Allahabad High Court
Siya Ram And Another vs State Of U.P. on 8 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1846
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 17.10.2019 Delivered on 08.11.2019 Court No. - 10 A.F.R. Case :- CRIMINAL APPEAL No. - 635 of 2005 Appellant :- Siya Ram And Another Respondent :- State Of U.P. Counsel for Appellant :- S.H.Ibrahim,Neeraj Sahu,Sunil Kumar Singh Counsel for Respondent :-Additional Govt. Advocate AND Case :- CRIMINAL APPEAL No. - 644 of 2005 Appellant :- Ram Ratan And Another. Respondent :- State Of U.P. Counsel for Appellant :- S.C.Gupta,Sunil Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Mohd. Faiz Alam Khan, J.
(Delivered by Hon'ble Mohd. Faiz Alam Khan, J.)
1. Heard Sri Sunil Kumar Singh Learned counsel for the appellants, learned AGA for the State and perused the record.
2. Aforesaid criminal appeals No. 635 of 2005 and 644 of 2005 have been filed by the appellants Siya ram, Data Ram, Ram Ratan and Ram Sewak respectively, against the judgment and order dated 11.4.2005, passed by Additional District and Sessions Judge, Court No.3, Hardoi, in S.T. No. 288 of 1995, arising out of Crime No. 36 of 1994, relating to Police Station Manjhila, District Hardoi, whereby the appellants have been convicted and sentenced, under Section 302/34 IPC for life imprisonment and fine of Rs. 10,000/- each, in default of payment of fine two years R.I., under Section 325/34 IPC for five years R.I. and fine of Rs. 5000/- each, in default of payment of fine for one year R.I. and under Section 323/34 IPC for six months R.I. For the sake of convenience and to avoid repetition of facts and evidence, both appeals are being decided together by common judgment.
3. The prosecution story as emerges from the record of the subordinate court is, that a written application was presented on 28.3.1994 at 9.15 A.M. to S.H.O., Police Station Manjhila, District Hardoi by Raja Ram s/o Dwarika Prasad, R/o Lokpur, Majra Kusuma, Police Station Manjhila, District Hardoi, stating therein that on 27.3.1994 at about 8.00 P.M., when he was going to extend Holi greetings, Siya Ram son of Kuber Kachi, Data Ram, Ram Ratan and Ram Sewak both sons of Bihari, who are residents of the same village, for the reason of old enmity pertaining to the passage of tractor trolley of Raja Ram, assaulted him with sticks. On an alarm raised by him, Ram Ratan son of Dwarika R/o Lokpur, Police Station Manjhila, District Hardoi, Dinesh Kumar son of Raja Ram, Ram Swaroop son of Bulaki, Hari Shankar and Majnu arrived at the spot to save him, however, they were also assaulted by the above accused persons with lathis (sticks). Hue and cry made by all of them attracted Babu Ram son of Dwarika, Ram Lal son of Immer and many other villagers, who challenged the accused persons and saved him and others from accused persons. It is further stated that the accused persons after extending threats and hurling abuses to them, fled away from the scene of occurrence.
4. On the basis of above, written application a First Information Report (Ex. Ka-1) was registered at Police Station Manjhila on 28.3.1994 at 9.15 A.M. against the above accused persons at Case Crime No. 36 of 1994, under Sections 323, 504, 506 IPC and Investigation of the same was entrusted to Sub Inspector Shri Krishna Murari Mishra.
5. The medical examination of the injuries of the injured persons was done by P.W.9- Dr. A.K. Jain on 28.3.1994 from 12.30 onwards who reported as under:-
Injured Majanu was examined by Dr. A.K. Jain on 28.3.1994 at about 12.30 P.M. at P.H.C. Shahabad, who was identified by Constable 316 Ram Singh of Police Station Manjhila and following injuries were found on his person:-
(I) Injury No.1- lacerated wound 1.5 cm. X 1 cm. X scalp deep on the (Rt) side of head 4.5 cm. above root of nose clotts present.
(II) Contusion 4.5 cm. X 2 cm. To outer aspect and lower part of (Rt) forearm 1 cm. Above (Rt) wrist joint.
All injuries were found simple in nature caused by blunt object and duration was about one day.
On the same day at about 12.40 P.M. injured Nanhi was examined and a contusion of 5 cm. x 4 cm. on her lower eyelid red was found and injury was found simple caused by blunt object. Duration was about one day.
On the same day at about 12.50 P.M. injured Hari Shankar was examined and following injuries were found on his person:-
(1) Lacerated wound 2 cm. X 0.5 cm. X scalp deep (Rt) top of head 11.5 cm. above rear of nose clotts present.
(2) Lacerated wound ''X' Ist leg 3.5 cm. X 0.5 cm. X bone deep IInd leg 3.4 cm. X 0.4 cm. X bone deep on the (Rt) side of head 15.5. cm. above (Rt) of ear, clotts present.
(3) Contusion 6 cm. X 2 cm. on the back and outer aspect of left forearm 9.5 cm. above left elbow joint.
(4) Contusion 4 cm. X 2cm. on the back of left thumb.
(5) Abraded contusions 3 cm. X 2 cm. on the back of (Rt) forearm 7 cm. above (Rt) forearm.
All injuries were caused by blunt object, were simple in nature and duration was about one day.
On the same day at about 1.00 P.M. injured Vinod Kumar was examined and following injuries were found on his person:-
(1) Abraded contusion 4 cm. X 2 cm. on the back of (Rt) middle finger 2 cm. above top of nail.
(2) Contused swelling 6 cm. X 5 cm. on the posterior aspect of (Rt) hand & back of thigh just above of right thigh. Kept under observation. Advise X-ray.
(3) Contused swelling 11 cm. X 9 cm. on the back of left hand 3 cm. below from left wrist joint. Injury kept under observation. Advise X-ray.
All injuries were caused by blunt object and were simple in nature, except injury no. (2) and (3) which are kept under observation and X-ray was advised. Duration was found to be of one day.
On the same day at about 1.10 P.M. injured Ram Swaroop was examined and following injuries were found on his person:-
(1) Contusion 5 cm. X 4 cm. On the left head 5.5. cm. above from upper border of left ear pinna.
(2) Lacerated wound 1.4 cm. X 0.4 cm. X muscle deep on the left face 1 cm. away from outer angle of left arm. Clotts present.
(3) Contusions 11 cm. X 3 cm. on the back of left side of scapular region upper part red.
(4) Contusion 5 cm. X 2 cm. at the outer aspect of middle of Rt. Upper arm. Red.
(5) Abraded contusion 7 cm. X 3 cm. on the right elbow. Red.
(6) Abraded contusion 1.5 cm. x 1.5 cm. at the outer aspect of Rt. Knee .
All injuries were simple in nature and were caused by blunt object. Duration was found to be of about one day.
On the same day at about 1.20 P.M. injured Dinesh Kumar was examined and following injuries were found on his person:-
(1) Contusion 15.5 cm. X 3 cm. on the outer aspect & back of (Rt) forearm, upper part red.
(2) Abraded contusion 3.5 cm. X 2 cm. on outer aspect of left upper arm, upper part red.
(3) Contusion 9 cm. X 2 cm. On back of Right chest. Lower part red.
All injuries were simple in nature caused by blunt object. Duration ws found to be of about one day.
On the same day at about 1.30 P.M. injured Ram Ratan was examined and following injuries were found on his person:-
(1) Lacerated wound 3 cm. X 0.5 x scalp deep on the (Rt) side top of head 7.5 cm. mid point (Rt) eye brow. Clotts present.
(2) Contusion 10 cm. X 3 cm. on the outer aspect of the back of (Rt) elbow, 2.5 cm. above (Rt) forearm. Red.
(3) Contused swelling 8 cm. X 8 cm. on the back of left hand kept under observation advise X-ray. Red.
(4) Abraded Contusion 6 cm. X 3 cm. on the left face just below outer corner left eyebrow. Red.
5. Abraded contusion 12cm. X 3 cm. on the back of (Rt) scapular region .
(6) Contusion 12 cm. X 3 cm. on the back of chest (Rt) chest 18.5. cm. below from 7th vertebra.
(7) Contusion 6 cm. X 3 cm. on the outer aspect of left shoulder.
(8) Contusion 8 cm. X 2 cm. on the front and upper part of left thigh. Red.
All injuries were simple except injury no. (3) which was kept under observation X-ray.
All injuries were caused by blunt object. Duration was found to be of about one day.
Deceased Raja Ram who at that point to time was alive, was also examined by Dr. A.K. Jain on the same day at about 1.45 P.M. and following injuries were found on his person:
1. Lacerated wound 3 cm. X 1 cm. X bone deep left head 11 cm. Left trager of ear kept under observation X-ray, advised.
2. Lacerated wound 1.5 cm. X 1 cm. X 0.5 cm. scalp deep on the left side of fore head 6 cm. Above root of nose kept under observation X-ray, advised.
