Allahabad High Court
Daya Ram And Others vs State Of U.P. on 28 January, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 18.09.2018 Delivered on 28.01.2019 Court No. - 34 Case :- CRIMINAL APPEAL No. - 1926 of 1979 Appellants:- Daya Ram and others Respondent :- State of U.P. Counsel for Appellant :- Vinay Saran, Deepak Sharma, G.S.Chaturvedi, Rajeev Sharma, S.N.M. Tripathi, Sunil Kumar Mishra, Y.K. Shukla Counsel for Respondent :- D.G.A., Ajatshatru Pandey, Deelip Singh, Prashant Vyas, R.S. Sharma, S.K. Singh, S.P. Singh, S.S. Sharma Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This Criminal Appeal under Section 374(2) Cr.P.C. has been filed against judgment and order dated 21.06.1979 passed by Sri S.D.N. Singh, Sessions Judge, Mirzapur in Sessions Trial No. 239A of 1976, convicting and sentencing appellants (1) Daya Ram, (2) Ramji Dubey, (3) Mithlesh, (4) Vijay Shanker and (5) Kripa Shanker @ Baba, under Section 302 read with Section 149 IPC to undergo imprisonment for life. All of them have further been convicted and sentenced under Section 323 IPC to undergo six months Rigorous Imprisonment (hereinafter referred to as 'R.I.') and under Section 324 read with Section 149 IPC to undergo one year's R.I. Accused-appellants Vijay Shanker, Kripa Shanker @ Baba and Ramji Dubey have also been convicted under Section 148 IPC and sentenced to suffer two years' R.I. Accused-appellants Mithlesh and Daya Ram have been convicted and sentenced under Section 147 IPC to undergo one year's R.I.
2. During pendency of this appeal, Appellant-5 Kripa Shanker @ Baba and Appellant-3 Mithlesh have died hence, appeal stood abated qua them vide orders dated 15.10.2009 and 19.04.2017, respectively. Hence, this appeal survives only with respect to appellants-1, 2 and 4.
3. Prosecution version, as emerging from First Information Report (hereinafter referred to as 'FIR') and material available on record may be set-forth as follows.
4. On 29.06.1976, an FIR (Ex. Ka-19) was lodged by injured Informant PW-3, Amar Nath, at P.S. Kotwali Dehat, District Mirzapur with the allegations that 10-12 days back his brother Shambhu Nath had got a sale-deed executed from Smt. Gujarati, widow of Mahavir Pathak, resident of Village Patak Bedauli, with respect to land situated in that village which annoyed the accused. On 29.06.1976 at about 07:00 AM, when Informant PW-3 along with his brother Shambhu Nath (deceased) had gone to village Patak Bedauli, saw that accused-appellants Arjun, Daya Ram Chaubey, Mithlesh and Daya Shanker, all four armed with Lathis; Vijay armed with Gadasa; Kripa Shanker @ Baba and Ramji Dubey both armed with Ballam, were standing there. Out of these, accused Daya Ram Chaubey and Mithlesh were cutting bamboo. When Informant objected, accused Arjun exhorted other accused to kill Informant and others. All the accused-appellants chased Informant, PW-3, and his brother with an intention to kill them. Raising alarm, Informant and his brother ran towards the house erected in the plot purchased through sale-deed but after surrounding them, under the Neem tree, accused-appellants started assaulting Informant and his brother. On hearing noise, witnesses Imaman, Bansi Kumhar, resident of Khajuri, Parshottam resident of Kakrahi, Panna resident of village Saraiya and several other persons reached the spot. They protested and witnessed the incident. Thereafter, accused ran away. Informant's brother Shambhu Nath having sustained grievous injuries, fell down on the spot and became unconscious. Informant and his brother sustained injuries over head, chest, back, hands by Gadasa, Ballam and Lathi. While Informant was carrying his brother to hospital, lying on a cot in unconscious state, he breathed his last on the way itself. A written report was got ascribed by Informant's brother PW-7 Panchnath. Initially, Informant went to Superintendent of Police to inform about the incident but upon his instructions, went to Police Station Kotwali Dehat at 9.30 AM. On the basis of written report Ex.Ka-1, PW-11 Head Constable Jiledar Singh prepared Chik report and registered a case at Serial No. 19 of General Diary.
5. After registering the case, investigation was undertaken by PW-10, Sub-Inspector B.D. Singh. He sent injured Informant, PW-3, to hospital and thereafter rushed to place of occurrence, reaching there at 10:45 AM. He recorded statement of witnesses PW-2 Imaman, PW-7 Punchnath and PW-8 Banshi Kumhar. He found two fresh cut bamboos entangled in the bamboo clump in dispute and handed them over in custody of PW-7 Punchnath, brother of deceased vide recovery memo Ex. Ka-6. He also took sample of blood stained and plain earth from the spot, sealed in two separate containers and prepared recovery memo Ex.-Ka-10 for the purposes of chemical examination. He prepared site plan Ex. Ka-9 at the spot, indicating place of occurrence, nearby fields and houses so far as they were relevant to the investigation. At about 01:30 PM, the same day, he arrested accused Arjun, Dayaram and Mithlesh and sent them to Police Station in custody. Thereafter, PW-10 Investigating Officer (hereinafter referred to as 'I.O.') reached Civil Hospital, Mirzapur at 3:00 PM and prepared inquest (panchayatnama) Ex. Ka-11 in respect of dead body of Shambhu Nath. He also prepared recovery memos with respect to Photo Lash, Challan Lash and requisition to CMO for post mortem, Ex. Ka-12, Ka-13 and Ka-14 respectively. Thereafter, dead body of deceased Shambhu Nath was sent for post mortem after duly sealing the same. Statement of injured Informant PW-3 Amar Nath was recorded who was admitted in hospital. PW-10 took in possession blood stained string of the cot on which deceased Shambhu Nath was brought to hospital and prepared recovery memo Ex.Ka-16. Thereafter, he proceeded for village Patak Bedauli and recorded statement of persons residing near the place of occurrence and on coming back to Police Station, deposited sealed bundle of articles recovered at the hospital.
6. Autopsy on the dead body of deceased Shambhu Nath was conducted by PW-4 Dr. Harcharan Singh at about 10:45 AM. On external examination, he found deceased aged about 35 years and of average built. About one day had passed since his death. Rigor mortis had passed from upper limbs and present in lower limbs and eyes were closed.
7. On internal examination, Doctor found following ante-mortem injuries:
1. Lacerated wound 5 cm x 2 cm x bone deep on top right side of head, 10 cm above right ear transversely.
2. Incised wound 7 cm x 1 cm x bone deep on left side of head, 10 cm above left ear vertically.
3. Lacerated wound 5 cm x 1.5 cm x bone deep on right side back of head, 7 cm below and behind injury no.1.
4. Contusion 5 cm x 5 cm on right side of forehead.
5. Contusion with abrasion 7 cm x 5 cm x 2 cm below and behind right ear.
6. Punctured wound 2 cm x 1 cm x cavity deep with clear cut margins on front of chest over the sternum, 2 cm below left sterno-clavicle joint and 1 cm from mid-line towards left, downwards and backwards.
7. Contusion 7 cm x 2 cm on the back of right shoulder.
8. Contusion 6 cm x 2 cm on the back of right arm at its middle.
9. Contusion 10 cm x 3 cm on the right lateral side of chest at lower joint.
10. Incised wound 8 cm x .25 cm x skin deep on right lateral side of chest going backwards and downwards over the lumber region.
