Jharkhand High Court
Nanhu Mahato ? Nanhu Yadav & Ors. vs State Of Jharkhand on 17 May, 2017
Author: D.N. Patel
Bench: D.N. Patel, Ratnaker Bhengra
1
CRIMINAL APPEAL(DB) NO. 159 OF 2011
Against the judgment of conviction and sentence dated 22 nd
December, 2010 passed by Sri Srikant Roy, Additional Sessions
Judge, F.T. Court No. II, Giridih in Sessions Trial No. 434 of
2004.
1. Nanhu Mahato @ Nanhu Yadav son of Late Teter Mahto
2. Littu Mahato @ Lituwa Mahato @ Littu Yadav son of Late
Lakho Mahato
3. Nago Yadav @ Nago Mahto son of Late Hulash Mahato, all
residents of Village Simrabeda, P.S. Suriya, DistrictGiridih
.......Appellants
Vs.
The State of Jharkhand ........Respondent
For the Appellants : Mr. A.K. Sahani, Advocate
For the Respondent : Mr. H.P. Singh, APP
PRESENT
HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE RATNAKER BHENGRA
Dated 17th May,2017
(Oral Judgment)
Per D.N. Patel,J:
1. This Criminal Appeal has been preferred by the three appellants accused, who were convicted by Additional Sessions Judge cum Fast Track Court no. II, Giridih in Sessions Trial No. 434 of 2004. They were convicted for the offences punishable U/Ss. 148, 302 to be read with Section 149 and Section 450 of the Indian Penal Code. Rigorous imprisonment for two years was awarded u/s 148 IPC, rigorous imprisonment for seven years u/s 450 IPC and life imprisonment for the offence punishable u/s 302 to be read with Section 149 IPC has been imposed upon these appellants and no fine was imposed by the learned Additional Sessions Judge cum Fast Track Court No. II, Giridih. All the sentences were ordered to run concurrently. The judgment of conviction and order of sentence is dated 22nd December, 2010.
2. The incident has taken place on 24th May, 2004 at about 8 a.m. The names of the deceased are :
2(a) Ravi Sao;
(b) Prasad Sao and;
(c) Panchu Sao The incident has taken place in the house of the deceased. The accused persons along with others, broke open the door, entered into the house of the deceased. The accused persons had come with deadly weapons like Farsa, Sword etc. All the three were cut into two pieces and dead bodies were thrown under a tree opposite to the house of the deceased. First Information Report was filed on same day. All the aforesaid three accused persons were named in the FIR along with other coaccused.
3. The offence was registered at Bagodar (Saria ) Police Station District Giridih as Bagodar (Sariya) P.S. case no. 111 of 2004. Investigation was carried out. Statement of the witnesses were recorded including the eye witnesses. Post Mortem was also carried out by P.W. 8 and charge sheet was filed and the case was committed to the court of sessions being S.T. Case no. 434 of 2004.
4. Evidences of twelve prosecution witnesses were recorded by Additional Sessions Judge cum Fast Track Court no. II, Giridih and the learned trial court has held that prosecution has proved the offences u/s 148 and offence punishable u/s 302 IPC to be read with Section 149 IPC and the prosecution has also proved the offence committed by these appellants u/s 450 of the IPC beyond reasonable doubts and has convicted these appellants mainly for the offence punishable u/s 302 of the Indian Penal Code to be read with section 149 thereof and sentenced them to undergo life imprisonment and further rigorous imprisonment for seven years for the offence u/s 450 IPC has also been imposed. Rigorous imprisonment for two years for the offence punishable u/s 148 IPC has also been imposed and all the sentences have been ordered to run concurrently.
5. ARGUMENTS CANVASSED BY COUNSEL FOR THE APPELLANT:
Counsel for the appellants has argued out the case at length and has read over the evidences of twelve prosecution witnesses and has 3 submitted that:
(a) The so called eye witnesses are not the eye witnesses of the incident.
(b) There are major omissions and contradictions in the depositions of the witnesses.
(C) Prosecution has failed to prove the offences beyond reasonable doubts.
(d) There is a gross discrepancy between the ocular evidence and the medical evidence.
(e) There is also murder committed by the deceased of Yogendra Yadav, who was a person from the side of the appellants accused.
(f) The place of occurrence is different than what is narrated by the eye witnesses.