3. Contusion 4 cm. X 2 cm. on the left upper eye lid.
4. Contusion 11 cm. X 3 cm. on the back of left forearm 8 cm. above left wrist joint. Red. Kept under observation X-ray, advised.
5. Contusion 8 cm. X 3 cm. on the back of (Rt) forearm 5 cm. Behind (Rt) oblique forward of (Rt) elbow joint.
All injuries were caused by blunt object, simple in nature except injury no. (1), (2) & (4) which were kept under observation and X-ray was advised. Duration was found to be of one day.
6. Injured/ informant Raja Ram was admitted in District Hospital, Hardoi, however during the course of treatment he died on 29.3.1994 at at about 12.00 P.M. Inquest of his dead body was performed by Sub Inspector Mewa Singh- P.W.6 at mortuary of District Hospital, Hardoi on 29.3.1994 at about 1.00 P.M. and a report Ex. Ka-1A was prepared by him. He also prepared other necessary papers for the purpose of postmortem i.e. Ex. Ka-2 to Ka-7 i.e. Challan lash, photo lash, chitthi R.I.,Chitthi CMO and after sealing, the dead body was given in the custody of Constable Sukhlal and Constable Shri Ram for the purpose of postmortem.
7. On 29.3.1994 at about 5.00P.M., Postmortem on the body of the deceased- Raja Ram was conducted by PW-8 Dr. C.N. Shukla, the then Senior Eye Surgeon, District Hospital, Hardoi, who received the dead body at 4.30 P.M. on the same day and found that the deceased was of about 50 years of age and a person of average built. Eyes and mouth of the deceased were closed. Rigor mortis was present on the whole body. Following injuries were found on the body of the deceased:
1. Contusion 6 cm. X 2.5 cms. over posterior lateral aspect of (Rt) forearm 7 cm. above wrist.
2. Contusion 8 cm. X 5 cm. over back of (Rt) elbow.
3. Contusion 8 cm. X 6 cm. over (Rt) shoulder.
4. Contusion with Abrasion over (left) side head frontal region, just above forehead.
5. Stitched wound (3 stitches present) 3 cm. X linear over left side head frontal region 3 cms. above injury no. (4).
6. Contusion present in an area of 12 cm. X 8 cm. of head including, temporal adjoining parietal, and frontal region left side with ceehy moses in both lids of left eye parietal and temporal bones were fractured.
On internal examination the membranes and brain were found lacerated with hematoma, four ounces of fluid was found in the stomach, while in the small intestine liquid faecal and gases and in large intestine faecal matter and gases were found. Liver was found weighing about 1000 gm. and gallbladder was found half full. Urinary bladder was empty, no abnormal defect was found in spleen and kidneys.
In the opinion of the doctor death of the deceased occurred due to shock and coma as a result of ante-mortem injuries. P.W.9- Dr. C.N. Shukla has stated to have prepared the postmortem report in his hand writing and signatures as Ex. Ka-8.
8. Due to the death of injured Raja Ram on 29.3.1994 at about 12.00 P.M. at District Hosptial, Hardoi, investigation of the case was altered under Section 304 IPC vide G.D. entry no.12 dated 31.3.1994.
9. The investigating officer after completion of the investigation submitted charge sheet against all appellants under Sections 304, 323, 325 and 504 IPC.
10. On the case being committed to the court of sessions the charges under Sections 302/34, 325/34, 323/34, 506 IPC were framed against all appellants, who denied the charges and claimed trial.
11. Prosecution in order to prove its case relied on following documentary evidence.:-
(I) Ex. Ka-1 (Application/ FIR) (II)Ex. Ka-1 A (Inquest report) (III) Ex. Ka-2 (Form No.13) (IV) Ex. Ka-3 (Photo lash) (V) Ex. Ka-4 (Chitthi R.I.) (VI)Ex. Ka-5 (Chitthi CMO) (VII)Ex. Ka-6 (Memo of cloth of deceased) (VIII)Ex. Ka-7 (Sample of seal) (IX)Ex. Ka-8 (Postmortem report of deceased Raja Ram) (X)Ex. Ka-9 (Medical Report of Majanu) (XI)Ex. Ka-10 (Medical report of Smt. Nanhi Devi) (XII)Ex. Ka-11 (Medical report of Hari Shankar) (XIII) Ex. Ka-12 (Medical report of Vinod Kuamr) (XIV) Ex. Ka-13 (Medical report of Ram Swaroop) (XV) Ex. Ka-14 (Medical report of Dinesh Kumar) (XVI) Ex. Ka-15 (Medical report of Ram Ratan) (XVII) Ex. Ka-16 (Medical report of Raja Ram)
In addition to the above documentary evidence, the prosecution also testified following witnesses in its favour:-
(I) P.W.1 -Dinesh Kumar (Eye witness/ son of informant- Raja Ram) (II) P.W.2- Ram Ratan (Injured eye witness) (III) P.W.3- Smt. Nanhi (Injured eye witness) (IV) P.W.4- Ram Swaroop (Injured eye witness) (V) P.W.5- Chhabi Nath (Witness Panchayat Nama) (VI) P.W.6- S.I. Mewa Singh ( Prepared inquest report and necessary papers for postmortem) (VII) P.W.7- Tula Ram (Scribe of the FIR) (VIII) P.W.8- Dr. C.N. Shukla (Conducted the postmortem) (IX) P.W.9- Dr. A.K. Jain (Examined injured persons) 12. We have noticed the statement of prosecution witnesses as under:-
P.W.1- Dinesh Kumar, who is the son of the deceased Raja Ram, has stated about the existence of enmity in between his father and appellants pertaining to use of the passage which falls in front of the houses of appellants by deceased Raja Ram for his tractor-trolley. This witness has further stated that on the fateful night at about 8.00 P.M. when his father was going to extend Holi Greetings and reached in front of the house of Kaptan Singh all appellants started assaulting him with sticks. He further stated that on alarm raised by his father, he along with his uncle Ram Ratan, aunt Smt. Nanhi Devi, brother Vinod Kumar, Ram Swaroop, Hari Shankar and Majanu arrived at the spot and attempted to save his father, on which he and other persons of his side were assaulted by appellants by sticks. On a noise made by them, Babu Ram, Ram Lal and other villagers came at the spot and saved them. Appellants after hurling abuses and intimidating them fled away from the scene of occurrence. He further stated that on the next morning all injured persons and his father Raja Ram went to Police Station Manjhila and lodged the report scribed by Tula Ram. He identified the signatures of his father on the First Information Report and also acknowledged that Tula Ram has only written what was stated by his father- Raja Ram. He also stated that due to deteriorated condition of his father he was admitted in District Hospital, Hardoi. However, due to the injures sustained by him, he died in the hospital during the course of treatment.
P.W.2- Ram Ratan, who is the brother of the deceased- Raja Ram has corroborated the story of prosecution as stated in the First Information Report and has stated that on the fateful night when he and his brother Raja- Ram were going to extend Holi Greetings all appellants, who were carrying sticks with them, assaulted them in front of the house of Kamta @ Kaptan Singh. According to him, on an alarm raised by them, Vinod, Ram Swaroop, Dinesh Kumar, Smt. Nanhi Devi, Hari shankar and Majanu came at the spot who were also beaten by the appellants. Thereafter other villagers and his brother Babu Ram came and appellants after abusing and intimidating them fled away from the scene. He further stated that appellants were having enmity with his brother- Raja Ram on the basis of dispute pertaining to the passage of the tractor-trolley from the ''Galiyara' situated in front of the house of Data Ram. He stated that the injuries of the injured persons were treated at Government Hospital, Shahabad from where he and his brother Raja Ram was referred to District Hospital, Hardoi. He acknowledged that the Investigating Officer recorded his statement.
P.W.3- Smt. Nanhi Devi, who is the wife of P.W.2- Ram Ratan has stated about the enmity of the appellants with the brother of her husband Ram Ratan (Raja Ram)for the reason that the tractor trolley owned by Raja Ram from used the passage situated in front of the houses of the appellants. She further stated that on the fateful day and time when her ''Jeth' (Raja Ram) arrived in front of the house of Kamta Nai, appellants started beating him with lathis and on an alarm made by Raja Ram, she and other family members of her house rushed to the scene of occurrence and they were also assaulted by the appellants. She claimed that on alarm being raised by them, her Jeth- Babu Ram and many other villagers came at the scene. She along with other injured persons went to Police Station Manjhila and got their injuries examined at Government Hospital, Shahabad. Her husband and Jeth Raja- Ram were referred to District Hospital, Hardoi, where Raja Ram died. She also acknowledged that her statement was recorded by the Investigating Officer.