11. Contusion 7 cm x 3 cm on the right side back of chest in the middle.
12. Incised wound 4 cm x 1.5 cm x muscles deep over right scapula upper part transversely.
13. Punctured wound 1 cm x 1 cm x muscle deep over left scapula at its middle, margin clean cut.
14. Punctured wound 1 cm x 1 cm x muscle deep left side back, 5 cm from spine at the level of inferior angle of scapula, margins clean cut.
15. Punctured wound 1.25 cm x 1 cm x muscle deep on left side back in lumber region, 2 cm from spine.
16. Incised wound 6 cm x 1 cm x muscle deep on right side back, 2 cm above iliac crest.
17. Incised wound 2 cm x 1 cm x muscle deep, 1.5 cm above injury no.16.
18. Incised wound 1 cm x .5 cm x skin deep, 5 cm above injury no. 16.
19. Contusion 7 cm x 2 cm on the back lower third (of) left forearm.
20. Contusion 5 cm x 2 cm, 3 cm, above injury no. 19.
(Emphasis added)
8. On internal examination multiple fractures of right and left parietal bone and occipital bone, lower left side were found. Membranes were lacerated at several places; brain was congested all over and lacerated on left cerebral hemisphere with clotted blood in an area of 10 cm x 4 cm; pleura was punctured and about 8 oz. blood was found present in left pleural cavity; left lung had collapsed and punctured in right upper lobe; pericardium punctured on left side; heart was punctured left side in continuation with injury no.6, and chambers of heart were empty; small intestine contained digested material; large intestine contained faecal matter; liver weighed 1000 gm, gall bladder was half full, stomach half full and both kidney weighed 200 gm.
9. In the opinion of doctor, death of Shambhu Nath occurred due to shock and haemorrhage on account of ante mortem injuries to vital organs.
10. PW-5, Dr. D.D. Tripathi, examined injuries of Informant, PW-3, Amar Nath Bhatt at 10:45 AM on 29.06.1976 and found following injuries on his person:-
1. Incised wound 2.5 cm 1.5 x scalp deep on the left side head, 10 cm above left ear.
2. Contusion 10 cm x 2.5 cm on left scapula.
3. Contusion 5 cm x 2 cm on the back of left arm, 7 cm below shoulder.
4. Contusion 12 cm x 2 cm on the back of chest transversely.
5. Contusion 7.5 cm 2 cm on the back of left forearm, 10 cm below elbow.
6. Incised wound 1.5 cm x 0.5 cm x muscle deep on front of right arm at its middle.
7. Contusion 15 cm x 2 cm on back of left thigh.
8. Incised wound 1.5 cm x 0.5 cm x muscle deep on back of right leg over calf.
(Emphasis added)
11. Doctor PW-5 opined that all the injuries were fresh and injuries no. 1, 6 and 8 could have been caused by sharp edged weapon. Injury -1 was kept under observation. Remaining injuries according to PW-5, could have been caused by blunt weapon.
12. Initially, PW-10 Sub-Inspector B.D. Singh conducted investigation but subsequently, on the request of Informant, investigation was entrusted to Crime Branch, CID. PW 9 Harendra Singh, Inspector (Economic Offences) commenced investigation from 15th July 1976 and after conclusion, submitted charge sheet in Court on 26.8.1976.
13. Case was committed to Court of Sessions on 10.09.1976. Charge was framed by learned Sessions Judge on 28.09.1976 which reads as under:
"I, S.D.N. Singh, Sessions Judge, Mirzapur, hereby charge you Arjun, Vijay Shanker, Kripa Shanker alias Baba, Ram Ji Dube, Daya Ram Dube, Mithlesh and Daya Shanker as follows:-
Firstly, that you at about 7 A.M. On 29.06.1976, at village Bedauli, Police circle, Kotwali Dehat, District Mirzapur, were members of an unlawful assembly in prosecution of the common object of which, namely, committing murder of Shambhu Nath, and causing injury to Amar Nath committed rioting, and at that time you Vijay Shanker, Kripa Shanker alias Baba and Ram Ji Dube were armed with deadly weapons and that you Vijay Shanker, Kripa Shanker alias Baba and Ramji Dube thereby committed an offence punishable under Section 148, I.P.C., and rest of you committed an offence punishable under Section 147, I.P.C., and within my cognizance.
Secondly, that you on the aforesaid date, time and place were members of an unlawful assembly, and in prosecution of the common object of it viz committing murder of Shambhu Nath and causing hurt to Amar Nath all of you committed murder by intentionally causing the death of Shambhu Nath, and thereby committed an offence punishable under Section 302 read with Section 149 I.P.C. and within by cognizance.
Thirdly, you on the aforesaid date, time and place were members of an unlawful assembly, and in prosecution of the common object of it viz committing murder of Shambhu Nath and causing hurt to Amar Nath some of you voluntarily caused hurt to Amar Nath with cutting and piercing weapons and thereby committed an offence punishable under Section 324 read with Section 149 I.P.C. , and within my cognizance.
Fourthly, you on the aforesaid date, time and place were members of an unlawful assembly, and in prosecution of the common object of it, viz committing murder of Shambhu Nath and causing hurt to Amar Nath, some of you voluntarily caused hurt to Amar Nath, and thereby committed an offence punishable under Section 323 read with Section 149, I.P.C. and within my cognizance.
And I hereby try you on the aforesaid charges."
(Emphasis added)
14. All the accused pleaded not guilty and claimed to be tried.
15. In order to substantiate its case, prosecution examined 11 witnesses, out of whom PW-1 Panna, PW-2 Imaman, PW-3 Informant injured Amar Nath, PW-6 Smt. Gujarati, PW-7 Punchnath and PW-8 Banshi are witnesses of fact. Rest are formal witnesses and included PW-4 Dr. Harcharan Singh, who conducted autopsy on the dead body of deceased and proved post mortem report Ex.Ka-2; PW-5 Dr. D.D. Tripathi who had examined injuries of Informant injured Amar Nath Bhatt; PW-9 Inspector Harendra Singh (CBI, Economic Offences), Second I.O., submitted charge-sheet and has proved the same; PW-10 Sub-Inspector B.D. Singh, First I.O. from Police Circle Kotwali, Dehat, Mirzapur who undertook investigation just after registration of the case at Police Station and has proved recovery memo Ex.Ka-8 in respect of clothes recovered from the house of Vijay Shanker accused; recovery memo Ex.Ka-6 in respect of handing over of bamboos in the custody of Punchnath; recovery memo Ex.ka-10 with respect to blood stained and plain earth; Panchayatnama (inquest) Ex.Ka-11; recovery memos Ex.Ka-12, and Ka-13 in respect of Photo Lash and Challan Lash respectively. Thereafter, he prepared Ex.Ka-14 letter of request to Chief Medical Officer, Mirzapur for conducting post mortem of deceased; Ex.Ka-15 recovery memo regarding pieces of blood stained dhoti and baniyan of PW-3 injured informant Amar Nath; Ex.Ka-16 sample of blood stained cot string; Ex.Ka-17 copy of entry no. 33 in General Diary with respect to deposit of bundle of clothes. Formal witness PW-11 is Constable Jiledar Singh who had prepared chik report Ex. Ka-9 on the basis of written report Ex. Ka-1 and had registered the case in General Diary at serial no. 12. He has proved copy of entry in General Diary Ex. Ka-22 as well as copies of other documents of which he had made entries in the General Diary, Ex. Ka-24 and Ka-25.
