Reserved
Delivered on : 18.12.2019
Court No. 43
Case :- CRIMINAL APPEAL No. - 1713 of 1991 Appellant :- Hans Raj And Other Respondent :- State Counsel for Appellant :- K.K. Misra,Girish Chandra Yadav Counsel for Respondent :- D.G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.
(Delivered by Pankaj Naqvi, J.)
This criminal appeal is preferred against the judgment and order dated 9.9.1991 passed by Ist Additional Sessions Judge, Azamgarh in S.T. No. 344 of 1987 (State Vs. Hansraj and Others) convicting the appellants under Sections 302/34 I.P.C. and sentencing each of them to life along with anciliary conviction / sentences.
1- The prosecution case is as under: -
(a) The deceased (nephew) had a kerosene / fertilizer shop, who had previous enmity with accused Hansraj Yadav of the same village over non-payment of certain dues. On the day of occurrence i.e, 1.10.1986 in the evening a verbal dual had taken place between the two. On the same day, at around 11:00 at night after the deceased had his dinner at his house, was on his way to the shop to sleep, when he reached the house of accused Hansraj Yadav, accused Hansraj Yadav, Vishnu Yadav sons of Mahavir Yadav and Durbal Yadav son of Kauri Yadav caught hold of the deceased-nephew and started beating him.
The victim cried for help, which attracted the arrival of elder brother of the informant, i.e, Sita Ram Yadav and PW-2 (Ram Pher), Ram Raj and Ram Kumar. Ram Adhar also came with a lighted torch to witness that the deceased was being assaulted by all the accused with bricks and danda. PW-1 (informant) requested the accused to let off the victim, but they took him inside their house hurling abuses. The victim was tied inside the house and again assaulted. The accused brought the victim to the police station.
(b) On above allegations, an FIR (Exbt. Ka-5), scribed by one Anand Kumar Barnwal came to be lodged by Baburam Yadav (PW-1) as Case Crime no. 116-A of 1987, under Sections 323, 336, 342 and 308 IPC against all the accused persons on 2.10.1986 at 2:00 A.M. The distance between the scene and police station is reported to be 2 kms only. The injured succumbed on way to the hospital. The case was converted to section 304 I.P.C, on 2.10.1986 at 3.05 A.M.
2. The trial court charged all the accused persons under Sections 302/34 and 342 I.P.C. They denied the charges and claimed to be tried.
3. The prosecution in order to establish its case examined four witnesses i.e. PW-1 / Babu Ram Yadav (uncle of the deceased), PW-2 / Ram Pher (relative of the deceased), both eye-witnesses. PW-3 conducted the autopsy of the deceased and PW-4 is the Investigating Officer.
4. The accused under Section 313 Cr.P.C, denied the prosecution case and claimed false implication. They alleged that Ram Prakash (deceased) intruded into their house on the night of 1.10.1986 through a broken wall from the rear side of the house to outrage the modesty of the females of the house. The daughters and daughter-in-law shouted “thief” had entered their house. After hearing the alarm, they reached the courtyard where the deceased was caught red-handed. People from the neighbourhood also gathered, started beating the deceased. Thereafter, they took the deceased to the police station, lodged a report against him. However, PW-1 reached the police station with Anand Kumar Barnwal, lodged a false report against the appellants. No evidence was led by defence.
5. The trial court after analyzing the evidence convicted the appellants as above.
6. During pendecy of the appeal, appellants namely Phoolchandra Yadav, Vanshu Yadav and Durbal Yadav died, appeal already stands abated against them. Thus the appeal survives only in respect of sole appellant-Hansraj.
7. Heard Sri Rajeev Upadhyay and Sri Shashi Kant Mishra, learned counsel for the appellant-Hansraj and Sri A.N. Mulla, the learned A.G.A.
8. Learned counsel for the appellant submitted that none of the eye-witnesses were present at the spot. He further argued that deceased committed criminal house trespass at night in order to outrage the modesty of the female members of the house, appellant along with others exercised their right of private defence by beating the deceased, who was also beaten by unknown persons of the village. Appellant and others brought the victim to the police station and lodged an F.I.R, as Case Crime No. 116 of 1987, under Section 456 I.P.C, against the deceased / Ram Prakash on 2.10.1986 itself. He finally submitted that offence, if any, would not traverse beyond Section 304 IPC.
9. The learned A.G.A, opposed the submission.
10. The prosecution admits that deceased- Ram Prakash was put to death in the house of accused-appellant. The prosecution also admits that the deceased was brought by the appellant and others to the police station. Once the 2 vital facts mentioned above stand admitted by the prosecution, a probable inference is that the deceased managed to intrude in the house of appellant at odd hours to commit an overt act cannot be ruled out. Thus, the appellant cannot be termed as an aggressor.
11. Section 96 of IPC provides that nothing is an offence, if an act is done in the exercise of the right of private defence. Section 97 IPC provides that a right of private defence is available against the offences affecting one's own body and the body of any other person and so against affecting the property of one's own or of any other person's property, theft, criminal trespass etc. Section-99 provides the extent to which the right of private defence is avaialable, i.e, in no case it extends to inflict more harm than is necessary to inflict for the purpose of defence.
12. We in the light of above evidence are of the view that the appellant was well within his right to exercise private defence against criminal trespass by the deceased. What we have to now see is whether appellant in the garb of right of private defence had a right to cause death of the deceased. Admittedly, the deceased was unarmed, who had been nabbed by the inmates of the house, followed by multiple assaults by inmates and the neighbours with lathis and brickbats. Thus in the light of said evidence, the appellant and others inflicted more injuries to the deceased than was necessary to apprehend him. Precisely at this point of time the appellant exceeded his right of private defence by causing the death of the deceased.
13. Once the appellant exceeded the right of private defence by causing the death of the deceased, his case is squarely covered by exception-2 to Section 300 IPC. Thus, the conviction of the appellant under Section 302 IPC cannot be sustained, is liable to be set aside.
14. We now evaluate as to whether the act of appellant would constitute an offence under the first or second part of Section 304 IPC. To answer this, we will have to evaluate the nature of injuries on the body of the deceased and the weapons used.
15. PW-3 / Dr. T.K. Jha / Medical Officer conducted the autopsy of the deceased on 2.10.1986 at 2.30 P.M. with the following ante-mortem injuries:-
1. Contusion 6cm X 5cm area, on the right side of forehead just above lateral to right eyebrow.
2. Multiple abrasion 11 cm X 5 cm area, on the left side of upper face, maximum 4 cm X 1 cm; minimum 1/2 cm X 1 cm.
3. Lacerated wound 3 cm, X 1 cm, bone deep on the right side of scalp, 5 cm about the right ear, bleeding from the right ear.
4. Lacerated wound 1 cm X 4 cm on the left side of heard 3 cm above left ear.
5. Many contusions along with swelling at the back of full right hand and towards arm 70 cm X 10 am area, the largest (illegible) 5 cm and smallest 4 cm X 1 cm.
6. Many contusions along with swelling at the outer area of left hand 75 cm X 12 cm area, the largest 10 cm X 4 cm and smallest 3 cm X 1 cm.
7. Injury, swelling along with contusion 35 cm X 9 cm area beneath left leg and foot.
8. Injury, swelling, contusion in area of 30 cm X (9) cm at the outer aspect right leg and toe.
9. Abrasion 7 cm X 2 cm on back in T II region middle line.
10. Contusion 20 cm X 12 cm on the left upper back in left scapular region.
Internal Examination Parietal and temporal bones of right side were found broken. Brain membranes were found lacerated.
As per opinion of the PW-3 cause of death is result of ante-mortem head injury.
16. The doctor was opining that the above injuries were attributable to the use of lathi, danda and brickbats, which was the case of prosecution. He also opined that all the injuries were cumulatively responsible for causing the death of deceased. He was not singling out any injury as being sufficient in the ordinary course of nature to cause death. The evidence indicates that once the deceased was nabbed by the inmates, they assaulted the deceased to teach him a lesson. Thus, from the nature of above injuries, the weapon used and the surrounding circumstances, in which the occurrence took place, it cannot be said that the appellant ever intended to cause death of the deceased. The conviction is liable to be altered to Section 304 (II) IPC.
17. The Apex Court in Mohd. Jamiludin Nasir Vs. State of W.B. (2014) 7 SCC 443, after exhaustively analysing previous decisions relating to sentencing held that sentencing is a delicate task requiring an interdisciplinary approach and calls for special skills and talents. A proper sentence is the amalgam of many factors, such as, the nature of offence, circumstances – extenuating or aggravating –of the offence, prior criminal record of the offender, age and background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental condition, the prospects for his rehabilitation, etc. It further held in paragraph-175 as under:
“175.Having noted the above decisions on the question of sentence we formulate the following fundamental principles to be borne in mind while dealing with the sentence to be imposed in respect of crimes committed of such grotesque nature.
175.1. The sentence to be awarded should achieve twin objectives
(a) Deterrence
(b) Correction
175.2. The Court should consider social interest and consciousness of the society for awarding appropriate punishment.
175.3. Seriousness of the crime and the criminal history of the accused is yet another factor.
175.4. Graver the offence longer the criminal record should result severity in the punishment.
175.5. Undue sympathy to impose inadequate sentence would do more harm to the public
175.6. Imposition of inadequate sentence would undermine the public confidence in the efficacy of law and society cannot endure such threats.”
18. Considering that the appellant is currently reported to be aged around 73 years, the act alleged did not indicate any prior concert, a sentence of 5 years would be just and appropriate.
17. The appeal is allowed in part. The conviction of the surviving appellant / Hansraj is altered to Section 304(II) IPC and sentenced to 5 years. The appellant is on bail. His bail bonds stand cancelled. He shall surrender within 6 weeks to serve the remainder sentence.
Let a copy of this judgment along with record be sent to the Sessions Judge, concerned for ensuring compliance within 2 months under intimation to this Court.
Order Date :- 18.12.2019 N.S.Rathour
(Suresh Kumar Gupta, J.) (Pankaj Naqvi. J.)