Madhya Pradesh High Court
Ramraj Shukla vs State Of Madhya Pradesh on 21 October, 1991
Equivalent citations: 1992CRILJ1223
JUDGMENT R.D. Shukla, J.
1. This appeal is directed against the judgment and order dt. 9-9-1985 of the Sessions Judge, Sidhi, passed in S.T. No. 18 of 1985 (arising out of the Committal Order dt. 5-1-1985 of Judicial Magistrate, First Class, Sidhi passed in Criminal Case No. 11/85), whereby the accused has been convicted under Section 304, Part II of the Penal Code and sentenced to rigorous imprisonment for five years.
2. Brief history of the case is that police Naikin Rampur filed challan against the present appellant, his father Ramswaroop (since acquitted) and his brother Deoraj (whose case has been sent to Juvenile Court, he being minor on the date of incident), with the allegation that in furtherance of their common intention, they committed murder of Ramesh Kumar resident of village Amdad, P.S. Naikin on 23-10-1984 at about 6.00 p.m. in village Amdad, P.S. Naikin.
3. It is alleged that the landed property Hazaria Bund was owned by the ancestors of deceased and the accused. On the date of incident the deceased Ramesh Kumar began ploughing in one corner of said Hazaria Bund, and cultivation on the other part of the Hazaria Bund was being done by accused persons. The two labourers i.e. Sukarta and Dashrath conducted the ploughing on behalf of deceased Ramesh Kumar while accused Ramraj himself and some other persons were conducting ploughing on the other part of the said Hazaria Bund. In the evening after unyoking the bullocks the labourers and Ramesh Kumar retired and were going to their respective houses. Meanwhile Ramraj, his father Ramswaroop and brother Deoraj armed with lathis, came on the spot and enquired why the deceased had cultivated the land in their possession. Deceased claimed his share in the Hazaria Bund. Thereafter, all of them assaulted deceased Ramesh Kumar, caused various injuries on head and other parts of the body of Ramesh Kumar who fell down. On hearing the alarm some persons came there. Accused persons then left the place. Ramesh Kumar was taken to hospital. Report of the incident was lodged by Sitaram son of Shiv Prasad Shukla, at about 7.30 p.m. (one and half hours after the incident). Ramesh Kumar was examined by Assistant Surgeon Dr. S. P. Mishra (PW-10) who submitted report Ex.P-14. Condition of Ramesh Kumar was serious and he was sent to Medical College, Rewa. He died of injuries on 28-10-1984. The matter was reported to the police Rewa and the information of the same was sent to police Station Rampur Naikin.
4. Autopsy on the body of Ramesh Kumar was conducted by Dr. Rajesh Kumar Singh (P.W. 14) who found following injuries :
(i) Surgical stitch wound over left occipital region 3" linear fracture 2" long parallel to, each other present over left parietal to temporal region.
(ii) Comminuted fracture bone broken into 7 pieces and pierced to brain (middle cranal fossa)
(iii) laceration at brain middle cranial fossa
(iv) sub-dural hametoma 6 cm x 6 cm left occipital region
(v) Laceration of brain 2" x 2" x 2" deep (middle cranial fossa).
(vi) Fissured fracture over skull stratching from left ear to right ear about 23 cm long.
(vii) Extra dural hametoma big size present over back of the head.
(viii) Brain congested.
The surgical stitches described by Dr. Rajesh Kumar Singh (PW 14) further stands corroborated from the statement of PW 10 Dr. S. P. Mishra who found vide Ex. P-14, lacerated wound of size 3" x 1/1" x 1/4" on the left occipital region, lacerated wound 1 1/2" x 1/2" x 1/4" on left occipital region and other injuries were almost the same.
5. On the basis of the report of Dr. S. P. Mishra, earlier the case was registered under Section 307/34 of Penal Code. Later it was converted into one under Section 302/34, I.P.C. Investigation in the matter was conducted by PW 9 J. P. Chhari. He inspected the spot, got prepared the map (Ex. P 3), bloodstained clothes of deceased were seized from Sitaram (Ex. P-4), accused Ramraj and Ramswaroop were taken into custody. One lathi was seized vide Ex. P-8, from Ramraj, one axe (Ex. P-9) was seized from Ramswaroop.
6. After investigation challan was filed against the accused persons. The accused persons abjured the guilt and pleaded that Ramesh Kumar illegally took possession of the land and on protest being made by Ramraj, caused injuries to him.
7. After trial, learned Sessions Judge acquitted all the accused persons for offence under Section 302, I.P.C. but convicted and sentenced this accused appellant under Section 304, Part II of Penal Code, as above, for exceeding right of private defence; hence this appeal.
