Court No. - 43
Case :- CRIMINAL APPEAL No. - 1815 of 1986 Appellant :- Pancham Lal And Others Respondent :- State Of U.P.
Counsel for Appellant :- K.M. Mishra, Sushil Dubey, Sushil Kumar Rao, Virendra Pratap Pal Counsel for Respondent :- A.G.A.
Hon'ble Vikram Nath, J. Hon'ble Krishna Pratap Singh,J.
(Per Krishna Pratap Singh, J) This criminal appeal has been filed against the judgement and order dated 2.7.1986 passed by the learned Sessions Judge, Etawah in Sessions Trial No. 73 of 1985 whereby the learned Judge convicted and sentenced appellant Ram Sewak to one year's RI under Section 147 IPC, accused-appellants Pancham Lal, Siya Ram, Ram Prasad, Suresh and Mangu Lal two years' RI under Section 148 IPC. Further all the accused were convicted and sentenced to life imprisonment under Section 302/149 IPC. However, all the sentences were directed to run concurrently.
As appellant No. 1, Pancham Lal died during pendency of this appeal, appeal filed in respect of appellant No. 1, Pancham Lal was abated vide order dated 14.07.2014.
In short compass, the facts of the case are that a written report was handed over by Ram Sewak at the Police Station Sahail, district Etawah on 02.7.1984 to the effect that his brother Ram Autar, was working in Handloom Industry at Auraiya. Accused Pancham Lal, Siya Ram, Ram Prasad, Ram Sewak and Suresh Chandra had constructed a wall at the place of his brother Ram Sewak. It is alleged that his brother came to his house on 02.07.1984 and on finding wall in his place, started demolishing it. Pancham Lal armed with spear, Siya Ram, Suresh and Ram Prasad carrying Kanta, Ram Sewak was having lathi and Mangu Lal armed with country made pistol with common object of unlawful assembly to commit the murder of his brother challenged him, who ran to save his life. However, he was chased and surrounded by the accused at 5.30 PM at the field of Mauji Lal Verma and caused injuries with lathi, Kanta and spear and committed his murder. Meanwhile Mangu Lal also fired with country made pistol at his brother, which instead of hitting his brother, struck Ram Sewak one of the accused. It is further alleged in the report that in addition to the informant, the incident was also witnessed by Om Prakash, Ramesh Chandra, Babu Ram and Lal Singh. After committing the crime, accused fled towards Purwa Jain.
On the basis of the aforesaid report, a case was registered as Case Crime No. 54 of 1984, under Sections 147, 148, 149, 307 and 302 IPC at Police Station Sahail, district Etawah.
After the registration of the FIR, the law set into motion and investigation of the case was entrusted to PW-4, SI Ram Lal Verma, who rushed to the spot at 10.00 PM, but as there was insufficient light, the inquest was conducted at 5.45 AM on 03.7.1984. Investigating Officer got the cadaver sealed and handed over the same to Constables Ved Ram and Ram Singh for getting the post-mortem done. He collected bloodstained and simple earth and sealed it. The Investigating Officer also recorded the statements of inquest witnesses and also the witnesses of the crime. He also recorded the statement of accused-injured Ram Sewak in hospital. After completing the investigation and making necessary formalities, he submitted charge sheet against the accused on 23.7.1984 (Ext. Ka-14).
As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions where case was registered as ST No. 73 of 1985 and learned Sessions Judge, Etawah vide order dated 17.10.1985 framed the charges against the accused under Sections 147, 148, 302/149 IPC. The accused pleaded not guilty and claimed to be tried.
To bring home guilt of the appellants, the prosecution examined as many as four witnesses, out of whom PW-1, Ram Sewak and PW-2, Om Prakash are the witnesses of fact, whereas PW-3, Ram Bilas Chaturvedi and PW-4, Ram Lal Verma were formal one.
PW-1, Ram Sewak is the informant of the case.
He reiterated the version given in the FIR.
PW-2 Om Prakash, in his examination-in-chief deposed that accused had constructed wall over the land of deceased-Ram Autar. Ram Autar returned from Auraiya on the date of occurrence and on getting the wall in his place, he started demolishing it. Accused also reached there and challenged and threatened to kill the deceased-Ram Autar. Pancham Lal armed with spear, Siya Ram, Suresh and Ram Prasad were carrying Kanta, Ram Sewak was having lathi and Mangu Lal was armed with country made pistol. He further deposed that he along with Ram Sewak, the informant, Ramesh Chand and Lal Singh reached the spot. Deceased ran, but he was chased and surrounded at the field of Mauji Lal Verma. Thereafter, all the accused persons started beating the deceased with spear, Kanta and lathi and when deceased fell down, then Mangu Lal fired with country made pistol, which hit accused Ram Sewak. Deceased had received as many as 19 injuries in the occurrence, which was witnessed by him and other witnesses. After the occurrence, the accused fled towards Purwa Jain. He scribed the report at the dictation of informant Ram Sewak.
PW-3, Ram Vilas Chaturvedi deposed in his examination-in-chief that on 2.7.1984 he was posted at Head Muharrir at the police station Sahail. On that date at 8.30 PM he prepared check FIR on the basis of written report handed over by the informant Ram Sewak (Ext. Ka-3) and made necessary GD entries at 10.30 PM.
PW-4, SI Ram Lal Verma is the Investigating Officer of the case, who conducted the investigation and submitted the charge sheet against the accused- appellants. His evidence in detail has already been discussed above.
The autopsy on the cadaver of Ram Avtar was conducted on 04.7.1984 by Dr. D. Sharma, Medical Officer, District Hospital, Etawah at 2.00 PM on 04.7.1984, who found the following injuries:
1. Incised wound 25 cm x 5 cm x bone deep on the back of neck cutting through posterior half of body of second cervical vertebrae.
2. Incised wound 22 cm x 2 cm x bone deep on the posterior lateral aspect of the left side neck 1.5 cm above injury No. 1.
3. Incised wound 4 cm x 1.5 cm x scalp deep on left sie head 2 cm away from the top.
4. Punctured wound 3 cm x 0.5 cm x bone deep on the left chin 3 cm below left lateral angle of mouth.
5. Punctured wound 3 cm x 0.5 cm x bone deep on the front of chin in the middle.
6. Incised wound 7 cm x 2.5 cm x muscle deep on the medial aspect of right arm 6 cm away from elbow.
7. Incised wound 2 cm x 2.5 cm x muscle deep on left forehead 0.5 cm above left eye brow.
8. Incised wound 1 cm x 0.5 cm x muscle deep on left upper lip 1.5 cm away from mid line.
9. Abrasion 4 cm x 3 cm on left cheek 3 cm below left eye.
10. Incised wound 2.5 cm x 1.5 cm x muscle deep on right side forehead 1.5 cm above right eye brow.
11. Contusion 4 cm x 3 cm on the top of left shoulder.
12. Lacerated wound 2 cm x 1 cm x bone deep on left forearm 7 cm above wrist joint medially inner aspect fracture of lower part of ulna bone.
13. Abraded contusion 11 cm x 4 cm on the back of left wrist joint and lower part of forearm with traumatic swelling over this area.
14. Contusion 4.5 cm x 2 cm on left palm on the base of middle three fingers.
15. Abrasion 1 cm x 0.5 cm on back of right middle finger of hand.
16. Abraded contusion 13 cm x 11 cm area on the left side of waist on the post lateral aspect.
17. Contusion 4 cm x 5 cm on the left hip.
18. Contusion 6 cm x 4 cm in front of right thigh 10 cm below anterior superior iliac spine.
19. Lacerated wound 3 cm x 1.5 cm x bone deep in front of left leg 16 cm below left knee.
In the opinion of the doctor, the cause of death was due to shock and haemorrhage as a result of injuries received by the deceased.
After the closure of prosecution evidence, the statements of the accused-appellants were recorded under section 313 Cr.P.C in which they denied their complicity in the offence. Accused-Pancham Lal admitted that he had constructed a pucca wall 15 days prior to the occurrence at the place of deceased-Ram Autar in village Harpura. He also admitted at about 5.30 PM on 2.7.1984 deceased returned from Auraiya, on finding the wall at his place, demolished it.
Accused-appellant Ram Sewak stated that he asked the deceased and Om Prakash and informant- Ram Sewak not to demolish the wall. Deceased was armed with pistol and rest two were carrying lathi chased them and deceased-Ram Autar fired at him as a result thereof he fell down. In exercise of right of self defence Ram Autar, the deceased was beaten in the field of Mauji Lal.
Accused-appellant Mangu Lal denied his presence at the spot. Accused-appellants Siya Ram and Suresh have claimed their false implication.
Learned Sessions Judge, Etawah after hearing learned counsel for the parties and scrutinizing and assessing the evidence on record, convicted and sentenced the appellants as indicated above.
Hence, the appeal.
Heard Shri O.P. Singh, learned Senior Advocate assisted by Shri Sushil Kumar Rao, learned counsel for the appellants and Shri Santosh Ratan Pandey, learned Additional Government Advocate representing the State and perused the material on record.
Learned counsel for the appellants submitted that appellants had constructed a wall in their land. On the date and time of incident deceased Ram Autar armed with country made pistol, informant PW-1, Ram Sewak and PW-2, Om Prakash armed with lathi started demolishing the aforesaid wall. When accused Ram Sewak asked deceased-Ram Autar, PW-2, Om Prakash and informant Ram Sewak not to demolish that wall, they chased the accused Ram Sewak and deceased fired a shot at accused Ram Sewak, as a result thereof he fell down. In exercise of right of private defence deceased Ram Autar was beaten by them in the field of Mauji Lal. It was further submitted that the alleged act of the appellants cannot in any manner be said to be in excess of right of private defence. It was also submitted that appellants have specially urged private defence before the trial court which was erroneously rejected by the trial court. It was also submitted that trial court was not right in dissecting the statements of the appellants under section 313 Cr.P.C. by relying upon the inculpatory part of it but declining to take into account their explanation as to how the fire arm shot occurred and as such the impugned judgment is unsustainable.
Learned AGA for the State submitted that no cogent evidence is on record to substantiate the submissions that the complainant party was the aggressors. It was further submitted that at the time of occurrence accused Mangu Lal fired with country made pistol at deceased which instead of hitting deceased, struck accused Ram Sewak. He also submitted that the act of appellants was not in exercise of right of private defence and trial court has rightly convicted the appellants. Thus appeal is without merit and deserves to be dismissed.
We have carefully considered the rival submissions and perused the evidence and material on record and the impugned judgment.
It appears from the record that there are cross versions of the incident and cross cases were lodged with the police. In cross examination, suggestions given to the Investigating Officer Ram Lal Verma PW- 4 that in cross case police had submitted final report. Injury report Ext. Kha-2 of the accused Ram Prasad was prepared on 03.07.1984 at 11.40 AM.
Following injuries were found on his person:-
1. Abraded contusions 3 cm x 2 cm on the left side of the back in lower ¼ part, middle on soft scabbed.
2. Contusion 4 cm x 2.5 cm on the back of right hip joint middle part, dark red in colour.
In the opinion of doctor all the injuries were simple and were caused by some blunt object. The duration was about 2/3 days old.
Accused Ram Sewak was also medically examined on 03.07.1984 at 11.20 a.m. According to the injury report Ext. Kha-3 following injuries were found on his person:-
1. Multiple gun shot wounds of entries in an area of 12 cm x 10 cm on the pit of right axillary within an area around to it, each wound is measuring 0.4 cm x 04 cm x depth could not be measured. Margins were inverted, contused and lacerated soft semi dried and clotted blood was present. Injury was kept under observation and advised X-ray. The injury was caused by some fire arm. Duration was about 2/3 days. The general condition was serious.
Evidence on record show that factum of occurrence between the parties are admitted.
Informant, PW-1 Ram Sewak is the real brother of deceased Ram Avtar. He deposed that his brother Ram Avtar was working in Handloom Industry at Auraiya. Appellants had constructed a wall on the land of his brother Ram Avtar. He further deposed that deceased came to his house on 02.07.1984 at around 5.30 PM. On finding the wall in his land, he started demolishing it, then all accused persons namely, Ram Prasad having a Kanta, Pancham Lal having spear, Siya Ram, Suresh and Ram Sewak having a lathi and Mangu Lal having a country made pistol in their hands surrounded and challenged the deceased with one volition with intention to kill him. Deceased in order to save his life, ran towards south- west of the village. In the field of Mauji Lal Verma his brother Ram Avtar was surrounded and killed by accused persons by causing injuries with lathi, kanta and spear. Meanwhile accused Mangu Lal having a country made pistol also opened fire at Ram Avtar which instead of hitting him, hit accused Ram Sewak. This incident was witnessed by Om Prakash, Ramesh Chandra, Babu Ram and Lal Singh. All accused persons ran away towards Poorva Jain. PW-2, Om Prakash has also given similar statement regarding occurrence as has been stated by informant PW-1, Ram Sewak. Both eye witnesses have given detailed description of occurrence seen by them and their statements are in consonance with FIR Ext Ka-1.
On appreciating the testimony of the fact witnesses, it cannot be said that prosecution witnesses are untrustworthy and unreliable. From the deposition of informant PW-1, Ram Sewak and PW- 2, Om Prakash, it is clear that they had seen the occurrence and their presence at the place of occurrence is not doubtful. On the basis of statements of the aforesaid witnesses, it is fully established that the appellants had committed the murder of Ram Avtar and same is corroborated by the medical evidence also. The defence has taken the plea of self defence. The provisions of right of private defence are given in sections 96 to 106 of the Indian Penal Code. According to the section 96 IPC nothing is an offence which is done in exercise of right of private defence. Section 97 IPC states that every person has right of defence of person as well as of property. Section 100 IPC states the situations in which right of private defence of body extends to the extent of voluntarily causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. It entitles him to defend himself and law gives right of private defence.
In Dharam and others vs State of Haryana 2007 (15) SCC 241, Hon'ble Apex Court has held as under:-
“18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence."
19. It is trite that the burden of establishing the plea of selfdefence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of selfdefence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (see State of Gujarat Vs. Bai Fatima, 1975 (2) SCC 7 and Salim Zia Vs. State of UP, 1979 (2) SCC 648).
In present case, deceased was demolishing a wall which was admittedly constructed by the appellants. The statement of accused Ram Sewak recorded under section 313 Cr.P.C. shows that when he asked the deceased and PW-1 and PW-2 not to demolish the wall, deceased fired a shot at him with pistol, which struck his pit of axillary in an area of 12 cm x 10 cm. Although prosecution has denied this fact and given explanation that gun shot injuries of accused Ram Sewak were caused by the accused Mangu Lal with country made pistol. Country made pistol was not recovered from the accused Mangu Lal. Investigating Officer did not try to recover the country made pistol which was used in commission of crime. Accused Mangu Lal in his statement recorded under section 313 Cr.P.C. has denied his presence at the spot. Strict proof is required for establishing the plea of alibi. There is nothing on record to show that accused Mangu Lal was so far away from the place of occurrence that it was extremely improbable that he would have participated in the crime. From the prosecution version it is proved that appellants had constructed the wall in dispute. Remedy for deceased was to seek possession from a court of law and not to enforce it by taking law in his own hands and try to take back possession by his own force.
Considering the facts and circumstances of the present case and evidence on record, it is evident that accused-appellant No. 4 and 5, namely, Ram Prasad and Ram Sewak, who suffered blunt object injuries and gun shot injuries in the incident along with the other appellants have caused death of Ram Avtar thereby exceeding right of private defence. Injuries suffered by both the sides are on record.
In the above circumstances, from the evidence as discussed above, we are inclined to accept that it is a case of culpable homicide not amounting to murder. Therefore, after weighing the submissions of learned counsel for the parties and going through the papers on record, we are of the opinion that appeal of the accused/appellants deserves to be allowed partly.
Accordingly, appeal is partly allowed and conviction and sentence recorded against appellants under section 302 IPC read with Section 149 IPC is set aside. Instead, appellants are convicted under Section 304 Part-I IPC read with section 149 IPC and sentenced each of them to rigorous imprisonment for a period of ten years and a fine of Rs. 15,000/-
each. In default of payment of fine, the appellants shall undergo rigorous imprisonment for further period of one year.
Accused appellants are on bail. Appellants shall surrender before the trial court within 90 days from the date of this judgment to serve out the sentences awarded to them, failing which learned trial court shall issue non-bailable warrant against them and shall send them to jail for serving out the sentences.
Let a copy of this judgment be sent to learned Sessions Judge concerned for securing compliance and a compliance report be submitted to this Court also.
(Krishna Pratap Singh, J) (Vikram Nath, J) Order Date :- 26.10.2018 Ishrat