16. Besides, Court also examined three witnesses CW-1 Parshottam, CW-2 Shiv Shanker and CW-3 Ramdhani who are also witnesses of fact.
17. Thereafter, statements of accused-appellants under Section 313 Cr.P.C. were recorded. They denied prosecution story.
18. Accused-appellant-4, Vijay Shanker @ Rajaram, has stated that Gujarati, from whom Shambhu Nath had got sale deed executed, is not widow of Mahavir, she is a fictitious lady. Impersonating her as widow of Mahavir, Shambhu had got sale deed executed with intention to usurp property of accused Vijay Shanker. This Gujarati during consolidation proceedings had lost her claim regarding the said property. On the fateful day of incident, Amar Nath and Shambhu Nath along with his group members, armed with gun etc. came with intention to take forceful possession over his (accused's) house and bamboo. They started to take possession of the house and cut off two bamboos from the clump. Thereafter, accused Rajaram and Kripa Shanker armed with Ballam and Gadasa went there to enquire. On objection being raised, Amar Nath opened fire whereafter, Rajaram and Kripa Shanker started fleeing to save their lives. Amar Nath and Shambhoo Nath had chased both (Rajaram and Kripa Shanker) to murder them. When the two accused reached near the house of Mahavir, Amar Nath and Shambhu Nath surrounded them. Amar Nath started assaulting accused Rajaram with lathi while Shambhu Nath aimed his gun to kill him (Rajaram). Thereafter, the two accused i.e. Rajaram and Kripa Shanker started assaulting them (Amar Nath and Shambhu Nath). Had these two persons Amar Nath and Shambhu Nath got little opportunity, they would have killed both the accused. The two accused persons continued assaulting till they (Amar Nath and Shambhu Nath) fell down and when they fell on the ground, the two accused fled away.
19. Somewhat similar statement as tendered by accused appellant Vijay Shanker alias Raja Ram, has been given by accused appellant-5, Kripa Shanker (now died), stating that he alongwith other accused inflicted injuries to prosecution side in their self defence.
20. Accused Arjun Tiwari has stated that at about 08:30 AM, Inspector had arrested him from his door of Village Ramai Patti along with his brother Chintamani, nephew Kamla Shanker, Awdhesh, Suresh, Mithlesh and Dayaram and took all of them to Police Station. When report was lodged in the evening, accused Arjun, Mithilesh and Dayaram were detained and rest were let free. He also took the same stand as other accused had taken that Gujarati was a fictitious lady and by impersonation, sale deed was got executed. Widow of Mahavir is absconding since long. So called Mst. Gujrati by impersonating her as Mahavir's widow contested suit during consolidation proceedings and ultimately was unsuccessful. Since the death of Mahavir, family members of accused Arjun Tiwari had been in possession over his property and Smt. Gujrati had never been in possession. The accused further stated that at the time of incident, Sri Shiv Nath Sharma was Chief Judicial Magistrate in Varanasi, Sri R.N. Agarwal was DIG and both had intimate family relations. At the time of incident Sri R.N. Agarwal was Additional I.G. of CID Branch also. Sri Shiv Nath Sharma, CJM, by exerting his influence got investigation of the case assigned to CID and caused accused challaned falsely. Accused also claimed that he is innocent inasmuch as at the time of incident, he was present at the house of Amresh Chandra Pandey and got information of the incident there.
21. Accused-appellant-3, Mithlesh, has stated that at about 8:30 AM in the morning, I.O. arrested him from his house at Ramai Patti and at that time, he also arrested Arjun Prasad, Chitamani, Kamla Shanker, Awdhesh, Kaushlesh and Dayaram. He stated that since he is nephew of Arujun Prasad, therefore, he has been implicated and he was not present at the spot.
22. Accused, Daya Shanker @ Laxmikant has stated that on the day of incident at about 7:45 AM, Panchnath, resident of Khajuri village, alongwith with his cousin Gajadhar Prasad, Brij Bihari, their sons Hari Sanker and Lalai, all residents of same village, armed with Ballam and Gadasa came to his house. Panchnath said that he had come to know that after assaulting his (Panchnath's) brother, accused Vijay Shanker, Kripa Shanker and Ramji had hidden themselves in his (Daya Shanker's) house. They (Panchnath and his companions) demanded from Dayashankar that either accused be handed over to them or they (Panchnath and others) be permitted to enter the hosue and catch hold of them. Thereafter, other persons in the vicinity assembled and resisted from quarreling. Then Panchnath and others fled away threatening the accused. Amarnath was under misconception that it was Dayashanker's father on whose advice, Arjun was contesting case for property of Gujarati.
23. Accused-appellant-2, Ramji Dubey has stated that he is resident of Madhya Pradesh and is relative of Vijay Shanker and has been falsely implicated in the case.
24. Accused-appellant-1, Dayaram has stated that result of B.A. was to be declared. He had gone to village Ramai Patti in connection with admission in IIT and stayed overnight there. At about 8.30 AM in the morning, Police arrested him, and despite application identification parade was not conducted by police.
25. After appreciation of evidence and material available on record, learned Sessions Judge found charges levelled against accused-appellants, proved and accordingly, convicted and sentenced them as mentioned above vide judgment and order dated 21.06.1979.
26. Trial Court acquitted accused Arjun Prasad and Daya Shanker since charges levelled against them were not made out beyond reasonable doubt. Government Appeal was filed against above acquittal of Arjun Prasad and Daya Shanker which has been dismissed vide order dated 04.09.2018.
27. Trial Court has observed that Panna Lal, PW-1, Imaman, PW-2 and Banshi Kumhar PW-8, have supported statement of injured Informant Amar Nath, PW-3. However, Imaman, PW-2, and Banshi Kumhar, PW-8, are residents of Village Khajuri which is at a distance of two furlongs from the place of incident. Panna Lal, PW-1, belongs to Village Saraiyan, Gorshandi. All the above three witnesses, i.e. PW-1, PW-3 and PW-8 are chance witnesses having reached the spot of occurrence accidentally, hence, it was not safe to rely on their deposition. Court below has also observed that PW-8, Banshi Kumhar, appears to be interested witness also, therefore, it is not safe to rely on his testimony. Having discarded the above three witnesses of fact, Trial Court then proceeded to refer to the testimony of injured Informant, Amar Nath, PW-3, and has found that his statement is consistent and duly corroborated with medical evidence. He sustained injuries in the course of same transaction in which deceased was hurt. There is nothing to doubt his presence on the spot. There is no evidence to indicate that Informant (injured witness) bore any animus against accused. Trial Court did not find any infirmity in the testimony of PW-3. It held PW-3 to be trustworthy enough, particularly, when it was corroborated by medical evidence on record and consistent with narration of incident in FIR. It also found that there was no delay in lodging of FIR which may justify to discredit prosecution version. The injured Informant PW-3 and his brother Punchnath, PW-7, in a natural way, first attempted to take deceased to hospital which is a natural act and expected in the circumstances when their brother had sustained serious injuries and almost at death bed. Subsequent events are also in complete chain and consistent with prosecution version. Minor variations are not such so as to discredit entire prosecution story. Recovery of fresh cut bamboos by I.O. and stains of blood at Neem tree, west of the house of Smt. Gujrati, proves place of incident and the information given by Informant is correct. Trial Court also relied on two Courts witnesses, namely, Shiv Shanker and Ram Dhani whose statements partially support ocular testimony of PW-3.
