Patna High Court
State Of Bihar And Ors. vs Anjani Choudhry And Ors. on 8 November, 1984
Equivalent citations: 1985(33)BLJR112
JUDGMENT Prem Shankar Sahay, J.
1. These two Government appeale have been heard along with Criminal Appeal and will be governed by this common judgment.
2. The four appellants of the criminal Appeal were tried along with nine others and have been convicted under Section 304 Part I read with 34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years each. They have further been convicted under Section 25 (1) (a) of the Arms Act and have been sentenced to undergo rigorous imprisonment for six months each. The sentences have been ordered to run concurrently. There was specific charge under Sections 302/34, 302/149 and 302 of the Indian Penal Code and also under Sections 174 and 148 of the Indian Penal Code for which the appellants and Ors. have been acquitted.
3. This case relates to a triple murder due to irrigational dispute. There is a water reservoir on the extreme south of the village known as Parasar Ahar in village Parasar. Further north of the aforesaid village is village kusi and further extreme north is village Malpura of the prosecution party. There was a drought in the village when this occurrence took place and the people of Halpur had taken permission to take water from Parasar Ahar which flows by means of channel towards northern side and is accumulated at a place in Kusi Village and that is known as Kusi Badhar. North of this Badhar is a road running east to west. It is the admitted position that people of village Malpura had cut the road at five or six placei and were draining water in their own lands. This process had started three days prior to the occurrence i.e. 15-10-1974.
4. On 15-10-1974 at about 7.00 A. M. the three unfortunate victims namely Daroga Choudhary, Kewal Choudhary and Hit Narain Choudhary of village Malpura had gone to see the water which was flowing from Kusi Badhar through the cut road. The accused persons namely Sarju Choudhary, Anjani Choudhary, Mahabir Choudhary, Surajdeo Choudhary, Sheonandan Choudhary, and Ramjit Choudhary, all of village Kusi came there and stopped the flow of water in one of those places cut on the road. There was an exchange of hot words between the residents of the two villages. The accused persons named above, called their co-villagers and similarly Malpura village also called their own men. Accused Ram Ishwar Choudhary came with a gun, Bhagwati, Bishundeo, Ganesh and Nawasi came with Lathi, Lachuman came with a Garasa and Bali with a Bhala along with five to seven persons, The persons belonging to village Kusi also lifted their guns which were kept concealed in their paddy fields. The prosecution case further is that Bhagwati Choudhary took the gun from the hand of Sarjneo and fired at Daroga Choudhary due to which he died at the spot. Sarju Choudhary fired gun at Sri. Kewal Choudhary and he fell down injured Anjani Choudhary fired at Hit Narain Choudhary who fell down. There was further firing by the Kusi people due to which the residents of Malpura started running away and Mahabir, Ramjit and Sheo Nandan caused injuries to Raj Kishor Choudhary (P.W.-3) Brahma Yadav (P.W.-5) Mahendra Choudhary (P.W.-9) and also to Sital and Lagan who have not been examined in this case. Lachuman Choudhary and Bait Choudhary dragged Srikewal Choudhary to some distance and there-after Lachuman gave a Garasa blow and Bali assaulted him with Bhala. Then thereafter the accused persons fled away. Jugdish and Kameshwar Choudhary lifted the dead body of Sri Kewal and kept it at the original place where it had been shot.
5. Seeing the precarious condition Of Hit Narain his co-villagers carried him to Karakat Hospital. On the way the Assistant Sub-Inspector of Police (P.W.-20) Banke Behari Singh met him. He immediately recorded the fardbeyan which is Exhibit 6, Hit Narain was further examined by P.W. 20 and his Statement is Exhibit-6/1. While Hit Narain was being taken to Karakat Hospital he died in the way. P.W. 2 took up the investigation and he rushed to the place of occurrence and he held the inquest of the dead bodies of Daroga Choudhary and Sri Kewal Choudhary, which are Exhibits 7 and 7/1, The dead bodies were sent to Sasaram Hospital for post mortem examination. He also inspected the place of occurrence at about 1.30 P.M. in presence of P.W.I. The place of occurrence, according to him was a Kuchcha Road coming out from village Itlmha and going to Naunar. the two dead bodies were found close to the road and there were also blood stains near that place. He also found the place 50 cubits long and 5 cubits wide completely trampled near the place where the dead bodies were found. He also found blood on the road at a distance of 90 cubits The road running east to west, 396 cubits long was found cut at six places and one of them was filled up with earth. The water was flowing from Kusi Badhar to Malpura. He examined a number of witnesses on that very day and they are P.W S, 2, 4, 6, 7.10, 17, 18, Ambika and Ramdeo who have not been examined. He made over the charge of the case on 16.10.1974 to Baleshwar Singh P.W. 22 who remained incharge of the investigation till 19.11.1974 He also re-examined those very witnessess and on 19.11.1974 he made over charge to Tarkeshwar Prasad, P.W. 23 because he was suspended in connection with this case. P.W. 23 visited the place of occurrence in presence of P.W. 20 and also examined some witnesses. He also prepared a sketch map of the place of occurrence which is Exhibit-9. After investigation charge sheet was submitted on 10.5.1975.