P.W.4- Ram Swaroop has been declared hostile, who in his statement has stated that on the fateful night at about 8.00 P.M. when he was in his house, he heard an alarm being raised by Raja Ram and Ram Ratan and when he arrived at the scene of the occurrence, near the house of Kaptan Singh, he was also assaulted by some one by striking a blow of lathi on his head, whereby he became unconscious and could not see appellants assaulting Ram Ratan and Ram Sewak. On being cross examined by the public prosecutor he admitted that he went to the Police Station Majhila and Government Hospital Shahabad on the next day, where his injuries were treated and Ram Ratan, Raja Ram and Vinod Kumar who were severely injured, were referred to District Hospital, Hardoi.
P.W.5- Chhabi Nath is a witness of Inquest (Panchayat Nama) who acknowledged his signatures on the inquest report.
P.W.6- S.I. Mewa Singh has stated that he performed the inquest of the body of deceased Raja Ram and also prepared necessary papers for the purpose of postmortem and has proved those papers as Ex. Ka-1 to Ex. Ka-7.
P.W.7- Tula Ram is the scribe of FIR, who stated that he wrote the FIR Ex. Ka-1, which and the report was signed by Raja Ram and thereafter it was given to the clerk of the Police Station.
P.W.8- Dr.C.N. Shukla has stated that he performed postmortem on the body of deceased Raja Ram. He stated to have prepared the postmortem report in his signatures and hand writing and also stated about the injuries and other examination made by him which has been elaborately discussed in paragraph 7 of this judgment.
P.W.9- Dr. A.K. Jain has also stated to have examined the injuries of injured persons from the informant side. He has proved the injury reports of the injured persons Smt. Nanhi Devi, Majanu, Hari Shankar, Vinod Kumar, Ram Swaroop, Dinesh Kumar, Ram Ratan and Raja Ram under his signatures and hand writing as Ex. Ka-9 to Ka-16. Detailed description of the injuries found by him on the body of injured persons has been elaborately stated in paragraph 5 of this judgment.
13. After closure of evidence of prosecution statement of all appellants were recorded under Section 313 of the Cr.P.C., wherein they have denied to have caused injuries to the informant or other injured persons and claimed that in fact appellants- Ram Sewak and Data Ram were assaulted by Ram Ratan and others and a cross FIR pertaining to that incident was lodged by appellant Data Ram and he was also medically examined. However, appellants choose not to adduce any witness in their favour.
14. The appellants after recording their statements under Section 313 Cr.P.C. have filed four documents in their defence by list 61B, along with application 60 B, which were taken on record vide order of trial Court dated 24.2.2005. The detail of these documents is as under ;
The first document 61B/2, filed by appellants in their defence is a certified copy of the FIR, Chick no. 44/94 lodged by appellant- Data Ram on 28.3.1994 at 10.45 A.M. against Raja Ram, Ram Ratan, Hari Shankar and Shiv Raj under Sections 323, 504 IPC which was registered as NCR and was modified as Case Crime No. 78/95 on 17.6.1995 under Sections 325, 323, 504 IPC on the basis of X-ray report, with the allegations that on 27.3.1994 at 8.00 P.M. when Data Ram was extending greetings of Holi, in front of his house the above accused persons assaulted him, his brother- Ram Sewak and son of Data Ram. It is further alleged that witnesses named therein and other villagers saved them.
Next document 61B/4, is a certified copy of the Final Report (Closure Report) submitted by the Investigation Officer, pertaining to the above case stating that the investigation of the case is closed as the allegations of the FIR were found false.
Third document 61B/6 is a certified copy of Site Plan of the alleged occurrence of the above mentioned case lodged by appellant Data Ram.
Fourth document i.e. 61B/8, is a certified copy of the complaint of complaint case no. 2971 of 2003 filed by appellant Data Ram on 18.9.2003 against Ram Ratan and Hari Shankar under Sections 323, 325, 504 and 506 iPC.
Apart from above documents one report dated 18.4.1994 submitted by Medical Officer, District Jail Hardoi to J.M. Hardoi, is also on record which stated that under orders of the Court dated 12.4.1994, Xray of Data Ram and Ram Sewak was performed, in District Hospital Hardoi, wherein a finger of Ram Sewak was found fractured. However, no fracture has been found on the person of Data Ram.
15. Learned trial Court after appreciating the evidence available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt and therefore convicted all the appellants for committing the offences under Sections 302/34, 325/34 and 323/34 IPC and sentenced all the appellants in the manner stated herein before, in paragraph two of this judgment.
16. Aggrieved by the judgment and order of the trial court the appellants have challenged the same by filing instant appeals.
17. Learned counsel for the appellants, while referring to the judgment of the trial court submits that the trial court in order to convict the appellants has relied on inadmissible evidence, completely ignoring the fact that it is a case where the appellants had claimed that it was actually the informant's side who had assaulted the appellants and by such assault appellants sustained injuries on their persons, which were not explained by the prosecution. Therefore, he submits that the trial court has committed an illegality by not appreciating the evidence available on record in the light of the cross case and cross version of the incident.
He further submits that the prosecution has not explained the injuries sustained by the appellant- Data Ram and others while it was the incumbent duty of the prosecution to explain as to how the injuries have been sustained by the appellants.
It is further submitted that independent witnesses have not been produced by the prosecution and the witnesses of the fact who have been produced by the prosecution i.e. P.W.1- Dinesh, P.W.2- Ram Ratan and PW-.3- Smt. Nanhi, are all blood relatives, therefore he submits that the prosecution purposely withheld the independent witnesses and have produced only those witnesses, who are relatives of the deceased.
He further submits that the evidence of the prosecution witnesses is not reliable and they are not truthful, therefore, the trial court has erred in convicting the appellants.
He further submits that even if the story of the prosecution is taken on its face value the alleged act of appellants could not travel beyond 325 IPC, as there was no intention of the appellants to cause death of deceased- Raja Ram and this fact has been completely ignored by the trial court.
Learned counsel for the appellants relied on following case laws:-
(1) Mani Vs. State of Kerala and others (2019) 2 SCC Crl. Page 1.
(2) Ranbir Vs. State (NCT ) of Delhi (2019) 2 SCC Crl. 746.
(3) Laxmi Chand and another Vs. State of U.P. (2019) 1 SCC Crl. 368.
(4) Tula Ram Vs. State of Madhya Pradesh (2018)3 SCC Crl. 358.
(5) Ram Pratap and others Vs. State of Rajashthan (2018) 3 SCC Crl. 214.
(6) Manoj Kumar Vs. State of Himachal Pradesh (2018) 3 SCC Crl. 33.
(7) Lavghan Bhai Devji Bhai Vasavas Vs. State of Gujrat (2018) 2 SCC Crl. 461.
(8) Atul Thakur Vs. State of Himachal Pradesh (2018) 1 SCC Crl. 743.
(9) Mahendra Mulji Kerai Patel Vs. State of Gujrat (2008) 14 SCC 690.
18. Learned AGA while supporting the judgment of the trial court submits that requisite standard of proof beyond reasonable doubts has been achieved by the prosecution before the trial court and all prosecution eye witnesses who were produced before the court below are injured witnesses and therefore their testimony could not be easily brushed aside, therefore no error has been committed by the trial court in accepting the reliable testimony of injured eye witnesses.
He further submits that the appellants have not specifically taken the plea of self defence and they have never said that they in exercise of any right of private defence had assaulted the deceased and other injured persons, therefore the trial Court was not obliged to consider their reluctant plea of private defence, however the trial Court has elaborately considered this issue and recorded a finding that no right of private defence was available to the appellants and therefore there appears no illegality or error in the judgment of the trial court.
He further submits that prosecution is not obliged to explain the superficial injuries found on the person of appellant, unless it is proved that the injuries were sustained in the same incident.
He further submits that testimony of all eye witnesses is reliable and truthful and the medical evidence also corroborates the same. The enmity in between the parties is an admitted fact, as they were having 'ranjish' with regard the passage of tractor-trolley of Raja Ram through ''Galiyara' situated in front of house of appellant- Data Ram and it has also come in the evidence that two days prior to the incident a wall of the house of Data Ram was demolished by the trolley of deceased- Raja Ram. Otherwise also in a case based on direct evidence, the motive looses its significance.
He further submits that the court below has not committed any illegality or irregularity either in appreciation of evidence or application of law and therefore, no interference in the judgment of the trial court is warranted as from the conduct of the appellants it was apparent that they were having a common intention to cause death of deceased- Raja Ram and to inflict injuries to the injured persons. Therefore the trial Court has committed no error in convicting the appellants.
19. Having heard the submissions of Ld. Counsel for the parties we deal with the first argument of Learned counsel for the appellants that the informant's side actually assaulted the appellants whereby the appellants- Data Ram and others sustained injuries and a cross report pertaining to this incident was lodged by appellant- Data Ram but the court below has ignored this material fact.