28. Trial Court also held that defence story that Smt. Gujrati was a fake women, was not proved. She herself had appeared in witness box. Accused were in possession of disputed land, a fact pleaded in defence, was not proved. No evidence in support of plea of right of private defence was adduced. Plea of private defence was taken for the first time in Court but still no evidence was adduced. Even in Bail Application, plea of right of private defence was not set up. They also did not prove, by adducing any evidence, that deceased and injured Informant, PW-3 along with others came to grab their house, duly armed and they were aggressors and attackers. Hence holding that prosecution has proved its case beyond reasonable doubt, Trial Court vide judgment and order dated 21.06.1979, held accused-appellants guilty and awarded sentence as already stated in detail above.
29. This appeal has been filed against aforesaid judgment and as we have already said, it is now surviving only in respect of appellants 1, 2 and 4, namely, Daya Ram, Ramji Dubey and Vijay Shanker.
30. We have heard Sri Vinay Saran, Advocate for appellants, Sri Rishi Chaddha, learned A.G.A. for State and Sri Saghir Ahmad assisted by Ms. Ainakshi Sharma, Advocate for complainant.
31. Sri Vinay Saran, learned counsel for appellants contended that accused-appellants were owner in possession of land over which Informant and deceased intended to intrude and take possession. They were aggressors. They assaulted and attacked accused-appellants so as to dispossess them from disputed land. In self-defence, accused-appellants when attacked, it resulted in death of Shambhu Nath. Accused-appellants also sustained injuries and when arrested accused-appellant-4 was examined in jail by Medical Officer on 01.07.1976. In support of their defence, appellants submitted that Informant and deceased attacked first, upon them. Accused-appellants were actually working in the field. Informant and deceased were not cutting bamboos, as claimed by prosecution. Smt. Gujrati was an Impostor. She falsely claimed to be widow of Mahavir Pathak. She had lost her claim over property in dispute in Revenue Courts. Sri Saran urged that accused-appellants are entitled for the benefit of Explanation 2 to Section 300 IPC and their conviction under Section 302 IPC is clearly illegal. Prosecution has miserably failed to prove its case beyond reasonable doubt. Two witnesses were found unreliable and rest witnesses did not prove prosecution story at all and in any case not beyond reasonable doubt. Instead case of assault on the part of Informant and deceased being aggressors, upon appellants, was fully proved but Court below has misread the evidence and held accused-appellants guilty, illegally.
32. Per contra learned A.G.A and learned counsel for complainant argued that Informant had sustained injuries in the same incident in which his brother Shambhu Nath sustained died. Injuries and his ocular version, therefore, has rightly been relied by Court below, particularly, in absence of any substantial contradiction. Theory of self-defence has been concocted. In any case, it proved not only presence of accused-appellants but admission on their part that they attacked Informant and deceased causing death of Informant's brother Shambhu Nath. Appellant failed to adduce any evidence to support their case of self-defence though, its onus lay upon them. Prosecution evidence clearly proved that Informant and his brother were cutting bamboos in the field which was purchased by them from Smt. Gujrati who got the property of Mahavir Pathak. Accused-appellants in their attempt to take illegal possession of said land, assaulted and attacked Informant and deceased, caused injuries to Informant and fatal injuries to deceased. Cause of death is duly proved in the medical evidence and specific weapons possessed by accused-appellants- 1, 2 and 4 in whose respect, appeal is alive have also been duly proved and, therefore, they have rightly been convicted by Court below though it has taken a lenient view in the matter of punishment and has awarded sentence of life imprisonment only.
33. We find from record that incident had taken place in Village Patak Bedauli. The genesis of entire dispute is a registered sale deed dated 14.06.1976 executed by Smt. Gujarati (widow of Mahavir Pathak) in favour of Informant Amar Nath and deceased Shambhu Nath, residents of Village Khajuri with respect to plots no. 113, 114, 122, 124-A, 124-B, 114/240 total area 5 bigha, 12 dhur including grove and house (kutcha house). The aforesaid document mentions that Smt. Gujarati got bhumidari rights over Arazi nos. 113 and 124 by depositing requisite amount in Government Treasury on 03.06.1976; Arazi Nos. 114, 124-A and 124-B and 113 was her sole bhumidari and Arazi Nos. 122 and 214/240 was in co-tenureship with Raja son of Arjun and she transferred only her share in co-tenure holding.
34. It has also come on record that Raja (Rajaram) son of Arjun is also called Vijay Shanker i.e. appellant-4.
35. Vijay Shanker and Kripa Shanker, appellants-4 and 5, sons of Arjun are real brothers. Daya Ram son of Bhagwati Prasad, appellant-1, is brother-in-law of Kripa Shanker Tiwari. Family tree of accused Vijay Shanker, Kripa Shanker and Mahavir Pathak whose property is in dispute, as disclosed before Court, is as under :-
36. The first question is, whether there is any delay in lodging FIR or it is ante timed.
37. So far as the contention with regard to ante timing of FIR is concerned, record shows that after registration of case, I.O. proceeded for investigation and reached the place of incident at 10:45 AM. This fact has been proved by PW-10, Sri B.D. Singh, Sub-Inspector who proceeded for investigation after registration of report. PW-11, Head Constable, Jiledar Singh, who has prepared Chik Report Ex.Ka-19 and registered the case in General Diary (रोजनामचा) Ex.Ka-20 at Serial No. 12 has proved both these documents as well as his signature thereon. He has also proved that special report was forwarded to concerned Officers through Constable Panalu Ram Yadav who came back after certifying special report to concerned authorities and thereafter he made entry in General Diary (रोजनामचा) at Serial No. 20 and this was also proved as Ex.Ka-22 by PW-11. Constable, Rama Shankar had taken Informant, Amar Nath, to hospital and returned to Police Station at 11:00 AM on 29.06.1976 as stated by PW-11 in cross-examination. Nothing substantial has been extracted otherwise, therefore, the submission that FIR is ante timed, in our view, cannot be accepted.
38. Incident is said to have taken place on 29.06.1976 at 07:00 AM at Village Patak Bedauli, which is about 4 kilometers from Police Station Dehat, Mirzapur. FIR was lodged at 09:30 AM the same day, by Informant, PW-3, Amar Nath i.e. injured witness and brother of deceased, Shambhu Nath. It has also come on record that Shambhu Nath sustained serious injuries. Hence, Informant and others took him on a cot to hospital but before reaching hospital, Shambhu Nath died. Thereafter, report was lodged. In our view, it cannot be said that there was any delay whatsoever in lodging the report. Firstly, Informant himself sustained injuries and secondly his brother sustained serious injures, therefore, his natural reaction would have been to take steps for saving life of his brother and this is what he had done to save his brother's life but his attempt could not succeed as the deceased succumbed to injuries midway before reaching hospital. Hence, it cannot be said that there is any delay in lodging FIR and this aspect will not help appellants in any manner.
