Ram Awadh Pandey & Others vs State Of U.P. on 26 August, 2016

[Cites 26, Cited by 6]

Allahabad High Court

Ram Awadh Pandey & Others vs State Of U.P. on 26 August, 2016

(Delivered by Hon'ble Bala Kirshna Narayana, J.) Heard Sri Brijesh Sahai, learned counsel for the appellants, Sri Sagir Ahmad, learned A. G. A. assisted by Mrs. Manju Thakur Brief Hlder appearing for the State of U. P. and Sri Rajiv Lochan Shukla, learned counsel appearing on behalf of complainant.

This criminal appeal has been filed by A1 Ram Awadh Pandey, A2 Ravindra Pandey, A3 Awadh Narain alias Sawadh Narain Pandey, A4 Ram Darash Pandey and A5 Roshan Pandey against the judgement and order dated 5.12.2012 passed by the Additional Sessions Judge, (Temporary Ex-cadre Post) Court No. 2, Azamgarh in Sessions Trial No. 437 of 2009; State Versus Ram Awadh pandey and others arising out of Case Crime No. 285 of 2009 under Sections-147, 302/148, 323/149, 325/149 I. P. C. and Section-7 of Criminal Law Amendment Act, P. S.-Jahanaganj, district-Azamgarh convicting the appellants and sentencing them to six months' R. I. Under Section-147 I. P. C., life imprisonment and fine of Rs. 3000/- each and in default of payment of fine, one year's additional R. I., under Sections-302/149 I. P. C. one year's R. I., under Sections-323/149 I. P. C. one and half years' R. I. and fine of Rs. 1000/- each and in default of payment of fine six months' additional R. I. under Sections-325/149. The Additional Sessions Judge, (Temporary Ex-cadre Post) Court No. 2, Azamgarh had directed that all the sentences shall run concurrently.

Briefly stated, the prosecution case is that while Sri Subba Yadav, son of late Mangal Yadav, Gram Pradhan of Punarji Gram Sabha was supervising the work of digging soil on 5.5.2009 at about 8.00 p. m. on the chak road in the southern corner of the village, A1 Ram Awadh Pandey, A2 Ravindra Pandey, A3 Awadh Narain aliaas Sawah Narain Pandey, A4 Ram Darash Pandey, A5 Roshan Pandey and one Shiv Poojan Pandey armed with lathis and dandas reached the chak road, where the work of digging and laying soil was in progress and ordered to stop the work of digging and laying soil forthwith as the land from which the soil was being dug, was part of their chak, to which Subba Yadav agreed and said that the work will be resumed only after demarcation is done on the spot and started walking towards his house. At that point, the aforesaid persons suddenly surrounded the Pradhan and started beating him and when the complainant Arvind Kumar Singh and his cousin brother Pradeep Yadav, S/o Ram Nath Yadav tried to intercede, the accused beat them also inflicting severe injuries on them. As a result of beating given by the appellants to Pradhan Subba Yadav, he died on the spot. On the complainant's and his brother's making noise and raising cries for help, large number of villagers gathered at the place of occurrence whereafter the appellants ran away from the place of incident. On the basis of the written report of the aforesaid occurrence (Ext. Ka 1) lodged by the complainant Raj Kumar Yadav, P. W. 1, S/o Ram Janan Yadav on 5.5.2009 at about 9.20 a. M. at P. S.-Jahanaganj, district-Azamgarh, Case Crime No. 285 of 2009 under Sections- 147. 302 and 323 I. P. C. was registered against all the accused / appellants and one Shiv Poojan Pandey, who died during investigation. The check F. I. R. and the G. D. entry, carbon copy whereof has been brought on record as Ext. Ka 7 were prepared by P. W. 9 Constable Arvind Kumar Singh. After registration of Case Crime No. 285 of 2009, under Sections-147, 302/148, 323/149, 325/149 I. P. C. and Section-7 of Criminal Law Amendment Act at P. S.-Jahanaganj, district-Azamgarh, the investigation thereof was entrusted to P. W. 10 Sri Atma Ram Yadav, the then S. H. O., P. S.-Jahana Ganj, district-Azamgarh, who after copying the check F. I. R. and the G. D. entry in the Case Diary recorded the statement of P. W. 1 Raj Kumar Yadav and reached the place of occurrence and after inspecting the same, prepared the site plan (Ext. Ka 9 and 10) and conducted the inquest of the dead body of the deceased, prepared the inquest report (Ext. Ka 11) and the other documents and after completing the necessary paper work, got the dead body of the deceased sealed and dispatched to the District Hospital, Azamgarh for post mortem. The post mortem of the dead body of the deceased was performed by Dr. A. K. Misra, P. W. 5 who prepared the post mortem report (Ext. Ka 3). P. W. 10. After completion of investigation charge-sheet was submitted by the investigating officer against all the accused under Sections-302, 147, 323 and 325 I. P. C. and Section-7 of Criminal Law Amendment Act before the concerned magistrate.