The law relating to the right of private defence of person and property is found under Section 96 to 106 of the Indian penal code. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting ones body and property when immediate aid from the state machinery is not readily available and in doing so he is not answerable in law for his deeds.
Honble Supreme Court in a landmark decision Darshan Singh Vs. State of Punjab and Ors. reported in MANU/SC/0044/2010 after analyzing many judgments of the Hon'ble Supreme Court as well as of High Courts formulated following principles :-
"58. .........
(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 suddenly 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 Indian Penal Code 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."
Honble Supreme Court in Babulal Bhagwan Khandare and Ors. Vs. State of Maharashtra reported in MANU/SC/1026/2004 , opined as under :-
"26....................Only other question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record............
27. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar MANU/SC/0136/1976 : 1976CriL J1736 ]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting............"
Honble Supreme Court in Ananta Deb Singha Mahapatra and Ors. Vs. State of West Bengal reported in MANU/SC/2610/2007, while discussing the scheme of right of private defence held as under :-
"9. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self- defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities is favour of that plea on the basis of the material on record." (Emphasis Ours) In Laxman Singh Vs. Poonam Singh ,MANU/SC/0692/2003, Hon'ble Supreme Court resolved as under :-
"8. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilis the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance.
But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
It is apparent from the above decisions that existence of any right to defend the person or property either of self or of any other person is not necessarily required to be proved by accused persons by tendering direct evidence and the same may also be proved by referring to the evidence of prosecution and from the contradictions occurred therein and also by referring to other proved facts and circumstances available on record.
Keeping in view the above settled legal position pertaining to the proof of right of private defence and the extent of its exercise, we proceed to examine whether the appellants were having any right to defend their person and whether the same has been exercised within the limitations enumerated and highlighted in the above mentioned case laws and scheme as provided in Section 96 to 105 of Indian Penal Code.
Appellant- Ram Swaroop in his statement recorded under Section 313 of the Cr.P.C. has stated that Ram Sewak and Data Ram were assaulted by Ram Ratan and others and a first information report with regard to this incident was lodged by Data Ram and he was also medically examined. Similar was the answer of appellants- Ram Ratan, Data Ram and Siya Ram.
From the above statements of the appellants recorded under Section 313 of Cr.P.C. it is apparent that a specific plea of exercise of right of private defence has not been taken by the appellants, as they have not stated to have assaulted or used force in exercise of such right but only stated that in fact they were beaten by the informant's side.
Perusal of record further reveals that P.W.-9 Dr. A.K. Jain on 28.3.1994 from 12.30 p.m. onwards has examined the injuries of 8 injured persons from informant side, namely, Raja Ram, Ram Ratan, Hari Shankar, Majnu, Smt. Nanhi Devi, Vinod Kumar , Ram Swaroop and Dinesh Kumar. The appellants in their defence has produced four documents which are certified copies of (i)Cross FIR (ii) Final Report submitted by police (iii) Site Plan of cross case and (iv) Complaint filed by appellant Data Ram. Therefore no copy of any injury report has been filed by the appellants on record nor any Doctor was examined by them which may suggest that some injuries were sustained by the appellant Data Ram or Ram Sewak in the incident. However During the course of pendency of matter at the stage of commital two illegible Photostat copies of injury reports of Data Ram and Ram Sewak were produced, perusal of which shows that appellant Data Ram has sustained two injuries on his head and some injuries on various parts of his body and appellant Ram Sewak has also sustained some injuries. All these injuries were simple and these were about one day old. Though these Photostat copies of the injury reports are not admissible in evidence, without proof in accordance with the provisions contained in the Indian Evidence act, but keeping in view the fact that the appellants may prove the existence of any right of private defence in their favor by the standard of preponderance of probabilities, we take these documents in consideration only for the limited purpose of evaluating the existence of any right of private defence in favor of appellants.
Perusal of the documents filed by the appellants before the Court below in their defence further reveals that it was alleged by the appellant that they were assaulted by informant's side in front of the house of appellant Data Ram and an FIR in the matter was also lodged by appellant Data Ram. However after investigation Final report was submitted by the police and thereafter a complaint case was filed by the appellant Data Ram. It has further been stated by learned counsel for the appellants, during the course of argument before this Court, that the complaint case filed by the appellants was dismissed and persons arrayed as accused persons therein were not summoned to face trial.
However, the copy of the FIR, Final Report, Site Plan and complaint case submitted by the appellants reveal that the appellants have taken a defence that informant's side actually assaulted them and on an alarm raised by them some villagers came there and in order to save the appellants, they used force by lathis (sticks), whereby Raja Ram and Ram Sewak sustained injuries and Raja Ram ultimately died and one finger of appellant- Ram Sewak also sustained fracture. Significantly the date and time of the incident mentioned in the cross FIR and complaint filed by appellant is the same which has been stated by the prosecution in the instant case i.e. 22.3.1994 at 8.00 P.M. So far as the place of occurrence is concerned informant stated that the incident occurred in front of the house of Kaptan, while appellants stated that it occurred in front of the house of appellant Data Ram. However there is not such distance in between these places. It is also pertinent to mention here that during cross examination suggestion has also been given by the appellants to P.W.1- Dinesh Kumar that Raja Ram and others went to the house of Data Ram to assault him and ladies of the appellant's house, in order to save them, assaulted Raja Ram whereby the informant's side received injuries. In the same manner a suggestion was also given to P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi by the appellants that informant's side assaulted them and on an alarm raised by them, their neighbours and other villagers used force to save the appellants, whereby the injured persons from informant's side received injuries.
In this view, from perusal of the evidence and material made available by the appellants on record it transpires that the appellants have taken a defence that informant and other persons of their side assaulted them on 27.3.1994 at 8.00 p.m. in front of the house of appellant Data Ram and when they raised an alarm, other villagers came at the scene and in order to save them, used sticks whereby Ram Sewak and Raja Ram got injuries and Raja Ram died subsequently.
There cannot be any doubt in the proposition that the accused persons of a crime, during trial, may put forth their defence in many ways. They may put their defence by way of suggestions given to the prosecution witnesses or through their statement recorded under Section 313 Cr.P.C. as well as by tendering oral or documentary evidence.
In the instant case two fold defence has been put forth by the appellants, at first they had taken a defence that they had been beaten by informant's side and in order to save them, ladies of their house used force by lathis and secondly that when they were being beaten by the informant side, neighbours and other villagers responded and assaulted informant's side, whereby the informant's side sustained injuries.
Having perused the evidence available on record, we are of the considered opinion that the appellants have miserably failed to prove the existence of any right of private defence in their favour. No witness has been examined by the appellants in support of their defence. The cross FIR lodged by the appellant Data Ram culminated into Closure Report(Final Report) and thereafter a complaint case was filed by appellant Data Ram. No document has been filed by the appellants which may show as to what has happened to the complaint case filed by Data Ram and only a statement has been made by Ld. counsel for the appellant before this Court that the complaint case filed by them has been dismissed. Therefore, the documents filed by appellants in their defence, at the most, may only suggest that there was a cross version of the incident which was not found true by the Investigating Officer and a final report was submitted and thereafter a complaint case was filed, which was also dismissed. Therefore, the evidence and material submitted by the appellants is not sufficient, even on the parameter of preponderence of probability, to establish any right of private defence in favour of appellants.
Now, when no witness has been produced by the appellants to establish any right of private defence and the documentary evidence produced by the appellants has also been found not sufficient to prove existence of any such right, we look into the evidence led by prosecution, in order to satisfy ourself, as to whether any right of private defence could be inferred in favour of appellants, which may justify use of force by them to the extent of killing one of the injured persons of the informant's side namely Raja Ram.
We have carefully perused the statements of P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi and have found that there is nothing in their evidence which may even remotely suggest that either the appellants or their ladies, neighbours or other villagers were having any right of private defence, in exercise of which, inflicting of injuries by them, on informant side, may be justified. It is also apparent from record that injuries of appellants - Data Ram and Ram Sewak have not been duly proved by appellants. Moreover the injuries found on the person of appellants- Data Ram and Ram Sewak are of such nature which might have been sustained by them during the course of scuffle or even by the co-appellants under the duress of their assault. All injuries sustained by these two appellants have been found simple in nature and only one injury sustained by Data Ram on his forehead appears to be of some substance, but in absence of any reliable evidence in support of the defence, this injury alone is not enough to reject the otherwise truthful and reliable evidence of prosecution witnesses, specially in the background that eight persons from the side of informant have sustained injuries in the occurrence and in order to save himself any of the injured person may ignorantly cause such injuries to these two appellants. No reliable evidence has been tendered by the appellants either before the trial court or before this Court, which may suggest that apart from minor injuries to Data Ram and Ram Sewak any other appellant have sustained any injury and photo copy of the injury reports of Data Ram and Ram Sewak, filed along with the bail application before the trial court, could not be read in evidence unless duly proved in accordance with law. Even otherwise all injuries claimed by these two appellants have been found simple and it is after many days of the occurrence that a report has been submitted by the medical officer of District Jail Hardoi pertaining to the fracture found in the finger of Ram Sewak.
