Allahabad High Court
State Of U.P. vs Surendra Singh Tiwari And Ors. on 6 December, 2000
Equivalent citations: 2001CRILJ1403
Bench: J.C. Gupta, Bhanwar Singh
JUDGMENT
1. This Government Appeal is filed against the judgment and order dated 22-5-1990 of Sri R.S. Pandey, Additional Sessions Judge, Karvi, district Banda whereby the accused respondents 1 to 10 have been acquitted of the offences punishable Under Sections 147, 148, 302, 323 and 149, I.P.C.
2. According to the prosecution case, an incident occurred at about 8.00 a.m. on 4-7-1986 in the field of the complainant, Anurudh Kumar wherein Juguntha was 'shot dead and Anurudh Rastogi, his brother, Arun Kumar Rastogi, Hari Mohan (Halwaha) and Jagdish Prasad, father of Anurudh Kumar sustained blunt object injuries. Surendra Singh, respondent No. 1 is said to be armed with a 'Pharsa', respondent Dinesh Singh with a double barrel gun, Manrakhan Singh with a single barrel gun and the rest of the accused respondents with lathi. It is alleged that all those 10 persons forming an unlawful assembly came at the field of Smt. Prema Devi Rastogi, mother of Anurudh Kumar, where Anurudh alongwith his brother Arun Kumar Rastogi, father Jagdish Prasad and 7 ploughmen were present and were ploughing the field since 6 a.m. Accused Surendra Singh asked Jagdish Prasad to stop ploughing the land as he was in possession since long but when the complainant party did not desist, the accused persons started assulting the complainant party with their respective weapons. Dinesh Singh is said to have fired upon Juguntha (Halwaha) causing him one fire arm injury on his chest which resulted in his instantaneous death.
3. Leaving dead body of Juguntha, injured Arun Kumar and Hari Mohan on the spot, Anurudh Kumar carried his injured father Jagdish Prasad to police station Man and there he lodged written report, Ex. Ka. 1 on the same day at 11.00 a.m.
4. On the basis of written report of Anurudh Kumar, case was registered and investigation ensued. The Station Officer, Sri. S.N. Pandey, P.W. 3 reached the place of occurrence, held inquest and sent the dead body of Juguntha for post-mortem examination. He also recorded the statement of witnesses, made inspection of place of occurrence and prepared site-plan Ex. Ka.-7. Samples of blood-stained and plain earth were also collected through memo, Ex. Ka.-9. Four pellets were also recovered from the place of occurrence and they were also taken in police custody through memo Ex.Ka. -8. After completion of investigation, a composite charge-sheet was submitted against all the ten named accused persons.
5. On the same day Dr. R.K. Ram, P.W. 4 medically examined Jagdish Prasad, Anurudh Kumar, Arun Kumar Rastogi and Hari Mohan at Primary Health Center, Mau.
6. Jagdish Prasad Rastogi was medically examined at 11.30 a.m. and following injuries were found :--
1. Lacerated wound present on the scalp on left side, situated 5 cm left to the midline of the scalp and 7.5 cm above the left eye brow. Direction -- Vertical size 5 cm x 1 cm x bond deep. Margins of the wound irregular, Fresh bleeding present. Advised X-ray skull. A.P. lateral.
2. Contused swelling present all round the middle part of right forearm. Colour of contusion was red. On examination there was found fracture of both bones of forearm. The lower segment was moving apart from the upper part of the forearm. Marked tenderness present. Advised-X-ray right forearm. A.P. and lateral views.
3. Contusion present on the posterior part of the right Upper arm, situated 13.5 cm above the right elbow joint, size 7.5 cm x 4.5 cm. The colour of the contusion was red. Surrounding area was swollen and tender.
4. Liner Contusion present on the lateral aspect of the right thigh situated 13 cm above the right knee joint, size - 23 cm x 2.5 cm Irijuri No. 4 continued. Colour of contusion red. The wound swollen and tender.
5. Contusion present on the lower part of the right thigh, situated just above the right patella bone. Direction transverse, size 10 cm x 2.5 cm. Colour red. The wound was swollen and tender. Advisee X-ray right thigh including right knee joint A.P. and lateral views.
6. Contusion present on the posterior surface of the left hand on the Metacarpal bone of the left index finger, size 6 cm x 3.5 cm, colour red. Wound is swollen and tender. Advised X-ray of right hand; A.P. and lateral views.
7. Abraded contusion present on the anterior surface of the left knee joint, size 5.5 cm x 4 cm, colour red. Surface looking fresh.