6. It will be relevant to mention that Lachuman Choudhary, one of the accused persons, lodged a first information report relating to the occurrence which took place on 15.10.1974 at about 2 and 2.30 A. M. This was lodged against Hit Narain Choudhary and some of the prosecution witnesses and Ors. which is Exhibit A, on which a case was registered and was investigated by P.W. 23 and final report was submitted.
7. Post mortem examination of the three dead bodies of Sri Kewal Choudhary Daroga Choudhary and Hit Narain Choudhary, was held on 16.1.1974 between 9 and 9.30 A. M. by Sri R.O. Ram, who was then posted as civil Assistant Surgeon, Sasaram. Dr. Ram is dead and the post mortem report has been proved by the Compounder, Ram Keshwa Keshwar Ram, P.W. 15 and they are Exhibits 3 to 3/2. Daroga Choudhary had received pellet injuries on his left collar bone chest and abdomen, Pellet injuries were also found on the person of Sri Kewal Choudhary and there was also punctured wound with fracture of the right thigh. Pellet shots were found on the right fore arm left knee and right chest of Hit Narain Choudhary and the death of all these persons were due to shock and haemorrhage as the result of injuries and the death, according to the post mortem report, was within twenty four hours of receiving the injuries. Dr. Birendra Kumar Agrawal, P.W. 11 examined Mahendra, P.W. 9 and found one lecerated wound of 1/4" diameter with slight ulceration. The opinion was reserved and he was referred to Arrah Hospital Brahma Singh was also examined by him and five injuries were found on his person, same by hard and blunt substance, and opinion of others was reserved and he was also referred to Arrah Hospital. He also examined Dindayal Kandu and and found some injuries on his person and this will be discussed subsequently. P.W. 19 is doctor Indrajit Bahadur Singh, Civil Assistant surgeon, Arrah and he examined P.W. 5 and P W. 9 and put their X-ray and plets were found inside their body. He has proved the X-ray photographs, which are material Exhibit-I and he also proved their bed head tickets which are Exhibits-5 and 5/1. P.W. 16 is another doctor Gopei Chand Ram and he examined Raj Kishore Choudhary, P.W. 3 and found two injuries on his person caused by sharp cutting weapon. He also examined Lagan Yadav and Narain Choudhry and found injuries on their persons. The thirteen charge sheeted accused persons, after commitment were put on trial.
8. The prosecution examined twenty four witnesses out of them P. Ws. 1, 2. 4, 6. 7 and 9 eye witnesses P. Ws. 3, 5, and 8 have been tendered P. Ws. II, 16 and 19 are three doctors and P.W. 15 has proved the post mortem report P.W. 10 is a corroborative winess and P.W. 24 is a Police officer, who has prepared the sketch map and P. Ws. 20, 22 and 25 are the police officers connected with the investigation of the case. P. Ws 13 and 14 are witnesses of the seizure list and P. Ws, 12, 18 and 21 are formal wit-nesses.
9. The defence of the appellants and Ors. was that they have been falsely implicated in this case and had further submitted that the occurrence took place on the previous night at 2.00 A. M. when accused Lachuman Choudhary along with other co-villagers was keeping watch over the water reservoir and the accused persons named in the first information report lodged by him all belonging to village Malpura cut the Bandh on which a protest was made. Then Malpura people chased Lachuman Choudhary and he along with others ran for safety and immediately there after the three deceased persons along with others came armed with guns and other weapons and at the instigation of Jadunandan, people of Malpura fired eight or nine rounds due to which Dindayal of village Kusi was injured and for that a Fardbeyan was filed on which a first information report was drawn up Exbibit-A. One witness was examined on behalf of the defence. The learned Judge on a consideration of the evidence and the other materials on record held that the Exhibit-6 and Exhibit-6/1 were the statements of Hit Narain Choudhary and he was alive when these two statements were made. He has further held that the occurrence had taken place at 7.00 A. M. as alleged by the prosecution and not at 2.00 A. M. in the night as alleged by the defence and therefore, there was nothing to show that Dindayal has received injuries in the same occurrence and there was no bligation on the part of the prosecution to explain his injuries when admittedly Malpura people had no arms. On the question of taking water fom Kusi Badhar the court below has held that Hit Narayan Choudhary and Ors. of Maipura had cut the road due to which there was a diminition of the flow of water, thus causing loss to them and it amounted to mischief and criminal trespass. In that view of the matter the accused persons were completely protected by the right of private defence of person and property and there was hardly any time to take recourse to public authorities. He further held that the four appellants of the criminal appeal exceeded their right of private defence by causing the death of three persons and therefore they could not be held to be guilty of murder but they had exceeded their ritht and therefore, they nave been convicted under Section 304 part I of the Indian Penal Code, On the materials according to the learned Judge even the Kusi people have collected and their intention was to prevent the diminition of the flow of water and that object was not illegal. Therefore no ofence have been committed by the accused persons on trial under Sections 147 or 148 of the Indian Penal Code, The other accused persons according to the learned judge, had not exceeded the right and therefore all of them were entitled to acquittal. The four appellants had come with fire arms of which they had no valid licence and they were also convicted under the Arms Act.
