Punjab-Haryana High Court
Naresh And Another vs State Of Haryana on 29 August, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.486-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.486-DB of 1998
Date of decision: 29.8.2008
Naresh and another
......Appellants
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.M.S.Joshi, Advocate,
for the appellants.
Mr.S.S.Randhawa, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Naresh Kumar and Krishan Gopal faced trial before the learned Additional Sessions Judge Faridabad for murdering Santosh Kumar, son of complainant Brij Bihari. Both the accused were found guilty of offence under Section 302 read with Section 34 IPC and were sentenced to undergo imprisonment for life and a fine of Rs.2,000/- each. They have challenged their conviction and sentence vide the present appeal.
Prosecution case was set in motion on the basis of the statement made by complainant Brij Bihari to SI Ram Kishan, Police Station Mujessar that he had been informed at about 8.30 A.M. that his son Santosh Kumar was lying murdered in the street. When the Criminal Appeal No.486-DB of 1998 2 complainant reached the spot, he found that his son was lying dead in a pool of blood in the street in front of the house of Krishan Gopal. There were knife injuries on the neck and head of his son. One knife was also lying besides the dead body. He came to know that a day before a quarrel had taken place between Santosh Kumar and his friends Pardeep, Gopal and Mahesh.
On the basis of the statement of the complainant formal FIR No.7 dated 3.1.1996 was registered by the police of Police Station Mujessar under Section 302/34 IPC.
The investigating Officer visited the spot and completed inquest proceedings on the dead body of Santosh Kumar and sent it for post mortem examination.
The post mortem examination was conducted by Dr.Renu Gambhir (PW-1) on 3.1.1996 at 2.20 p.m. and following injuries were found on the person of the deceased:-
1. Bone deep incised wound 3"x 1/2" on left parieto occipital region. 5 ¼" above left pinna.
2. Transverse stab wound 1 ½"x 1/2" on right side of back of chest. 2" above base of neck. On probing depth was 8" down and medically. On dissection under lying major blood vessels were cut and going down medially cutting upper lob of lung ¾" wide and depth in lung was 3". Whole of pleural cavity was full of blood.
3. Incised wound muscle deep 3/4" x 1/2" on right clavicular region 2" below and medial to injury No.2.
4. Incised wound muscle deep 1"x1/2" on interior side of chest 1 ¼" below injury No.3.Criminal Appeal No.486-DB of 1998 3
5. Incised wound 3/4"x1/2" transverse on back 1 ¾"
below injury No.2. In was on right side, just lateral to spine and muscle deep.
6. Incised wound muscle deep on the back on right side just lateral to thoracic spine transverse oval shape muscle deep 2" below injury No.5.
All the other organs were healthy except for injuries as described.
In the opinion of the doctor, the cause of death was due to shock and haemorrhage caused to vital organs like lungs and injuries to major blood vessels of neck. All the injuries were ante mortem in nature and were sufficient to cause death. The duration between injuries and death was within few minutes and between death and post mortem was within 12 hours.
During investigation, statements of Pardeep Kumar Mahesh and Gopal were recorded by the Investigating Officer. After completion of investigation and necessary formalities, accused were sent up for trial. Charge against them was framed under Section 302 read with Section 34 IPC on 6.6.1996 to which they pleaded not guilty and claimed trial.
The material witnesses examined by the prosecution at the trial were Dr.Renu Gambhir (PW-1), Mahesh (PW-4), Pardeep Kumar (PW-5), Gopal (PW-6) and Ram Kishan, SI (PW-8).
On the conclusion of prosecution evidence, accused Naresh, when examined under Section 313 Cr.P.C. in reply to questions No. 1 and 7 stated as under:-
"As a matter of fact Santosh deceased had entered in our Criminal Appeal No.486-DB of 1998 4 house and caused knife blows in the chest and back of my father. My father had to retaliate in his self defence. Gopal and Pardeep were accompanying Santosh at that time. I had come afterwards and on noticing me the assailants ran away from there."
"Actually Pardeep Kumar (PW-5) and Gopal PW-6) were the companions of the deceased and they had accompanied the deceased at the time of attack upon my father. So they have made false statements. Otherwise, as a matter of fact both these witnesses were the aggressors. I had come afterwards. I am innocent."