7. Injury report of Jagdish Prasad is Ex. Ka.-13, Injuri No. 2 was reported to be grievous in nature while injuries no. 1, 5 and 6 were kept under observation. Injuries no. 3, 4 and 7 were simple. AH injuries were fresh.
8. Injuries, of Anurudh Kumar were examined at 3.25 p.m. and following injuries were found :--
1) Contusion present on the back on left side situated over the upper medical angle of the left scapula bone, size 3 cm x 2.75 cm, colour of contusion red. Wound is swollen and tender. Advised X-ray chest A.P. views.
2) Contusion present on the top of the left shoulder joint, size 5 cm x 2.5 cm, colour red. Advised X-ray chest A.P. view, including left shoulder joint.
3) Contused swelling present on the back of the left elbow joint, size 5 cm x 3 cm, colour of the contusion red. Tenderness present in the wound.
4) Contusion present on the medical aspect of the right forearm situated just above the lower end of the right Ulna bone, direction transverse oblique, size 7 crn x 2.5 cm, colour of the contusion red, marked tenderness present. Advised X-ray right forearm A.P. and lateral views.
5) Contusion present on the posterior surface of the right hand situated just above the right index and middle finger, size 6 cm x 3 cm, colour red, surrounding area swollen and tender, Advised X-ray hand A.P. and lateral views.
6) Contusion present on the posterior lateral aspect of the right thigh, 15 cm above the right Popliteal fossa, size 13.5 crn x 3.5 cm, colour of the contusion red. Tenderness present.
7) Contusion present of the posterior part of the scalp, situated 7 cm above the posterior occipital protuberance, size 3 cm x (Paper torn) Colour of contusion red. Tenderness present.
9. Injury report of Anurudh Kuimar is Ex. Ka.-14. Injuries number 1, 2, 4 and 5 were kept under observation. Injuries no. 3, 6 and 7 were simple in- nature. All injuries were caused by blunt object and their duration was within 12 hours.
10. Arun Kumar Rastogi was medically examined at 3.50 p.m. and following injuries were found :--
1. Lacerated wound present on the scalp on the left side situated 2 cm lateral to the midline of the scalp and 5.5 cm above the left eye brow. Direction vertical, size 8.5 cm x 1 cm x bone deep. Margins irregular, Clotted blood present around the wound. On clearing the wound, serum mixed with blood coming out from the wound. Advised X-ray skull A.P. and lateral views.
2. Contusion present on the posterior surface of the right hand starting just above the right middle finger extending upwards and medially, size 9 cm x 2 cm colour of the contusion red, surrounding area swollen and tender. Advised X-ray right hand A.P. and lateral views.
3. Contusion present on the posterior surface of metacarpophalangeal joint of the left thumb, size 3.5 cm x 2 cm, colour red.
4. Deep abrasion present on the anterior surface of the distal phalanx of the left Little finger, size 1cm x 1 crn dried soft blood clot present.
11. Injuries no. (1) and (2) were kept under observation. Injuries no. (3) and (4) were simple in nature. All the injuries were caused by hard blunt object and their duration was within 12 hours. Injury report of Arun Kumar is Ex. Ka.-15.
12. Hari Mohan son of Shiv Ram was medically examined at 4.15 p.m. by the same doctor and following injuries were found :--
1) Lacerated wound present on the posterior part of the scalp. Situated 9 em above the posterior occipital protuberance. Direction -- transverse, size 4 cm x 1 cm x muscle deep, margins irregular. Clotted blood present all around, On cleaning the wound serum mixed with mood corning from the wound.
2) Contusion present of the back on both sides of the middle of the back situated below the level of the lower angle of both the scapula bones. Direction -- transverse, size 15 cm x 2 cm. Colour of the contusion red. Wound is swollen and tender.
3) Abrasion present on the top of the left shoulder joint, size 1 cm x 1 cm, soft dried blood clot present on the surface.
13. X-ray examination of Jagdish Prasad Rastogi revealed fracture of both bones of his right forearm. X-ray report of Jagdish Prasad is Ex.Ka.-17. X-ray examinations of other injured persons revealed no abnormal-ity.
14. Dr. M.L. Verma, P.W. conducted autopsy on the dead body of Juguntha on 6-7-1.986 at 9.30 a.m. Following ante-mortem injuries were noted in the post-mortem report :--
A Gutter shaped Gun shot wound size 18 cm x 12 cm x Thorecic Cavity deep on whole of chest on the front, with clotted blood present. Right lateral half of wound's margin inverted and medical (left side) margin everted, under lying right. 3rd, 4th, 5th, 6th ribs with sternum were fractured into pieces and both the left and right lungs and heart were lacerated and congested with thoracic cavity containing one and half litre of free and clotted blood. Direction of wound was right to left side.
