Allahabad High Court
Rajjan vs State Of U.P. on 28 February, 2023
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Court No. 29
Criminal Appeal No. 6904 of 2011
Rajjan ............ Appellant
Vs.
State of U.P. ........... Respondent
Connected with
Criminal Appeal No. 6903 of 2011
Kallu and another .......... Appellant
Vs.
State of U.P. .......... Respondent
...................................................................................
For Appellant : Sri Apul Misra, Sri P.N. Misra, Sri Vindeshwari Prasad, Sri Sushil Kumar Dwivedi
For Respondent : Sri H.M.B. Sinha, A.G.A.
....................................................................................
Hon'ble Pritinker Diwaker, Acting Chief Justice
Hon'ble Surendra Singh-I,J.
(Per : Surendra Singh-I, J.) As these appeals arise out of judgment and order of conviction and sentence dated 19.11.2011 passed by the Additional Sessions Judge (Ex Cadre), Court No. 23, Allahabad in Sessions Trial No. 18 of 2001 (State Vs. Kallu and others) arising out of Crime No. 88 of 1999 Police Station- Lalapur, District- Allahabad, convicting accused-appellants Kallu, Sushil and Rajjan and sentencing each of them under Section 302 read with Section 34 of IPC to undergo imprisonment for life and a fine of Rs. 10,000/- with default stipulation, they are being disposed of by this common order.
2. According to prosecution case, informant, Nankau, son of Chhedi Lal Mishra, resident of Othagitarhaar, Police Station- Lalapur, District- Allahabad, submitted written report (Ext.Ka.1) on 07.11.1999 in Police Station- Lalapur, stating that on 07.11.1999 at 11.00 a.m., accused-appellants Kallu, Sushil and Rajjan, sons of Sangam Lal came to forcibly cut clump of bamboo trees (banskot) of the informant situated at village- Ashwanipur Mazra Goisara of the informant. When they were forbidden by Chhedi Lal from cutting the clump of bamboo trees (banskot), they started beating his father by sickle (hasiya) and lathis. On hue and cry being raised, the brothers of informant, Shivakant and Dayakant, came to save him, then accused also assaulted them by lathi causing severe injury to them. Accused, Rajjan, with the intention of causing death, assaulted his father on his head and back of body causing grievous injury to him. On the basis of the written report of the informant, FIR (Ext.Ka.6) was lodged in P.S.- Lalapur as Crime No. 88 of 1998 under Section 307 of IPC against accused-appellants Kallu, Sushil and Rajjan on 07.11.1999 at 11.30 o'clock. While undergoing medical treatment, injured Chhedi Lal Mishra died on 07.11.1999 at 13.00 o'clock and the case was converted to one under Section 302 of IPC. The investigation of the case was done by P.W.4 S.I. Prem Kumar Yadav. He visited the place of occurrence and on the pointing out of informant, prepared site plan thereof (Ext.Ka.2). He collected blood-stained and plain earth from the place of occurrence and kept in container and sealed the collection. The recovery memo regarding collection of plain and blood-stained earth was prepared which is (Ext.Ka.3). Accused-appellants Kallu, Sushil and Rajjan were arrested and on their pointing out, the weapons of offence, 2 lathis and 1 sickle (hasiya) were recovered from the courtyard of the house of the accused-appellants. These recovered articles were wrapped in cloth and sealed. The recovery memo thereof (Ext.Ka.4) was prepared.
3. The inquest proceedings of the dead body of Chhedi Lal Mishra was conducted on 07.11.1999 at 15.00 o'clock in the supervision of HCP Ramhit Verma. The inquest report is (Ext.Ka.11).
4. The postmortem of the dead body of deceased Chhedi Lal Mishra was done by P.W.6 Dr. Mohd. Farukh, who was posted as Medical Officer in Moti Lal Nehru District Hospital, on 08.11.1999 at 2.00 p.m.. According to the postmortem report (Ext.Ka.10), following antemortem injuries were found on the body of the deceased :-
(i) one triangular incised wound of size 15 cm x 6 cm cavity deep on the back side of head which was situated 14 cm away from the right ear.