Having gone through the reliable evidence of the prosecution injured eye witnesses, namely, P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi, we are of the considered opinion that the occurrence has taken place in front of the house of Kaptan @ Kamta and there is nothing on record which may suggest that the informant's side went to the house of appellant- Data Ram and assaulted them. The names of the ladies of the house of appellants or the name of any villager or even any neighbour, who allegedly exercised the right of private defence on behalf of the appellants, has not been stated by the appellants either during the trial or before this Court. Therefore the plea of existence of a right of private defence in favour of the appellants has not been found proved and the only corollary of this is that appellants have miserably failed to prove any right of private defence available to them or to any other person to defend their person . It is also established by the truthful evidence of injured eye witnesses presented by prosecution that on 27.3.1994 at 8.00 P.M., it was the informant's side, which was assaulted by appellants by sticks, resulting into injuries to eight persons of the informant's side, out of which, Raja Ram died during the course of treatment in the District Hospital, Hardoi. The appellants by referring to the injuries allegedly sustained by appellants- Data Ram and Ram Sewak have been successful only in establishing that the appellant- Data Ram and Ram Sewak, along with other appellants were present at the scene of occurrence and at the most it may be a case of free fight, but certainly no right of private defence was available either to the appellants or to any other person, against informant and other injured persons as they have not been found aggressor. We accordingly do not find any substance in this submission of Ld. Counsel for appellants.
20. The next submission by Ld. Counsel for the appellants is that independent witnesses have not been produced by the prosecution and the witnesses of the fact who have been testified by the prosecution i.e. P.W.1- Dinesh, P.W.2- Ram Ratan and PW-.3- Smt. Nanhi, are all blood relatives, therefore he submits that the prosecution purposely withheld the independent witnesses and have produced only those witnesses, who are relatives to the deceased and the trial Court has committed an illegality in accepting the testimony of these interested witnesses.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 Hon'ble Supreme Court held as under :-
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
In Sucha Singh and Ors. vs. State of Punjab, MANU/SC/0527/2003 Hon'ble Supreme Court has observed as follows :-
"15. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely, Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
Hon'ble Supreme Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors. , MANU/SC/0897/2013 held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.(Vide: Bhagaloo Lodh and Anr. v. State of U.P. MANU/SC/0700/2011 : AIR 2011 SC 2292; and Dhari and Ors. v. State of U.P. MANU/SC/0848/2012 : AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held:
"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents."(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473).
13. In Sachchey Lal Tiwari v. State of U.P. MANU/SC/0865/2004 : AIR 2004 SC 5039, while dealing with the case this Court held:
"7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011, It was held as under :-
"14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased."
It is therefore settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with deceased is not a factor that affects credibility of a witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence of such witness to find out, whether he is a natural witness and whether in the facts and circumstances of the case his evidence is cogent and credible. Keeping in view the above factual and legal matrix, we do not find any substance in the submissions of Ld. Counsel for appellants that the testimony of the PW-1 Sri Dinesh, PW-2 Ram Ratan and PW-3 Smt. Nanhee be discarded only on the basis of their relation with the deceased. However, in the facts and circumstances of the case, the same has to be appreciated with care and caution with due regard to the fact that these witnesses are also injured witnesses.
21. The next argument which has been advanced by learned counsel for the appellants is that the prosecution has not been able to prove motive of the crime and therefore the story of the prosecution is not believable.
Per contra learned AGA submits that it is a case of direct evidence and the motive is not of much significance in the instant case.
A three Judges Bench Of Hon'ble Supreme Court in Molu and others v. State of Haryana AIR 1976 SUPREME COURT 2499 opined as under :-
"11. Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes. however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with the High Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt."
In Praful Sudhakar Parab v. State of Maharashtra, AIR 2016 SUPREME COURT 3107 Hon'ble Supreme Court stated as under :-
"16. One of the submissions which has been raised by the learned amicus curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash laying in the office but no evidence was led by the prosecution to prove that how much cash were there in the pay office. Motive for committing a crime is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another v. State of Punjab, 2001 (7) SCC 690 : (AIR 2001 SC 3570), has laid down following in paragraph 18:
"18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh v. Jeet Singh {1999 (4) SCC 370 : (AIR 1999 SC 1293)}:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Keeping in view the above stated law we are of the considered opinion that the prosecution is not obliged to prove those facts which are either impossible for the prosecution to prove or which are locked up in the mind of the accused persons, as to what made them to commit the crime. Therefore, the cases which are based on direct evidence of the witnesses should be decided on the basis of the quality and probative value of the evidence of such eye witnesses.
Having gone through the prosecution evidence available on record, it is apparent that it is a case of direct evidence as the occurrence has been witnessed by P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi, who are themselves injured persons. Therefore when the case of the prosecution is based on the testimony of those witnesses who have seen the occurrence and have also received injuries in the incident, the same should be decided on the quality of their evidence keeping in view the golden rule of proof beyond reasonable doubt. Record further reveals and it has been stated in the evidence by the prosecution eye witnesses that the parties were inimical towards each other on account of the use of passage by Raja Ram for the purpose of his Tractor- Trolley. This fact has also found place in the FIR as well as in the statement of eye witnesses. P.W.1- Dinesh Kumar, in his evidence in cross examination has also admitted that a wall of the house of Data Ram was demolished by tractor-trolley of Raja Ram about two days before the incident and Data Ram, though did not lodge any FIR, had hurled filthy abuses on them. Therefore it transpires that just two days before the incident a wall of the house of Data Ram-appellant was demolished by tractor trolley of deceased- Raja Ram and there was sufficient motive available to the appellant to commit the crime. Moreover the appellants have also admitted the occurrence, though with a different version, that they have been beaten by informant side. Therefore when the occurrence, with a cross version has been admitted to the appellants and it is otherwise apparent on the face of record that the parties were inimical towards each other from before the incident, we do not find any force in this submission of learned counsel for the appellants.
21. Learned counsel also submits that the place of occurrence has also not been established and in fact the appellants have been assaulted by the informant side in front of the house of Data Ram, therefore, the case of the prosecution is not acceptable on this score also.
Perusal of record shows that in the FIR no place of occurrence has been mentioned and only the incident has been narrated. P.W.1- Dinesh Kumar who is the son of the deceased, Raja Ram has stated that his father and Ram Ratan were assaulted in front of the house of Kaptan Singh @ Kamta. In cross examination he stated that the house of Kaptan Singh is situated towards north of passage (Galiyara). He further stated that his brother Virendra Kumar took Daroga Ji to the place of occurrence and he did not accompany them. P.W.2 - Ram Ratan in his evidence has also fixed the place of occurrence as in front of the main door of Kaptan Singh's house. He has narrated topography of the passage and surrounding in detail. However, in his cross examination he stated that ''marpeet' happened near the tree of ''Pakar' which is situated near the southern wall of Kaptan Singh's house. P.W.3- Smt. Nanhi Devi also corroborated the evidence of above witnesses when she stated that ''marpeet' happened near the house of Kaptan Singh. Even hostile witness P.W.4- Ram Swaroop in his statement has stated the place of occurrence as near the house of Kaptan Singh. In lengthy cross examination of these witnesses much emphasis has not been given on the scene of crime and appellants in cross FIR filed by them have stated the scene of occurrence as the front of appellant- Data Ram's house and also that Marpeet has been done by the informant side wherein appellants- Data Ram and Ram Sewak were injured. The site plans prepared in both the cases are also available on record. A perusal of these site plans reveals that there is slight difference in the version of appellants and informant, so far as the places of occurrence is concerned. The informant side stated the place of occurrence as in front of Kaptan Singh's house while the appellants stated the same to be in front of appellant- Data Ram's house. The distance between the houses of Kaptan Singh and Data Ram is only less than hundred meters and assault on them has also been admitted to have happened in-front of Data Ram's house. Therefore keeping in view the fact that appellants' version of the incident was not found truthful and Final Report was submitted by the Investigating Officer and Complaint case filed by them was also dismissed and no reliable evidence has been submitted by them in this case, it is proved that incident had occurred near the house of Kaptan Singh.
22. Learned counsel for the appellants forcefully submits that the testimony of the prosecution witness is full of material contradictions and there are inherent lacuna in the story of the prosecution and therefore the prosecution witnesses are not reliable, moreover the injuries sustained by the appellants- Data Ram and Ram Sewak have not been explained by the prosecution and therefore the appellants are liable to be acquitted.
Learned AGA has, however submitted that the prosecution is not obliged to explain superficial injuries of the appellants in the back ground of the fact that eight persons from the side of prosecution were injured in the incident. Moreover, it has not been proved on record that any injury has been sustained by appellants- Ram Sewak and Data Ram, as neither any injury report has been proved nor any doctor or witness has been examined, which may prove the contention of appellants.
Having regard to the argument of Ld. Counsel for the appellants pertaining to the appreciation of the evidence of witnesses, the law is well settled that in a criminal trial it is the duty of the Court, while appreciating the evidence on record, to exercise due diligence. The Court must bear in mind the facts and circumstances where the crime has been committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. All efforts must be to find the truth from the evidence available on record. It must also remain in the mind that there cannot be a prosecution case without any fault and therefore obligation lies on the court to analyze the evidence on record and to make sincere judicial scrutiny on the yard stick of settled principles pertaining to appreciation of evidence. The contradictions, infirmities of the evidence must be assessed on the yardstick of probability and unless infirmities and contradictions are of such a magnitude, so as to go to the core of the prosecution case, over emphasis should not be attached to such minor contradictions or infirmities. Experience reminds us that even most honest and truthful witnesses may differ in some details under the duress of cross examination, which may not affect the core of the prosecution case and their evidence therefore must be appreciated keeping in consideration their social status, their power of observation and reproduction as well as the human conduct and due regard must also be given to the fact that memory also fades by the passage of time.
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 laid down the following principles :-
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 held as under :-
"As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand."
In Shajahan and Ors. Vs. State of Kerala and Ors.,MANU/SC/1094/2007, Hon'ble Supreme Court Of India held as under :-"9. In another important case Lakshmi Singh and Ors. v. State of Bihar MANU/SC/0136/1976 : 1976CriLJ1736 , after referring to the ratio laid down in Mohar Rai's case (supra), this Court observed:
Where the prosecution fails to explain the injuries on the accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.
It was further observed that:
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
But non-explanation of the injuries sustained by the accused may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and Ors. v. State of U.P. MANU/SC/0284/1990 : 1990CriLJ1510 .
10. Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar MANU/SC/0216/1972 : 1973CriLJ44 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and Ors. v. State of Bihar MANU/SC/0181/1988 : 1988CriLJ925 , it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifling and superficial injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case. (See Surendra Paswan v. State of Jharkhand MANU/SC/0978/2003 : (2003)12SCC360 and Anil Kumar v. State of U.P. MANU/SC/0762/2004 : 2004(7)SCALE684 ." (Emphasis Ours) We have perused the record in the back ground of submissions made by learned counsel for rival parties and have found that P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi have given reliable account of the incident. All these three injured eye witnesses have established the place of occurrence as in front of or near the main door of house of Kaptan Singh. They have stated that all the appellants participated in the assault with sticks. P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi have stated to have reached at the spot after hearing the alarm raised by deceased Raja Ram and injured Ram Ratan along with other injured persons Dinesh Kumar, Hari Shankar, Majnu, Vinod and Ram Swaroop and as per their reliable evidence they were also assaulted with ''lathis' by all appellants. Deceased Raja Ram, P.W.1- Dinesh Kumar, P.W.2- Ram Ratan, P.W.3- Smt. Nanhi Devi, Hari Shankar, Majnau, Vinod Kumar and Ram Swaroop, all have sustained injuries in the incident. Their injuries have been medically examined under the police protection and P.W.9- Dr. A.K. Jain, who examined all injured persons on 28.3.1994 from 12.30 P.M. onwards, has clearly deposed that all injuries found on the person of the injured were one day old and were caused by hard and blunt object. He further opined that these injuries might have been sustained on 27.3.1994 at 8.00 P.M. Similarly P.W.8- Dr. C.N. Shukla who performed postmortem on the body of the deceased- Raja Ram has also opined that the injuries found on the person of the deceased were possible to have been caused by ''lathi- dandas'. Therefore, the medical evidence fully corroborates the reliable ocular evidence of P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi.
Though there appears minor contradictions in the testimony of these three injured/ eye witnesses with regard to the fact as to whether Raja Ram was coming back or going to extend Holi greetings at the time of incident and with regard to the fact whether Ram Ratan was actually accompanying him, but all these contradictions are minor ones which do not have any bearing on the core of the prosecution case. It is also to be taken into consideration that P.W.1- Dinesh Kumar was examined on 4.10.2002 while P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi were examined as witnesses before the trial Court on 28.10.2003, therefore all these witnesses of fact have been examined before the trial court after 8 long years of the incident and even after minute analysis and appraisal of their evidence, we do not find any material inconsistency or major contradictions in their evidence. Therefore, in our considered opinion, the evidence of these eye witnesses is reliable, truthful and acceptable. All these witnesses have sustained injuries in the incident and their presence on the spot is proved. Hence in view of above we do not find any illegality in the finding of the court below that the evidence of all three prosecution witnesses is reliable, trustworthy and can be acted upon. The fact that some injuries allegedly found on the person of the appellants- Data Ram and Ram Sewak have not been explained by the prosecution is of no consequence, as firstly no injury reports of either Ram Sewak or Data Ram was produced on record by appellants in their defence, while they filed some documents in their defence. Secondly there is only photo copy of the injuries reports of Data Ram and Ram Sewak, which are illegible and were filed along with the bail application of appellants. We are surprised that no attempt has been made by the appellants to get these medical reports proved by the doctor who had allegedly examined them. It is also apparent that the appellants after closure of evidence of prosecution and after recording their statements under Section 313 Cr.P.C. have filed some documents in their defence i.e. Chick FIR, final report, Site Plan pertaining to cross case and also copy of Complaint case, whereby it is alleged that it was informant's side which assaulted the appellants and some villagers used force to save appellants, due to which Raja Ram sustained injuries and died subsequently. Why certified copies of these injury reports pertaining to these two appellants were not brought on record and as to why their injuries were not proved by summoning the doctor, who examined them and also why any witness(s) has not been produced, who may establish their version of the incident, are questions which have not been answered by the appellants, neither before the trial court nor before this Court. This court can only take into consideration that evidence which is admissible in the facts and circumstances of the case and has also been duly proved in accordance with the provisions contained in the Indian Evidence Act. Therefore in absence of any proof of injury reports of appellants- Data Ram and Ram Sewak, It could not be presumed that they actually received injuries in the same occurrence happened on 27.3.1994.
Even if it is admitted for a moment that Ram Sewak and Data Ram got some injuries, out of which, one injury sustained by Ram Sewak, resulted in the fracture of his finger, the same would not discredit the reliable and truthful testimony of three injured eye witnesses and it is possible that while assaulting the informant side, the appellant- Ram Sewak got himself injured or any injured person from the side of informant while defending himself/ herself, unknowingly inflicted any injury on him. But keeping in view the fact that from the side of prosecution as many as eight persons had received injuries, out of which one, namely, Raja Ram died, no adverse inference could be drawn by simple injuries sustained by appellants- Ram Sewak and Data Ram, which has also not been found duly proved in the facts and circumstances of the case.
23. Therefore, firstly, no injury has been proved to have been sustained by the appellants - Ram Sewak and Data Ram and even if the photo copies of injury reports filed with bail application and one report of Medical Officer of District Jail, Hardoi are taken into consideration, injuries allegedly sustained by Ram Sewak and Data Ram are not such that non explanation of which may adversely affect the case of the prosecution and at the most these injuries may suggest that the incident may be a case of free fight.
24. In our considered opinion the evidence of all three injured eye witnesses, namely, P.W.1- Dinesh Kumar, P.W.2- Ram Ratan and P.W.3- Smt. Nanhi Devi, is reliable, trustworthy. All these witnesses are injured witnesses and keeping in view the totality of facts there is a ring of truth around the testimony of these witnesses. Therefore the prosecution has been able to prove its case against the appellants beyond any reasonable doubt that appellants assaulted Raja Ram and other injured persons in front of the house of Kaptan Singh, whereby injured persons received injuries, as a result of which Raja Ram died. It is also established that no right of private defence was available to appellants or to any other person to cause harm to the informant's party.
25. We as a Court of first appeal are conscious of our duty to ensure that to convict appellants the evidence of prosecution must be of such strength that the standard of proof beyond reasonable doubt is achieved. In our opinion, it is the paramount duty of this Court to deliberate even those issues which have not been highlighted by the appellants and which may have some bearing on the merits of the case. After carefully examining the record of the case for this purpose we find that Investigation Officer of this case has not been examined. We have perused the record of the case to find out as to why the Investigating Officer was not produced by the prosecution during trial and why the trial Court did not think it better to summon the Investigating Officer under section 311 of the Code Of Criminal Procedure. Perusal of record for this purpose reveals that when almost all the measures required for the attendance of the Investigating Officer were exhausted and his presence could not be procured, the trial Court closed the evidence of prosecution. Strangely the trial Court did not bother to summon the secondary evidence for the purpose. It shows that the trial Court was not conscious of its role in the criminal trial. The role of the presiding Judge of a criminal Court is not of a referee or umpire, he is required to get himself involved actively in the process of adjudication to know the truth. Unfortunately in this case the trial Judge was ignorant about the importance of its role in a criminal trial. The fact thus remains that the Investigating Officer of this case has not been examined. The law with regard to the consequences which may flow from non examination of the Investigating Officer in a criminal trial are no more res integra.
In Behari Prasad and Ors. vs. State of Bihar, MANU/SC/0752/1996, where Investigating Officer has not been examined, Hon'ble Supreme Court held as under :-
"23............... It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in conformity with the case made out in F.I.R. and also with the medical evidence. Hence, for non examination of investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non examination of investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence."
In similar situation Hon'ble Supreme Court Bahadur Naik vs. State of Bihar (11.05.2000 - SC) : MANU/SC/0405/2000, held as under :-
"2. The appellant has not been able to shake the credibility of the eye-witnesses. No material construction in the case of the prosecution has been shown to us. Under these facts and circumstances, the non-examination of the Investigating Officer as a witnesses is of no consequences. It has not been shown what prejudice has been caused to the appellant by such non-examination."
In Rakesh Kumar vs. State (Delhi Admn.), MANU/SC/1242/1994 ,Hon'ble Supreme Court observed as under :-
"7. The learned Counsel appearing for the appellant first contended that non-examination of S.I. Sube Singh who investigated into the case, raised a great suspicion about the truth and bone fides of the prosecution story. We do not find any substance in this contention. It appears that in spite of best efforts the prosecution could not produce him and therefore no adverse presumption can be drawn against the prosecution for his non-examination. That apart, nothing was elicited in cross examination of any of the prosecution witnesses wherefrom it could be said that the Investigating Officer's production was essentially required to give an opportunity to the defence to cross examine him with reference to statements recorded by him under section 161 Cr. P.C. or any steps taken by him during investigation. His non-examination, therefore, did not in any way affect the prosecution case nor prejudice the appellant in his defence."
In Ram Gulam Chaudhury and Ors. vs. State of Bihar, MANU/SC/0582/2001, Hon'ble Supreme Court observed as under:-
"27. In the case of Ram Dev v. State of U.P. reported in, this Court has held that it is always desirable for the prosecution of examine the Investigating Officer. However, non examination of the Investigating Officer not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses.
29. In the case of Ambika Prasad v. State (Delhi Admn.) reported in MANU/SC/0036/2000 : 2000CriLJ810, it was held that the criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over criminal trial merely to see that no innocent man is punished. It was held that a Judge presides over criminal trial also to see that guilty man does not escape. It was held that both are public duties which the judges has to perform. It was held that it was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. It was held that this conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of P.Ws,5 and 7 whose presence on the spot was established beyond any reasonable doubt. It was held that non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses."
30. In the case of Bahadur Naik v. State of Bihar reported in MANU/SC/0405/2000 : 2000CriLJ2466, it was held that non-examination of an Investigating Officer was of no consequences when it could not be shown as to what prejudice had been caused to the appellant by such non-examination.
31. In our view, in this case also non-examination of the Investigating Officer has caused no prejudice at all. All the Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The Investigating Officer was not an eye witness. The body had already been removed by the Appellant. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. There were witnesses who have gave creditable and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. We, therefore, see no substance in this submission.
In State of Karnataka vs. Bhaskar Kushali Kotharkar and Ors., MANU/SC/0702/2004, after considering the ratio propounded in Bahadur Naik and Bihari (Supra), held as under :-
"10. There is very strong and convincing evidence to prove that these respondents along with others had attacked deceased Prakash, PW-1 and PW-2. The Sessions Judge had given valid reasons for finding these respondents guilty. The Single Judge was not justified in reversing the conviction and sentence solely on the ground that investigating officer was not examined by the prosecution. As the respondents were not prejudiced by the non-examination of the investigating officer and also the constable who recorded the FI statement. The finding of the learned Single Judge is erroneous, therefore, we set aside the same."
26. Keeping in view the aforesaid legal position if we look into the facts and evidence of prosecution led in the instant case, we find that the appellants have admitted the occurrence with a cross version and have claimed that informant's side had actually assaulted them in-front of the house of appellant Data Ram. Appellants, in their defence, amongst other documents, have also filed a certified copy of the site plan prepared by the investigating officer of the case lodged by them, wherein the incident has been shown to have occurred in-front of the house of appellant Data Ram . Therefore the happening of the incident on 27.03.1994 at about 08.00 p.m. is also admitted to the appellants. The House of Dataram is situated at a short distance from the house of Kaptan singh, as is evident by the site plans prepared in both cases and the prosecution claimed that the incident in the instant matter occurred in-front of the house of Kaptan. We have gone through the evidence of all the prosecution eye witnesses and have found no infirmity either with regard to the consistency or reliability of these witnesses. All eye witnesses PW-1 Dinesh Singh, PW-2 Ratan Singh and PW-3 Smt. Nanhi are injured witnesses and have given truthful account of the incident. There are no material contradictions in their statements . The spot where incident occurred has been established by these witnesses. No material improvements or contradictions are evident in their testimony. We do not find any thing in the statement of these witnesses which may suggest that the appellant in any manner have been prejudiced by non presentation of investigating Officer and perhaps for this reason this issue was not raised either at thae stage of trial or even before this Court. Therefore in the facts and circumstances of the case non examination of Investigating Officer is not fatal to the prosecution and it is not a ground to disbelieve the otherwise reliable and trustworthy prosecution witnesses. As mentioned above, evidence, facts and circumstances of this case do not reflect that any prejudice has been caused to the appellants on account of non examination of the Investigating Officer. The evidence of the ocular witnesses further shows that no material contradictions were put to them regarding the facts stated by the eye witnesses, from their statements recorded under Section 161 of Cr. P.C. or about the place of occurrence. There was also no effective cross examination regarding the place of occurrence stated by the witnesses to infer any prejudice and as such the appellants were not put to any prejudice by non examination of Investigating Officer and therefore, we find that non examination of Investigating Officer in this case has not resulted in any kind of prejudice to the appellants.
27. Now we come to the next question, as to what offence has been committed by the appellants. The trial Court, vide impugned judgment and order has convicted the appellants for committing the offences under Sections 302/34, 325/34, 323/34 IPC. The proved facts in brief are that on 27.3.1994 at 8.00 P.M. appellants on the basis of previous enmity pertaining to the passage, whereby deceased- Raja Ram used to bring his tractor- trolley, at first assaulted Raja Ram and Ram Ratan and when they raised an alarm, rest of the injured persons who went to save them were also assaulted. The injury reports of all injured persons and injury report and postmortem report of deceased Raja Ram clearly reveal that the injuries sustained by the deceased and injured persons have been caused by the use of sticks. It is also proved that all appellants have participated in the assault and also that they were acting in furtherance of their common intention. The law on this point is well settled that common intention to commit any offence may be formed instantly at the spur of the moment at the spot or even during the course of fight.
28. Hon'ble Supreme Court Of India in Arjun and Ors. Vs State of Chhattisgarh reported in MANU/SC/0153/2017, wherein the appellants assaulted the deceased with katta, gandasa and stone and deceased fell down and sustained injuries on his head and his brain matter came out and he died on the way to the hospital has held as under :-"20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh MANU/SC/0589/1989 : (1989) 2 SCC 217, it has been explained as under:
7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly..............
21. Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil Nadu MANU/SC/8108/2008 : (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 Indian Penal Code can be invoked if death is caused, it has been explained as under:
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general Rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I Indian Penal Code and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II Indian Penal Code. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the Appellants had intention and knowledge to cause the injuries and thus it would be a case falling Under Section 304 Part I Indian Penal Code. The conviction of the Appellants Under Section 302 read with Section 34 Indian Penal Code is modified Under Section 304 Part I Indian Penal Code. As per the Jail Custody Certificates on record, the Appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the Appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction Under Section 304 Part I Indian Penal Code, the sentence is modified to that of the period already undergone."
In Surinder Kumar v. Union Territory, Chandigarh MANU/SC/0589/1989 (1989) 2 SCC 217, Hon'ble Supreme Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of Exception of section 300 IPC provided he has not acted cruelly. It was held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 this Court observed:
"..... To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
In Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528, MANU/SC/0124/2003, it is held as under :-
"...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight: (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300. IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4 It is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
In Sukbhir Singh v. State of Haryana (2002) MANU / SC/016/2002 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. Hon'ble Supreme Court has held that the appellant had acted in a cruel and unusual manner in following words :-
"...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner."
For considering the question whether the act of the appellant will fall under Section 304 Part I or Part II of the IPC, we notice the distinction between these two parts of that provision as drawn by Hon'ble Supreme Court in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, MANU/SC/0015/2012 which is in the following words:
"..... For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death...."
In Basdev v. The State of PEPSU AIR 1956 SC 488, Hon'ble Supreme Court drew distinction between motive, intention and knowledge in the following words:
"....Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things..."
Hon'ble Supreme Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, MANU/SC/8419/2006 enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused relevant portion of which is extracted herein below:
"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
In the case of Surain Singh Vs. State of Punjab reported in MANU/SC/0399/2017 (2017) 5 SCC 796, Hon'ble Supreme Court has reiterated the settled legal position about the purport of Exception 4 to Section 300 of IPC. In this case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC and observed as under:-
"15. The weapon used in the fight between the parties is 'Kirpan' which is used by 'Amritdhari Sikhs' as a spiritual tool. In the present case, the Kirpan used by the Appellant-accused was a small Kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the Doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the Appellant-accused inflicted injuries using Kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the Accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injuries caused were the result of blow with a small Kirpan and it cannot be presumed that the Accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of the opinion that the Appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
16. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the Appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the Accused is entitled to the benefit of Section 300 Exception 4 of the Indian Penal Code."
Therefore the role of appellants, in commission of crime, is to be analyzed and appreciated in the background of above mentioned legal position.
29. Careful perusal of evidence available on record reveals that the occurrence on the fateful day has been proved to have happened in two parts. At first, Raja Ram and Ram Ratan were assaulted by the appellants with sticks and when other injured persons came to their rescue, they were also assaulted. The appellants have failed to prove that they were having any right of private defence and they also failed to prove the photo copies of injury reports filed with the application of bail with regard to appellants- Data Ram and Ram Sewak, but a report sent by Medical Officer, District Jail, Hardoi to Judicial Magistrate, Hardoi on 18.4.1994 is also available on record, whereby it was informed that Ram Sewak got a fracture in his finger. However, this report could not prove the existence of any right of private defence in favour of appellants but these photo copies of injury reports coupled with the above mentioned report of Medical Officer, District Jail, Hardoi may suggest that both the appellants i.e. Data Ram and Ram Sewak might have sustained some simple injuries in the occurrence, therefore, it appears that some resistance was also offerred by the informant side, though, the same may be without any intention to cause harm to any one and might be only to defend themselves. The ''marpit' in the incident is also proved to have occurred in front to the house of Kaptan Singh and this place falls at equal distance from the house of Data Ram and informant/ deceased Raja Ram. Therefore, it is not a case where ;the appellants had come to the house of Raja Ram for the purpose of assaulting him. Per contra the incident had happened when Raja Ram and Ram Ratan were going to extend Holi greetings to the villagers and the appellants were not having any prior information about their arrival. It is also apparent that incident had occurred without premeditation, in the spur of moment and keeping in view the weapon of assault i.e. Lathi and number of injuries caused to the deceased Raja Ram and also the fact that from amongst the injuries sustained by the deceased only one injury has been found fatal, there appears no common intention of appellants to commit murder of Raja Ram. It is also apparent that appellants had not acted in a cruel manner and did not take undue advantage of the situation. It is also worth consideration that the First information report of the case was initially registered under Sections 323, 504, 506 IPC and deceased Raja Ram, even after sustaining injuries, remained in his house for the whole night and approached the Police Station, the next day. Therefore it is not established beyond reasonable doubt on record that appellants were having any intention to commit murder of Raja Ram, but keeping in view the fact that it was only one blow of lathi, inflicted on the head of the deceased- Raja Ram which resulted in the laceration of his brain and membranes and that hematoma was also found beneath this injury and also the fact that some injuries sustained by other injured persons were also found simple in nature, what is found proved is that the appellants were certainly having sufficient common intention/knowledge that their act is likely to result in the death of deceased- Raja Ram or of any other injured person and that they have not acted in a cruel or brutal manner and also have not taken undue advantage of the situation. Thus, in the facts and circumstances of the case they are found to have committed the offence punishable under Section 304 part (II) of the IPC instead of Section 302.
30. In Afrahim Sheikh and Ors. vs. State of West Bengal reported in MANU/SC/0055/1964 Hon'ble Supreme Court while considering the issue as to whether the accused persons could be convicted under Section 304 part II of the IPC with the aid of section 34 of the IPC, opined as under :-
"15. The question is whether the second part of s. 304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating, the requirements of s. 304, Part II are not satisfied in the case of each of them ? If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why s. 304, Part II cannot be read with s. 34. The common intention is with regard to the criminal act, i.e., the act of beating. If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e., beating, there is no reason why s. 34 or s. 35 should not be read with the second part of s. 304 to make each liable individually."
Above principle was approved by Hon'ble Supreme Court in Bhaba Nanda Sarma and Ors. vs. State of Assam ,MANU/SC/0078/1977.
In Saravanan and Ors. vs. State of Pondicherry, MANU/SC/0952/2004 relying on Afrahim Sheikh (Supra),Hon'ble Supreme Court held as under :-
"10. In the leading case of Barendra Kumar Ghosh v. Emperor ( AIR 1925 PC 1, the appellant was charged under Section 302 read with Section 34 IPC for murder of a Post Master. The evidence disclosed that while the Post Master was in the office counting money, three persons of whom appellant was one, fired pistols at him asking him to hand over cash. The trial Judge directed the Jury that if they were satisfied that the Post Master was killed in furtherance of the common intention of all the three, the appellant could be held guilty of murder whether or not he had fired the fatal shot. The appellant was accordingly convicted. Being aggrieved by such conviction, the appellant approached the Privy Council. It was contended on behalf of the prisoner that he was outside the room. He was in the courtyard and was frightened. He did not participate in the crime and hence, he could not have been convicted for an offence punishable under Section 302 IPC by invoking Section 34 IPC. The contention was, however, negatived. It was held that once it is established that an act was committed in furtherance of the common intention of all, Section 34 could be attracted and all could be held liable irrespective of their individual act.
11. The Judicial Committee observed that the distinction between two types of offenders (i) principals in the first degree, that is, who actually commit the crime; and (ii) principals in the second degree, that is, who aid in commission of the crime, as found in English law has not been strictly adhered to in India. In the circumstances, according to their Lordships, Section 34 would be attracted provided that it is proved that the criminal act was done by several persons in furtherance of the common intention of all.
12. Dealing with the argument on behalf of the appellant that he had not fired any shot, the Judicial Committee observed that if two men tie a rope round the neck of third man and pull opposite ends of the rope till he is dead, each can be held liable for the ultimate act, i.e. death of the victim. If the contention on behalf of the appellant would be upheld that each should be held liable for his act only, each can successfully contend that the prosecution had not discharged the onus inasmuch as nothing more was proved against each of them, than an attempt to kill which might or might not have succeeded. "Thus both will be acquitted of murder, and will only be convicted of an attempt, although the victim is and remains a murdered man." Referring to Sections 33, 34, 37 and 38 IPC, it was held that even if the appellant did nothing as he stood outside the door, he could be held liable. It is to be remembered that in crimes as in other things "they also serve who only stand and wait."
31. Therefore, in view of aforesaid discussion all appellants are required to be convicted under Section 304 part (II) read with Section 34 of the IPC, instead of Section 302 read with Section 34 IPC. In view of above, both the appeals filed by the appellants are partly allowed and their conviction under Section 302 read with Section 34 of the IPC is altered from Sections 302/34 to Section 304 Part II read with Section 34 of the IPC and all appellants are now convicted for committing the offence under Section 304 part (II) read with Section 34 of the IPC.
Keeping in view the fact that the incident is of the year 1994 and only one injury on the head of the deceased Raja Ram has been found to be fatal and it is not clear as to who is the author of this fatal injury and the appellants are being convicted, as they were sharing common intention/knowledge that their acts are likely to result in the death of Raja Ram, in our considered opinion, imprisonment for 9 years for committing the offence under Section 304 (II) IPC, will meet the ends of justice. Therefore, the appellants no. (1) Siya Ram (2) Data Ram (3) Ram Ratan and (4) Ram Sewak are convicted under Section 304(II) read with section 34 of IPC and sentenced to undergo rigorous imprisonment for 9 years and fine of Rs. 10,000/- each and in default of payment of fine they will further undergo simple imprisonment for six months.
So far as conviction and sentence of appellants as ordered by the trial court with regard to Sections 325 and 323 read with Section 34 IPC is concerned we do not find any infirmity in the same and therefore the same is maintained. All punishment will run concurrently and appellants will also get the benefit of Section 428 of Crpc. The judgment and order of the trial court is modified accordingly.
The appellants are reported to be on bail, their bail bonds are canceled and they are directed to surrender before the trial court within 20 days from today. They shall be lodged in jail to serve out the sentence as modified by this Court.
Copy of this judgment be immediately sent, along with the record, to the court below for information and compliance.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyaya,J.)
Order Date :- 08.11. 2019
Muk