15. In the internal examination 3rd, 4th, 5th and 6th ribs with sternum were found fractured on right side. In the opinion of the doctor, the cause of death was hemorrhage and shock as a result of ante-mortem gun shot wound.
16. The prosecution in support of their case, produced six witnesses, namely, Hari Mohan P.W. 1, Anurudh P.W. 2, I.O.S.N. Pandey P.W. 3, Dr. R.K. Ram P.W. 4, Dr. M.G. Mittal P.W. 5, who proved the X-ray reports and P.W. 6 Dr. M.L. Verma who conducted the post-mortem examination of the deceased. Out of the six witnesses, P.W. 1 Hari Mohan and P.W. 2 Anurudh were witnesses of fact.
17. The defence of the accused persons was that Surendra Singh and his family members were in settled possession of the land in dispute since long and the complainant party, Anurudh Kumar and others had come to the field on the day of occurrence to forcibly occupy the same. It is further stated that along with, complainant, Vishram and his gang members had also accompanied him and when they were trying to evict Surendra Singh and others forcibly, 'marpit took place and during the course of incident, some one threw a hand grenade which caused injury to Juguntha. In short, the accused persons pleaded right of private defence of property and denied to have caused any firearm Injuri to Juguntha deceased. The accused persons did not produce any witness in defence. However, they filed a number of documents in support of their defence that Surendra Singh and his family members were in peaceful possession over the land in question since long.
18. Learned Session Judge on appraisal of evidence has found that from the oral and documentary evidence, it is established that the accused Surendra Singh and others were in peaceful and settled possession of the plot in question; that on the day of occurrence the complainant party had come for the first time on the land in question to plough the same which was objected to by the accused persons but they insisted and therefore, the accused persons had a right to defend their property; that since the accused persons had a right to defend their property their assembly was not unlawful and that it was highly doubtful that ante-mortem injury of Juguntha was of firearm. With these findings, learned Addl. Session Judge has acquitted all the accused persons.
19. We have heard Sri R.S. Maurya, learned Additional Government Advocate, appearing for the State and Shri C.S. Chaturvedi, appearing for the accused respondents.
20. Learned Additional Government Advocate submitted before us that the finding of the trial Court that the accused persons had a right of private defence of property is against the evidence on record. It was further submitted that in any view of the matter, the accused Dinesh Singh who had caused fire-arm injury on the deceased, is liable to be convicted for his individual act of causing the death of Juguntha. In reply, Sri Chaturvedi supported the findings of the trial Court. His submission is that there is sufficient documentary proof on record in support of the contention of the defence that Surendra Singh Tiwari arid his family members were in possession of the land in question since 1933 fasli and the complainant party had come on the said field for the first time on the day of incident and wanted to take its possession forcibly, therefore, the accused persons with the use of force had every right to protect their possession over the land in question. It was also submitted that the finding of the trial Court that it was doubtful that the ante-mortern injury of Juguntha was a firearm injury, cannot be said to be unjustified or unreasonable, therefore, this Court should not interfere with the order of acquittal.
21. So far as the question of homicidal death a Juguntha is concerned, the same has neither been assailed nor challenged before us by the learned counsel for the parties. It is also evident from the statement of Dr. M.L. Verma, P.W. 6 who conducted autopsy on the dead body of Juguntha on 6-7-1986 that the cause of death of Juguntha was hemorrhage and shock was a result of ante-mortem injury. It is also not disputed before us that Hari Mohan, P.W. 1, Anurudh Rastogi, P.W. 2 Arun Kumar Rastogi, P.W. 3 and Jagdish Prasad also sustained injuries in the same incident in which the deceased suffered injury. The injury reports of these persons reveal that they sustained blunt object injuries on their person which could be caused at about 8.00 a.m. on 4-7-1986.
22. The place of incident has also neither been disputed nor challenged. It was plot No. 200/2 having an area of 5 bighas 6 biswas. As per the case of the prosecution, this piece of land belonged to Kuber Singh and the same was purchased in the name of Smt. Prema Devi, mother of Anurudh Rastogi, P.W. 2 on 2-7-1985 and since then the same was in possession of the complainant party. On the other hand, the defence case is that the said piece of land has been throughout in possession of accused Surendra Singh Tiwari and his family members and the complainant party consisting of as many as 10 persons were bent upon to plough the said land forcibly. The moot question that arises for consideration is whether the prosecution has succeeded in establishing that the complainant party was in settled and peaceful possession over the aforesaid piece of land.