(ii) An incised wound of size 6 cm x 1/2 cm muscle deep situated on the right temporal region of the head.
(iii) An incised wound of size 3 cm x 1 cm muscle deep situated on right buttock.
(iv) An incised wound of size 2 cm x 1 cm muscle deep situated at lower right side of the back.
(v) An incised wound of size 5 cm x 1 1/2 cm muscle deep situated on the lower side of the back.
(vi) An incised wound of size 2 cm x 1 cm muscle deep situated on behind the back between both scapula.
5. External examination :- There were fractures in the back side and right side of the skull of the head. The membrane of brain was congested. The brain cavity was found cut. There was no blood in the heart or the lungs.
6. In the opinion of the Medical Officer, death was caused due to trauma and haemorrhage by antemortem injuries.
7. The Investigating Officer, (P.W.4) S.I. Prem Kumar Yadav recorded the statement of witnesses of fact and formal witnesses under Section 161 CrPC in the case diary and after investigation, submitted charge-sheet under Section 302 IPC against accused-appellants Kallu, Sushil and Rajjan.
8. On 22.02.2001, learned trial Judge framed charge under Section 307/34 and 302/34 IPC against the accused-appellants. The accused denied the charge and claimed trial.
9. The prosecution examined (P.W.1) Shivakant, (P.W.2) Dayakant and (P.W.3) Nankau as witnesses of fact. The prosecution also examined Investigating Officer, S.I. Prem Kumar Yadav (P.W.4), Constable Bade Lal at P.S. Lalapur (P.W.5), Dr. Mohd. Farrukh, who conducted postmortem of deceased Chhedi Lal Mishra (P.W.6) and Constable Abhinav Tiwari (P.W.7).
10. (P.W.1) Shivakant and (P.W.2) Dayakant turned hostile and did not support the prosecution case. The eyewitness (P.W.3) Nankau proved written report (Ext.Ka.1). He deposed in support of the charge framed against the accused-appellants.
11. The Investigating Officer (P.W.4) S.I. Prem Kumar Yadav by his evidence proved, site plan of the place of occurrence (Ext.Ka.2), recovery memo regarding plain and blood-stained mud collected from the place of occurrence (Ext.Ka.3), memo relating to recovery of weapon of offence, two lathis and sickle (hasiya) on the pointing out of accused Kallu, Sushil and Rajjan respectively (Ext.Ka.4). He also proved, by his evidence, blood-stained mud, (material Ext.1), plain mud (material Ext.2), weapon of offence Hasiya (material Ext.3) and charge-sheet sent against accused Kallu, Sushil and Rajjan (Ext.Ka 5). (P.W.5) Constable Clerk Bade Lal proved chik FIR of Crime No. 88/1999 under Section 307 IPC (Ext.Ka.6), the copy of G.D. Report No. 9, dated 07.11.1999, at 11.30 o'clock regarding institution of aforesaid case crime number (Ext.Ka.7), the report sent from the office of HCP Allahabad regarding the destruction of original G.D. (Ext.Ka. 8), carbon copy of G.D. Report No. 11, dated 07.11.1999, at 13.00 o'clock regarding conversion of Crime No. 88 of 1999 into Section 302 IPC (Ext.Ka.8) after the death of deceased Chhedi Lal Mishra. Dr. Mohd. Farrukh (P.W.6), the Medical Officer, conducting postmortem of deceased Chhedi Lal Mishra, proved his postmortem report as (Ext.Ka.10).
12. Since HCP Ramhit Verma, who had conduced inquest proceedings of Chhedi Lal Mishra had died, P.W.7 Constable Abhinav Tiwari who had worked with the aforesaid HCP and was familiar with his handwriting and signature, proved the inquest report as (Ext.Ka.11) and other police papers relating to postmortem of deceased Chhedi Lal Mishra i.e. (Ext.Ka.12) to (Ext.Ka.16), which were prepared by late HCP Ramhit Verma.