8. In the memorandum of appeal and during the course of argument following points of fact were raised by counsel for the appellants:--
(i) There is improvement in the first information report and the case diary statements; therefore, the prosecution story is not reliable;
(ii) Witnesses have turned hostile and, therefore, one hostile and inform witness cannot be corroborated by other infirm and hostile witness;
(iii) Alleged melee took place in the field;
(iv) Injuries found on the person of accused Ramraj have not been explained and, therefore, he is entitled for benefit of right to private defence.
9. As against it learned counsel for the State submitted that the deceased was assaulted after he retired from the field and the assault was made not to protect the possession but to retaliate the action of the deceased. Even if it is presumed that injuries were caused by the deceased, that must be taken to have been caused during the assault on him by the accused persons.
10. Prosecution examined PW 1 Sitaram, PW2 Dashrath, PW 3 Ramsumiran, PW4 Sukurta, PW 5 Pratima Devi, PW 6 Dhan-wan, PW 7 Bhura, PW 8 Ravinandan Singh, PW 9 J. P. Chhari, PW 10 Dr. Section P. Mishra, PW 11 Shyamsunder Sharma, PW 12 Kashi Prasad, PW 13 Ram Prasad Sharma, PW 14 Dr. Rajesh Kumar Singh, and PW 15 Kamta Prasad Tiwari.
11. PW 1 Sitaram has supported the case of the prosecution and stated that he was related to the deceased and the accused both. Accused Ramraj is related to him as uncle while Ramesh Kumar was related to him as cousin. He stated in para 3 of his statement that cultivation over the land was being done for the whole day and in the evening after the ploughs were unyoked and bullocks were being brought home, accused persons came there armed with lathi and asked why the deceased had cultivated the land of their possession. On deceased's asserting his share and claim over the land, he was attacked by the accused persons. He has further stated that Ramraj and Deoraj both of them attacked the deceased Ramesh Kumar. Accused Ramraj caused injuries on the head.
12. PW 1 Sitaram has also stated about the lodging of first information report (Ex. P-1) in police station Rampur Naikin. In the first information report he has stated that Ramraj and Deoraj assaulted the deceased at the instance and direction of Ramswaroop, but during cross-examination he denied the suggestion and, therefore, he was declared hostile. Excepting the abetment of offence by Ramswaroop, on all other facts this witness has supported the prosecution and the first information report. This witness cannot be treated to be wholly reliable. He will be deemed to be partly reliable.
13. PW 2 Dashrath has corroborated the first part of the story that a part of Hazaria Bund was being ploughed by him and Sukerta at the instance of deceased Ramesh Kumar and after unyoking the bulls from plough he left the field and thereafter he heard the alarm raised by deceased. He has further stated that he saw accused Ramraj and Deoraj assaulting the deceased. He has not supported the presence of Ramswaroop and, therefore, he has also been declared hostile.
14. PW 4 Sukarta has also stated that in the evening after they had finished the cultivation work and were returning home along with the bullocks as soon as the deceased reached the bund along with the bulls, accused Ramraj and Deoraj came on the spot armed with lathi and started assaulting the deceased. Thereafter other persons of the village came there and by that time the accused left the place. This witness has also not supported the fact of presence of Ramswaroop and therefore, he has also been declared hostile.
15. PW 3 Ramsumiran has corroborated the version of Sukarta to the extent that Sukarta immediately disclosed to him that accused Ramraj and his younger brother Deoraj had assaulted the deceased Ramesh Kumar. According to this witness deceased Ramesh is brother's son of Ramswaroop who is father of the accused. There was a partition of movable property, but the immovable property was not partitioned by metes and bounds. He has further stated that in the disputed field Hazaria Bund one portion was being ploughed by accused persons and the other portion was ploughed by deceased Ramesh Kumar, and that the incident had taken place in the evening. He has further stated about the presence of injury on the body of the deceased, taking of him to the hospital. This witness is related to both the parties and has rightly been believed by the learned Sessions Judge.
16. The fact of death, injuries, recovery of lathi have not been seriously disputed by the learned counsel for the appellant and the said fact has been amply proved by medical evidence, and seizure witnesses. Therefore, those facts are not being discussed in detail.
17. All the eye-witnesses i.e. Sitaram, Dashrath, Sukarta have been declared hostile only on the ground that they have not supported the presence of Ramswaroop at the place of incident. It is on the basis of this fact that learned counsel for appellant has submitted that one hostile witness cannot corroborate the other hostile witness; therefore, the prosecution story cannot be accepted to be true.
18. I do not agree with the contention of the learned counsel for the appellant. If an eye-witness has been otherwise found truthful and reliable with respect to some of the accused persons and declared hostile for not naming other accused persons, his evidence cannot be rejected in totality and conviction can be based on such evidence. Reference may be had to the case reported in (Atma v. State of M.P.) AIR 1991 SC 1519.