23. P.W. 1, Hari Mohan in a 'Halwaha' (ploughman) who was one of several ploughmen engaged by Anurudh Rastogi for ploughing the land in question. He simply stated before the trial Court that he was engaged by Anurudh Kumar Rastogi to plough the land in question only a day prior to the incident in question. He was unable to state which of the party was in peaceful possession of the land in question. In his cross-examination, he admitted that no 'Jwar' crop was standing in the said field nor it had been ploughed earlier and they had gone to plough the same on the day of occurrence for the first time. The evidence of this witness is thus of no consequence for deciding the question of possession but at least this much is clear from his evidence that the complainant party had come to the disputed land for ploughing the same for the first time on the day of occurrence.
24. The prosecution produced Anurudh, P.W. 2 to state about the possession of the complainant party over the land in question. Before the trial Court, this witness stated that the land in question was purchased in the name of his mother, Smt. Prema Devi about a year back. Though he also stated that the land was cultivated by them in the same year in which it was purchased and he had sown gram 'alsi' in the said field earlier but there is no oral or documentary evidence in support of this assertion, Anurudh admitted that he was residing in Mau and was going business in Mau town. Neither in the first information report nor in his statement given to the investigating officer, this witness had stated of ploughing or sowing of crops in the land in question on any earlier occasion. On the other hand, a bare reading of first information report leaves no room for doubt that Surendra Singh and Bal Krishna Tiwari were in possession of the land in question even before the land was purchased by the complainant party in the name of Smt. Prema Devi. It is specifically recited in the report by Anurudh that Surendra Singh and Bal Kiashan Tewart were in unlawful possession even before the land was purchased by him. In the first information report whose author was Anurudh, P.W. 2 himself, it was also clearly stated that after purchasing the land, he along with his father, brother and 7 ploughmen had gone to the disputed field at about 6.30 a.m. Before the investigating officer also he stated that on the day of occurrence, they were ploughing the field in question for the first time. Though the witness denied to have made such a statement but the investigating officer that Baf Krishna and Surendra Singh had forcibly occupied the lend in question during the time of Kuber Singh, the predecessor interest of the complainant party. Though he denied to have stated so, but the investigating officer proved the said statement. It is thus clear that the consistent case of the prosecution right from the beginning was that the accused party was in possession of the land in question even before the same was purchased in the name of Smt. Prema Devi. Apart from the said admission, the revenue records filed from defence side completely demolishes the prosecution case that the complainant party was in possession of the land in question. In the khasra of 1314 fasli, Chhatradhari Singh Brahmin was shown to be in occupation, Khasra of 1333 falsi again shows possession of Chhatrapal Singh Brahmin who was ancestor of accused Surendra Singh. In the khasra of 1376, the name of Kuber Singh is of course recorded in the column of tenure -- holder but in the remarks column Jagpati Singh son of Chhatrapal Singh is recorded as occupant, Jagpati Singh undisputedly was father of accused Surendra Singh. The same entry continued upto 1395 fasli. The revenue records thus prime facie show possession of Surendra Singh and his ancestors over the land in question. From the documents filed from the defence side, it further appears that on 23-11-1984, Surendra Singh and Laxmi Kant filed a suit in Revenue Court for declaration under Section 229-B of the U.P.Z.A. and L.R. Act alleging his own possession on the land in question. Kuber Singh has filed his written statement in that suit whose copy is Ex.Ka.-22. It further appears that during the pendency of the said suit, Kuber Singh executed a sale-deed in favour of Smt. Prema Devi and thereafter Prema Devi moved an application for mutation wherein Surendra Singh, accused filed objections on 11-3-1986 stating that he was in possession of the land in question. In the khatauni of 1395-1400 fasli, the name of Jagpati Singh, father of accused Surendra Singh is still recorded as occupant. Therefore, it is highly doubtful that after the execution of sale-deed, the complainant-party entered into possession over the plot in question and had sown crops of gram and 'alsi'. No revenue record was produced from the prosecution side to prove their possession. The mere fact that about one year ago Kuber Singh had executed a sale deed in favour of Smt. Prema Devi, mother of Anurudh P.W. 2 cannot be a conclusive proof of the complainant party coming into possession of the land in question particularly when occupation of accused Surendra Singh and his predecessor is found recorded in revenue records since long i.e. 1333 Fasli. The trial Court on appraisal of evidence, oral as well as documentary, also came to the conclusion that it has highly doubtful that the prosecution party was in possession of the land in question prior to the occurrence. On the other hand, from the documents filed from the defence side, it was prima facie established that accused party was in its settled possession. We find no error in this finding of the trial Court and we are also of the view that from the evidence on record it is not established beyond doubt that the prosecution party was in possession of the disputed land, on the other hand the accused party seemed to be in settled possession thereof.