39. Then, we come to question of place of incident. FIR version is that on 29.06.1976, Informant and deceased at about 07:00 AM went to Village Bedauli. They found, Arjun son of Baij Nath @ Babban Tiwari and his sons Vijay Shanker and Kripa Shanker, Ramji Dubey, Daya Ram, Mithilesh son of Chinta Mani (nephew of Arjun Prasad Tiwari since Chinta Mani is brother of Arjun Tiwari) and Daya Shanker, present with weapons i.e. Lathi, Gadasa and Ballam. Daya Shanker and Mithilesh were cutting bamboos. When objected by Informant and deceased Shambhu Nath, Arjun exhorted others to kill Informant and his brother, whereupon the two brothers ran away but appellants and others chased them. Near the house of Gujrati, under Neem Tree, they surrounded Informant and his brother and assaulted with weapons in their hands. As a result thereof, both Informant and deceased sustained injuries. Injuries sustained by deceased were fatal, inasmuch as, when taken to hospital he died in the way. Informant was examined as PW-3 and he has supported his version with regard to place of occurrence. This has been corroborated by Smt. Gujarati, PW-6 to the extent that she heard noise and went towards her house, found Shambhu Nath on the ground and Amar Nath in injured condition. Statement of Informant, PW-3, is also supported by Court witnesses Shiv Shanker CW-2 and Ram Dhani CW-3. In fact, place of incident, we find, has been admitted by Vijay Shanker and Kripa Shanker, appellants- 4 and 5 in their statements recorded under Section 313 Cr.P.C., therefore, place of incident in our view, has been duly proved and in this regard findings of Trial Court cannot said to be erroneous in any manner.
40. Now, we come to question of "Motive". From the statement of PW-7, Panchnath, it appears that Bedauli is a small village. Family of accused-appellants is large and a joint family, having high influence in the area. The basic dispute revolves around property. Case of Informant is that accused-appellants were trying to grab property which was purchased by Informant and deceased, Shambhu Nath from Smt. Gujrati, PW-6, while accused-appellants claimed that said property belong to them and they were in possession and it is the Informant and his brother who attempted to grab the land forcibly. Therefore, it is clear that there was a property in dispute behind the entire incident. Hence, motive is virtually admitted and duly proved.
41. Now, this has to be seen whether accused-appellants were guilty of attack and assault first, or Informant and his brother were aggressors, and they caused incident by attacking first upon accused-appellants. In this regard, we find that case set up by accused-appellants and in particular appellants-4 and 5 is that of self-defence and they have tried to bring their defence within exception i.e. Explanation 2 to Section 300 IPC.
42. Sri Vinay Saran, learned Counsel appearing for appellants has vehemently argued that PW-6, Smt. Gujarati, was an Impostor and fraudulently executed sale deed dated 14.06.1976 in favour of Informant and his brother i.e. deceased Shambhu Nath, though she had no claim to property of Mahavir Pathak. Property was already in possession of Vijay Shanker and Kripa Shanker, inasmuch as, they were sons of Smt. Tulsa, wife of Arjun, who was daughter of Basdev and cousin of Mahavir. Informant and deceased Shambhu Nath, both attempted to forcibly take possession of disputed land and in their attempt to do so, they attacked appellants. In their self-defence, appellants then caused injuries to Informant and his brother Shambhu Nath. Learned counsel for appellants referred to criminal history of Shambhu Nath and Amar Nath from the statement of Informant, PW-3 himself and also higher connections of the two which is also evident from statement of PW-3, Informant. Learned counsel also referred to statement of accused-Vijay Shanker recorded under Section 313 Cr.P.C. who said that a shot was fired from gun by Informant, his brother and the persons accompanying them but it missed and that gun was sent for examination by Ballistic Expert for investigation.
43. Sri Saran pointed out that site plan shows at the Top-West, house of accused Vijay Shanker, on South, the house of Ghutru with whom Informant, PW-3 was inimical and further South was the house of Nanhku with whom also PW-3 was inimical. Towards Eastern side of house of Ghutru, was the house of accused-Arjun and towards extreme South were fields of Smt. Tulsa, mother of accused Vijay Shanker. Informant and his brother could not have entered said area where persons inimical with them were residing. The plea taken by defence that Informant and others were duly armed and aggressors thus, stands fortified. Injuries were also caused to Vijay Shanker who was examined in Jail on 01.07.1976 (Ex.Kha-3) and these injuries were duly proved by Dr. B.N. Singh, Medical Officer, District Jail, Mirzapur who deposed as D.W.1. Sri Saran submitted that prosecution miserably failed to prove any right of Informant and his brother over plots no. 57 and 82 (later changed to plots no. 57 and 83 and again changed to plot no. 114). He urged that Ex.Ka-34 shows that bamboo clumps belong to Smt. Tulsa, Mother of accused-Vijay Shanker. Sri Saran, learned counsel for appellants referred to Exhibits Kha-47, Kha-48/1, Kha-49, Kha-50, Kha-51/2, Kha-48/4, Kha-34 and Kha-31 and contended that disputed bamboo clumps did not belong to either Shambhu Nath or Smt. Gujarati and, therefore, entire prosecution story from its very inception was false. Accused-appellants were residents of Village Patak Bedauli while Informant and his brother Shambhu Nath were residents of Village Khajuri. They had come to Village Bedauli which shows that they were the persons who attempted to grab land in dispute, situated in Village Patak Beduali and they were aggressors causing incident in which accused-appellants exercised their right of self-defence, and, unfortunately, injuries caused to Shambhu Nath resulted in his death. It is, however, submitted that said injuries caused to Shambhu Nath were not with an intention to kill him but only on account of right of self-defence exercised by appellants. Relying on Supreme Court's decision in Vajrapu Sambayya Naidu and others Vs. State of A.P. and others (2004) 10 SCC 152, Sri Vinay Saran, learned counsel argued that once accused were found in possession of disputed property, complexion of entire case would change. Accused cannot be held aggressors in such a case but clearly were defending their property from other side. He also argued that Exhibits Kha-50, Kha-51(2) (Khasra) and Kha-49 show that there was no bamboo clumps in plot nos. 57 and 83 and it belies the stand taken by prosecution and corroborates defence version that Informant and his brother were aggressors and attackers. He vehemently argued that sale-deed dated 14.06.1976 was a fraudulently executed document. PW-6, Smt. Gujarati was an impostor. He referred to order dated 19.02.1972 (Ex.Kha-40) and 24.11.1972 (Ex.Kha-41).
44. To examine the arguments of appellants' counsel, we have gone through various Exhibits and our observations therefrom, are as follows.
45. Ex.Ka-31 is a judgment dated 26.03.1958 delivered by Sri V.C. Jain, Munsif, Mirzapur in Original Suit (hereinafter referred to as "OS") No. 177 of 1957 (Mahavir and another Vs. Smt. Tulsa). Suit was filed for grant of a declaration that plaintiffs are bhumidars with possession of grove and agricultural plots, detailed at the foot of the plaint, situate in Village Bedauli.
46. Plaint case was that plaintiff-1 i.e. Mahavir was sole bhumidar of plots in suit. On 22.05.1954, he executed a gift deed in favour of plaintiff-2, Smt. Gujarati and his son Jata Shankar and delivered possession to them. Jata Shankar died leaving plaintiff-1 as his sole heir and thus, plaintiff-1 again acquired share in plots inheriting to his son, Jata Shankar. It is also said that defendant had no share or interest in plots in suit but since defendant is disputing the title of plaintiffs, hence, this suit. An alternative prayer was also made that in case, plaintiffs have been dispossessed, possession should be restored. Smt. Tulsa, sole defendant contested suit and challenged validity of gift deed dated 22.05.1954. She pleaded that out of plots mentioned in plaint, plots no. 57, 59, 79 and 83 along with trees thereon belong to her father and after his death, she has succeeded the same as his sole heir and is in possession of said plots.
47. Learned Munsif framed following issues :-
"(i) Whether plaintiff no. 1 has the sole bhumidar of the plots in suit ?
(ii) Whether defendant is bhumidar of plots no. 57, 59, 79 and 83 in suit as detailed in para-5 of written statement.