19. PW 1 Sitaram has lodged the FIR Ex P-1 and in that FIR he has implicated Ramswaroop as well. However, during his statement on oath in the Court he did not name Ramswaroop, as such he was declared hostile to that extent only. On the basis of this learned counsel for appellant submitted that since Sitaram has resiled from his own report and improved the story, therefore, his version cannot be relied upon. I do not agree with the contention of the appellant. As observed earlier, if the witness otherwise appears to be truthful but declared hostile for not naming Ramswaroop, his evidence cannot be wholly discarded.
20. Learned counsel thereafter submitted that the accused persons were in possession of the Hazaria Bund and the deceased Ramesh Kumar committed criminal trespass while cultivating the land and, therefore, they were justified in ousting him and in preventing him from taking illegal possession. No doubt, the law gives a right for protection of one's person and property and thereby the person is entitled to protect one's own possession. But law does not extend that right if there is sufficient time for taking recourse to the legal remedies and approaching the authorities. It further does not permit a right of retaliation. In this case from the evidence discussed above it has been proved that deceased Ramesh Kumar along with two labourers cultivated one part of the land for the whole day. The accused persons were cultivating the same Hazaria Bund in the other corner. They knew that the deceased was cultivating through his labourers. But they did not take any immediate action. It was in the evening, when Ramesh Kumar and his labourers had retired and were proceeding towards their respective houses that these accused persons attacked him. This action of the accused persons was not for protection of their possession but for retaliation. Under these circumstances the accused had no right of causing injuries to the deceased.
21. Learned counsel for the appellant then submitted that the accused had also received injuries on his person and those injuries have not been explained and the accused is, therefore, entitled for benefit of the same.
22. Looking to the facts and circumstances of the case it can very well be accepted that accused Ramraj received injuries during that altercation and preponderance of probability shows that the deceased must have caused those injuries.
23. But in this case the accused along with his brother Deoraj (whose case has been referred to Juvenile Court) attacked the deceased in retaliation and, therefore, accused had no right of private defence as against the deceased, to protect himself. He was carrying bullocks and as a farmer he must have been carrying some sticks and it appears that the injuries to the accused have been caused by the deceased during assault by the accused/ appellant and his brother.
24. It will not be out of place to mention here that accused and his brother came prepared on the spot while the deceased was simply retreating home and was carrying the bullocks, and for this reason also accused is not entitled to the benefit of right to private defence or self-protection.
25. Learned Sessions Judge has held that the accused exceeded in right of self-defence and as such convicted him under Section 304, Part II, Penal Code. In the opinion of this Court the accused was not entitled for self-defence; however, there is no appeal by the State as such no interference can be made in that finding.
26. Now, so far as injuries on the body of Ramesh (deceased) is concerned, it may be noted that the injuries were on the head. It has caused extensive fracture and in the opinion of the doctor, PW 14 Dr. Rajesh Kumar Singh, in ordinary course of nature those injuries were sufficient to cause death.
27. Learned counsel for the appellant has referred a case reported in (Victor alias Kalco v. State) 1966 Cri LJ 841: 1966 JLJ 587 (C.N. 115), in support of his contention. I am in agreement with the law stated therein. In that case, the deceased was a bully, he was armed, and the accused had reasonable apprehension of attack; he therefore acted in self-defence and caused injuries. Such is not the case here.
28. Learned counsel thereafter referred a case reported in (Munshiram v. Delhi Administration) 1968 Cri LJ 806: AIR 1968 SC 702. I am in complete agreement with the law propounded therein. However, in that case the accused persons were in peaceful possession of the property on the basis of a sale-certificate issued by the Court. The deceased party committed trespass and tried to cultivate the land. Accused persons protected their possession by using force. But in the instant case the deceased had already retired after ploughing the land. The accused did not object while the land was being cultivated.
29. Learned counsel for the appellant has then referred to a case reported in (Puran Singh v. The State of Punjab) 1975 Cri LJ 1479 : AIR 1975 SC 1674. That was a case where the complainant party tried to re-enter the land and destroy the crop grown by the accused, and therefore, the accused persons were taken to be in settled possession and were held to be entitled to right of self-defence. The attack in the case in hand was not for ousting deceased Ramesh Kumar but in retaliation after he had retired.
30. Learned counsel for the appellant also referred to a case reported in (State of Bihar v. Nathu Pandey) AIR 1970 SC 27 : 1970 Cri LJ 5. In that case the assembly of persons was with common object of preventing theft of their property exercising right of self-defence and in that process some unknown accused persons exceeded right of self-defence and, therefore the accused persons were given the benefit of it. This is not the case here.
31. In the opinion of this Court, the accused had no right of self-defence. In any way learned trial Court has taken it to be a case of exceeding in right of self-defence and since there is no appeal against it there is nothing to interfere in it.
32. As a consequence the appeal fails and is hereby dismissed. Conviction and sentence of the appellant/accused is maintained. Appellant is on bail, he is directed to surrender before the process of law to serve out remaining part of the sentence.