(g) The witnesses, upon whom, heavy reliance has been placed by the prosecution are partisan witnesses as they are the relatives of the deceased.
(h) The offence of murder has been committed because of the land dispute.
These are the main arguments canvassed by counsel for the appellants and he has further submitted that the aforesaid major discrepancies in the evidences of the prosecution witnesses have not been properly appreciated by the learned trial court and the prosecution has failed to prove the offences committed by these appellants beyond reasonable doubts and hence, the judgment of conviction and order of sentence passed by the learned trial court in Sessions Trial no. 434 of 2004 deserves to be quashed and set aside.
6. ARGUMENTS CANVASSED BY COUNSEL FOR THE STATE:
Counsel appearing for the State APP has submitted that the prosecution has proved the offence of murder of the deceased persons beyond reasonable doubts. The case of the prosecution is based upon more than one eye witnesses and they have clearly narrated the role played by the appellantsaccused in causing murder of the deceased. It is 4 further submitted by learned APP that the medical evidence is corroborative to the ocular evidence. The whole incident has taken place in the house of the deceased and hence, eye witnesses are bound to be close relatives of the deceased, whose evidences cannot be brushed aside by the court only on the ground of being close relatives. It has further been submitted by the learned APP that looking to the crossexamination of P.Ws. 4,6 and 7, nothing is coming out in favour of these appellants accused. The accused persons have been identified by these witnesses. It is also submitted by the learned A.P.P. that initially some free fight had taken place in the field then the deceased came at the house and the accused persons came at the house of the deceased. Accused persons were aggressive and they came with weapon and broke open the door of the house of the deceased. This shows preplanned and well designed action on the part of the appellantsaccused. The benefit of sudden provocation cannot be given to the appellantsaccused. In fact, these appellants came slightly later on along with other coaccused, at the house of the deceased. These facts reflect that earlier incident was separate in the field and the assault in the house of the deceased was another incident. These aspects of the matter has been properly appreciated by the learned trial court and hence, this appeal may not be entertained by this Court.
7. F I N D I N G S :
Having heard counsel for both sides and looking to the evidences on record, we see no reason to entertain this criminal appeal, mainly for the following evidences on record.
(i) Incident has taken place on 24th May, 2004 at about 8 a.m. These three appellants were named in the FIR along with other co-accused. The FIR is filed on the very same date. This is a triple murder case and the name of the deceased are:
(a) Ravi Sao;
(b) Prasad Sao; and (C ) Panchu Sao Thereafter, investigation was carried out for the offences registered as Bagodar (Sariya) P.S. Case No. 111 of 2004 at Bagodar ( Sariya) Police Station, District-Giridih. Statements of the witnesses were recorded and ultimately, charge sheet was filed and the case was 5 committed to the court of Additional Sessions Judge-FTC No. II, Giridih, where it was numbered as S.T. No. 434 of 2004.
8. The prosecution has examined 12 witnesses, P.W. 4, P.W. 6 are the eye witnesses. P.W. 7 is the informant, P.W. 8 is doctor, who has carried out the post-mortem examination on the bodies of the three deceased and P.W. 12 is the investigating officer.
9. We have perused the evidences of the prosecution witnesses including P.W. 4, who is the wife of P.W. 1. She has narrated the role played by this appellants-accused. We have also perused the cross examination of these prosecution witnesses. Looking to paragraph no. 2 of the deposition of P.W. 4 and her cross examination, nothing is found favourable to these appellants-accused. The examination-in-chief of P.W. 4 remains intact as it is, even during her cross examination, who has identified these three appellants-accused. Looking to the over all evidences of P.W. 4 to be read with the medical evidence given by P.W. 8 to be read with evidence given by Investigating Officer, P.W. 12 , she is a trustworthy and reliable witness.
10. We have also perused the evidence of P.W.6., who is the wife of Prasad Sao. She has also narrated that these appellants-accused were present and they have committed the assault upon the deceased. She has also identified these appellants-accused. We have also perused cross examination of P.W. 6 ,but, nothing has come out in favaour of these appellants-accused. On the contrary, though she is a villager and rustic witness and though she has given evidence after approximately 18 months, she has narrated the whole incident accurately. Looking to her deposition, she has narrated that all these appellants-accused were present and they assaulted the deceased. She has proved the date, time and place of occurrence. She has also narrated that these appellants were present and they have assaulted the deceased. It ought to be kept in mind that when several accused persons are assaulting several persons, two much mathematical narration is not required. We never expect from a rustic witness any photographic memory or photographic narration.