10. Being aggrieved by the aforesaid judgment the four convicted persons have presented Criminal Appeal No. 81 of 1977. The State has also preferred two appeals; Government Appeals 14 and 15 of 1977. In Government Appeal No. 14 of 1977 the acquittal of the four appellants of Criminal appeal and the nine acquitted accused persons on trial has been challenged and prayer has been made that the order of acquittal against nine persons and " the acquittal of the four appellants for the charges of murder and other Sections be set aside and they should be convicted for having committed those offences. In Government Appeal No. 15 of 1977 the four appellants of the Criminal Appeal are the respondents and in this case prayer has been made to enhance the sentence passed against them under Section 304 Part I of the Indian Penal Code as being inadequate.
11. The fact that there was a serious occurrence on 15-10-1974 relating to irrigation of land in which three persons namely, Srikewal Choudhary Daroga Choudhary and Hit Narain Choudhary lost their lives and P. Ws. 3, 5 and 9 were injured, cannot be doubted in view of the evidence of the police officers who were concerned with investigation of the case. This is also supported by the post mortem report which was conducted by Dr, R. C. Ram, who is now dead and has been proved and marked as Exhibit-3 by the com-pounder, P.W. 15. From the post mortem report it is clear that the three deceased persons had received gun shot injuries and some of them were also injured by sharp cutting weapon. So far the injured persons are concerned, their injuries have been proved by the two doctors, P. Ws, 11 and 19. Thus there is no doubt that three persons belonging to village Malpura were killed and some persons were also injured. Here I may also refer to the counter F.I.R. Exhibit-A lodged by one of the accused persons but the time of occurrence in that case is 2.00 A. M, and it was also alleged that one Dindayal had received injuries but he has not been examined. Except one witness P.W. 1 who is advocate clerk no persons has been examined to prove the counter version of the occurrence. No doubt suggestion have been given to some of the prosecution witnesses that the occurrence had taken place in the night but all of them have denied. This aspect of the matter has been considered in great detail by the learned Judge who has also recorded a clear finding that the occurrence had taken place in the morning at 7.00 A. M. and there was no convincing material to show that Dindayal had received injuries in that very occurrence.
12. Mr. Braj Kishore Prasad, learned Counsel appearing on behalf of the appellants in the Criminal appeals and respondents of the Government Appeals submitted that the eye witnesses are all interested and belonged to the same village and no reliance should be placed on their testimony. He has further, submitted that exhibits 6 and 6/1 are not the statements of Hit Narain Choudhary died soon after the occurrence. The defence case according to him was more probable and reasonable and it was the prosecution party which is the aggressor and therefore, all the accused persons are entitled to acquittal. Lastly, he submitted that the four appellants of the Criminal Appeal were completely protected by the right of private defence of person and property and bad not exceeded the same and their conviction under Section 304 part I of the Indian Penal Code was illegal and unjustified. Mr. Lala Kailash Bihari Prasad appearing on behalf of the state has submitted that the prosecution has proved its case relating to the genesis, mode, manner and place of occurrence but the trial court has misread and misappreciated the evidence and also committed error of law in acquitting the nine accused persons and this, according to him had caused miscarriage of Justice. He has, further submitted that on the materials on record all the accused had committed the murder of three persons and injured others and he should have been convicted under Section 402/34 and 302/149 other Section of the Indian Penal Cede. Learned Counsel for the State has also contended that the two statements of Hit Narain Choudhary Exhibits 6 and 6/1, after his death can be treated as dying declaration and conviction can be based on these two statements alone even if the oral evidence is not accepted. Learned Counsel for the parties have also relied on a number of decisions of the Supreme Court and other High Courts in support of their contention which I will discuss subsequently.