(iii) Whether plaintiffs are bhumidar of plots in suit by virtue of the gift deed alleged in para-2 of the plaint and by reason of death of Jata Shankar, one of the donees ?
(iv) Whether the suit is barred by time?
(v) Whether the suit has been undervalued and Court fee paid is insufficient ?
(vi) To what relief, are the plaintiff is entitled ?"
48. Issue-5 was taken as preliminary issue and vide order dated 30.08.1957, Court decided it in negative. Then issues-1 and 2 were taken together and Trial Court recorded its finding that as per extract of Khatauni of 1309 Fasli, plot no. 83 was recorded as non occupancy tenancy of Sheetal Pathak and plots no. 59 and 79 as khudkasht of Sheetal Pathak. In 1332 Fasli, plots no. 57 and 83 were recorded as non occupancy tenancy of Chandrika Pathak son of Sheetal Pathak while plots no. 59 and 79 were recorded as khudkasht of Chandrika Pathak and Mahavir Pathak, both sons of Sheetal Pathak. In view thereof, Court recorded its finding as under:
"It appears that grove was planted over plot nos. 57 and 83 some time subsequent to 1332F as in 1347F. These plots are recorded as grove of Chandrika, while plot nos. 59 and 79 continue to be recorded as khudkasht of Chandrika and Mahabir. These entries have consistently continued thereafter. There are no documents to indicate any title of possession of defendant or her predecessors over any of these four plots."
49. Court below rejected the claim of Smt. Tulsa that aforesaid four plots fell to share of her father, Basdev on partition. Court also recorded that extract of Khatauni entries of plots pertaining to share of Basdev, father of Smt. Tulsa, were shown separately for the years 1332, 1347, 1356 and 1358 Fasli. Consequently, Court of Munsif held that plaintiffs had established that plots in suit were grove and khudkasht plots of plaintiff-1, Mahavir and he acquired bhumidari rights in respect thereof, when U.P. Act No. 1 of 1951 came into force. He also held that defendant is not bhumidar of plots no. 57, 59, 79 and 83 in suit and plaintiff-1 i.e. Mahavir Pathak is the sole bhumidar of all the said plots.
50. Court also held that since plaintiff-2 i.e. Smt. Gujarati claimed her right on the basis of gift deed, the question as to whether she is legally wedded wife of Mahavir or not is not relevant. It would be appropriate to reproduce the findings recorded by Court of Munsif in the aforesaid suit on issue-3 as under :-
"... Smt. Gujrati is not the wedded wife of Mahabir but since title is claimed by Gujrati under the gift the question of her being the wedded wife of Mahabir is not material and it is not necessary for to enter up to that controversy for the purpose of the present suit."
51. While considering issue-4, Court also discarded the claim of possession over disputed land, set up by defendant. Ultimately, suit was decreed.
52. This is a judgment given by Court of Munsif in which Smt. Tulsa, Sri Mahavir and Smt. Gujarati were party. Smt. Tulsa raised an objection that Smt. Gujarati is not a legally wedded wife of Mahavir but was living with him. By this suit, rights of Mahavir and Smt. Gujarati who were plaintiffs-1 and 2, were also determined.
53. Ex.Kha-40 is an order dated 19.02.1972 passed by Sri Satya Narayan Gupta, Consolidation Officer, Mirzapur (hereinafter referred to as "C.O.") in Consolidation Case No. 5215 (Mata Prasad vs. Mahavir). C.O. vide order dated 19.02.1972 ordered that in respect of Chak-71, objections of Mata Prasad and Smt. Tulsa are rejected and after expunging the claim of Mahavir Pathak who is dead, name of Smt. Gujarati, widow of Mahavir Pathak, shall be recorded.
54. With regard to dispute in Revenue Court's, we find that an application under Section 92 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") was filed by Mata Prasad claiming that he has got a sale-deed executed by Mahavir Pathak, son of Sheetal Pathak, in respect of Chak-71, and, therefore, his name should be mutated in place of Mahavir Pathak. Smt. Tulsa (mother of Vijay Shanker, appellant-4) filed objection stating that she is continuously in possession of disputed land and has acquired Sirdari right. She also disputed the factum of execution of sale-deed by Mahavir and said that document must have been got executed fraudulently by some Impostor. Mahavir was married to one Smt. Gujarati who left her during his life time and her whereabouts were not known. Another lady claiming herself to be Gujarati, wife of Mahavir, is an Impostor. She objected to the application of Mata Prasad and claimed that name of Smt. Tulsa should be entered as Sirdar in Revenue Record. Initially, application of Mata Prasad was rejected by C.O. vide order dated 10.04.1969 whereagainst an appeal was filed before Settlement Officer Consolidation (hereinafter referred to as "S.O.C.") who also rejected the appeal. Then matter went in revision before Deputy Director of Consolidation (hereinafter referred to as "D.D.C.") who vide judgment dated 04.06.1970 remanded the matter to C.O. Whereafter C.O. recorded finding that parties agreed that name of wife of Mahavir is Gujarati. However, Smt. Gujarati who appeared before C.O., whether was the same lady or not, no evidence was led by either side to prove their respective claim. He, however, referred to statement of Mahavir himself recorded on 27.02.1967 that present Gujarati was residing with him and she was taking his care. She may be treated either his kept or servant. In view thereof, C.O. observed that said Gujarati was not legally wedded wife of Mahavir though the name of legally wedded wife of Mahavir was also Gujarati. He, therefore, recorded his conclusion by observing that neither Mata Prasad nor Smt. Tulsa was entitled for mutation of their name in Revenue Record and instead Chak No. 71 should be corrected and in place of Mahavir who died, the name of his widow Gujarati should be entered.
55. Ex. Kha-41 is a judgment and order dated 24.11.1972 passed by Sri Sia Ram, D.D.C., Mirzapur in Revision No. 4512 of 1972 which was filed by Mata Prasad after rejection of his appeal by S.O.C. vide order dated 10.05.1972 against C.O.'s order dated 19.02.1972. This revision was dismissed by D.D.C. confirming orders of C.O. and S.O.C.
56. When we examine arguments of Sri Saran, learned counsel for appellants in the light of documents on record, we find that disputed property admittedly belong to Mahavir Pathak son of Sheetal Pathak. Sri Mahavir Pathak executed a gift deed in favour of Smt. Gujarati and her son Jata Shanker pursuant whereto, Smt. Gujarati got a right over the plots no. 57, 59, 79 and 83 in the light of judgement of Munsif, Mirzapur passed in OS No. 177 of 1957. This judgment recognizes that Smt. Gujarati whom Smt. Tulsa pleaded that she is not a legally wedded wife yet she had right over property. Civil Court held that the question whether she was a legally wedded wife or not is not relevant since she got a gift. Thus, Smt. Gujrati, PW-6 got transferred rights from Mahavir Pathak through a gift deed over plots no. 57, 59, 79 and 83. It is not shown before us that aforesaid judgment of Civil Court at any point of time was reversed. Thus, the question whether Smt. Gujarati, PW-6 was a legally wedded wife of Mahavir or not, so far as plots no. 57, 59, 79 and 83 are concerned, is of no relevance in this matter also. Further after death of Mahavir Pathak, Smt. Gujarati who was wife of Mahavir Pathak, her name was recorded in Revenue Records. These facts show that property of Mahavir Pathak throughout remained in his possession along with Smt. Gujarati, PW-6 and time and again, dispute of possession or title raised by Smt. Tulsa was not recognized. How and in what manner, accused-appellants came to own and possess disputed land is not clear and nothing has been shown from record in this regard. It is also evident from record that during consolidation proceedings in Village, an application was filed before Consolidation Authorities seeking permission to transfer land in favour of Informant and his brother Shambhu Nath and an order was passed granting such permission by C.O. on 05.06.1976 pursuant whereto PW-6 Smt. Gujarati executed a sale-deed dated 14.06.1976 in favour of Informant and his brother Shambhu Nath.