11. Looking to the deposition given by P.W. 7, it appears that she is the wife of deceased Panchu Sao and the mother of deceased Ravi Sao. She is the informant. She has given the fard-beyan on the very same date i.e. on 24th May, 2004 and these appellants-accused were named in the FIR. She has also narrated that these appellants were the assailants and they caused the murder of the deceased along with other co-accused. She has proved the FIR, which is marked as Ext.-2.
12. Looking to the medical evidence given by P.W. 8, Dr. Ruben 6 Hembrom, the injuries sustained by Prasad Sao, as per most-mortem report, are as under:-
(I) Skull was cut in two half-fracture of skull bone, brain was also cut in two halves
(ii) Neck was cut, two third of the neck was cut-wound about 6"x3"x bone deep
(iii) Lacerated wound on right thigh-6"x3"
On dissection, the doctor has found, apart from above cut injuries, all the major blood vessels were cut and in posterior part only the skin and muscle were intact. He has opined that the injuries were caused by heavy instrument and the death was due to shock and haemorrhage. The report is Ext.-1
13. Looking to the injuries sustained by Panchu Sao, as per post-mortem, are as under:-
(I) Skull fractured, wound on scalp-6"x3"xbone
deep
(ii) Brain was cut
(iii) Cut wound at right hand-4"x3"x bone deep.
On dissection, he has found the skull bone fractured, brain cut in two halves, and injuries were caused by heavy sharp cutting instrument and the death was caused due to shock and haemorrhage. His report is Ext. 1/a.
14. Looking to the injuries sustained by Ravi Sao as per medical evidence, given by P.W. 8, are as under:-
(I) Compound fracture of right forearm, wound
about 4"x3"x bone deep
(ii) Cut wound on right side of face about 6"x3"
(iii) Cut wound at neck-6"x3"xbone deep
(iv) Fracture of leg below knee joint.
On dissection, he has found fracture of skull bone, brain lacerated, all the vessels cut and the injuries were antemortem in nature caused by sharp heavy cutting weapon and the cause of death was due to shock and haemorrhage. His report is Ext.1/b.
15. Looking to the aforesaid injuries upon the bodies of the deceased, it appears that medical evidence is absolutely corroborative to the deposition given by P.W. 4 , P.W. 6 and P.W. 7. The weapon used were Farsa and Sword. Medical evidence also tallies the date and time of the murder i.e. on 24.05.2004 at about 8 a.m. As per medical evidence, injuries sustained by the deceased were sufficient, in ordinary course of nature, to cause death of the deceased.
716. We have also perused the evidence of P.W. 12, the Investigating Officer, who has proved the date of the offence, the time of the offence and the place of the occurrence. FIR was registered on the very same date and all the three appellants-accused were named in the FIR. Thus, there is no exaggeration in the case of the prosecution. From the very beginning, it is the case of the prosecution that appellants were the assailants and they caused murder of the three deceased, along with other accused persons. Thus, the evidence given by P.W. 12 is corroborative to the evidence given by other eye witnesses. Looking to the evidences on record, it appears that P.W. 4, P.W. 6 and P.W. 7 are trustworthy and reliable witnesses. Their evidences are getting enough corroboration by the medical evidence as well as by the Investigating Officer's evidence. Thus, the prosecution has proved the offences committed by these appellants under section 148 of the IPC and offence of murder of three deceased as well as offence under section 450 of the Indian Penal Code beyond reasonable doubt.
17. Much has been argued out by the counsel for the appellants that the so called eye witnesses are partisan witnesses and they are the close relative of the deceased ,but, they are not helpful to the defence mainly for the following reasons:-
(a) The incident has taken place in the house of the deceased and therefore the witnesses are bound to be the relative of the deceased.
(b) Whenever the relative of the deceased are giving evidences, their evidences cannot be brushed aside by the Court per se.