13. Now I propose to consider the submission of Sri Prasad on the point of genesis, mode, manner and place of occurrence. In this connection it will be relevant to consider that the evidence of the eyewitnesses starting from p. W 9 because he was also injured In the occurrence. He has stated that he bad gone to ease and then be saw an altercation between the people of Kusi, on the one hand, and the three deceased persons and Ors. of village Malpura, on the other, relating to irrigation of land. The accused persons then took out their guns, which were kept in the paddy field, and people from village Kusi also arrived. Bhagwaii ordered for assault and he took a gun from the hand of Surajdeo and shot at Daroga Choudhary due to which he fell down on the ground. Sarju Choudhary shot at Srikewal Choudhary and Ram Ishwar and Anjani also shot at Hit Narain Choudhary. Then he along with other people of Malpura, started running away and in that process he also received gun shot injury on the back of the ear. According to him, 18 to 20 rounds were fired. He was taken to Karakat Hospital and he also found Brahma Yadav, P.W. 5 also admitted in the same hospital in injured condition. In his cross-examination his attention was drawn to his statement before the Investigating officer where he had stated that after hearing gun shot he started runnin g away and after receiving the gun shot injury he fell down and he could not indentify any one. Learned Counsel appearing on behalf of the State has submitted that the investigating Officer, P.W. 22, was suspended because he had not recorded the statements of the witnesses correctly. The fact that P.W. 22 was suspended had been admitted by himself but in view of the earlier statement before the Investigating Officer it is difficult to hold that he had actually indentified all the persons who were using fire arms ; more so, when he statred fleeing away after the firing had started but his presence at that time and place cannot be doubted in view of the injuries sustained by him and even if his identification is not accepted his evidence goes to a great extent in corroborating the prosecution case, Moreover, this witness is also named in the first information report. P.W. 1 has stated as to how the water was being drained out by cutting the road and fop that the persons belonging to village Kusi were very much annoyed on the date of occurrence people from both the villages, namely, Malpura and Kusi assembled and there was exchange of hot words and abuses were also exchanged. Thereafter people of Kusi called their supporters and some of them lifted their guns which were kept in the paddy field. He indentified all the accused persons on trial. Bhagwati Choudhary took the gun from the hand of Surajdeo and fired at Daroga Choudhary, Srikewal Choudhary was fired at by Sarju Choudhary due to which he fell down on the ground Anjani fired at Hit Narain Choudhary and Ram Ishwar Choudhary also fired at him and he also fell down in the field. People started fleeing away and in that process Raj Kishore P.W. 3, Brahma Yadav, P.W. 5 and Mahendra Choudhary, P.W. 9 received gun shot injuries. Lachurnan Choudhary and Bali Choudhary dragged the dead body of Srikewal Choudhary and brought it on the road and there Lachuman Choudhary assaulted him by means of Garasa and Bali by means of Bhala. After the accused persons filed away P. Ws. 2 and 6 brought Srikewal Choudhary from the road and kept at the place where he was shot at. He has admitted that the water, which was being drained out through the road which had been cut, had accumulated in Kusi Badhar and the cutting of the road had been done three days prior to the occurrence and water was being taken to village Malpura. Learned Counsel for the convicted persons has submitted that this witness has not been named in the first information report and he is a chanced witness and also accused in the counter case and no reliance should be placed on his testimony. I am unable to accept this contention. I have carefully gone through this entire evidence and I am fully convinced that he is a truthful witness. No doubt, he was accused in a murder case and he was sentenced to rigorous imprisonment for life but it was no ground to reject his testimony. He has also denied the suggestion of defence that the occurrence had taken place in the night. Similar is the evidence of P.W. 2 and he has also named the persons who had used guns hitting the three deceased persons P, Ws. 3, 6 and 9 had also received injuries besides Sital and Lagan but they have had not been examined in this case. His attention was drawn to his previous statement in which he had not stated before the investigation officer that he had actually been the other accused persons injured but he stated so In the Court. But in my opinion it is not at all material and he had given a consistent version about the manner of occurrence and indentified all the accused persons and the part played by them and his presence at that time cannot be doubted. No doubt, he is not named in the first information report but this is no ground to reject his testimony and we have to bear in mind that Hit Narain Choudhary, who had received serious gun shot injuries and subsequently succumbed to the same, must be in great pain and agony and, therefore, it was not possible for him to give the names of all those persons who were present at the time of occurrence. Moreover, the occurrence took place at an open place and Hit Narain may cot have seen all those persons who -were watching the occurrence standing from different places. The evidence of P. W, 2, therefore, has to be accepted even if he is not named in the first information report.