Accused Krishan Gopal, when examined under Section 313 Cr.P.C. in reply to questions No. 1 and 7 stated as under:-
"As a matter of fact Santosh deceased had entered in my house and caused me knife blows in my chest and back. I had to retaliate in my self defence. Gopal and Pardeep were accompanying Santosh at that time. My co-accused Naresh had come afterwards and on noticing him the assailants ran away from there."
"Actually Pardeep Kumar (PW-5) and Gopal(PW-6) were the companions of the deceased and they had accompanied the deceased at the time of attack upon us. So, they have made false statements. Otherwise, as a matter of fact both these witnesses were the aggressors. I had to retaliate in my private defence and my co- accused Naresh had come afterwards. We are innocent." Criminal Appeal No.486-DB of 1998 5
The learned trial Judge did not accept the defence version but accepted the evidence led by the prosecution and held the appellants guilty of the said crime.
We have gone through the record of the case and heard learned counsel for the appellants as well as the learned State counsel.
This case is based on an eye witness account. Although the complainant had lodged the FIR on the basis of recovery of the dead body of his son but during investigation of the case the statements of the eye witnesses were recorded. Mahesh (PW-4) one of the eye witnesses of the occurrence did not support the prosecution case during trial.
Pardeep Kumar (PW-5) deposed that on 3.1.1996 at about 8.30 A.M. he was going to school along with Mahesh. Santosh and Gopal were coming from Durga Mandir Street. When they reached near the house of Krishan Gopal, he caught hold of Gopal. Santosh tried to rescue him and as a result Krishan Gopal caught hold of Santosh from his neck. Naresh inflicted knife blows on the neck and head of Santosh and he died at the spot. PW-5 further deposed that before the said occurrence, on 2.1.1996 there was a jagran ceremony in Devi Durga Mandir. A quarrel had taken place between him, Naresh, Santosh and Leela. Naresh and Leeladhar were on their opposite side. Gopal (PW-6) has corroborated the statement of PW-5.
Accused Krishan Gopal has taken the plea of self defence. The presence of Pardeep Kumar (PW-5) and Gopal (PW-6) at the spot is admitted. It has been further pleaded by the accused Criminal Appeal No.486-DB of 1998 6 that co-accused Naresh had come to the spot later on.
It has been held by the Apex Court in Deo Narain v. The State of U.P. 1973 CAR 72 (SC) as under:-
" The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence. "To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right."
"But while dealing with the appellant's case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of Criminal Appeal No.486-DB of 1998 7 the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter cannot be weighed in scales of gold."
The Apex Court in the case of Gottipulla Venkata Siva Subbrayanam & Ors. v. The State of Andhra Pradesh & Anr. 1970 CAR 105 (SC) has held that right of private defence of a person and property is recognized in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two consideration: (1) that the same right was claimed by all other members of the society and (2) that it was the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with graver imminent danger to their person or property as a result of unlawful aggression, nor were they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence serves a social purpose and there was nothing more degrading to the human spirit then to run away in face of peril. This right was basically preventive and not punitive.
In the case of Kanshi Ram v. State of M.P.2001 (4) RCR 556, the Apex Court has held that the plea of self defence could be taken in cross examination of prosecution witnesses or in the statement of the accused under Section 313 Cr.P.C.or by adducing evidence if the accused had failed to specifically took the plea of right of private defence even then it could be taken on the basis of Criminal Appeal No.486-DB of 1998 8 evidence on record.
Adverting to the facts of the present case the occurrence had admittedly taken place in the house of the accused. This leads to the inference that the deceased along with Pardeep Kumar (PW-5) and Gopal (PW-6) had gone to the house of the accused on the alleged day of occurrence. Pardeep Kumar (PW-5), in his cross- examination has admitted that a jagran had been arranged by the appellants in front of their house and a quarrel had taken place at 6.30 p.m. On 2.1.1996 Gopal had gone to attend the jagran first of all and, thereafter, he had gone along with Santosh and Naresh. Gopal (PW-6) has, however denied his presence at the jagran. Thus, admittedly a jagran had been organised by the appellants in front of their house on 2.1.1996.