13. On 14.08.2007, the trial Judge recorded statement under Section 313 Cr.P.C. of accused-appellants Kallu, Sushil and Rajjan. They stated that false case was registered and the witnesses gave false evidence. Accused-appellant, Sushil Kumar stated in his statement under Section 313 Cr.P.C. that on 07.11.1999 at 11.00 o'clock, he and his two brothers, namely, Kallu and Rajjan were cutting the clump of bamboo trees (banskot) in their Field No. 573/574 situated at village- Ashwanipur Mazra Goisara. Chhedi Lal and his sons Shivakant, Babu Yadav and Lallan arrived there and started abusing them. They caused fatal injuries by assaulting with lathi and danda. In the exercise of right of private defence, the accused-appellants also assaulted them with lathi, danda in which, Chhedi Lal sustained injury. The informant and his party members fired on the accused-appellants by a country-made pistol (katta). Their medical examination was done by the Medical Officer through the police.
14. By the impugned judgment and order dated 18.11.2011, the trial Judge acquitted the accused-appellants under Section 307 read with Section 34 IPC and convicted them under Section 302 read with Section 34 IPC and sentenced them, as aforesaid.
15. It has been argued on behalf of the accused-appellants that two witnesses of fact (P.W.1) and (P.W.2) turned hostile and did not support the prosecution case. The statement of evidence of (P.W.3) Nankau has several contradictions and is not reliable. Thus, the conviction cannot be based on the single testimony of (P.W.3) Nankau. It has also been argued on behalf of the accused-appellants that they were cutting clump of bamboo trees (banskot) of their ownership. Deceased Chhedi Lal Mishra and his sons Shivakant, Dayakant and Nankau tried to prevent them from cutting the clump of bamboo trees (banskot) and attacked them in the course of which injuries were caused to the accused-appellants. In exercise of their legitimate right of private defence, the accused-appellants attacked deceased Chhedi Lal Mishra and his sons to repel them during which some injuries have been caused to Chhedi Lal Mishra resulting his death for which the accused-appellants could not be made liable.
16. It has been argued on behalf of the State that there is cogent, reliable and convincing evidence of (P.W.3) Nankau, which has not shaken during the prolonged and detailed cross-examination done on behalf of the accused-appellants. The evidence of P.W.1 has been corroborated by the confessional statement of accused-appellants and recovery of weapon of offence on the pointing out of the aforesaid accused-appellants.
17. We have heard learned counsel for the parties and perused the entire lower court record.
18. The definition of the offence punishable under Section 302 of IPC is given in Section 300 IPC which is as follows:-
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
19. In Section 300 IPC, above four exceptions are given. If the act committed, comes under the gamut of any of these exceptions, accused shall not be punished for murder under Section 302 I.P.C., but for having committed culpable homicide not amounting to murder punishable under Section 304 I.P.C. The accused-appellants have claimed that they inflicted injury on Nankau and his companions in exercise of their right of private defence. The provision relating to right of private defence of person or property with reference to committing the murder of the attacker is given in Exception 2 of Section 300 IPC which is as follows:-
Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
20. In the case of "Dhirendra Kumar Vs. State of Uttarakhand, 2015 SCC Online SC 163," the Supreme Court has laid down the parameters, which are to be taken into consideration, while deciding the question as to whether the case falls under Section 302 I.P.C. or Section 304 I.P.C. which are as follows :-
(a) the circumstances under which the incident took place;
(b) nature of weapons used;
(c) whether the weapon was carried or was taken from the spot;
(d) whether the assault was made on vital parts of the body;
(e) the amount of force used;
(f) whether the deceased participated in the sudden fight;
(g) whether there was any previous enmity;
(h) whether there was any sudden provocation;
(i) whether the attack was in the heat of passion; and
(j) whether the person inflicted injury or took undue advantage or acted in cruel or unconscious manner.
