JUDGMENT M.C. Jain, J.
1. Both the appeals arise out of the judgment and order dated 1.8.1981 passed by IV Additional Sessions Judge, Kanpur in Sessions Trial No. 443 of 1978. The accused Harish Chandra and Daya Shanker have been acquitted. As such, the State has preferred Government Appeal No. 2766 of 1981 thereagainst. The appellants of Criminal Appeal No. 1736 of 1981, namely, Balwant, Raja Ram son of Din Dayal, Mool Chand and Raja son of Gajadhar as also one Arun were convicted under Section 302 read with Section 149 IPC. Raja Ram was further convicted under Section 148 IPC and the rest under Section 147 IPC. Arun was found under 16 years of age within the meaning of U.P. Children Act, 1951. The benefit of the said Act was afforded to him and it was held that he was not liable to be sentenced. He was released on probation of good conduct. The sentence of life imprisonment under Section 302 read with Section 149 IPC was passed against four appellants of Criminal Appeal No. 1736 of 1981. Raja Ram was further sentenced to undergo 1 1/2 years' rigorous imprisonment on the charge under Section 148 IPC. Balwant, Mool Chand and Raja were sentenced to one year's rigorous imprisonment under Section 147 IPC. All the sentences were directed to run concurrently. Balwant, Raja Ram, Mool Chand and Raja have preferred Criminal Appeal No. 1736 of 1981 against their conviction and sentences. Arun to whom the benefit of U.P. Children Act, 1951 was afforded did not prefer any appeal. Since both the appeals are connected each each other, they are being decided by this common judgment.
2. We have heard Miss N.A. Moonis, learned A.G.A. from the side of State and Sri Viresh Mishra, learned counsel for the accused respondents Harish Chandra and Daya Shankar. In Criminal Appeal, no one turned up to argue out the appeal for the accused appellants though they are represented on record by S/S S.S. Tewari, K.K. Srivastava and R.S. Shukla, Advocates. We, therefore, propose to decide this appeal also on merits as provided by the Apex Court in the case of Bani Singh v. State of U.P. .
3. In this case, one Kalika Singh was murdered. The incident occurred on 16.6.1978 at about 10.30 P.M. in village Nahili, P.S. Mangalpur, District Kanpur and the report was lodged by an eyewitness Shyam Veer Singh PW 1 on 17.6.1978 at 6.30 A.M. He was the nephew of the deceased Kalika Singh. The prosecution case, in essential particulars, was that about 11 years before the present incident, Nanha Singh father of the informant Shyam Veer Singh was murdered by Daya Shankar, Balwant, Harish Chandra, Amar Nath and some other persons (not accused in this case). They were, however, acquitted. Ever since then there became enmity between Amar Nath (one of the accused of that case) and the informant Shyam Veer Singh. The present murder of Kalika Singh was allegedly committed owing to that enmity. In the fateful night, the informant Shyam Veer Singh PW 1 and deceased Kalika Singh had gone to Jhinjhak for receiving Ranvir Singh-brother of the informant who was due to arrive by train from Kanpur. Ranvir Singh, however, did not come by that train. The informant and deceased Kalika Singh, were, therefore, returning back to their village Nahili at about 10.30 P.M. Both of them reached near their village and near canal Kharja, eight persons including the seven accused and one Amar Nath emerged out from their hiding. Amar Nath gave a call and all the eight assailants started assaulting Kalika Singh. Kalika Singh, on being surrounded by the assailants and finding no way out, fired two shots from his gun for his safety. As a result, Raja Ram and Amar Nath were injured. The assailants, however, snatched the gun of Kalika Singh and killed him at the spot. Amar Nath and accused Raja Ram were armed with Kantas. Accused Harish Chandra was armed with a Ballam while Daya Shankar was armed with Barchhi. The remaining four accused were armed with lathis. Shyam Veer Singh raised hue and cry as soon as the assault began, attracting the witnesses Chhote, Bashir, Mohd. Shafi PW 2, Ram Lal PW 3 and Jai Ram of village Nahili who witnessed the incident. After killing Kalika Singh, the accused escaped along with his gun. The dead body of Kalika Singh was taken to his house by the informant and the witnesses. In the morning, Shyam Veer Singh went to the Police Station and submitted written report Ext. Ka-1 at 6.30 A.M. Clerk Constable Narendra Narain PW 5, who received written report, prepared check report Ext. Ka-6 and registered a case in the G.D. The case was investigated by S.I. B.D. Singh PW 7, the then S.O. of P.S. Mangalpur. He recorded the statements of informant Shyam Veer Singh and other witnesses. Amar Nath and accused Raja Ram were arrested by him. The site was inspected by him with the preparation of site plan. The blood stained and simple earth were collected therefrom. He took in his possession an empty cartridge and piece of another empty cartridge as also tikli (wad) from the spot. A Nagra shoe was found by him at the spot which was taken in possession after preparing its fard. He picked up blood stained blade of Ballam from the spot and prepared its fard. The torches of the witnesses were inspected with the preparation of memos. He also took in his possession blood stained gamchha lying by the side of the dead body of Kalika Singh and prepared fard therefor. He also searched the house of Amar Nath and found the second piece of Nagra shoe and prepared its fard.