57. The above observations are only for the purpose of present case to find out as to who was in possession of disputed land on the date of incident. We are not at all examining the question and recording any final opinion whether PW-6, Smt. Gujarati, was an Impostor or legally wedded wife and widow of Mahavir Pathak but our observations and findings are only for the purpose of present case to find out, who could be the person, Aggressor and Attacker, initiating the incident. We have no hesitation in holding that Smt. Gujarati, PW-6, was in possession of disputed land and when she executed sale-deed in favour of Informant and his brother and transferred possession of land thereof to these two vendees, till then, at least nothing is on record to show that appellants were in possession or got possession over disputed land at all. The arguments of Sri Saran advanced otherwise, to this extent, therefore, are rejected.
58. Here, we may also observe that PW-6, Smt. Gujrati herself has stated that grove land and house was gifted by Mahavir Pathak to her and she executed sale-deed of the same in favour of Informant and his brother i.e. Amar Nath and Shambhu Nath, respectively and also handed over possession to Shambhu Nath. Execution of sale-deed being not in dispute and accused-appellants having failed to show as to how they were in possession of property of Mahavir Pathak, we find no reason to disbelieve prosecution story that Informant and his brother Shambhu Nath entered into a sale-deed dated 14.06.1976, executed by PW-6 Smt. Gujarati, in respect of disputed land, bonafide, believing her to be the owner of said property and got possession over disputed property.
59. Property transferred by Smt. Gujarati including the house was cause of entire incident. This is corroborated by admission of accused-appellant-4, Vijay Shanker from his statement given under Section 313 Cr.P.C. stating that Informant, his brother and others came to grab his house. No evidence has been led to show that house of any of accused-appellants were attempted to be grabbed by Informant or his brother or that they were accompanied by other persons. On the contrary, if defence statement of accused-appellant Vijay Shanker in reply to question-17 and statement of Kripa Shanker in reply to question-19 are read together, we have no manner of doubt that the same corroborate prosecution version that Informant and his brother when reached disputed land, they were attacked by accused and thereafter, they were chased and further assaulted. The defence that Informant and his brother were aggressors, therefore, cannot be accepted as neither any evidence has been adduced to prove it, nor even otherwise, it can be believed that Informant and his brother, despite having got a sale-deed executed in their favour, had any reason to go with the preparation to take forcible possession of land or property, for which, sale-deed was already executed. Moreso, any one who would have gone to take forcible possession in another Village would not get involved in simply cutting to bamboos.
60. Moreover, defence taken by accused-appellants, in absence of any evidence to support, cannot be accepted particularly in view of the fact that prosecution has otherwise been successful to adduce credible evidence to prove beyond reasonable doubt that Informant and his brother were attacked by accused-appellants.
61. PW-3, Informant, has proved prosecution story and it is also duly corroborated by medical evidence. We find that even CW-2 and CW-3 corroborates the evidence of prosecution. CW-2, Shiv Shanker, though a minor, had his house just about 20-25 paces in West of the house of Gujarati. He is an eye witness of injuries caused to Shambhu Nath and Bhola by accused-appellants-2 and 4. He has clearly said that Vijay Shanker attacked Bhola with Gadasa and Ram Ji with Lathi while Kripa Shanker attacked Shambhu with Ballam. He has admitted that door of his house is on Western side and the place where deceased and others were being assaulted was clearly visible. He also said that he did not hear any sound of fire.
62. CW-3, Ramdhani, who is brother of CW-2, is also an eye witness of incident when Shambhu Nath and Bhola were surrounded by accused persons and Vijai Shanker attacked Bhola with Gadasa and Ramji with Lathi, while Kripa Shanker @ Baba had attacked Shambhu Nath with Ballam. He also admitted that door of his house is on Western side and the place where deceased and others were being assaulted was clearly visible. He also said that he did not hear any sound of fire. He further said that when both had been running away trying to save their life, assailants chased them and again hit them.
63. Injuries caused to Informant and deceased by accused-appellants are admitted by at least two accused-appellants i.e. appellant-4, Vijay Shanker and appellant-5, Kripa Shanker @ Baba. It is true that accused-appellant-5, Kripa Shanker died during the pendency of this appeal and this appeal has abated in respect of him, but his statement is an admission of attack upon Informant and his brother corroborating similar admission of appellant-4. It is sufficient to corroborate the prosecution story. In fact, statement of accused-appellant-4 and 5 is nothing but a plea of self-defence. When a plea of self-defence has been taken and accused intends to bring his case within exceptions, onus lies upon such accused to adduce evidence to prove the case of self-defence. We have already said that we do not find any evidence adduced on behalf of appellants to prove that Informant and his brother were aggressors and attacked accused-appellants. Moreso, even otherwise, plea of self-defence taken by accused-appellants is liable to be rejected for the reason that at least two accused-appellants i.e. appellant-4, Vijay Shanker and appellant-5, Kripa Shanker @ Baba have admitted in their statements recorded under Section 313 Cr.P.C. that they continued their attack on Informant and his brother till they fell down. Relevant statement in reply to question-17 given by appellant-4 Vijay Shanker reads as under :-
^^ge yksx ekjrs jgs tc ;s nksuks vkneh fxj x, rks ge yksx Hkkx x,A^^ "We continued beating. When these two persons fell down, we fled away." (English Translation by Court)
64. Accused-appellant-5 Kripa Shanker @ Baba has also stated similarly in reply to question-19 which reads as under :-
^^bl izdkj ge nksuksa ekjrs jgs vkSj tc ;s yksx fxj x;s rc ;s yksx HkkxsA ge funksZ"k gSA** "Thus we had been beating and when these people fell down then they fled away. We are innocent." (English Translation by Court)
65. Statement of accused-appellant-5 Kripa Shanker @ Baba was subsequently corrected on an application made by him by Trial Court's order dated 22.02.1979 and corrected statement reads as under :-
^^eSaus o fot; 'kadj us cYye o xM+kls pyk;s Fks ykfB;ka ughaA** "I and Vijay Shanker had wielded Ballam and Gandasa and not Lathis." (English Translation by Court)
66. Though Ramji in his statement under Section 313 Cr.P.C. has proceeded with a complete denial but evidence against him has clearly been given not only by PW-3, Informant but CW-2 and CW-3 also. Ramji Dubey, accused-appellant-2, in fact, has pleaded an alibi that he is resident of State of Madhya Pradesh and though is a relative of Vijay Shanker, accused-appellant-4, he has been falsely implicated. However, he did not adduce any evidence that at the time of incident, he was in Madhya Pradesh and not at the place of incident. The role played by him in the incident has clearly been described by injured Informant, PW-1, Amar Nath and this has been corroborated by CW-2 and CW-3 very categorically. In cross-examination, nothing otherwise could be extracted by defence.
