be determined for the purpose of finding out what offence, if any, he has committed, is accused Ramesh. Ex- ception II to Section 300 IPC provides that culpable homicide is not murder if the offence, in the exercise in good faith of the right private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he has exercised such right of defence without pre-meditation, and without any intention of doing more harm than is necessary for the purpose of such defence. We have found the deceased Brindawan having sustained injury by gun shot fired by accused Ramesh. Such injury was caused when the members of the prosecution party were fleeing away though to begin with the accused Ramesh had available to him the right of private defence of person. The right was exceeded and therefore the act of accused Ramesh would be covered by Exception II to Section 300 of IPC. The injuries caused to Brindawan show the pellets having injured lower part of the body of Brindawan. It cannot be said that accused Ramesh intended to cause death or cause such bodily injury as was l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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