Since the offences enumerated in the charge-sheet were triable by the Court of Sessions, the magistrate concerned after summoning the accused and complying with the requirement of Section- 207 Cr. P. C. committed the case for trial of the accused to the Court of Sessions and after committal of the case to the Court of Sessions, the case was transferred to the Court of Additional Sessions Judge, Court No. 2, Azamgarh. Charges were framed against all the accused under Sections-147, 302/149, 323/149 and 325/149 I. P. C. and Section-7 of Criminal Law Amendment Act. All the accused denied the charges framed against them and claimed trial. It may be noted that the co-accused Shiv Poojan Yadav had died in the District Jail, Azamgarh during investigation.

The prosecution in order to prove its charges against the accused examined P. W. 1, complainant Raj Kumar Yadav, P. W. 2 Pradeep Yadav, P. W. 3 Smt. Prabhawati, P. W. 4 Dr. K. N. Pandey, P. W. 5 Dr. A. K. Misra, P. W. 6 Dr. Gayasuddin Khan, P. W. 7 Dr. R. K. Mahato, P. W. 8 Om Prakash Srivastava, P. W. 9 Arvind Kumar Singh, P. W. 10 S. I. Atma Ram Yadav. The documentary evidence adduced by the prosecution has been referred to and dealt with by the learned trial judge in the impugned judgement and order and the same need not be reproduced again. The accused-appellants in their statements recorded under Section 313 Cr. P. C. disputed the manner in which the occurrence had been narrated in the F. I. R. and stated that the F. I. R. has been lodged after due deliberation and consultation containing absolutely false and incorrect facts and the same was a result of undue pressure. They denied that they were responsible for the incident and wrong charge-sheet had been submitted due to enmity and pressure. They also stated that the witnesses had given false evidence against them under the influence of partisan witnesses.

The defence examined D. W. 1 Dr. Kumod Kumar Jha and Dr. Anoop Kumar Singh and also brought on record injury report (Ext. Ka 1) and post mortm report (Ext. Ka 2) of deceased Shiv Poojan Yadav, injury report of Roshan Kumar Pandey (Ext. Ka 3), injury report of Ram Awadh Pandey (Ext. Ka 4) and apart from the aforesaid, the defence also filed certified copy of the check F. I. R. of Case Crime No. 885 of 2010 vide list 106 Kha to 107 kha and order dated 2.7.2010 paper No. 108 Kha and application dated 28.7.2010 paper no. 110 Kha filed by Ram Awadh Pandey.

After considering the submissions made by leaned counsel for the parties before him and scrutinising the oral as well as documentary evidence on record adduced by both the parties, the Additional Sessions Judge, (Temporary Ex-cadre Post) Court No. 2, Azamgarh by the impugned judgement and order convicted the appellants and awarded the aforesaid sentences to them.

Sri Brijesh Sahai, learned counsel for the appellants submitted that the prosecution having suppressed the real genesis of the incident and approached the Court with unclean hands having totally failed to explain the injuries received by A 1 Ram Awadh Pandey, A 5 Roshan Pandey and co-accused Shiv Poojan Pandey who on account of the injuries so sustained by him, had died in jail after about one month of the incident, as is evident from his post mortem report (Ext. Ka 2), it cannot be said that the appellants were the aggressors and hence their conviction under the different sections of the Indian Penal Code recorded by the trial judge, cannot be maintained. He next submitted that even for the sake of arguments, the prosecution case as spelt out in the F. I. R. and as testified by the prosecution witnesses is taken to be gospel truth, the offence if any, committed by the appellants, does not travel beyond Section 304 Para II I. P. C. He also submitted that the post mortem report of the deceased shows six injuries, of which five injuries have not caused any internal damage to the deceased. The only injury which can be termed as fatal, is the injury no. 6 and considering the number and nature of the injuries found on the dead body of the deceased and number of the accused, it cannot be said that the deceased was assaulted by the assailants with the intent of causing his death and the incident was either pre-planned or pre-meditated. The same was a result of sudden provocation as both the sides suffered mortalities and injuries, the appellants cannot be held to be aggressors. He next submitted that from the site plan and the evidence of the witnesses examined on behalf of the prosecution itself, it is proved beyond any reasonable doubt that at the behest of the deceased soil was being dug out from the chak of the appellants without their permission and the work of digging soil and levelling chak road was admittedly being got done by the deceased Pradhan as a private work and not as the work of Gram Sabha and at the time of incident, large number of persons including labourers employed by the deceased for digging the soil were present at the place of incident and when the appellants objected and exercised their right of private defence in relation to their property, altercations and scuffles followed between both the parties which ultimately led to the unfortunate incident. He further submitted that the presence of P. W. 1 and P. W. 2 at the place of incident is highly doubtful and no reliance can be placed on their evidence and as far as P. W. 3 Smt. Prabhawati is concerned, no credence can be attached to her evidence, as she has neither been nominated as an eye witness in the F. I. R. nor in chargesheet. She is also an interested and partisan witness, as she was employed by the deceased as labourer for the execution of the work of digging soil. He lastly submitted that the impugned judgement and order cannot be sustained and is liable to be set aside.