4. The inquest was conducted by S.I. Girja Nand Dubey PW 4 on 17.6.1978 under the supervision of S.O. B.D. Singh. Other relevant papers were also prepared. The dead body was ultimately sent for post mortem which was conducted by Dr S.P. Dubey PW 8 on 18.6.1978 at 2.30 P.M. He (deceased) was aged about 55 years of age and about 1 1/2 day had passed since he died. The following ante-mortem injuries were found on his person:
1. Lacerated wound 8 cm x 4 cm x skull bone right parietal region 5 cm aboye right ear with fracture of bones underneath.
2. Contusion 9 cm x 4 cm on right temporal parietal just above and front of fight ear with fracture underneath.
3. Lacerated wound 3 cm x 1 cm x muscle on right ear, irregularly.
4. Lacerated wound 3 cm x 2 cm x muscle behind right ear.
5. Contusion 5 cm x 3 cm in left temporal region.
6. Bilateral black eye.
7. Bleeding from nostrils and right ear.
8. Incised wound 4 cm x 1 1/2 cm x muscle with fracture of bones underneath.
9. Incised wound 4 cm x 1 cm x muscle on right hand.
10. Lacerated wound 21/2 cm x I cm x muscle and right forearm lower part with fracture.
11. Multiple contusions 6 cm x 3 cm, 7 cm x 4 cm, 4 cm x 2 cm on dorsum and inner part of right forearm.
12. Torn.
13. Torn.
14.Multiple abraded contusions 4 cm x 2 cm, 5 cm x 3 cm, 2 cm x 1 cm, 6 cm x 2 cm on back of right shoulder.
15.Contusion 12 cm x 8 cm on the outer part of right shoulder region.
16. Incised wound 2 cm x I cm x muscle on left shoulder region.
5. On internal examination, the Doctor found fracture of parietal, temporal and skull bones. The death had occurred due to shock and haemorrhage as a result of ante mortem injuries mentioned above.
6. It should be stated at this very stage that Amar Nath (one of the accused) had also received firearm injuries on his person and later on he died on 30.8.1978. The case against him, therefore, abated and the remaining seven assailants faced the trial.
7. The accused denied the charges and pleaded false implication due to enmity. Accused Raja Ram further stated that as a matter of fact, he and Amar Nath were returning from their village Derapur. When they reached near the canal Kharja at about 10 P.M. Kalika Singh and some others who were lying in ambush, fired shots on them and as a result both of them were injured. They, however, managed to move ahead, but some persons, who were coming behind, had a fight with the deceased Kalika Singh and others.
8. The prosecution in all examined eight witnesses besides tendering the reports of the chemical examiner and serologist (Exts.Ka-24 and Ka-23 respectively). Out of them, the eyewitnesses were Shyam, Veer Singh PW 1, Motid. Shafi PW 2 and Ram Lal PW 3.
9. The defence also examined four witnesses i.e. Rajendra Prasad, Handwriting Expert DW 1 , B.P. Gupta, Pharmacist DW 2, M.A.Siddiqui DW 3 and Dr R.K. Kashyap DW 4 who had conducted autopsy on the dead body of the accused Amar Nath. As stated earlier. He, too, had received gunshot injuries and died of the same.
10. We have heard Miss N.A. Moonis, learned A.G.A. from the side of the State in Government Appeal and Sri Viresh Mishra, learned Senior Advocate for the accused respondents. It has been submitted for the State that culpability of the accused Harish Chandra and Daya Shankar was well proved by the testimony adduced by the prosecution and the trial court erred in acquitting them. On the other hand, the submission from the side of these accused respondents is that Harish Chandra was allegedly armed with Ballam and Daya Shankar with Barchhi as per the prosecution case and the deceased did not sustain any injury of these weapons. As such, it has been submitted by the learned counsel for the accused respondents, the trial judge was perfectly justified in acquitting them.