14. P.W. 4 has also fully supported the evidence of the other eye witnesses and has identified all the accused persons. Learned Counsel has submitted that according to him the time of occurrence was in the early hours of morning and not at 7-00 A. M. and this fact he had stated before the Investigating officers which he denied in court. On this statement it was contended that the occurrence had taken place in the night as alleged by the defence. There is absolutely no substance in this contention. It is a matter of common knowledge that the villagers have no accurate idea of time but, according to him, it took place at sun rise and not in the night. Learned Counsel has submitted that this witness also is an accused in the counter case and is not named in the first information report. But even that be so, he has given a truthful version of the occurrence and his evidence has to be accepted, P.W. 6 has also given a vivid description of the occurrence which started due to altercation between the people of Malpura on the one hand, and Kusi, on the other. He has been cross-examined at length but the defence has not gained anything in their favour, learned Counsel has contended that he is an interested witness because he is nephew of one of the deceased Sri Kewal Choudhary, and is also an accused in the counter case. But mere relationship is no ground of discrediting the testimony of a witness and, in my opinion, he was a most natural and probable witness and his presence at the time of occurrence cannot be doubted. His attention was also drawn to his previous statement before the investigating officer but those statements are mere omissions and not contradictions which may cast doubt on his evidence, Thus, 1 am satisfied that he has also fully supported the prosecution case. The last eye-witness is P.W. 7. He has also fully corroborated the evidence of the other eye-witnesses. Simply because he is named as an accused in the counter case that will not go to the extent to discredit his testimony. His attention has been drawn to more of the statements before the investigating officers but those are also not material. Thus, from the evidence of the eyewitnesses discussed, I am fully satisfied that they have fully supported the prosecution case and their evidence has to be accepted; learned Counsel has submitted that two injured witnesses P.W. 3 and 5, have been tendered but it was not necessary for the prosecution to examine each and every witness after the witnesses were examined on the same point, Therefore, simply because they have been tendered that will not indicate that they were not injured in the occurrence when this- fact is fully supported by other eye-witness and also by the doctor who had examined their injuries.
15. Here I may dispose of a point raised by Mr. Braj Kishore Prasad that the prosecution has failed to prove the manner of occurrence. In this-connection he has drawn our attention to the evidence of some of the witnesses who have stated that after the altercation people also came from Malpura, But the consistent evidence is that the accused persons had started the assault and had killed three persons and injured others which is supported by the medical evidence and also by the evidence of the investigating officer. Even if some blood was found on the road that will not change the place of occurrence when there is a consistent evidence of the witnesses that one of the deceased was dragged from the field to the road and again he was brought back to the original position and that explains the presence of the blood. Thus, it must be held that the occurrence took place in the field as alleged by the prosecution and not on the road, in the morning at about 7.00 A. M. According to the counter version of the occurrence the occurrence had taken place in the night at about 2.00 A. m. and the people of Malpura fead come and had assaulted one Dindayal. The information and the F, I. R, are Exhibits-A and B and it has also been stated by one of the investigating officers that he had also investigated the counter case. But, no positive evidence has been led on this point and mere suggestion have been given to the eye-witnesses which they have denied. Even Dindayal has not been examined in this case. It is true that some of the prosecution witnesses had stated that Dindayal was also injured but by no stretch of imagination it can be said that he was injured in the same occurrence when the defence case in the occurrence had taken place in the night. In view of my clear finding that the prosecution has been able to establish the time of occurrence; even if Dindayal had received injuries that is not at all material for the purpose of this case and there was absolutely no obligation on the part of the prosecution to explain the injuries. We also do not know the nature of the injuries sustained by him whether it was grieevous or simple. A counter version of the occurrence, as put forward by the defence has been rightly rejected by the court below and I see no reason to differ with his finding.
16. A point has been raised that P.W. 20 who was the Assistant Sub-Inspector of Police was not competent to investigate because he was not the officer-in charge of the Police Station and in this connection reliance has been placed on Sections 154 and 157 of the code of criminal Procedure. It has been righly contended by the learned Counsel for the State that even if P.W. 20 had no power to investigate no prejudice has been caused to the accused persons and no such point was raised m the court below. In this connection my attention has been drawn to Section 465 of the Code of Criminal procedure which runs as follows:
465 Finding or sentence when reversible by reason of error, omission op irregularity:
(1) Subject to the provisions here-in-before contained on finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, sommons, warrant proclamation, order judgment or other proceedings under this codes, or any error or irregularity in any sanction for the prosecution, unless in tne opinion of that court, a failure of justice has in fact been occasioned thereby, (2) In determining whether any error, omission or irregularity in any proceeding under this code, or any error or irregularity in any sanction for the prosecution has occasioned a failure or justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Since no prejudice is caused this submission is also to been rejected.