21. From the analysis of the oral as well as documentary evidence produced by the prosecution, it has to be seen whether charge under Section 302 read with Section 34 I.P.C. is proved against the appellants.
22. (P.W.1) Shivakant, who is son of deceased Chhedi Lal, has fully denied that in pursuance of common intention of all, accused-appellants Kallu, Sushil and Rajjan inflicted fatal injury on deceased Chhedi Lal by assaulting him with lathis and sickle (hasiya) causing his death. He has stated that he was not present at the place of occurrence and that he does not know who caused injury to Chhedi Lal due to which he died. He further stated in his evidence that on 07.11.1999 at 5.00 a.m. in the morning, when there was slight darkness, his father who was expert in the use of lathi had gone to the orchard for exercise as well as for training others.
23. (P.W.1) Shivakant stated that Nankau and Dayakant are his real brothers. They did not receive any injury in the incident. (P.W.1) Shivakant stated that accused-appellants are sons of his father's sister (bua). He had no enmity with the accused-appellants. There was no dispute regarding the clump of bamboo trees (banskot) with them. (P.W.1) Shivakant has denied that since the accused-appellants are sons of his father's sister (bua), they have compromised the matter and out of their fear, he is giving false evidence to protect them from punishment.
24. (P.W.2) Dayakant has given identical evidence as that of (P.W.1) Shivakant in his deposition.
25. The son of the deceased (P.W.3) Nankau has stated in his evidence that the occurrence took place on 07.11.1999. He was present at the place of occurrence. Accused-appellants, Kallu, Sushil and Rajjan were cutting his clump of bamboo trees (banskot). His father, Chhedi Lal forbid them from cutting it. Then, accused-appellants started beating his father by lathi, danda and sickle (hasiya). On hue and cry being raised by his father, he and his brothers, Shivakant and Dayakant went to save his father from being assaulted by accused-appellants. He and his brothers, Shivakant and Dayakant were also beaten by lathi and danda by the accused-appellants. He further deposed that his father received injury on back of his head. Accused-appellant, Rajjan, with an intention of causing death, has assaulted his father by sickle (hasiya) and other appellants assaulted him with lathi. After the incident, he lodged FIR in the concerned police station by submitting written report (Ext.Ka.1).
(P.W.3) Nankau has stated in his cross-examination that the clump of bamboo trees (banskot) is situated about one kilometre away from his house. The marpeet took place about fifty steps away in the west direction from the clump of bamboo trees (banskot). He admitted that during the course of marpeet, he has witnessed injury in the body of accused-appellant, Sushil from which blood was oozing and there was no injury on the body of other two accused. He stated that, at the time of occurrence, he was present in his adjoining agricultural land. The marpeet lasted for 10 minutes. After the incident, he wrote a written report. He went to the concerned police station. He proves the written report (Ext.Ka.1).