11. Though none appeared for the appellants in Criminal Appeal filed on behalf of the accused Balwant, Raja Ram son of Din Dayal, Mool Chand and Raja son of Gajadhar, but Miss N.A. Moonis, learned A.G.A. urged on behalf of the State that their conviction is based on proper appreciation of evidence on record and this appeal is liable to be dismissed.
12. We, on our part, have carefully examined the record and evidence for the decision of Government Appeal as well as Criminal Appeal. We are of the opinion that not only the acquittal of the accused Harish Chandra and Daya Shankar is perfectly justified but the conviction of the other accused also recorded by the trial judge is based on faulty appreciation of the evidence and on superfluous approach without in-depth analysis of relevant factors and voice of record. The succeeding discussion would render it abundantly clear.
13. It is an admitted position that Amar Nath (who subsequently died and could not be put on trial) and accused Raja Ram son of Din Dayal had also received firearm injuries in the same incident. It is also an admitted fact that the injuries had been caused to them by shots fired by the deceased Kalika Singh. It would be proper to reproduce below the injuries sustained by Amar Nath and Raja Ram. As per Ext.Kha-6 the following injuries were found on the person of Amar Nath on 17.6.1978 at 11.35 A.M. in U.H.M. Hospital, Kanpur where he was taken by Constable Satya Deo Singh of Police Outpost, Jhinjhak, of P.S. Mangalpur, District Kanpur:
1. Firearm injuries (2) inlet wounds at 1/3 cm distance from each other present over lateral aspect of lower part of right thigh about 5 cm above lateral condyle of left femur. Margins inverted. No blackening or tattooing present. No fresh bleeding present. Size of wound I cm diameter.
2. Firearm injury, 1 cm diameter over medio lateral aspect of lower part of left thigh, 3 cm above the lateral condyle of left femur. Margins inverted.
3. Firearm injury (inlet wound) 1 cm diameter with inverted margins at lateral aspect of upper forth of left thigh.
4. Outlet wound 1 1/2 cm diameter, margins everted present over medial aspect of lower third of left thigh, 10 cm above medial condyle of left femur.
14. All injuries were about one day old and were caused by firearm. They were kept under observation and patient was admitted. X-ray of left lower thigh was advised.
15. Raja Ram son of Din Dayal was examined in U.H.M. Hospital, Kanpur at 12 O' clock noon on 17.6.1978 where he was taken by the same constable. The following injuries were found on his person:
1. Firearm wound of entry 1 cm x 1 cm x communicating to injury No. 2 at 12 cm on outer side of right thigh. Margins inverted. X-ray for F.B. advised.
2. Firearm injury 1 1/2 cm x 1 1/2 cm x communicating with injury No. 1 at antero medial aspect of middle of right thigh. Margins everted. X-ray of F.B. advised. No blackening, scorching or tattooing on or around the wound.
16. The injuries were about one day old and were caused by firearm. Another admitted fact is that Amar Nath later-on died on 30.8.1978 because of the injuries sustained by him. His post mortem was conducted on 31.8.1978 at 12 O' clock noon by Dr. R.K. Kashyap DW 4. About 1 1/2 days had passed since he died. The post mortem report is Ext. Kha-5. There were certain ante mortem injuries found on his person which were in healing process. The death had occurred due to coma as a result of septicemia owing to injuries sustained by him,
17. Yet another admitted fact is that the deceased Kalika Singh was carrying a loaded gun with him. It should be prefaced before proceeding further that in a case like the present one in which both the sides got injured in the same incident, the background of past enmity between the parties provides an important clue as to who could be the aggressor launching the attack. The previous background between the parties was that Nanhey Singh, father of informant Shyam Veer Singh PW 1 was murdered by Daya Shankar, Balwant, Harish Chandra, Amar Nath and some other persons before this incident. Nanhey Singh was the brother of deceased Kalika Singh (who died in the present incident on the prosecution side). They were acquitted and as per the prosecution case ever since then there was enmity between Amar Nath on the one hand and the informant Shyam Veer Singh and his family on the other. Obviously, Shyam Veer Singh and Kalika Singh had done nothing to incur the displeasure of Amar Nath and other accused of the present case. Instead, the grouse could be on the part of Shyam Veer Singh and Kalika Singh. Shyam Veer Singh and Kalika Singh would have been nursing grudge against Amar Nath and other persons who were accused of the murder of Nanhey Singh and who had been acquitted.