17. The next important point which has to be considered is whether Hit Narain was alive when he has actually made the statements, Exhibits-6 and 6/1. It may be mentioned that after Hit Narain Choudhary received injuries he was removed to Karakat Hospital and P.W. 17, 18, 20 and 21 accompanied him. Learned Counsel has submitted that none from the village Malpura had accompanied and all of them belonged to Sonbarea. But, it has to be borne in mind that a serious occurrence had taken place and two persons of the family had already been killed and one was hovering between life and death and naturally the other inmates of the house must have been perturbed, there is nothing surprising if the aforesaid witnesses accompanied Hit Narain. All of them have stated that they had taken Hit Narain and simply because their signatures do not find in the Exhibit that will not make their presence doubtful, Learned Counsel has also submitted that there is a vital contradiction in the evidence of the witnesses regarding the place where the Fardbeyan was actually recorded and in this connection our attention has been drawn to the evidence of P.W. 17 who had stated that it was 50 yards outside the village and P.W. 18 had stated that the Fardbeyan was recorded at the Darwaza of Dewan Singh on a paper which was given to Baleshwar Singh. But, it has to be borne in mind that the occurrences had taken place in the year 1974 and the witnesses were examined in the year 1977, after a lapse of three years, and this may be due to lapse of memory, However, in my opinion, it is wholly immaterial at what place the Fardbeyan was recorded when there is a cogent and reliable evidence to show that it was Hit Narain who had made the Fardbeyan. Exhibit 6 and his further statement was also recorded by the Police officer which is Exhibit-6/1. Learned Counsel has also submitted that Hit Narain was actually dead and Exhibits 6 and 6/1 are not his statements. In this connection our attention has been drawn to the evidence of P.W. 21 who has stated that all the three dead bodies were taken away. On this learned Counsel has argued that Hit Narain was lying dead in the field where the occurrence took place. But. P.W. 21 himself has stated earlier that he had examined the two dead bodies and he actually used the words three dead bodies' after Hit Narain had died. Learned Counsel has also drawn our attention to the post mortem report with special reference to chest injury sustained by Hit Narain and has submitted that he was in precarious condition and was not in a position to make a clear statement giving the details of the occurrence. No doubt, he had sustained serious injuries due to which he actually succumbed after few hours but that will not show that he was not in a position to speak when the first information report was lodged. There is a clear evidence of P. Ws. 2, 4, 6, 7, 10, 17, 18, 20 and 21 that Hit Narain was also alive. They have also stated that the condition of Hit Narain was rather precarious and he was speaking in a feeble voice. From the evidence of the witnesses, mentioned above I am of the opinion that Exhibits 6 and 6/1 are the statements of Hit Narain and he was actually alive when these statements were made. It is always said that there is a flicker in the life of a dying man and it is true in the case of Hit Narain. Besides the villagers who had been examined on this point the evidence of the police witnesses also supports this fact. Moreover, it is absurd to believe that the prosecution wilt lodge a case by a person who is already dead and for what benefit, when there were number of eye-witnesses present at the time of occurrence. This does not appeal to me at all and if this contention is accepted then the evidence of so many witnesses, mentioned above, including the police witnessess have to be rejected which cannot be done in the instant case.
18. After making the statements, as contained in Exhibits 6 and 6/1, Hit Narain died and those statements mention the facts relating to his death and therefore can safely be considered as dying declaration. Full facts have also been mentioned and all the accused persons on trial have been named and the parts played by each of them had also been indicated. It has been rightly contended by the counsel for the Slate that the convictions can be made on those two documents alone. But in this case we have also the evidence of so many eye-witnesses whose evidence have been discussed in detail earlier and they have also fully supported the prosecution case. Their evidence is further corroborated by the medical evidence and also by other circumstances. In my opinion, therefore, the prosecution has fully proved its case beyond all reasonable doubt. The important fact point; which has to be considered is whether the trial court was justified in acquitting nine persons and convicting four persons of the Criminal Appeal under Section 304 part I of the Indian Penal Code for exceeding the right of private defence of person and property. It will be also necessary to consider whether the accused persons were at all protected by the right of private defence of person and property as envisaged under Sections 99, 103 and 105 of the Evidence Act side by side the point raised by Mr. Braj KJshore Prasad that the four appellants were entitled to acquittal and also could not be convicted under Section 304 parts I of the Indian Penal Code has to be answered.
19. The law relating to appeal against acquittal is well crystallized by series of decisions of the Supreme Court and it has been repeatedly held that if the trial court take a reasonable view of the evidence on record or even if two views are possible of (he same evidence and one view has been taken by the trial court then the appellate court should be reluctant to interfere with the finding of the trial court but, on the other hand, if the findings arrived at by the trial court is contrary to the evidence and k wholly perverse and no court could have come to that conclusion then the appellate court will certainly be justified in interfering with the order of acquittal in order,fo see that there is no miscarriage of justice. Keeping this principle in my mind I proceed further from the evidence it is clear chat water was being taken from Kusi Badhar by cutting the road and this process was continuing since three days prior to the occurrence. It is also clear from the evidence that some land of the persons belonging to village Kual had to be irrigated and the residents of village Kusi had therefore, a genuine grievance against the villagers of Malpura who were draining out water in their own lands. In that background it has to be considered whether the accused persons were protected under the law and were justified in killing three persons and injuring others. The trial court, alter discussing the evidence, has recorded the following findings.