In his cross-examination, he deposed that the clump of bamboo trees (banskot) is of his ownership and that of his family. He denied that the clump of bamboo trees (banskot) is situated in the agricultural land of the accused-appellants. He has emphatically denied that accused-appellants, Kallu, Sushil and Rajjan were cutting their own clump of bamboo trees (banskot). He also denied that when accused-appellant did not stop cutting the clump of bamboo trees (banskot) then his father Chhedi Lal and brothers, Shivakant and Dayakant, had beaten the accused-appellants with lathi and danda. He also denied that his father Chhedi Lal had fired with firearms. P.W.3 has expressed his ignorance that the number of the plot on which the quarrel took place is 573/574. He has also expressed his ignorance that he does not know whether the clump of bamboo trees (banskot) is situated in Plot No. 573/574. He denied that he was not present at the time of occurrence. He has also denied that when Chhedi Lal and his brothers, Shivakant and Dayakant were beating the accused-appellants, they assaulted in their right of private defence in the course of which his father Chhedi Lal received injuries. (P.W.3) Nankau has deposed in his evidence that when his father prevented the accused from cutting his clump of bamboo trees (banskot), then accused-appellants, Rajjan armed with sickle (hasiya), Sushil and Kallu, armed with lathi and danda respectively assaulted his father and caused fatal injuries to him. He has also deposed that when P.W.3 Nankau and his brothers, (P.W.1) Shivakant and (P.W.2) Dayakant, reached there, accused-appellants, Kallu and Sushil assaulted them with lathi, danda causing injuries to them. According to postmortem report (Ext.Ka.10) of deceased Chhedi Lal, incised wounds are found on temporal region of head, back of head, right buttock, lower side of back and behind the back between both scapula. Incised wounds can only be caused by attack with sickle (hasiya), and it cannot be caused by lathi, danda. Although (P.W.3) Nankau has deposed that accused, Sushil and Kallu, assaulted Shivakant and Dayakant with lathi, danda causing them injuries, but Shivakant and Dayakant have stated that they were not assaulted by the accused in the alleged occurrence. They have also stated that they did not receive any injury caused by the accused-appellants in the incident. There is no visible injury caused by lathi and danda on the person of deceased Chhedi Lal or P.W.1 Shivakant and P.W.2 Dayakant.
26. The law relating to vicarious liability u/s 34 I.P.C. has been settled by the Apex Court. The Supreme Court in Suresh and Another Vs. State of U.P., (2001) 3 Supreme Court Cases 673, has held as under :
"The special feature of Section 34 is only that such participation by several persons should be "in furtherance of the common intention of all". Hence, under Section 34 one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed. Section 34 is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act. Thus to attract Section 34 I.P.C. two postulates are indispensable : (1) the criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 I.P.C. should have done some act which has a nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an illegal omission to do a certain act in a certain situation can amount to an act. But an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section and if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 I.P.C. cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 I.P.C. There may be other provisions in the I.P.C. like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus, participation in the crime in furtherance of the common intention is a sine qua non for Section 34 I.P.C. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that persons had really done any such act."
The Apex Court in Gangadhar Chandra Vs. State of West Bengal, (2022) 120 ACC 267 held :
"common intention contemplated by Section 34 I.P.C. presupposes prior concert. It requires meeting of minds. It requires a pre-arranged plan before a man can be vicariously convicted for the criminal act of another, the criminal act must have been done in furtherance of common intention of all the accused. In a given case, the plan can be formed suddenly."
27. Therefore, appellants, Kallu and Sushil can be held vicariously liable for the murder of Chhedi Lal only if it is proved that they assaulted Chhedi Lal with lathi and danda and Rajjan attacked Chhedi Lal with sickle in pursuance of the common intention of himself as well as other accused persons. Thus, the prosecution has to prove that appellants, Kallu and Sushil shared a common intention of causing murder in pursuance of which appellant, Rajjan caused fatal injury by sickle on the head and other parts of the person of Chhedi Lal, resulting in his death.
28. (P.W.3) Nankau, son of deceased Chhedi Lal, has deposed in his evidence that on 07.11.1999 at about 11 a.m., accused-appellants Rajjan, Kallu and Sushil, were cutting clump of bamboo trees (banskot) situated in his land and when his father Chhedi Lal forbid the appellants from cutting the clump of bamboo trees (banskot), accused-appellant, Rajjan assaulted his father with sickle (hasiya) and appellants, Kallu and Sushil assaulted (P.W.3) Nankau and his brothers, Shivakant and Dayakant with lathi and danda causing fatal injuries to his father, Chhedi Lal due to which he died later on. He has admitted that in the fighting and altercation, accused Sushil also received injury and blood was oozing from his body. P.W.3 has deposed that at the time of occurrence, he was present in his nearby agricultural land.