18. As per Shyam Veer Singh PW 1, he and Kalika Singh had gone to Jhinjhak on the fateful day for receiving Ranveer Singh ( Shyam Veer Singh's brother) who was due to return there by train from Kanpur. Ranveer Singh did not come by that train and he and deceased Kalika Singh were going towards their village Nahili when the present incident occurred at about 10.30 P.M. when both of them reached near their village and near the canal Kharja. They were allegedly seven accused who faced the trial and Amar Nath who emerged out from their hiding. Amar Nath allegedly gave a call that he should also be killed like Nanhey Singh. They allegedly encircled Kalika Singh and launched the attack on him, though Kalika Singh also opened two shots to scare away his assailants. It was also the prosecution case that the first shot did not hit anybody but Amar Nath and Raja Ram sustained injuries of the second shot fired by Kalika Singh. It is significant to note that Shyam Veer Singh PW 1 himself was not the injured, though he and Kalika Singh were bracketed with each other in their enmity against Amar Nath and few other accused. It is also in his evidence that he was unarmed. It does not stand to reason at all that as many as eight persons variously armed dangerously would have left him unharmed permitting to raise hue and cry in case he was really accompanying the deceased Kalika Singh. According to his own version, he was only four paces behind his uncle Kalika Singh. His clear version is that none of the accused attempted to cause any harm to him. The factum that he was not at all attacked by the accused who were as many as eight in number sounds to be unnatural having regard to the previous background between the parties. We do not mean to say that one accompanying the victim is necessarily to be an injured before being believed as eyewitness. But the circumstances of the present case were such that had he been actually accompanying Kalika Singh at the relevant time, he would have not been left unharmed by the accused. In our opinion, his presence at the spot is rendered most doubtful.
19. Otherwise also, we have scrutinised his testimony. It does not answer the test of reliability at all. In case the eight accused emerged from their hiding all of a sudden and encircled Kalika Singh, pouncing upon him. Then Kalika Singh would have been taken aback and would not have at all been in a position to open two shots from his gun. He would have been rendered completely immobile instantly on being pounced upon by as many as eight persons out of whom four were armed with lathis, two had Kantas, one had Ballam and the eighth one had Barchchi. The greater possibility is that finding his enemy Amar Nath, he (Kalika Singh) launched the attack by opening shots from his loaded gun that he was carrying so as to take revenge of the murder of his brother Nanhey Singh in which Amar Nath, Balwant, Daya Shankar, Harish Chandra and some others had earlier been acquitted. The statement of Shyam Veer Singh PW 1 is that his uncle Kalika Singh first opened shot in the air to scare away the accused person, but they did not get away. However, as he says, the first shot did not cause any injury to anyone. He then opened second shot which caused injuries to Amar Nath and Raja Ram. It is also there in his testimony that when they sustained injuries from the second shot, they were at a distance of 10-12 paces from his uncle Kalika Singh. It is, thus, abundantly clear that Kalika Singh injured Amar Nath and Raja Ram by shooting when they were quite away from him. So, he was the aggressor.
20. The Supreme Court has held in the case of Sone Lal and Ors. v. State of U.P. 1983-S.C. Cr.R.-page 345 that aggressors, even if they receive injuries from the victims of their aggression cannot have the right of private defence.
21. Shortly put, the right of private defence arises to those who in the face of imminent peril act in good faith and in no case this right be conceded to justify an act of aggression. Since Kalika Singh himself launched the attack, Amar Nath and other, on accused's side could act in exercise of right of private defence of the body and the same could extend to the voluntary causing of death or any other harm to the assailant as per Section 100 IPC. The reason was that Kalika Singh had launched the attack by opening shots and the same reasonably could cause apprehension in the mind of Amar Nath and others on his side that death would otherwise be the consequence of the assault launched by Kalika Singh who was using a deadly weapon-loaded gun.
22. Further, the scrutiny of testimony of Shyam Veer Singh PW 1 indicates that he was a rank liar. He stated that Harish Chandra and Daya Shankar caused Ballam and Barchhi injuries respectively to Kalika Singh by using the same in piercing manner. It is a fact that none of the ante mortem injuries sustained by Kalika Singh was caused either by Ballam or by Barchchi. Four of the ante mortem injuries sustained by him were in the form of incised wounds which could be caused by Kantas and rest were lathi injuries. Four accused were assigned the role of wielding lathis. Balwant who was allegedly one of them had earlier been acquitted in the case of murder of Nanhey Singh. It cannot be pronounced with certainty as to who and how many persons actually wielded lathis to strike blows on Kalika Singh. He, as we said, was himself the aggressor, justifying the counter attack from the side of Amar Nath and others in exercise of right of private defence as pointed out above.