25. It is well settled that no one including the true owner has a right to dispossess even a trespasser by force. If the trespasser is in settled possession of the land and if he is being evicted forcibly, he is entitled to defend his own possession even against the rightful owner, the condition being that the possession which a trespasser is entitled to defend must be a settled one extending over a sufficiently long period. Therefore, where a person is in settled possession, he is entitled to resist or defend his possession even against the rightfull owner who tries to dispossess him. We have already found above that from the evidence and material placed on record, it is not established beyond doubt that the complainant party was in possession of the land in question, prior to the occurrence, on the other hand, it appears that the accused party was in long and settled possession of the same and therefore, if the complainant party had reached the field in question for ploughing the same and had taken with them seven ploughmen with the object of dispossessing accused Surendra Singh and his family members, the accused party had every right to defend their possession even where the land had been purchased in the name of the mother of complainant from tenure holder Kuber Singh. In the circumstances, right of private defence of property had accrued to the accused party under clause 'Secondly' of Section 97 of the Indian Penal Code. Consequently, if the accused respondents had collected together to protect their possession, their assembly would not be an 'unlawful assembly' as defined the Penal Code.
26. Once we have reached to the conclusion that the accused party acted in exercise of their right to defend the property, the accused persons cannot be held guilty either for forming an unlawful assembly or for causing blunt object injuries to Anurudh Rastogi, Arun Kumar Rastogi, Hari Mohan and Jagdish Prasad in prosecution of common object of that assembly and they deserve acquittal.
27. The case of accused respondent Dinesh Singh, however, stands on a different footing. He is alleged to have fired upon Juguntha, halwaha, who sustained firearm injury on his chest and dies on spot,. No person on the prosecution side is shown to be armed with any weapon. Therefore, there could not be any reasonable apprehension of death or of grievous hurt at their hands rior the case falls within any of the clauses of Section 103 I.P.C.. The fact that Dinesh Singh accused-respondent fired from his gun on Juguntha, halwaha is established beyond doubt from the evidence on record, P.W. 1, Hari Mohan, who is wholly an independent witness, has categorically stated in his statement before the trial Court that it was accused Dinesh Singh who fired upon Juguntha, halwaha which fire struck on his chest and he fell down and died. The incident occurred in broad-day light. Hari Mohan himself sustained injuries at the hands of other accused persons and, therefore, his presence at the scene occurrence cannot be doubted. This witness had no animosity against the accused persons nor had any affinity with the complainant party. His statement is also corroborated by medical evidence brought on record. Anurudh, P.W. 2 is the other witness to depose that it was the accused respondent Dinesh Singh who fired from his gun upon Juguntha, halwaha. This fact is also mentioned in the first information report which was lodged promptly. Dr. M.L. Verma, P.W. 6 who conducted autopsy on the dead body of Juguntha found only one gutter shaped gunshot wound on the deceased and he has stated that the cause of death was that injury and the same was sufficient to cause death in the ordinary course of nature. He also categorically stated that the said injury could not be of a hand granade. We have also examined the post-mortem report and have no doubt in our mind that the said injury was a gun shot injury in as much as the pallets entered on the right lateral side of chest and then made exit from medical left side chest fracturing fourth, fifth ribs with sternum into pieces and causing lacerations in both the lungs and heart. The direction of wound was also from right to left. The evidence on record thus leaves no room for doubt that Juguntha died due to a gunshot injury and the same was caused by accused respondent Dinesh Singh. He, thus, exceeded the right of private defence and is, therefore, held guilty under Section 304 Part-II of the Indian Penal Code.
28. For the reasons stated above, while maintaining the order of acquittal of the respondents Surendra Singh, Bal Krishna, Rajesh Tiwari, Manrakhan, Digraj Singh, Ashwani Kuar, Kaushal and Durga Singh, we set aside the order of acquittal of accused respondent Dinesh Singh. He is convicted under Section 304 Part-II of the Indian Penal Code and having regard to the fact that the incident had occurred long back and also taking into consideration the facts and circumstances of the case, we feel that a sentence of five years rigorous imprisonment shall meet the ends of justice.
29. For the foregoing reasons, this appeal is partly allowed. So far as the accused respondent Dinesh Singh is concerned, his acquittal is set aside and he is convicted under Section 304 Part-II of the Indian Penal Code and is sentenced to five years rigorous imprisonment. He is on bail. He shall be taken into custody forthwith to serve out the sentence as awarded by this Court. The appeal against rest of the respondents is dismissed. They are on bail. They need not surrender to their bail bonds. Theif bail bonds are cancelled and sureties discharged.