18. In the case of State of Rajasthan v. Teja Ram, reported in (1999) 3 SCC 507, the Hon'ble Supreme Court in Para-20 held as follows:
"20. Another reason which the High Court advanced to repel the testimony of such a good number of probable witnesses is that they are all close relatives of the deceased and that independent witnesses were not examined by the prosecution.. The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
(Emphasis Supplied)
19. In the case of Namdeo v. State of Maharashtra, reported in (2007) 14 8 SCC 150, the Hon'ble Supreme court in Para- 29 & 38 held as follows:
"29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive.
38. From the above case law, it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
(Emphasis Supplied)
20. In the case of Mano Dutt v. State of U.P., reported in (2012) 4 SCC 79, the Hon'ble Supreme Court in Para-24 and 33 held as follows:
"24. Another contention raised on behalf of the appellantaccused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.
33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect."
(Emphasis Supplied) 21 In the case of Dayal Singh v. State of Uttaranchal, reported in (2012) 8 SCC 263, the Hon'ble Supreme Court in Para-14 held as follows:
"14. This Court has repeatedly held that an eyewitness version cannot be discarded by the court merely on the ground that such eyewitness happened to be a relation or friend of the deceased. The concept of 9 interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the court would examine the possibility of discarding such statements. But where the presence of the eyewitnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the court to discard the statements of such related or friendly witness ."
(Emphasis Supplied)
22. In the case of Shyam Babu v. State of U.P., reported in (2012) 8 SCC 651, the Hon'ble Supreme Court in Para-21 and 22 held as follows:
"21. Mr V.K. Shukla, learned counsel for the appellant submitted that since most of the prosecution witnesses are related to the deceased persons, the same cannot be relied on. We are unable to accept the said contention.
22. This Court has repeatedly held that the version of an eyewitness cannot be discarded by the court merely on the ground that such eyewitness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eyewitnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend, etc."
(Emphasis Supplied) (c ) The evidences of the relative of the deceased has to be evaluated by the Court with all circumspection and nothing beyond that. Even the close relative can be the eye witnesses, there is no ban or bar under the Indian Evidence Act and cross examination is the weapon at the hands of the accused side. Looking to cross examination of P.W. 4 , P.W. 6 and P.W. 7, nothing has come out in favour of these appellants accused. The examination-in-chief of these witnesses has remained intact as it is. Looking to over all evidences of P.W. 4, P.W. 6 and P.W. 7 to be read with evidence of P.W. 8 and to be read with evidence given by the Investigating Officer, P.W. 12, these witnesses are reliable witnesses and thus, they are trustworthy witnesses.
23. Counsel for the appellants has submitted that only two accused persons are named in the FIR ,but, this is factually incorrect, looking to the FIR, which is Ext.-2. Counsel for the appellants has submitted that there was land dispute and because of this one Yogendra Yadav has also been murdered by these deceased. Looking to the evidences on record, it 10 appears that the incident has taken place in two parts. Initially, there was some dispute in the field and thereafter the deceased came at the house and they were followed by these three appellants along with other accused persons with deadly weapons in their hand. These appellants- accused along with other accused persons broke open the door of the house of the three deceased. They assaulted them with deadly weapon like farsa, sword etc. in the house of the deceased. All the three deceased were given blows by deadly weapons so severely that they expired on the spot.
24. Much has been argued out by counsel for the appellants about the so called self defence. Self defence is double edged sword. If plea of self defence is taken by defence counsel, the burden of proof is upon defence and not upon prosecution. If appellants are taking the plea of self defence, they are proving their presence at the place of occurrence with weapons.
25. It has been held by Hon'ble the Supreme Court in the case of Bhanwar Singh v. State of M.P., (2008) 16 SCC 657 at Paragraph nos. 50 and 51 as follows:
"50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300 Exception 2, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private defence is held not to exist at all.
51. The present case would fall in the latter category as facts clearly establish a common object to orchestrate an armed attack of such a serious nature that, even if the common object itself was not to cause death, the accused can be said to have been possessed of the knowledge that the offence of murder/culpable homicide would be committed in prosecution of this common object, and such a common object is irreconcilable with the right of private defence."
(Emphasis Supplied)
26. It has been held by Hon'ble The Supreme Court in the case of Darshan Singh v. State of Punjab, reported in (2010) 2 SCC 333 at paragraph no. 58 as under:
"58. The following principles emerge on scrutiny of the following judgments:
(i) Selfpreservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly 11 confronted with the necessity of averting an impending danger and not of selfcreation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead selfdefence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of selfdefence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
(Emphasis Supplied)
27. It has been held by Hon'ble the Supreme Court in the case of Arjun v. State of Maharashtra reported in (2012) 5 SCC 530 in paragraph Nos. 23,24 & 26 which are as under:
"23. It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. (Munshi Ram v. Delhi Admn., State of Gujarat v. Bai Fatima, State of U.P. v. Mohd. Musheer Khan, Mohinder Pal Jolly v. State of Punjab and Salim Zia v. State of U.P.)
24. 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 out 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.
26. Section 99 lays down the limits of the right of private defence. Sections 96 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 plea 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."
(Emphasis supplied)
28. It has been held by Hon'bel the Supreme court in the case of Manjeet Singh v. State of H.P., reported in (2014) 5 SCC 697 at paragraph no.18 as 12 under:
"18. Under Section 96 IPC, "Nothing is an offence which is done in the exercise of the right of private defence". Right of private defence of the body and of property has been enumerated under Section 97 IPC, subject to the restrictions contained in Section 99 IPC. As per the said section every person has a right 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 102 IPC deals with commencement and continuance of the right of private defence of the body as follows:
"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."
The extent and limitations of the right of private defence is prescribed under Sections 96 to 106 IPC. Such a right can be exercised only to defend the unlawful action and not to retaliate."
(Emphasis supplied)
29. We have carefully gone through the self defence and the FIR for the death of Yogendra Yadav which is Ext. A and the evidences of the prosecution witnesses and the defence witnesses. These appellants have miserably failed in proving self defence. Nothing has been proved which is essential for the self defence. Bare assertion of the self defence is not the evidence at all even if they speak for it thousand times, especially for want of evidences. There is no evidence on record which proves that how and where and at what time Yogendra Yadav was murdered. In fact, self defence is not at all favourable for these appellants because it appears that the earlier incident has taken place in the field and thereafter these three deceased, namely, (a) Ravi Sao;(b) Prasad Sao and (c ) Panchu Sao came at their house and thereafter these three appellants along with other accused came with deadly weapons at their hands , at the residence of aforesaid three deceased and broke open the door of the house of the deceased. These facts have been proved by all the prosecution witnesses examined in S.T. No. 434 of 2004. Meaning thereby too, the availability of the self defence is over in the field itself. Moreover, grave and sudden provocation was also over in the field itself. Now what remains, aggressive part of the appellants, who came later on with other additional co-accused that too, with deadly weapons in their hands. They were so much aggressive that they broke open the door of the house of the deceased 13 which was bolted from inside. Once the aforesaid three deceased were bolted in their own house, no self defence was available to the appellants in the room, when there was no grave and sudden provocation was available with these appellants-accused. Not a single defence is available to these appellants-accused, especially when they came later on with deadly weapons and broke open the house of the deceased. These evidences have been properly appreciated by the learned trial court.
30. In view of aforesaid evidences on record, the prosecution has proved the murder of three deceased, committed by these three appellants- accused beyond reasonable doubt, by deadly weapons in their hands and by breaking open the house of the deceased. Looking to the quantum of the punishment awarded by the learned trial court, we see no reason to alter the quantum of punishment, as they have been adequately punished u/s 148 I.P.C. with two years R.I. , R.I. for seven years u/s 450 IPC and looking to the minimum sentence awarded u/s 302 to be read with section 149 IPC thereof. Thus, there is no error committed by the trial court in convicting and punishing these appellants-accused. Hence, there is no substance in this criminal appeal and the same is ,therefore, dismissed.
31. The order of suspension of sentence passed in favour of appellant no. 3 Nago Yadav is hereby cancelld. The bail bond is also cancelled and we hereby direct the Nago Yadav, who is appellant no. 3 in this criminal appeal, to surrender forthwith. Rest of two appellants-accused are in jail, as submitted by APP as well as counsel for the appellants and they will serve out the sentences as per order passed by the trial court. Nago Yadav will serve the sentence as per the order of the trial court and he will immediately surrender and if he is not surrendering immediately, he will be arrested by the police.
32. Copy of this order will be sent to the trial court as well as to the D.G.P. and to the I.G. Prison.
33. This criminal appeal is, hereby, dismissed.
(D.N.Patel,J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated 17th May, 2017 Sharda/Nibha NAFR