Investigating Officer S.I.Ram Kishan (PW-8), in his cross-examination, has deposed that it had come during investigation that some altercation had taken place at the time of jagran on 2.1.1996. This lends support to the statement of Om Wati (DW-3) that there was a jagran at their residence on 2.1.1996 in which some altercation between the deceased and Pws had taken place. Apparently due to this reason the deceased along with Pws came present in the house of the appellants on the next day.
Appellant Krishan Gopal has taken the plea that he was inflicted injuries by Santosh and, thereafter, he had retaliated in self defence. Pardeep Kumar (PW-5), in his cross-examination, has admitted that it was correct that he was facing a trial in the cross case under Section 452/326/34 IPC in the Court along with Mahesh and Gopal. The Investigating Officer also deposed in his cross- Criminal Appeal No.486-DB of 1998 9 examination that Krishan Gopal was also having knife injuries and his statement was also recorded by him in the hospital on the same day. Although the exact nature of injuries suffered by him have not been proved on record but there is sufficient material on record which leads to the inference that the deceased had come to the spot along with Pws and had inflicted injuries on the person of Krishan Gopal, who, in self defence, inflicted injuries on the person of Santosh. From these facts, it is established that injuries had been inflicted on the person of appellant Krishan Gopal by deceased Santosh and a cross case was also registered against his friends accompanying him i.e.,Mahesh (PW-4), Pardeep Kumar (PW-5) and Gopal (PW-6) .
Deceased Santosh is also not having a clean record. Ashok Kumar HC (DW-1) has deposed that FIR No.160 dated 29.6.1995 had been registered against Santosh under Section 307 IPC and Section 25 of the Arms Act at Police Station Mujessar. Challan was also presented in the said case. However, the case could not reach its logical end on account of death of Santosh. Desh Raj, Constable (DW-2) has deposed that FIR Nos. 523, 525, 561 and 568 dated 23.8.1995, 30.8.1995, 11.9.1995 and 15.9.1995 respectively had been registered against deceased Santosh. The first three FIRs were under Section 379 IPC and fourth one was under Section 25 of the Arms Act. The Investigating Officer has also deposed in his cross examination that there were some cases regarding molestation of girls against the deceased. Complainant also deposed in his cross-examination that one criminal case was pending against his son. Thus, it is evident that the deceased was not a law abiding citizen but was indulging in criminal activities. Criminal Appeal No.486-DB of 1998 10
Pardeep Kumar (PW-5), in his cross-examination, has deposed that he was arrested on 10.1.1996 and, thereafter, his statement was recorded by the police. However, the public prosecutor, after going through the file, stated that there was no statement of the said witness. A perusal of the record, on the other hand, reveals that the statement of Pardeep Kumar (PW-5) was recorded by the Investigating Officer on 12.1.1996. Gopal (PW-6) has deposed that his statement was recorded by the police on 18.1.1996. However, the public prosecutor has stated that the statement of the said witness, as per the police record, was recorded on 20.1.1996. A perusal of the record also reveals that the statement of Gopal (PW-6) was recorded on 20.1.1996.
In the present case, the occurrence had taken place on 3.1.1996, whereas, the statements of the eye witnesses were recorded after a long delay. A cross case was also initiated against the said Pws. In these circumstances, it would not be safe to rely on the testimony of Pardeep Kumar (PW-5) and Gopal (PW-6) with regard to manner of occurrence. The possibility that they have not given true manner of occurrence cannot be ruled out. An altercation had also taken place between both the parties a day before the occurrence. As such, the plea of self defence taken by the accused gains significance and is rather borne out from the evidence on record. Deceased Santosh, who was indulging in criminal activities, had come to the house of the appellants and had inflicted injuries on the person of appellant Krishan Gopal, who in retaliation, inflicted injuries on the person of deceased Santosh in self defence. There is nothing on record to suggest that appellant Krishan Gopal had Criminal Appeal No.486-DB of 1998 11 exceeded the right of self defence.
Consequently, this appeal is accepted and the appellants are hereby acquitted of the charge framed against them.
(SABINA) JUDGE (JASBIR SINGH) JUDGE August 29, 2008 anita