From this St becomes clear that Hit Narain Choudhary and Ors. of village Malpura intended to take water from village Kusi to Malpura and they had engaged themselves in cutting the road for the purpose. It amounted to diminition of water to Kusi people for irrigational purposes and it would come wifc'iin the meaning of mischief and criminal trespass.
Further the court below has held that the mischief was complete and the accused persons affected had the right to prevent the mischief and there was hardly any time to take recourse to the public authorities. Therefore, the accused persons namely, Sarju Choudhary, Bhagwati Choudhary, Anjani Choudhary and Rara Ishwar Choudhary had exceeded the right of private defence and, therefore, they could not be convicted for murder but for culpable homicide not amounting to murder. I am unable to accept this reasoning given by the trial court, Even if mischief had been committed by Malpura people then the same was continuing since three days prior to the occurrence. On the day of occurrence there was no occasion for the accused persons to take law in their own hands and m killing three persons and injuring others. According to the evidence one out portion of the road was filled up by Kusi people and there was some altercation and exchange of abusive language and then people from Malpura came on hulla with lathi and there was no attack from their side. On the other hand, according to the evidence of the eye-witnesses the accused persons took out their guns which they had concealed in the paddy field and without any provocation started firing indiscriminately killing two persons at the spot and injuring others and out of them Hit Narain also succumbed to his injuries. In such a situation it is difficult to accept that the accused persons were protected by the right of private defence of person and property. So far property is concerned mischief was caused to the property but it was not caused under such circumstances as may reasonably cause apprehension in the mind of the accused persons that death or grievous hurt will be the consequence if such right of private defence was not exercised simply because some persons came on hulla from village Malpura and had lathies in their hand that in my opinion, could not give rise to reasonable apprehension in the mind of the accused persons that they will be assaulted and grievous hunt will be caused when they themselves were better armed and were more in number. From the facts I am constrained to hold that the accused persons had come determined to tight and even causing death to persons belonging to village Malpura in view of the fact that they had kept their guns concealed in their paddy field. They were the aggressors and by no stretch of imagination it can be said that they were protected by right of private defence of person and property.
20. Learned Counsel for the state has relied on the following decisions in the case of Jaidev v. State of Punjab . Gurbachan v. State of Harayana Ram Bilas Singh v. State of Bihar 1968 B.L.J.R. 32-A and Patil Hari Meghji and Anr. v. State of Gujarat . in order to show that the accused persons had absolutely no right of private defence of either person or property. Mr. Brij Kishore Prasad, on the other hand, has relied on two full Bench decisions of the Allahabad High Court in the cases of Parbhoo v. Empero A.I.R. 1941 Alld. 402. Rishi Kesh Singh v. The State . and Pur an Singh v. State of Punjab A.I.R. 1975 S.C. 1974 and Pratap v. State of U.P. . The law relating to right of private defence of person and property has been well crystallized by the aforesaid decisions and also other decisions of the Supreme Court where it has been held that the right has to be exercised under the following limitations.
(I) That if there is sufficient time for recourse to the public authorities the right is not available.
(II) That more harm than necessary should not be caused.
(III) That there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.
It has also been held that it is not necessary for the defence to plead specifically but that right has to be established on the basis of standard of proving it beyond doubt but on the theory of preponderance of probabilitv. The evidence clearly shows that the accused persons themselves took the law in their own hands and started firing indiscriminately without any provocation and killed three persons and injured others. The mariner of assault, in consequence of which three persons were killed, cannot for a moment give rise to a justification for pleading a right of private defence. On a perusal of the facts and other circumstances, I am constrained to hold that the reasonings given by the trial court are perverse. He has done wrong conclusions and based his decision purely on speculation and on misunder standing and misappreciation of the evidence. In the case of Patil Hari Meghji (Supra) the facts are almost similar and in that case also three persons were killed and the trial court on erroneous view of law convicted the accused persons under Section 304 Part of the Indian Penal Code and that was set aside by the High Court and the accused persons were convicted under Section 302 of the Indian Penal Code which was affirmed by the Supreme Court. The plea of right of private defence was also negatived as I have done in the instant case.
21. Here it is necessary to consider the submission of Mr. Braj Kishore Prasad that on the facts even if no right is established or right way or may not be available the accused persons are entitled to the benefit of doubt placing reliance on the two Full Bench decisions of the Allahabad High Court. Here I may state that the earlier Full Bench decision of the Allanabad High Court of 1941 which was of seven judges was further considered by nine judges and that decision was modified as follows '.-
Whenever an accused person raises a plea based on some general exception the burden of proof lies upon him under Section 105, Indian Evidence Act. That burden has to be discharged by preponderance of probabilities. So far as the accused is concerned the standard of proof is the same as the standard of proof for a plaintiff or a defendant in civil proceedings. The accused cannot always secure an acquittal by merely creating a reasonable doubt in the mind of the court as to whether the accused person is entitled to the benefit of the exception or not. If the nature of the case is such that a reasonable doubt arises as regards some ingredient of the offence the accused is entitled to an acquittal. In other cases, a reasonable doubt as regards a certain exception will not entitle the accused to an acquittal.