67. Learned counsel for appellants argued that there was no intention to kill Shambhu Nath and assault was only to protect the property, hence, Section 149 IPC is not attracted as there was no unlawful assembly and common object to commit the crime. We find it difficult to accept this contention. Accused-appellants came to place of incident who have different weapons, namely, ballam, gadasa and lathi and number of injuries caused on the persons of deceased and Informant show that their intention was to kill them but in the melee, Informant sustained lessor injuries and could survive while his brother was not so lucky.
68. The number of injuries sustained by deceased as well as Informant show that they were severely assaulted not only by sharp edged weapons but also with blunt objects. Total injuries sustained by deceased are 20 in numbers which included two lacerated wounds, six incised wounds, four punctured wounds and eight contusions. Injuries are almost on the entire body including head, shoulder, arms, chest, lumber region, iliac crest etc. Similarly, Informant had sustained eight injuries which included, three incised wounds and five contusions. These injuries are also on head, ears, scapula, shoulder, chest, arms and legs. Both were therefore, assaulted multiple times by different weapons. They support prosecution version that besides lathis, sharp edged weapons, like, Ballam and Gadasa were used to cause injuries on the persons of Informant and deceased and that was with an intention to kill.
69. Even if it had been a case of self-defence, it has to be examined whether accused persons have caused injuries in their self-defence only to the extent it was necessary for their defence or they have exceeded their right of self-defence. In Vajrapu Sambayya Naidu (Supra), it was held, that, when Court comes to conclusion that accused claiming self-defence exceeded right of defence, they deserve to be punished. Court said :
"In the exercise of right of private defence of property, the appellants were certainly entitled to use such force as was necessary, but without causing death."
70. We have no manner of doubt that if a person is unlawfully attacked, he has every right to counter attack on his assailant. He may also cause such injury as may be necessary when he apprehended danger or threat. It is also true that a plea of right of self-defence, when taken, accused is not required to prove it beyond all reasonable doubt. It is enough to show, as in a civil case, that preponderance of probabilities is in favour of his plea. It is also true that even if a plea of self-defence is not pleaded by accused and it is evident from evidence, the same can be considered by Court. However, law is also settled that the burden of establishing plea of self-defence is on accused. In Munshi Ram and others Vs. Delhi Administration AIR (1968) SC 702, Court said :
"The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon-derance of probabilities in favour of that plea on the basis of the material available on record."
71. One also cannot doubt the well established exposition of law that right of self-defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. However, the right of self-defence is a defensive and not reproductive right. It can be exercised in those cases where there is no time to have recourse to the protection of person and property.
72. In Vidhya Singh Vs. State of Madhya Pradesh 1971 SCC (Cri) 469, Court said that right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. A person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude but is confined to the extent which is required in thinking of a person in ordinary times or under normal circumstances.
73. The injuries received by accused is a relevant factor to consider whether there was a right of private defence or not. In the present case, it is true that accused-appellant-4 when examined in jail, was found to have certain injuries but it has not been shown that those injuries were sustained in the same incident in which Shambhu Nath, brother of Informant, died and Informant sustained injuries.
74. It is in this backdrop, we have examined every angle of the case to find out whether accused-appellants had any civil right over the property in dispute and for protection thereof, they could have exercised their right of self-defence and from that point of view, we have examined even earlier litigation with respect to property of Mahavir Pathak in respect whereto, Smt. Gujrati, PW-6 claimed to have acquired rights through gift deed as well as succession.
75. Once we come to the conclusion that accused-appellants failed to prove any legal right over disputed property and also possession, the entire edifice of self-defence falls and we find no substance or truth in the story set up by accused-appellants with respect to right of self-defence.
76. Sri Vinay Saran, learned counsel for appellants has cited certain authorities in support of his plea that when a person tried to act in self-defence of persons and property and caused certain injuries, he cannot be held guilty of committing offence but these authorities, we find do not help appellants, for the reason that the very story of self-defence set up by defence, having not been found proved, firstly based on no evidence, and, secondly, in view of ocular version and due credibility of prosecution witnesses. Therefore, it cannot be said that accused had exercised their right of self-defence of person and property. The evidence, on the contrary, proves that they attacked Informant and his brother Shambhu Nath, not only at the field, but even chased them when they had been running away and, thereafter, surrounded them and assaulted them mercilessly with assorted weapons like, Gadasa, Ballam and Lathi, ultimately resulting in death of Shambhu Nath and several injuries to PW-1, Informant.
77. Moreover, cutting of bamboos were found at a different place where, as per prosecution, incident started but ultimate assault was committed near the house of Mahavir which is at some distance from that place. Distance from the place of bamboo clumps and place where injuries had been sustained by Informant and his brother resulting in his death, was at a distance of about 20 paces. This fact is also evident from site plan.
78. In these circumstances, conviction of accused-appellants 2 and 4 cannot be said to be erroneous. In our view, Trial Court has rightly held them guilty holding that prosecution has successfully proved the guilt of accused beyond reasonable doubt.
79. So far as appellant-1 Daya Ram is concerned, though PW-3 has given evidence showing his involvement but CW-2 and CW-3 who are independent witnesses, have stated that the place where incident took place was clearly visible from their house but they have not named him (Daya Ram). They have said that none else attacked Informant and his brother. Daya Ram is brother-in-law of accused-appellant-5, Kripa Shanker @ Baba and it is not the case of prosecution that he was unknown to CW-2 and CW-3. Considering entire facts and circumstances as also the fact that while Informant's ocular testimony has been supported by two independent witnesses i.e. CW-2 and CW-3 in respect of Vijay Shanker and Ramji but they did not see Daya Ram, present there when Informant and his brother were attacked by said accused-appellants, in our view, he (Daya Ram) is entitled to benefit of doubt and it would not be safe to convict him on mere testimony of PW-3 which is not corroborated by other two eye witnesses i.e. CW-2 and CW-3. Therefore, judgment under appeal passed by Trial Court about conviction of accused-appellant-1, Daya Ram and sentence awarded to him are liable to be set aside. Thus, appeal in respect of Appellant-1, Daya Ram is deserves to be allowed and he is entitled to be acquitted of the charges levelled against him.
80. So far as sentence regarding appellants-2 and 4, Ramji Dubey and Vijay Shanker is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
81. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
82. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-Appellants-2 and 4, Ramji Dubey and Vijay Shanker by Trial Court in the impugned judgment and order, is neither excessive nor exorbitant and there is no reason to interfere on the point of punishment imposed upon them.
83. In view of above discussion, appeal in respect of Appellants-2 and 4, Ramji Dubey and Vijay Shanker is dismissed.
84. In the ultimate result, present Appeal is partly allowed. Conviction and sentence imposed upon accused-Appellants-2 and 4, Ramji Dubey and Vijay Shanker, vide impugned judgment and order is affirmed. Appellants-2 and 4, Ramji Dubey and Vijay Shanker are on bail. Their bail bonds are cancelled and sureties discharged. Appellants-2 and 4, Ramji Dubey and Vijay Shanker shall be taken in custody forthwith and sent to jail to serve out the sentence awarded to them.
85. Appellant-1, Daya Ram is given benefit of doubt and held not guilty. He is acquitted of the charges framed against him under Sections 302 read with 149, 323, 324 read with 149 and 147 IPC. Appellant-1, Daya Ram is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.
86. A copy of this judgment along with lower Court record be sent forthwith to Sessions Judge concerned for compliance. A copy of this order be also sent to appellants through Chief Judicial Magistrate concerned. Compliance reports be also sent by all concerned to this Court.
87. Keeping in view provisions of Section 437-A Cr.P.C., Appellant-1, Daya Ram is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
Order Date :-28.01.2019 Siddhant Sahu