23. As a matter of fact, on close scrutiny no reliance could be placed on the testimony of Shyam Veer Singh. It is also very clear that Mohd. Shafi PW 2 and Ram Lal PW 3 were birds of the same feather. None of them was an independent witness. In fact, only trusted persons of Shyam Veer Singh were examined as other eyewitnesses who could be expected to back the prosecution case.
24. Mohd. Shafi PW 2 stated that at about 10.30 P.M. in the fateful night he had gone for treatment of the ailing mother of Chhote. He claimed to be a medical practitioner, According to him, he rushed up to the spot on hearing shouts of Shyam Veer Singh and in the way he heard a sound of shot. He allegedly saw all the accused assaulting Kalika Singh and during the course of being assaulted he (Kalika Singh) allegedly opened a second shot injuring Amar Nath and Raja Ram. It could not be reconciled with the testimony of Shyarn Veer Singh PW 1 who stated that Raja Ram and Amar Nath were at a distance of 10-12 paces when the second shot opened by Kalika Singh hit them. The excuse given by him for being at the door of Chhote at that time could not inspire confidence. He had never earlier gone to see the mother of Chhote. She never earlier came to his dispensary either situated at Jhinjhak. He had no record as to his practising medicine. He claimed to be an allopathic doctor, but then stated that he was Intermediate and had Ayurvedic diploma. He as well as Ram Lal PW 3 were parties in a previous litigation under Section 107/117 Cr.P.C. initiated in 1978. The informant Shyam Veer Singh was also in that very party. It was very clear that all the three eyewitnesses were arrayed on one side in a case under Section 107/117 Cr.P.C. and the accused Harish Chandra, Daya Shankar, Balwant and Raja Ram were in the other party. In view of such litigation Mohd. Shafi PW 2 and Ram Lal PW 3 obviously belonged to the party of the informant Shyam Veer Singh. It may also be pointed out that a day before the present incident, the proceedings under Section 107/117 Cr.P.C. were started against two parties of the village. The deceased accused Amar Nath was in one party while a witness Chhote named in the FIR (but not produced at the trial) was in the other party. Though he was not produced as a witness at the trial but it was strange coincidence that only partisan persons allegedly rushed up to the scene at about the mid night to witness the incident.
25. Ram Lal PW 3 claimed to have reached at the spot on hearing shouts of Shyam Veer Singh and 40-50 paces before reaching the actual spot he heard the first shot. The second shot was allegedly heard at the distance of 20-25 paces from the spot and then he saw that all the accused were assaulting Kalika Singh encircling him. It would be recalled that his statement is at variance from that of Shyam Veer Singh PW 1 that when the second shot was opened by Kalika Singh, Raja Ram and Amar Nath were at a distance of 10-12 paces from him (Kalika Singh). Indeed, they could not be in a position to inflict the injuries on Kalika Singh from their weapons from such a distance. No reliance could be placed on the testimony of Shyam Veer Singh PW 1, Mohd. Shafi PW 2 and Ram Lal PW 3. Mohd. Shafi PW 2 and Ram Lal PW 3 just came to support Shyam Veer Singh PW 1 as all of them were bracketed together in their hostility against some of the accused. Careful examination of their testimony would indicate that they deposed only on the basis of their imagination to back the prosecution case.
26. We should also point out that regarding an incident at 10.30 P.M. on 16.6.1978, the FIR was lodged after inordinate delay on 17.6.1978 at 6.30 A.M. The distance was only 7 miles as per the own case of the prosecution. The dead body of Kalika Singh had been brought from the spot to his house by the informant and the so-called witnesses. Other witnesses and sympathizers being there, the report could be lodged in the night itself. Sufficient time gap intervened for concoction and deliberation to present the twisted version of the incident. The point of deliberation could be to decide as to who and how many persons of the rival group were to be arraigned as culprits of the crime.
27. In view of the above discussion, we conclude Kalika Singh deceased was himself the aggressor and launched the attack by opening shots from his gun on Amar Nath and Raja Ram. Accused side was, therefore, justified in repelling the attack and it was in this process that Kalika Singh came to be killed. Ultimately, one of the accused Amar Nath also died before the start of the trial for the primary reason of injuries sustained by him in this incident at the hands of Kalika Singh.
28. In the net result, we dismiss Government Appeal No. 2766 of 1981 and allow Criminal Appeal No. 1736 of 1981. The judgment and order dated 1.8.1981 convicting the accused appellants in Criminal Appeal No. 1736 of 1981 is set aside They are already on bail.
29. Certify the judgment to the lower court.