Sri Rajiv Lochan Shukla, learned counsel for the complainant refuting the submissions made by Sri Brijesh Sahai submitted that even if it is assumed for the sake of arguments that the accused had exercised their right of private defence in respect of their property, it is clear from the facts and circumstances of this case that they had clearly exceeded their right of private defence. Neither there is any evidence showing that the accused who had allegedly received injuries in the incident were sent for examination of their injuries by the police nor there is any link evidence showing that the accused Shiv Poojan Yadav died as a result of the injuries allegedly received by him in the incident. Moreover, the photostat copies of the injury reports of appellant nos. A1, A5 and deceased Shiv Poojan Pandey and his post mortem report, apart from being fabricated, are wholly inadmissible in evidence in view of non-compliance of Section 65 of Indian Evidence Act. He next submitted that even if it is assumed for the sake of argument, though without admitting that A 1 and A 5 had actually received any injury in the occurrence, the same according to their injury reports and the opinion of the doctor who had examined them, were found to be superficial in nature and the same would not confer any benefit on the accused and the same were rightly discarded by the trial court. He also submitted that there is absolutely no iota of evidence on record, even remotely indicating that either soil was being dug out from the chak of the appellants or there was any provocation from the side of the prosecution or anyone present on the spot from the side of the prosecution was armed with any deadly weapon and hence the theory that the incident was neither pre-planned nor pre-meditated but was a result of sudden provocation, has no legs to stand and submission made by learned counsel for the appellants that the prosecution has suppressed the genesis of the dispute, is per se baseless and the impugned judgement and order, which are based upon cogent evidence and supported by relevant considerations, do not warrant any interference by this Court and this appeal which is devoid of any merit, is liable to be dismissed.

Sri Sagir Ahmad, learned A. G. A. assisted by Mrs. Manju Thakur, Brief Holder appearing for the State of U. P. have adopted the submissions made by Sri Rajiv Lochan Shukla, learned counsel appearing on behalf of complainant.

We have very carefully considered the submissions made by learned counsel for the appellants and scanned the entire lower court record as well as the law reports cited by learned counsel for the parties before us in support of their respective submissions.

The three questions involved for our considerations in the instant criminal appeal interalia are (1) whether the prosecution has been able to prove its case beyond reasonable doubt;

(2) whether the prosecution has not come with clean hands and has suppressed the true genesis of the incident; and (3) Whether if it is held that the prosecution had suppressed the true facts, the conviction of the appellants under the offences mentioned in the impugned judgement and order and the sentence awarded to them can be maintained.

We now proceed to examine the aforesaid issues in the light of the evidence adduced by the parties in support of their respective cases.

Raj Kumar Yadav who is the grand son of the deceased and the complainant in the present case was examined as P. W. 1 during trial and he testified that while the work of levelling the chak road situated in the south of the village was in progress on 5.5.2009 at about 8.00 A. M. under the supervision of his grand father Subba Yadav, who at the relevant point of time, was the Pradhan of the village, the appellants Ram Awadh Pandey, Ravindra Pandey, Awadh Narain alias Sawadh Narain Pandey, Ram Darash Pandey, Roshan Pandey and Shiv Poojan Pandey arrived at the place of incident armed with lathi and danda and asked his grand father Subba Yadav to stop the work on the chak road forthwith, to which deceased Subba Yadav immediately agreed and announced that the work on the chak road would resume only after demarcation is done. P. W. 1 Raj Kumar further testified that he had accompanied his grand father to the place of occurrence and was present there at the time of the incident. As soon as Subba Yadav after announcing that the work on chak road would be resumed after demarcation, started going back to his house with P. W. 1, the aforesaid accused surrounded the complainant's grand father and started beating him and when the P. W. 1 and his cousin brother Padeep Kumar tried to save their grand father, the accused beat P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Kumar inflicted severe injuries on them also. As a result of the beating given by the accused, his grand father Subba Yadav died and on their raising hues and cries, Smt. Prabhawati, Harishankar and other villagers also arrived at the place of incident and saw the accused running away from the crime scene. Leaving the dead body of his grand father in the custody of the villagers and after getting the written report of the incident scribed by one Hari Krishan Chaubey, as he himself was seriously injured, he went to the police station for lodging the written report (Ext. Ka 1) of the incident at P. S.-Jahanaganj.