29. (P.W.3) Nankau has been cross-examined in detail by the defence but nothing emerges which may shake or demolish his deposition regarding assault by Rajjan with sickle on Chhedi causing his death. Thus, the evidence of P.W.3 appears to be cogent, truthful and reliable. P.W.3 has mentioned that due to assault of the appellants, his father, Chhedi Lal received injury on the head and his back. P.W.1 and P.W.2 have not supported the evidence of (P.W.3) Nankau regarding the assault by Sushil and Kallu by lathi and danda to them or their father, Chhedi Lal. The evidence of P.W.1 and P.W.2 is supported by the postmortem report of Chhedi Lal where only incised injuries caused by sickle is mentioned and no injury caused by lathi and danda is mentioned. Hence, participation of accused, Kallu and Sushil in the murder of Chhedi Lal is not proved. The oral evidence of (P.W.3) Nankau regarding the date, time, place of occurrence and manner of assault by appellant, Rajjan, by sickle and injury received by Chhedi Lal due to which he died later and lodging of first information report are corroborated by the documentary evidence, written report (Ext.Ka.1), chik F.I.R. (Ext.Ka.6), recovery memo of weapons (sickle and lathi) used in the offence (Ext.Ka.4) blood-stained and plain earth (Ext.Ka.3), the inquest report (Ext.Ka.11), postmortem report of deceased (Ext.Ka.10) and charge-sheet (Ext.Ka.5).
30. It has been argued by the learned counsel for the appellants that only one prosecution witness (P.W.3) Nankau, who is the son of deceased Chhedi Lal, has supported the prosecution case. The other two witnesses, (P.W.1) Shivakant and (P.W.2) Dayakant have not supported the prosecution case. They have also denied that these two prosecution witnesses have not received any injury in the incident. He has also argued that the appellants cannot be convicted on the basis of the testimony of single witness who is relative/son of the deceased Chhedi Lal. The provisions relating to number of witnesses required for proving a fact is given under Section 134 of Indian Evidence Act which is as follows :
134. Number of witnesses :- No particular number of witnesses shall in any case be required for the proof of any fact.
31. It has been held by the Apex Court in Maqsoodan & Ors. Vs. State of U.P, 1983 SC 1926 that neither the number of witnesses nor the quantity of evidence is material, it is the quality that matters. There is general public reluctance in appearing as witnesses, hence there should be no insistence that there should be more witnesses than one.
32. The Apex Court in Laxmibai (Dead) through LRs Vs. Bhagwantbura (Dead) through LRs, AIR (2013) SC 1204 has held that it is time-honoured principle that evidence must be weighed and not counted. It is whether the evidence as ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act.
33. In Brijbasi Lal Vs. State of M.P., 1991 SCC (Crl.) 546, the Apex Court convicted the accused on the sole testimony of P.W.1 who was son of deceased Vishwanath after finding that his evidence was wholly acceptable. The Apex Court in Chinniah Servai Vs. State of Madras, AIR 1957 SCC 614 laid down that "plurality of witnesses is not necessary to prove a criminal charge and that the conviction can be based even on the sole testimony of a witness provided the testimony of that witness is wholly acceptable.
34. Applying the above test, we, at the same time, bearing in mind the relationship of P.W.3 with the deceased, examined the evidence carefully and are satisfied that the evidence of P.W.3 is reliable and free from any infirmity. Therefore, we have no reason to refuse to act upon the testimony of P.W.3 merely on the ground that he is the son of the deceased since the evidence of P.W.3 is otherwise reliable and acceptable. We have no hesitation in agreeing with the finding of the trial court.
35. In view of the law laid down by the Apex Court regarding the testimony of single testimony of related witness, the arguments advanced on behalf of the defence counsel are not acceptable.
36. (P.W.3) Nankau has admitted in his cross-examination that during the occurrence, he had seen blood on the person of appellant, Sushil. The appellants during their trial, in cross-examination of P.W.3 Nankau as well as in their statement recorded under Section 313 Cr.P.C., had put forward the plea of right of private defence. Appellant Sushil has stated in his statement under Section 313 Cr.P.C. that their clump of bamboo trees were situated in plot nos. 573/574, village- Ashwanipur Mazra Goisara. On 07.11.2019 at 11 o'clock. He and his two other brothers were cutting their clump of bamboo trees. Chhedi, Shivakant, Babu Yadav and Lallan abused them and caused fatal injury to them by assaulting them with lathi and danda. In their defence, they also used lathi and danda. They received injury in the incident and were got medically examined through policemen in the Government hospital.
37. The Investigating Officer (P.W.4) Prem Kumar Yadav has accepted in his cross-examination that on the date of incident, he had also got all the three appellants medically examined by sending police constable to the government hospital. He has stated that he had not seen the documents relating to the field in which clump of bamboos trees were growing. In the file of trial court, the appellants have as per list 92Kha/1 filed documents no. 92Kha/2 is khasra of the year 1413 year fasli relating to plot no. 574 area 0.888 hectare, which is in the name of Sangam Lal, father of appellant. In this Khasra, it is mentioned that apart from imli and amla trees, clump of bamboo trees are situated. The appellants have also filed khatauni of aforesaid plot 92Kha/3 relating to the year 1410 to 1415 fasli in respect of plot no. 574 area 0.888 hectare of village- Ashwanipur Mazra Goisara, the aforesaid plot is in the name of Sangam Lal, son of Ram Prakash. The appellants have also filed in the trial court document no. 92Kha/4 Ch format 26 relating to which village- Ashwanipur Mazra Goisara. In this document, it is mentioned that appellant's father, Sangam Lal, son of Ram Prakash, obtained the ownership of plot no. 524/3 in which clump of bamboo trees is situated by paying Rs. 240/- as compensation for it. Vide aforesaid list number 92Kha/1, the appellants had filed document nos. 92Kha/5 to 92Kha/7. The F.I.R. of cross-case relating to the incident which was registered as Crime No. 88A/1999 under Section 147, 148, 307, 323, 504 I.P.C. against Chhedi Lal Mishra, son of Ram Pratap, Shivakant and Dayakant, son of Chhedi Lal Mishra and two other persons. Thus, accused-appellants have lodged cross-case relating to the incident against deceased Chhedi and his two sons, Shivakant and Dayankant and two other persons.
38. The accused-appellants had also filed document nos. 92Kha/9, injury report of accused Rajjan, 92Kha/10 injury report of Sushil Kumar and 92Kha/11 injury report of Kallu, who have received 5, 5 and 6 injuries respectively. On the behalf of informant, per list 95Kha, documents 95Kha/1 and 95Kha/2 were filed which are khasra khatauni of plot nos. 655 area 0.514 hectare situated in village- Ashwanipur Mazra Goisara in which clump of bamboo is situated, which is in the name of informant's mother, Rajkali and his five brothers. Thus, it appears that the disputed clump of bamboo trees were claimed by both the appellants and the informant, as being situated in the agricultural field of their ownership. During the cutting of the clump of bamboo trees by the appellants, altercation and fight took place in which Chhedi Lal received fatal injuries and he died later on. Appellants, Rajjan, Kallu and Sushil also received injuries. Cross-case was registered by both the parties. The informant and his sons were acquitted in criminal case and appellants were convicted in the related cross-case by the impugned order passed by the trial court.
39. From the above discussion, the right of private defence of appellant, Rajjan is established that they have caused injury while they were obstructed in cutting the clump of bamboo trees which was allegedly situated in the land of their ownership. They were attacked by informant, his father and brothers in which, they received injuries. They were medically examined and they also lodged the F.I.R. against the informant and persons on his side. The law relating to right of private defence of persons and property has been given in Sections 96 to 106 of the Indian Penal Code. The Apex Court in the case of "Darshan Singh Vs. State of Punjab, (2010) 2 SCC 333 has given the summary of principles regarding the right of private defence which is as follows :-
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddently confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The IPC, 1860 confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
40. (P.W.3) Nankau has admitted in his evidence that the incident of marpeet took place about 50 fts away from the field where clump of bamboo trees were situated and were cut by the appellants. The statement of P.W.3 is also corroborated by the site plan (Ext.Ka.2) which was prepared by the Investigating Officer on the pointing out of informant.