And it was held that the proposition laid down in 1941 Allahabad had been too broadly stated and therefore, had to be clarified. The contention of Mr. Braj Kishore Prasad that a plea has been raised and even if it is not established that creates a doubt in the mind of the court which must be followed by an acquittal, has to be rejected outright. This proposition also will not apply to the instant case because on the two dying declarations and also the oral evidence of so many witnesses and consideration of those materials I have held that the prosecution party was the aggressor and they assaulted the victims without any provocation. The main question mooted before the Full Bench of the Allahabad High Court was whether the accused sets up a definite plea of right of person and property, the burden would lie upon him completely to establish the circumstances which would exonerate him from the liability and secondly in the event of failure to do so it would be taken into account or not. It was in that context that their lordships answered the question in the affirmative. The real principle according to the lordships was that even if the accused person fails to establish the tight it is still open to the court to take the plea of the accused into account along with the prosecution evidence and then come to decision whether the prosecution has succeeded in proving its case beyond reasonable doubt or not. The whole thing to the contrary would be prima-facie an indefensible position and it would have to be laid down that the moment such right is pleaded claiming the case to be probable or plausible, even direct evidence of reliable witnesses to the contrary, would have to be discarded. Such extreme proposition of law advanced by Mr. Braj Kishore Prasad has, therefore to be rejected. The right, in the instant case, was one? sided affair and the prosecution party was taken unaware. Din Dayal, who is said to have been injured on behalf of the defence was never produced in the Court and according to the defence version the occurrence had taken place in the night which has rightly been not accepted by the trial court and also by me,
22. All the accused persons on trial were the members of the unlawful assembly and some of them were armed with deadly weapons like guns, Bhala, Pbarsa, etc, and each member of the mob knew that murder can be committed and from the evidence it must be held that they formed an unlawful assembly as held in the case of State of U.P. v. Mahendra Singh A.I.R. 1975 S.C.C. 55 The common object of the aforeaaid assembly was to commit murder of three persons and assault others. AH the nine accused persons on. trial have been named in the first information report, Exhibit 63 and have been identified by the eyewitnesses and specific overt acts have been attributed to them which have been discussed in detail earlier. The four appellants in Criminal Appeal No. 11 of 1977 were responsible for causing the death of three persons and their conviction under Section 304 part I has to be allowed in Part in view of the fact that both the Government Appeals have to be allowed but so far their conviction under Section 25 (a) of the Arms Act is concerned, it is confirmed. The nine accused persons were wrongly acquitted by the trial court and both the Government Appeals are, accordingly, allowed,
23. Now remains to be considered what proper sentence should be awarded in this case. From the evidence it is clear that is was Bhagwati Choudhary who had killed Daroga and he is convicted under Section 302 of the Indian Penal Code and sentenced- to undergo rigorous imprisonment for life, Anjani and Ram Ishwar had killed Hit Narain and both are found guilty under Sections 302/34 of the Indian Penal Code and sentenced to undergo. gorous imprisonment for life, Sarju, Bali and Lachuman were responsible for death of Sri Kewal and Sarju used his fire arm and Bali and Lachuman saulted Sri Kewal by means of Bhala and Garasa by dragging him to some "'stance. The trial court did not accept it because this fact was not Mentioned in the first information report but there is clear evidence of the eye witnesses that they had also caused injuries by means of Bhala and Garasa and therefore they were responsible for the death of Sri Kewal, Sarju Choudhary Bali Choudhary and Lachuman Choudhary are also convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. All the thirteen respondents of Government Appeal No. 14 of 1977 are found guilty under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Respondent Ganesh Choudhary, Nawasi Choudhary and Bishundeo Choudhary are further convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. The remaining ten respondents are convicted under Section 148 and sentenced to undergo rigorous imprisonment for two years each, Ramjit Choudhary, Sheonaodan Choudhary Surajdeo Choudhary and Mahabir Choudhary are also found guilty under Section 25 (1) (a) of the Arms Act and sentenced to undergo rigorous imprisonment for six months each. The sentences are ordered to run concurrently.
24. In the result Criminal Appeal No. 81 of 1977 is allowed in part and the two Government Appeals No. 14 and 15 of 1977 are, accordingly, allowed and the respondents are found guilty and convicted as mentioned above. They must surrender in order to undergo the remaining term of imprisonment.