P. W. 1 Raj Kumar Yadav proved the written report (Ext. Ka 1).

P. W. 2, Pradeep Kumar Yadav in his evidence recorded during trial stated that the deceased Subba Yadav was his grand fathers brother and Pradhan of Punarji Gram Sabha. On 5.5.2009 at about 8.00 A. M. the work of digging soil by 30-32 persons on the chak road was going on under the supervision of the deceased when the accused armed with lathis and dandas reached the place of incident and ordered to stop the work as the land on which the work was being done, was part of their chak, to which deceased Subba Yadav agreed and after ordering stoppage of work, announced that the work would be resumed only after measurements were done on the spot and turned around to go home. In the meantime the accused surrounded him and assaulted him with lathis and dandas exhorting to each other not to let him escape alive. On hearing the hue and cries P. W. 2 and others rushed to the place of incident and tried to intercede but the accused beat him and his brother Raj Kumar Yadav also with lathis and dandas. P. W. 2 further stated that he had received injury on his head on account of being struck three or four times on his head by the accused with their lathis and the accused had also caused injury to P. W. 1 Raj Kumar Yadav. At the time of the occurrence about 30-32 labourers including Smt. Prabhawati, Ram Briksh Ram, Lalji Ram, Rampati Ram, Kalloo Yadav, Shobhnath Yadav and others were present at the place of occurrence. Due to the incident, stampede was caused. His grand father Subba Yadav had died on the spot. The injuries of P. W. 1 Raj Kumar and P. W. 2 Pradeep Kumar Yadav were examined in District Hospital, Azamgarh. X-ray of the injuries received by Raj Kumar was conducted by Dr. K. N. Pandey.

P. W. 3 Smt. Prabhawati in her examination-in-chief stated that the incident had taken place on 5.5.2009 at about 8.00 A. M. The work of digging the soil and levelling the chak road with it was in progress for the last 2 or 4 days before the incident under the supervision of Pradhan Subba Yadav. About 35 labourers were employed for executing the work. While the work of digging and laying the soil was in progress, accused armed with lathis and dandas reached the place of incident and asked to stop the work of digging soil from their field although at that time, the soil was being dug from the field of Tribhuwan. Upon the intervention of the accused, Pradhan Subba Yadav immediately got the work of digging soil stopped and declared that the remaining work would be completed after demarcation and thereafter he turned back and started to leave whereupon the accused surrounded him and assaulted him with lathi and danda. She further stated that P. W. 1 Raj Kumar Yadav was nearby while P. W. 2 Pradeep Kumar Yadav who had gone to ease himself near Pokhra, also arrived at the place of incident and both P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Kumar Yadav were also beaten by the accused. Subba Yadav died on the spot whereafter almost everyone had run away from the place of incident.

P. W. 4 Dr. K. N. Pandey who had conducted X-ray of the injuries of P. W. 1 Raj Kumar Yadav on 7.5.2009 proved the X-ray report (Ext. Ka 2) as well as X-ray plates as material Ext. Ka 1 to Ext. Ka 4. He testified that small finger of the right hand of P. W. 1 was fractured. P. W. 5 Dr. A. K. Mishra who conducted the post mortem of the dead body of the deceased Subba Yadav found the following injuries on his dead body: Post mortem report to be quoted (I) lacerated wound 2 cm. X 1 cm. muscle deep just above left ear;

(ii) abraded contusion 2 cm. X 6 cm. extending from just above right forehead;

(iii) linear abrasion 10 cm. Above the left nipple;

( iv) contusion 32 cm X 2 cm below the left shoulder joint on the back;

(v) contusion of 22 cm x 2 cm, 4 cm above from right ilius crust on back

(vi) contusion of 10 cm x 2 cm above right side of chest 2 cm above right nipple.

He further found that the gall bladder of the deceased was lacerated while left chamber of his heart was empty and the second chamber contained blood. About two litres of blood was present in the stomach.

He proved the post mortem report of the deceased Subba Yadav as Ext. Ka 6 on 5.5.2009 and further testified that duration of the death was about 1 / 2 a day and the deceased had died due to excessive bleeding as a result of ante mortem injuries. He further opined that the ante mortem injuries found on the dead body of the deceased, could have been caused by lathis and dandas.

P. W. 6 Dr. Gayasuddin Khan who had examined injured P. W. Raj Kumar Yadav on 5.5.2009 proved his injury report Ext. Ka 4. The injury report of P. W. 1 Raj Kumar Yadav indicates following injuries:

1- dqpyk gqvk ?kko ck;s vukfedk ds Åijh Hkkx esa 2 lh0,e0 x 1 lh0,e0 tks Hkkjh HkksFkjk oLrq }kjk igWqpk;k x;k Fkk rktk ?kko FkkA ,Dl&js ck;s gFksyh dk djkus dk lykg fn;k FkkA 2- QVk gqvk ?kko flj ds Bhd Åij 3 lh0,e0 x 1 lh0,e0 ekal rd xgjk HkksFkjk ,oa Hkkjh oLrq }kjk igWqpk;k x;kA rktk ?kko pksV rkth FkhA [kksiMh+ ds ,Dl&js dh lykg fn;k x;kA 3- fNyk gqvk ?kko nka;h vksj psgjs dh mHkkj ij 3 lh0,e0 yEck dMk+ [kqjnqjk oLrq }kjk igqWpk;k gqvk rktk ?kko FkkA 4- [kqyk ?kko psgjs ds nka;h vksj tcMs+ ds eksM+ ij 2 lh0,e0 x 1 lh0,e0 Hkkjh dMs+ oLrq }kjk ,Dl&js psgjs dh lykg nh x;hA 5- Qwyk gqvk ?kko tak?k ij nk;h vksj 3 x 1 lh0,e0 dM+k Hkkjh oLrq }kjk igWqpk;k x;k izrhr gksrk FkkA tka?k ds ,Dl&js dh lykg nh x;hA 6- Qwyk gqvk ?kko ck;s iSj ij chp esa 3 lh0,e0 x 1 lh0,e0 dMs+ Hkkjh oLrq ls mRiUu izrhr gksrk FkkA pksV ua0 6 lk/kkj.k izd`fr dh gSA 'ks"k pksVs pksVkas dh izd`fr dh jk; ,Dl&js fjiksVZ izkIr gksus ds mijkUr nsuk lEHko gSA pksVfgy jktdqekj ds igpku fpUg vkSj mlds fu0v0 esjs }kjk vafdr vkSj izekf.kr gSA vly batjh fjiksVZ i=koyh esa layXu dkxt la0 6d@2 esjs le{k esjs ys[k o gLrk{kj esa gS ftldh rLnhd djrk gWw ftl ij izn'kZ d&4 Mkyk x;kA mijksDr pksVs ykBh MaMs ls igqWpk;h x;h izrhr gksrh gSA pksV ua0 1 xEHkhj izd`fr dh Fkh tks nkfgus vukfedk vaxqyh esa vLFks;k ds :i esa gSA He opined that injury no. 6 was simple in nature and advised X-ray of his other injuries which was not done.

P. W. 7 Dr. R. K. Mahto who had examined the injuries of P. W. 2 Pradeep Kumar Yadav, proved his injury report Ext. Ka 5. He noted following injuries on the person of Pradeep Kumar Yadav:

1. lacerated wound of 2 c. m X 0.5 c. m. on the right side of the skull 8.00 c.m. above the right ear although he had advised X-ray of the aforesaid injury. There is no X-ray report of the injuries of P. W. 2, Pradeep Kumar Yadav on record.

S. I. Om Prakash Srivastava who was posted as S. H. O., P. S.-Jahanaganj on 2/3.6.2009 and to whom investigation of the case was transferred from S. I. Atma Ram, was examined as P. W. 8. He after completion of the investigation submitted charge-sheet against all the accused under Sections-302, 323 and 325 I. P. C. and Section-7 of Criminal Law Amendment Act and proved the same as Ext. Ka 6.

P. W. 9 Arvind Kumar Singh proved the check report and the G. D. entry as Ext. Ka 7 and Ext. Ka 8 respectively.

P. W. 10 S. I. Atmaram Yadav who had investigated the case initially testified that he had performed the inquest of the dead body of the deceased and the inquest report was prepared by S. I. Uma Shankar Yadav on the spot on his dictation and after completing necessary paper work he had got the cadaver of the deceased sealed and dispatched for the post mortem. He proved the inquest report as Ex Ka 9 and the site plan of the place of incident as Ext. Ka 10 which was prepared by him after inspecting the spot. He in is evidence further gave details of various steps taken by him during investigation including the arrest of the accused and the recovery of the crime weapons on the pointing out of the accused. P. W. 10 S. I. Atma Ram Yadav in his cross examination admitted that he had not recorded the statements of labourers present on the spot and that soil from an area 2-1/2-3 fit wide was dug out from the accused's chak on which wheat crop was standing. Thus, the witnesses of facts examined on behalf of the prosecution, proved the prosecution case as spelt out in the F. I. R., which stands further corroborated from the testimonies of P. W. 4 Dr. K. N. Pandey, P. W. 6 Dr. Gayasuddin Khan and P. W. 7 Dr. R. K. Mahto who had conducted X-ray of the injuries of P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Kumar Yadav who had prepared their injury reports and Dr. A. K. Mishra P. W. 5 who had performed the post mortem of the dead body of the deceased except the evidence of P. W. 9 and P. W. 10 which partly corroborates the defence version also. The appellants' counsel has failed to convince us that the P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Yadav were not present at the time of incident at the place of occurrence, as admittedly both of them had received injuries in the incident. The presence of P. W. 3 at the crime scene at the time of occurrence appears to be doubtful but exclusion of her evidence from consideration will not affect the present case in any manner.

The question which arises for our consideration, is whether the plea of self defence and the incident being a result of sudden provocation are available to the appellants under the facts and circumstances of the case and in view of the evidence on record.

Before proceeding to examine the aforesaid issues in the light of the evidence on record, we consider it proper to refer to the provisions of Indian Penal Code which confer right of private defence to an accused and the law on the issue.

For the convenience the relevant provisions of Indian Penal Code which provide right of private defence to an accused are being reproduced hereinbelow:

Section 96. Things done in private defence:

Nothing is an offence which is done in the exercise of the right of private defence.

Section 97. Right of private defence of the body and of property:

Every person has a right, subject to the restrictions contained in Section 99, to defend -

First. - His own body, and the body of any other person, against any offence affecting the human body;

Secondly. - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 98. Right of private defence against the act of a person of unsound mind, etc:

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Section 99. Acts against which there is no right of private defence:

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt,if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised. - The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 100. When the right of private defence of the body extends to causing death:

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :-

First. - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. - An assault with the intention of committing rape;

Fourthly. - An assault with the intention of gratifying unnatural lust;

Fifthly. - An assault with the intention of kidnapping or abducting;

Sixthly. - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Section 101. When such right extends to causing any harm other than death:

If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

Section 102. Commencement and continuance of the right of private defence of the body:

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Section 103. When the right of private defence of property extends to causing death:

The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely :-

First. - Robbery;

Secondly. - House-breaking by night;

Thirdly. - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly. - Theft, mischief or house-trespass, under such circumstances as may reasonable cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Section 104. When such right extends to causing any harm other than death.__If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the description enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105. Commencement and continuance of the right of private defence of property:

The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-treaspass which has been begun by such house- breaking continues.

Section 106. Right of private defence against a deadly assault when there is risk of harm to innocent person:

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Section 97 IPC deals with the subject matter of right of private defence. The plea of right of private defence comprises the body or property (I) of the person exercising right, or (ii) of any other person; and the right may be exercised in the case of any defence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation in relation to property. Section 99 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. Sections 102 and 105 IPC deal with commencement and continuance of the right or private defence of body and property respectively.

We will now have a glance at the law on the issue. The Hon'ble Supreme Court while examining the issue in hand in Krishnan Versus State of Tamil Nadu (2006) 11 SCC 304 in paragraphs 15, 16 and 17 held as hereunder:

15. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under section 105 of the Evidence Act (read with section 96 to 106 of Indian Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap vs. State of U.P. (1976 (1) SCC 757); Salim Zia vs. State of UP (1979 (2) SCC 648); and Mohinder Pal Jolly vs. State of Punjab (1979 (3) SCC 30).

16. In Sekar vs. State [2002 (8) SCC 354], this Court observed : A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case, the Court can consider it even if the accused has not taken it. If the same is available to be considered from the material on record. (emphasis supplied).

17. The above legal position was reiterated in Rizan v. State of Chhattisgarh [2003 (2) SCC 661]. After an exhaustive reference to several decisions of this Court, this Court summarized the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus :

"Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets off the plea of self- defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea."

In Katta Surendra Versus State of Andhra Pradesh (2008) 11 SCC 360 the Hon'ble Supreme Court in paragraph 12 has observed as hereunder:

12. "10. .... A plea of right defence cannot be base on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict sever and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 IPC deals with the subject matter of right of private defence. The plea of right of private defence comprises the body or property (I) of the person exercising right, or (ii) of any other person; and the right may be exercised in the case of any defence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation in relation to property. Section 99 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary 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. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.

11. Sections 102 and 105 IPC deal with commencement and continuance of the right or private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev Versus State of Punjab it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right or private defence."

Thus what follows from the reading of the aforesaid provisions of the I. P. C. and the various authoritative pronouncements on the issue is that a plea of right of private defence cannot be based on surmises and speculations. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. The accused, whenever he invokes the plea of right of private defence must satisfy the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.

Thus now when we examine the present case on the touch stone of the principles propounded hereinabove, we find that the appellant A 1 Ram Awadh Pandey in his statement recorded under Section 313 Cr. P. C. in reply to the question No. 19 put to him during his examination, stated that on the date of the incident at about 7.00 A. M. the work of digging soil from his chak was started by the labourers engaged by the deceased Subba Yadav under his supervision and when he objected, P. W. 1 Raj Kumar Yadav beat him causing head injuries to him and when A 5 Roshan Yadav and Shiv Poojan Yadav came to rescue him, deceased's men present at the place of incident indulged in brick batting causing injuries to Subba Yadav and his supporters also. P. W. 1 Raj Kumar Yadav had lodged an F. I. R. against him and his relatives containing absolutely false allegations under the pressure of his relatives.

In order to prove that the accused Shiv Poojan since deceased, A1 Ram Awadh Pandey and A 5 Roshan Padey had also received injuries in the incident, the appellants had examined Dr. Kumod Kumar Jha as D. W. 1. D. W. 1 Kumod Kumar Jha deposed before the trial court that he was posted as Child Specialist in District Hospital, Azmagarh on 5.5.2009 and he had examined the injuries of Shiv Poojan, aged about 75 years, Roshan pandey, aged about 18 years and Ram Awadh Pandey, aged about 52 years at 10.50 P. M., 11.00 P. M. and 11.10 P. M. respectively on 5.5.2009 and prepared their injury reports in his own hand writing. He proved certified copy of the injury report of Shiv Poojan, paper No. 100/2, photostat copies of the injury reports of Roshan Pandey and Ram Awadh Pandey paper Nos. 118Kha/2 and 118Kha/3 as Ext. Kha 1, Ext. Kha 3 and Ext. Kha 4. He also produced the original medico legal register of Sadar hospital and proved that the carbon copies of the original injury reports of Roshan Pandey and Ram Awadh Pandey were at serial Nos. 186 and 187 of medico legal register which had been prepared by him by copying from the original. He also deposed that the injuries received by the injured may have been inflicted after 6 A. M., 7 A. M. or 9 A. M. D. W. 2 Dr. Anoop Kumar Singh proved the post mortem report of the accused Shiv Poojan as Ext. Kha-2. The defence case is that Shiv Poojan had died in jail on 26.6.2009 as result of the injuries received by him in the occurrence which had taken place on 5.5.2009. According to the Post mortem report, Shiv Poojan died due to coma as a result of cerebral haemorrhage. D. W. 2 Dr. Anoop Kumar Singh testified that Shiv Poojan had died as a result of excessive internal bleeding in his head.

Although it has been vehemently argued by Sri Rajiv Lochan Shukla, learned counsel appearing on behalf of complainant that there is no evidence on record showing that the accused had also received injuries in the same occurrence in which Subba Yadav had died. Further there is no evidence on record proving that their injuries were got examined either by the Investigating Officer of the case or on his orders and further there is no Majroobi Chitthi referring them for medical examination on record. It has also been submitted that although D. W. 1 Dr. Kumod Kumar Jha had deposed that the injured had been brought to him by the Inspector Atma Ram Yadav of P. S.-Jahanaganj but the defence has not been able to prove that there was any Inspector in P. S.-Jahanaganj at the relevant point of time of the name of Atma Ram Yadav and hence the injury reports which are apparently fabricated and originals whereof have not been brought on record, were rightly discarded by the trial court and the plea of self defence advanced by the accused correctly repelled.

However, the argument of learned counsel for the complainant falls flat on the ground when we refer to the evidence of P. W. 9 Constable Arvind Kumar Singh who in his cross examination (page 53 of the paper book) had deposed as hereunder:

"Ram Awadh wagarh us din giraftar muljimon ko suraksha ki drishti se kotwali behja gaya tha. Thana jahanaganj se inka doctory muyana nahi karaya gaya tha. Muljim ki choton ka vivran C. D. mein darj kiya tha. Muljiman ka doctory muyana karane heitu majroobi chhitthi ke sath thanadyakshya ke adesh par maine bhejwaya tha."

Thus form the evidence of P. W. 9 Arvind Kumar Singh it is established that several persons from the side of the accused had also received injuries and they were referred for medical examination of their injuries on the date of the incident itself while in police custody and their injuries were duly recorded in the C. D. One of the accused Shiv Poojan Pandey had received head injury in the incident as is evident from his injury report (Ext. Kha 1) and had later died in jail. Although it has been argued by Sri Rajiv Lochan Shukla, learned counsel for the complainant that the defence failed to lead any link evidence to prove that the injured Shiv Poojan Pandey had died on account of the head injury received by him in the occurrence as alleged by the defence, but the said argument is also without any merit.

D.W. 1 Kumod Kumar Jha who had examined the injuires of Shiv Poojan Pandey on 5.5.2009 at about 10.50 P. M. stated in his examination-in-chief that the injuries received by the injured Shiv Poojan on his head were on a vital part of his body and could have been dangerous to his life. The prosecution has not cross examined D. W. 1on the aforesaid aspect. Moreover, the D. W. 2 Dr. Anoop Kumar Singh who had conducted the post mortem of the dead body of the deceased Shiv Poojan had, apart from proving his post mortem report, testified that he had died due to coma as a result of internal bleeding in his head. It is true that the D. W. 2 in his cross examination has stated that internal bleeding could be caused by high blood pressure in an aged person sending him in coma even if he has not received any injury, however a conjoint reading of the evidence of D. W. 1 Kumod Kumar Jha and D. W. 2 Anoop Kumar Singh leads to an irresistible inference that Shiv Poojan had received two injuries on his vital parts of the body, one on his head, above the ear and the other which was skull deep on the left side of the head, below the first injury and he had died on 26.6.2009 as a result of excessive internal bleeding in his head. D. W. 2 in his cross examination has nowhere stated that the deceased could not have died as a result of the injuries received by him on 5.5.2009 nor any such suggestion was put by the prosecution to him during his cross examination.

The objection raised by Sri Rajiv Lochan Shukla, learned counsel appearing for the complainant to the admissibility of certified copies of the injury reports of Shiv Poojan Pandey (Ext. Kha 1), Roshan Pandey (Ext. Kha 3) Ram Awadh Pandey (Ext. Kha 4) and certified photostat copies of the post mortem report of deceased Shiv Poojan Pandey (Ext. Kha 2) in evidence on account of total non-compliance on the part of the defence with the provisions of Section 65 of the Evidence Act, is also without any force. It it settled law that the objection as to mode of proof has to be taken before the evidence is tendered. Once the document has been marked as Ext., the objection that it should not have been admitted in evidence or the mode adopted for proving document is irregular, cannot be allowed as admission of secondary evidence without proof of loss of original is not worse than irregularity and where the documents are admitted in a court of first instance, no objection to their admissibility can afterwards be taken in a court of appeal.

Since admittedly in the present case the prosecution had not objected to the certified photostat copies of the injury reports of Shiv Poojan Pandey (Ext. Kha 1), Roshan Pandey (Ext. Kha 3) Ram Awadh Pandey (Ext. Kha 4) and the post mortem report of the deceased Shiv Poojan Pandey (Ext. Kha 2) at the time when the aforesaid documents were admitted to the court of first instance and exhibited, hence it is not open to the learned counsel for the complainant to object to the admissibility of the aforesaid documents before the appellate court on the ground that the defence has failed to prove loss of original.

Thus, from the evidence of P. W. 9, P. W. 10, D. W. 1 and D. W. 2 the defence / appellants have been able to establish that soil was being dug from their chak by about 30-35 labourers under the supervision of the deceased Subba Yadav without their consent and when they learnt about it, they reached the place of occurrence and objected. At this juncture, the prosecution case as spelt out in the F. I. R. and as testified by the prosecution witnesses appears to be that the deceased immediately stopped the work of digging soil and announced that the same would be resumed after the demarcation was done on the spot. But without any provocation the appellants surrounded the deceased Subba Yadav and started beating him with lathis and danndas and when his grand sons P. W. 1 and P. W. 2 tried to save him, although the facts and circumstances of the case tell an entirely different tale. The defence has discharged its burden of establishing the plea of self defence by showing preponderance of probabilities in favour of plea of self defence by demonstrating that the accused had exercised their right of private defence to prevent the prosecution from committing the offence of criminal trespass in relation to their property. The prosecution witnesses are absolutely silent about the injuries received from the side of the defence. It appears that when the labourers employed by Subba Yadav un-authorisedly started digging soil from the appellants' chak, they objected exercising their right of private defence of property in order to prevent the prosecution side from committing the offence of criminal trespass in relation to their property, altercations and scuffles followed leading to the unfortunate incident in which both sides had assaulted each other. The prosecution witnesses have failed to explain the injuries received by three persons from the side of the defence and have consistently denied that the accused had been assaulted by them although the defence has succeeded in establishing from the evidence of P. W. 10 that the soil was being unauthorizedly dug out from the chak of the appellants by the labourers employed by the deceased Subba Yadav resulting in commission of offence of criminal trespass in respect of their property by the deceased and his other companions and in the occurrence in which one person died from the side of the prosecution while two of them received injuries while three persons from the side of the defence also received injuries of whom one Shiv Poojan died later. Although it does appear to us that the appellants had slightly exceeded their right of private defence in relation to their property but it is obvious that the prosecution has deliberately tried to suppress the true genesis of the incident and has not approached the Court with clean hands and hence it is not possible for us to hold as to which of the two, defence or the prosecution was the aggressor.

In the facts and circumstances of the present case, we find that the plea raised by the appellants that the incident, in which both sides received causalities, was neither pre-planned nor pre-meditated but was a result of sudden provocation emanating from the unauthorized digging of the soil by the labourers from the chak of the appellants at the behest of deceased Subba, appears to be acceptable. It is further apparent that the appellants had not assaulted the deceased Subba Yadav, Raj Kumar Yadav and Pradeep Kumar Yadav either with the intention of causing death or with the knowledge that the assaults made by them on the deceased and injured would cause death of Subba Yadav.

Thus, in view of the foregoing discussion, we are of the view that the conviction of the appellants under Sections-302/149 I. P. C. cannot be maintained and ends of justice will be met, if their conviction is converted to one Section-304 Para II and the sentence of life awarded by the trial Court under Sections-302/149 I. P. C. is reduced to three years' imprisonment and fine of Rs. 1000/- each and in case of default of payment of fine, six months' additional R. I. Thus, while maintaining their conviction and sentences awarded under Sections-147, 323/149 and 325/149 IPC, the appellants' conviction under Sections-302/149 IPC is scored out and converted to one Section-304 Para II I. P. C. and sentence awarded to them is palliated to three years R. I. and fine of Rs. 1000/- each and in case of default, six months' additional R. I. The appellants who are on bail shall be taken into custody forthwith and sent to jail for serving out their remaining part of sentence. Their bail bonds stand cancelled and their sureties discharged.

The appeal stands allowed in part and decided accordingly.

Let copy of this order be sent to the court concerned for intimation and necessary follow up action.

Order Date: 26.8.2016.

Unlock Advanced Research with PRISMAI

Allahabad High Court