41. From the aforesaid appreciation of evidence, it is proved that appellant, Rajjan caused injury to Chhedi Lal (deceased) by attacking with sickle (hasiya), a person who was unarmed and an old man, and exceeded his right of private defence. Therefore, he shall not be fully exonerated from the offence of causing the death of Chhedi Lal since he has proved that he caused the injury to Chhedi Lal, resulting in his death in the exercise of his right of private defence. The offence committed by him will not be murder, but culpable homicide not amounting to murder which is punishable under Section 304 I.P.C.
42. Now, it has to be seen that the injury caused by appellant, Rajjan by sickle and appellants, Sushil and Kallu by lathi and danda in furtherance of their common intention to cause culpable homicide not amounting to murder of deceased, so that they could be vicariously held guilty collectively under Section 304 (1) I.P.C.
43. From the oral evidence of (P.W.1) Shivakant, (P.W.2) Dayakant and (P.W.3) Nankau and other prosecution evidence, it is not proved that the attack was pre-planned and there was prior meeting of mind of the appellants and they unitedly decided to cause death of deceased Chhedi Lal by attacking him with sickle, lathi and danda. There is no allegation of exhortation by one accused-appellant to other, to attack and kill deceased, Chhedi Lal. From the evidence on record, it is clear that only appellant, Rajjan attacked deceased, Chhedi Lal without pre-meditation in a sudden quarrel. He did not go anywhere else to procure the weapon of offence i.e. sickle, but it was lying nearby, while he was cutting the clump of bamboo trees.
44. From the above oral and documentary evidence, the presence of appellants, Kallu and Sushil at the place of occurrence and their participation in the assault on Chhedi Lal, Shivakant and Dayakant, becomes doubtful. Thus, from the evidence on record, presence and participation of appellants, Kallu and Sushil in the crime is not proved.
45. Thus, from the evidence on record, it is not proved that appellants, Sushil and Kallu, attacked deceased (Chhedi Lal) but only appellant, Rajjan attacked him with sickle. From the evidence of P.W.3 and the postmortem report, it is proved that the fatal injuries due to which Chhedi died were caused by sickle on his head and his back. Thus, from the aforesaid evidence, it is proved that appellant, Rajjan attacked Chhedi Lal with sickle in his right to private defence with the intention of causing death or with causing such bodily injury as is likely to cause death. It is clear that only appellant, Rajjan, attacked deceased Chhedi Lal without pre-meditation in sudden quarrel. He did not go anywhere else to procure sickle, but it was lying nearby while he was cutting the clump of bamboo trees (banskot). There is no allegation of exhortation by any accused-appellant to attack and kill the deceased.
46. The prosecution has failed to prove the charge under Section 302 I.P.C. r/w 34 I.P.C. against appellants, Rajjan, Sushil and Kallu. The prosecution is successful in proving beyond reasonable doubt the charge u/s 304 (I) I.P.C. against appellant, Rajjan and has failed to prove the charge under Section 302 I.P.C. or Section 304 I.P.C. against appellants, Kallu and Sushil.
47. In view of above, the appeal is allowed qua appellants, Kallu and Sushil. Their conviction u/s 302 r/w 34 I.P.C. is set-aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
48. So far as the appeal of appellant, Rajjan, is concerned, the same is partly allowed. His conviction and sentence u/s 302 r/w 34 I.P.C. is converted into conviction u/s 304 (I) I.P.C. He is sentenced to 10 years rigorous imprisonment, with a fine of Rs.10,000/- and in default in payment of fine, simple imprisonment for six months. Appellant, Rajjan is in jail. He will undergo the sentence as imposed above.
49. Let a copy of this judgement and trial court record be sent to the concerned Sessions Judge for compliance.
Order Date :- 28.02.2023 KS (Surendra Singh-I, J.) (Pritinker Diwaker, ACJ)