Allahabad High Court
Ram Chandra And Others vs State Of U.P. on 12 September, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 04.08.2022 Delivered on: 12.09.2022 Court No. - 76 Case :- CRIMINAL APPEAL No. - 2834 of 1984 Appellant :- Ram Chandra And Others Respondent :- State of U.P. Counsel for Appellant :- Tej Ram,Deepak Kaushik Counsel for Respondent :- A.G.A. Hon'ble Mohd. Aslam,J.
1. Heard learned counsel for appellants, learned A.G.A. for the State-respondent and perused the lower court record.
2. This criminal appeal has been preferred against the impugned judgement of conviction and order of sentence dated 27.09.1984 passed by learned Additional Sessions Judge-V, Muzaffarnagar in Session Trial No. 304 of 1981 (State of UP vs. Ram Chandra and others), whereby appellants Nathan, Sohanvir, Tirath Pal, Srichand and Atroo were convicted for offence punishable under Sections 147 and 323/149 I.P.C. and Were released on probation for a period of one year for keeping peace and good behaviour on furnishing personal bond of Rs.1000/- and two sureties of the like amount, if they fail to furnish the bonds or commit breach of any conditions during such period, they shall be called upon to serve out the sentences which shall be passed later on.
3. Accused-appellants, Ram Chandra, Atroo and Nathan were sentence to undergo rigorous imprisonment for six (06) months for offence punishable under Section 147 I.P.C. and to further undergo rigorous imprisonment for six (06) months for offences punishable under Section 323/149 I.P.C. Both the sentences shall run concurrently.
4. In brief, the prosecution case is that a litigation was going on between the accused-appellants and informant/PW1 Smt. Hoshiyari regarding a Gher and the informant won the case on 11.07.1980. In the intervening night of 29/30.07.1980 informant Smt. Hoshiyari, her husband Pheru and son Ranjit were sleeping under the beneath of the same Gher and at about 06:00 am accused-appellants, Ram Chandra, Nathan, Sohanvir, Tirath Pal, Sri Chand, Atroo and Shyam Singh armed with lathies, ballams and hockey came there and started hurling abuses and also extended threat to kill. They also untied the cattle of informant and when her husband and son forbade them, they started beating her husband and son Ranjit with their respective weapons. Meanwhile, her son Om Prakash came from tube well who was also beaten by them. The occurrence was witnessed by Rajvir, Sunehra etc. who rescued them. The accused-appellants dragged his son Ranjit and husband Pheru to their house and got them bolted in a room. The first information report was lodged by complainant/PW1, Smt. Hoshiyari on 30.07.1980 at about 09:30 am at Police Station Khatauli, District Muzaffanagar on the basis of written complaint (Ext.Ka.1) scribed by Rajvir son of Asha Ram, resident of Village Chand Samand, P.S. Khatauli, District Muzaffarnagar. Constable Brahm Singh drawn the Chik F.I.R. No. 235 of 1980 (Ext.Ka.2) on 30.07.1980 at 9:30 am and registered the Case Crime No. 279, under Sections 147, 148, 324, 307, and 342 I.P.C. against all the accused-appellants and by making necessary entry (Ext.Ka.3) in GD report no.17 at 9:30 am on 30.07.1980. The investigation of the case was handed over to SI Chaman Lal (PW4) who recorded the statement of informant, Smt. Hoshiyari at village Chand Samad. Thereafter, he visited the house of accused where accused Ram Chandra, Sohanvir and Sri Chand were sitting in the veranda of the house and found the door of the room in north side of the veranda locked, thereupon, he asked the accused to open the door, thereupon, accused-appellant Ram Chandra opened the lock and it was found that there was a lock on the door in south side, thereafter, Kundha of the door was taken out where injured Pheru, Ranjit were found lying in unconscious state who had sustained severe injuries. The aforesaid two locks, keys and kunda were taken in police custody and recovery memo of injured (Ext.Ka.4) before in presence of witnesses Sunehara and Jagdish was prepared. The injured Om Prakash was found at tubewell and was sent for medical examination.
5. PW6 Dr. Kailash Chand, MOH Sikandrabad, District Bulandshahr had medically examined the injured Pheru and following injuries were found on his body at the time of medical examination:-
i. Lacerated wound 2 cm x 1/4 cm x1/4 cm on the left eyebrow.
ii. Abrasion 2¼ cm x ½ cm on the left side of face.
iii. Lacerated wound 1½ cm x ¼ cm x ¼ cm on the left side skull posterior to ear line.
iv. Lacerated wound 2½ cm x ¼ cm x ¼ cm on the right side of skull posterior to ear line.
v. Lacerated wound 3 cm x ½ cm x ½ cm on the right side of skull below the injury no.4.
vi. Lacerated wound 2½ cm x ¼ cm x ½ cm on the top of skull anterior to ear line.
vii. Incised wound 3 cm x ½ cm x ½ cm on left side skull on posterior aspect.
viii. Lacerated wound 3 cm x ½ cm x ½ cm on the left side of skull anterior to ear line.
ix. Lacerated wound 2 cm x ½ cm x ½ cm on the left side of skull anterior to injury no.8.
x. Abrasion 1½ cm x 1 cm on the top of right shoulder.
xi. Bruise 13½ cm x 6 cm in right shoulder extending to the upper part of right upper arm. xii. Abraded Bruise 4 cm x 2 cm on the right side back over scapular region.
xiii. Bruise 4 cm x 2 cm on the top of left shoulder.
xiv. Bruise 11½ cm x 2 cm on the left side back over scapular region.
xv. Bruise 6½ cm x 2 cm on the anterior aspect of right forearm on upper ½, advised X-ray right forearm. xvi. Bruise 10 cm x 4 cm on posterior aspect of right forearm on the middle third-part. xvii. Bruise 6 cm x 3 cm on the lateral aspect of right forearm on lower half part, advised x-ray. xvii. Bruise 6 cm x 2 cm on the posterior aspect of left forearm on upper ½.
xix. Incised wound 1½ cm x ¼ cm x ¼ cm on the anterior aspect of right leg on lower ½ part. xx. Lacerated wound 1 cm x ½ cm x ¼ cm on the medial side of left leg on lower ½ part.
xxi. Abraded Bruise 4½ cm x 3½ cm on the left knee joint.
xxii. Abrasion 4½ cm x 2 cm on the posterior aspect of right armpit.
xxiii. Abrasion 1½ cm x ½ cm on the right side back over scapular region.
xxiv. Bruise 3½ cm x 1½ cm on the dorsum of left foot anterior to left lateral malleolus. Swelling is around ankle joint, advised X-ray. Doctor opined that injury nos.7 & 19 were caused by sharp weapon remaining injuries were caused by some blunt weapon. He also opined that injuries except injury nos. 15, 17 & 24 were simple in nature. Duration of injuries was found about of half a day old and advised x-ray for injury nos. 15, 17 & 24. PW6 Dr. Kailash Chand prepared the injury report of injured Pheru (Ext.Ka.10.) in his own handwriting at the time of medical examination.
6. PW6 Dr. Kailash Chand also examined injured Ranjit on 30.07.1980 at about 2:30 pm. At the time of medico-legal examination, his age was found to be about 30 years. Following injuries were found on the body of the injured Ranjit:-
i. Lacerated wound 2½ cm x ½ cm x ¼ cm on the left side skull posterior to the ear line.
ii. Lacerated wound 3½ cm x ½ cm x ½ cm on the left side skull above injury no.1.
iii. Lacerated wound 1 cm x ¼ cm x ