JUDGMENT K.K. Misra, J.
1. This appeal arises out of the judgment and order dated 11.9.83 passed by Sri D.N. Shukla, the then Addl. Sessions Judge, Budaun in Session Trial No. 166 of 1980- State v. Hukum Singh and Ors. convicting both appellants Hukum Singh. Thakuri under Section 302/34 IPC & 324/34 IPC and sentencing each of them to undergo life imprisonment and one year's R.I. respectively. The sentences were directed to run concurrently. Two others, namely, Tej Singh and Karan Singh were acquitted.
2. The prosecution case in brief was that P.W. 2 Siya Ram and his brother Sukh Ram deceased had sold a she-buffalo to accused-appellants Hukum Singh and Thakuri for a sum of Rs. 825/- but initially a sum of Rs. 75/- was paid and the balance amount was to be paid after a month. When inspite of several demands the appellants did not pay the balance amount. P.W.1 Sadhoo Ram, Informant and Sukh Ram deceased went to the house of the ' appellants in their absence and brought back the she-buffalo. On the date of occurrence i.e. 19.9.1979 informant Sadhoo Ram, (P.W.1), his father Siya Ram (P.W.2) and Sukh Ram deceased were grazing their animals including that she-buffalo in the jungle of Dhak trees to the north of the river Bhainsora near the village of the accused . At about 2 P.M. the accused came there and wanted to take away the she-buffalo. Both the appellants were armed with spears and the other two co-accused persons (acquitted) were aimed with Lathis. When the complainant party tried to prevent | them from taking away the animal, the accused persons assaulted them which resulted in. the death of Sukh Ram on the spot. First informant P.W.1 Sadhoo Ram and P.W.2 Siya Ram also sustained injuries in the incident. The accused thereafter took away the animal. Sadhoo Ram informant thereafter went to the P.S. Ujhiani leaving the dead body of Sukh Ram deceased and Siya Ram, at the place of occurrence and lodged the F.I.R. by oral narration. The distance from the place of occurrence to the Police Station was 9 kms. The F.I.R. was registered as case crime No. 359 of 1979 on 19.9.79 at 5.10 p.m. The investigation of the case was under taken by P.W. 6 Sub-Inspector Raghunath Singh. He went to the place of occurrence and collected blood stained and plain earth, prepared the site plan of the place of occurrence, conducted the inquest of the dead body and forwarded the same for post mortem examination.
3. At the trial, the prosecution in order to prove its case against the accused examined seven witnesses. P.W.1 Sadhoo Ram, P.W.2 Siya Ram, P.W.3 Mukat Singh and P.W.4 Munna Lal were eyewitnesses and rests of the witnesses were formal, However, at the trial out of four eyewitnesses, two witnesses, namely, P.W.3 Mukat Singh and P.W.4 Munna Lal turned hostile and did not support the prosecution case.
4. Dr. Manohar, Lal Verma , P.W.7 examined the injuries of the first informant P.W.1 Sadhoo Ram and P.W.2 Siya Ram. The following injuries were found on the person of first informant Sadhoo Ram P.W.1 who was examined on 19.9 1979 at 5.50 P.M.
1. Lacerated wound 3 cm. x 0.5 cm x muscle-deep on the left side of head, 6.5 cm above left ear;
2. Lacerated wound 1 cm x o.5 cm x bone deep at left eye brow on its lateral end;
3. Stab wound measuring 1 cm x 0.25 cm x 2.5 cm on the left side of Abdomen 7.5 cm above left Ant. Superior iliac spine, direction of wound posterior, anterior and downwards; and
4. Stab wound measuring 1 cm. x 0.3 cm x 3 cm on lower 3rd of right upper arm at the flexor surface 7.5 cm above the medial epicondye direction of wound upwards and laterally.
5. In the opinion of the doctor, the above injuries were simple and about one quarter day old. He further opined that injuries No. l & 2 were caused by hard and blunt object and injuries No. 3 & 4 were caused by sharp pointed object.
6. Following injuries were! noticed by P.W.7 Dr. Manohar Lal Verma on the person of Siya Ram, P.W.2 on 19.9.1979 at 10.10P.M.
1. Stab wound measuring 1 cm x 0.5 cm x 3 cm on the left shoulder, 5 cm above the lateral end of left clavicle, direction forward & medially towards the neck;
2. Linear abrasion measuring 3 cm from the lower end of above stab wound towards the back on the left side of shoulder; and
3. Contusion measuring 3 cm x 1.5 cm on upper 3rd of right fore arm at the extensive surface.
7. All the above injuries were found to be simple and about 1/2 day old. The doctor further found that injury No. 1 was caused by a sharp pointed object, injury No. 2 was caused by friction and injury No. 3 was caused by blunt hard object
8. P.W.5 Dr. V.P. Bhatnagar conducted the post mortem examination on Sukh Ram deceased on 20.9.1979 at 11.30 A.M. and found the following ante mortem injuries on the body:
1. Lacerated wound size 3 cm x .5 cm x scalp deep on top back of left side of head, 10.5 cm above the left ear;
2. Lacerated wound 3 cm x 25 cm x scalp deep on right side of the head, 10 cm above the right ear;
3. Lacerated wound with contusion 2 cm x 1 cm x bone deep on right side of the lateral angle of right eye size of contusion 4 cm 1.5 cm;
4. Contusion 2 cm x .5 cm on & above the right eyebrow;
5. Punctured wound 1 cm x 5 cm x cavity deep in the midline of the chest, 7 cm below the notch of membranes sterni;
6. Punctured wound 2 cm x .75 cm x cavity deep on the front of left side of the chest, just touches the mid line of chest 6 cm below the injury No. 5 and 8 cm. below & medial to left nipple;
7. Verticle & oblique linear contusion 10 cm x .5 cm on left side of the chest wall, 6 cm medial to left nipple; and
8. Punctured wound 1.5 cm x .5 cm x bone deep on tack and right side of the upper 1/4th of forearms, 6 cm. below the right elbow.
9. In the opinion of the doctor the death occurred due to shock and hemorrhage as a result of ante mortem injuries No. 5 & 6.
10. After completing the, investigation, the charge sheet was submitted against both the appellants and two other accused persons (since acquitted by the trial court).
11. The accused pleaded not guilty of the charges framed against them and took up the plea of right of private defence of person and property D.W.1 Surendra Pratap was examined in defence.
12. The trial court found the offences as above proved against the \ accused appellants, but acquitted two other accused persons giving them benefit of doubt.
13. We should mention here the gist of the material evidence. P.W.1 Sadhoo Ram in his statement before the trial court deposed that his lather and uncle had sold the she-buffalo to Hukum Singh and Thakuri accused for 825/- and the accused persons made part payment of Rs. 75/- and promised to pay the balance after a! month When on repeated demands they did not pay the balance, he and his uncle Sukh Ram deceased went to the house of the accused and brought back the she-buffalo in their absence fifteen days before the date of incident. On the date of incident, deceased Sukh Ram and his father Siya Ram went to graze animals in 'Dhake' Mukut and Munna Lal had also gone in the same Dhake to graze their animals on the date oil incident. He himself was at field's distance from his father. At about 2 p.m. when his father Siya Ram made an alarm that accused were taking the animal, they all reached near Siya Ram. He found that Hukum Singh and Thakuri were armed with spears and Karan and Tej Singh were each armed with Lathis and were taking away the she-buffalo. When they tried to take possession of the animal, the accused threatened to teach a lesson as they had taken back the animal in their absence. The accused persons then assaulted the: deceased, this witness and P.W.2 Siya Ram. Sukh Ram deceased fell on the ground receiving the injuries. Then the accused persons took away the animal.
14. P.W.2 Siya Ram is the father 6f P.W.1 Sadhoo Ram and he also deposed similarly. He further admitted in his deposition that they had Lathis with them and used the same in their defence and their Lathis hit the accused persons.
15. We have heard Sri P.N. Misra learned counsel for the appellants and Sri Mahendra Pratap Singh, Learned A.G.A.
16. Sri P.N. Misra, learned counsel for the appellants mainly contended that (1) no independent witness has been produced in the case and that (2) P.W.2 Siya Ram in para 12 of his statement before the trial court has deposed that they caused injuries to the accused and this entitles the accused to the right of private defence of person.
17. Now we come to the first contention of the learned counsel for the appellants that the witnesses produced at the trial were interested witnesses. P.W.1 Sadhoo Ram is the nephew of the deceased and P.W.2 Siya Ram is the real brother of the deceased Sukh Ram. No doubt P.W.1 Sadhoo Ram and P.W.2 Sukh Ram being close relatives of the deceased Sukh Ram are interested witnesses, but their testimony cannot he brushed aside solely on this ground, particularly when both of them sustained injuries. Merely close relationship with the victim cannot be a ground for disbelieving a witness. The Fact that a witness is a relation of the victim is no ground for rejecting the evidence, but his evidence has to be assessed very carefully (See Balak Ram v. Stare of U.P. AIR 1974 SC 2165). The presence of relations at the place of occurrence when probable, their evidence as eyewitnesses would not be disbelieved. In the present case, the presence of the witnesses was natural and their presence at the scene of occurrence cannot be doubted particularly when they also sustained injuries. There was no reason to falsely implicate the accused persons and spare the real assailants. Strictly speaking, a witness may be called . interested only when he or she derives some benefit from the result of 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 possible eyewitness in the circumstances of a case cannot be said to be interested. A relation of a victim may be a natural witness (See State of Rajasthan v. Kalki AIR 1981 SC 1390). The accused and witnesses in the present case are of Yadav community and the primary business of the Yadav community is to sell milk and for this purpose they keep milk giving animals. In the villages it is quite natural to go for grazing the animals in the fields and jungle, where grass is easily available. So their presence at the place, of incident cannot be doubted and they cannot be termed as interested witnesses. Their presence at the place of incident was quite natural. The parties are related to each other and there is no circumstance to falsely implicate the accused and spare the real assailants. Thus, we find that these witnesses are trustworthy. There is no inconsistency except very slight meaningless variation in their evidence. So, we reject the first argument of the learned counsel , for the appellants.
18. Now, we come to the second argument of the learned counsel for the appellants that they acted in the exercise of right of private defence. Learned counsel for defence contended that P.W.2 Siya Ram in para 12 of his deposition has admitted that they had caused injuries to the accused and this entitles them to the right of private defence of person. So far as admission of P.W.2 Siya Ram is concerned, learned counsel for the appellants has produced various judgments of Hon'ble Supreme Court showing that even if the right of private defence is not claimed; by the defence and if the preponderance of probability suggests that they are entitled to the right of private defence of person, they should be given benefit of that. Ho doubt P.W.2 Siya Ram has admitted that he had given Lathi blows to the accused but that alone does not entitle the accused to the right of private defence of person. In the present case, the evidence produced by the prosecution negatives the theory of private defence of person. They did not produce any doctor to prove their injuries. Moreover, the accused had gone to the place of occurrence with spears and Lathis.
19. The question of right of private defence of property should now be considered. It depends on another question as to who had the right to possess the she-buffalo. P.W.1 Sadhoo Ram and P.W.2 Siya Ram in their deposition have stated that the she buffalo had been sold for Rs. 825/-. Some payment was made by the accused at the time of taking possession of she buffalo and balance sale consideration was to be paid in a month. But when on their repeated demands, the accused did not pay the balance amount, F.W.I Sadhoo Ram and deceased Sukh Ram brought back the she-buffalo from the house of the accused in their absence. But after a gap of fifteen days, the incident in question happened. If the accused were previously in peaceful possession but the other side has dispossessed them and the accused has acquiesced in the dispossession for some time, then they must have recourse to law and not enforce right to take back possession by force. It was held in the case of Onkar Nath Singh v. State of U.P.(AIR 1974 SC 1550) that where two incidents are separated by time and distance and there is no continuity of action, the right of private defence is not available. Although in the present case, it is not clear whether the parties had intended to complete the sale at the time of delivery of possession of she buffalo, but even if for the sake of argument it is assumed that the sale was complete at the time of delivery of possession of she buffalo, the accused had no right of private defence of property to take back the possession of she buffalo forcibly which the complainant patty had taken back from the house of the accused in their absence on account of non-payment of balance of sale consideration as sufficient time of fifteen days had elapsed. The accused did not take any legal steps during the period of 15 days for recovery of she-buffalo or in any other way contacted the complainant: party for taking back the she-buffalo. From the facts on record it appears that the accused had clear intention of taking back the she-buffalo by force whenever the.:.. occasion could arise. Such occasion arose on the date of incident when the complainant party was grazing animals in the Dhake and the accused without any altercation with the complainant party began to take away the she-buffalo. When P.W.2 Siya Ram raised an alarm, they began to assault him with their respective weapons. When on the alarm of P.W.2 Siya Ram, P.W.1 Sadhoo and deceased Sukh Ram who were in the nearby field reached near them, the accused assaulted them also. The complainant party also used Lathis in defence. The assault by the accused party resulted in the death of Sukh Ram deceased on the spot. P.W.1 Sadhoo Ram and P.W.2 Siya Ram also sustained injuries, in the incident. The fact that the accused party had clear intention of taking forcible possession of she-buffalo is fortified by the fact that two of the accused, namely, Hukum Singh and Thakuri (the present appellants) were armed with spears. In villages, it is a common practice that when villagers take their animals for grazing their field, they keep Lathi with them but the fact that both of the accused appellants were armed with spears shows their intention to cause any injury for taking back forcibly the possession of she buffalo. Though the accused claim to have received injuries and to have gone to lodge the report of the incident and detained at the police station, but as they were aggressors, they had no right of private defence. The complainant party was not armed with any deadly weapon and the accused could not have any apprehension of being killed. If the accused had no right of private defence, no question of their exceeding right of private defence arises. The accused persons armed with Lathi and spears went to the field to achieve their common intention of forcibly taking the she buffalo.
20. Learned counsel for the appellants relied upon the cases of Madan Mohan Pandey v. State of U.P. (1991 Crl. LJ. 467 SC 67), Subramani and Ors. v. State of T.N. (2002 Supreme Court Cases (Cri) 1659), Bhagwan Swaroop v. State of Madhya Pradesh 1992 Supreme Court Cases (Cri) 422 and Hanumantappa Krishnappa Mantur and Ors. v. State of Karnataka 1992 Supreme Court cases (Cri) 667. On their perusal we find that they do not apply to the facts of the present case.
21. On the above set of circumstances, the trial court acquitted two of the accused named in the F.I.R. So far as the acquittal of the two other accused is concerned, no appeal has been filed. Although the acquittal in our assessment is bad in the eye of law as the same was based on misreading of evidence and wrong interpretation of law. But no benefit of the same can accrue to the present accused appellants.
22. Learned counsel for the appellants has further argued 'that F.I.R. shows that the main intention of the accused-appellants was to recover the she buffalo. The averment in the F.I.R. about the 'Utterances of the accused at the spot is to this effect "TUM HAMARE PEECHE HAMARE GHAR SE BHAINS KHOL KAR LAVE HO AAZ TUMHE PATA CHALEGA AND BHAINS KO ZABARDASTI LEKAR CHAL D1YE." Learned counsel for the appellants has further drawn our attention to the injuries caused to the deceased who had received three punctured wounds and it is not specifically known as to who caused them. Both the injured had received stab wounds. This fact is also doubtful as to whether stab wound can be caused by spear.
23. The question which is to be decided by this Court is whether the accused appellants had any intention of causing death of the deceased. PW 2 Siyaram, in his examination-in-chief, has said that when the accused persons were taking away the she-buffalo forcibly, he raised alarm whereupon his brother Sukhram, his son Sadhoo Ram and witnesses Mukut and Munna Lal reached at the place of occurrence and they tried to snatch; the she-buffalo and then the accused persons launched the assault with their weapons. The first Informant has also in his examination-in-chief said that when the accused persons were taking away the she-buffalo, they moved ahead and intercepted the accused persons from taking away the she buffalo whereupon they started assaulting with spears and Lathis. Thus, from the evidence on record, it is proved that the appellants went to the place of occurrence to take back the possession of she-buffalo, and not with the intention to cause death of the deceased.
24. The case was listed for further hearing on 18.1.05 and on that date Sri , P.N. Misra, learned counsel for the appellants place reliance on Supreme Court decision reported in 2003(46) ACC 948- Manke Ram v. State of Harayana. In the case relied upon by the learned counsel for the appellants, there was no motive to kill. The incident took place when the police in inebriated condition in a sudden fight in heat of passion, the: accused fired two shots at, deceased from his service revolver which hit the deceased on right side of neck and left side of thigh and the deceased succumbed to injuries soon alter.
25. Learned counsel for the appellants also relied upon the case of V. Sreedharan v. State of Kerala 1992 Supreme Court Cases (Cri) 952, the Court found that the infliction of the single blow was a result of provocation which appellant got in the head of passion upon the sodden quarrel and therefore, the appellant was found guilty under Section 304 Part I instead of Section 302 and sentenced to 7 year's R.I.
26. Another case relied upon by the learned counsel for the appellant is Arvind Kumar v. State of U.P. 1988 Supreme Court Cases (Cri) 132. In this case in the heat of passion as a result of sudden quarrel two knife blows were inflicted on the deceased, one of right forearm and the other on the chest of the deceased causing his instantaneous death. In the circumstances of the case, the conviction was altered from one under Section 302 to Section 304 Part I with 7 years' R.I. and a fine of Rs. 25,000/-.
27. The crux of the matter in the present case is that the appellants had gone to the place of the incident in order to take their buffalo back, which was taken away by the complainant side a few days back from their house in their absence and the appellants had actually taken back the she-buffalo after the incident. So, it is established that the appellants had gone to take back the possession of she-buffalo and not with an intention to cause death. No doubt, they had gone to take possession of buffalo armed with spears and Lathis. In the present case the two appellants had carried spears and the deceased had received two spear injuries on the vital part. There was one more sharp-edged injury to the deceased but it was on non-vital part. So it cannot be said that the appellants had repeated the blows with the intention of causing death. Further, in the present case it cannot be argued that incident had taken in the heat of passion.
28. On cumulative consideration, we are of the view that the two accused appellants in causing the death of Sukh Ram, committed the offence punishable under Section 304 Part IPC read with Section 34 IPC. A sentence of 7 years' R.I. with a fine of Rs. 10,000/- against each of them shall meet the ends of justice. Fine, if realized, shall be directed to be paid to the Immediate heir of the deceased Sukh Ram. In default of payment of fine, each of them would undergo further R.I. for two years. The Sentence of one year's R.I. to each of them under Section 324 read with Section 34 IPC does not call for any Interference.
29. In the result, we partly allow this appeal. The conviction of the accused appellants Hukam Singh and Thakuri is converted from Section 302/34 IPC to Section 304 Part I IPC read with Section 34 IPC and the sentence of each of them is modified from life imprisonment to seven years' R.I. and a fine of Rs. 10,000/-. In default of payment of fine, each of them would suffer further R.I. for two years. If the fine is realized, the same shall be paid as compensation to the immediate heir of deceased Sukh Ram. Their conviction under Section 324/34 IPC with sentence of one year's R.I. is maintained. This sentence shall run concurrently with seven years' R.I., awarded under Section, 304 Part I read with Section 34 IPC.
30. Both the accused appellants Hukum Singh and Thakuri are on bail The CJM Budaun shall cause them to be arrested and lodged in jail to serve out the sentences.
31. Certify the judgment to the lower court for reporting compliance within two months.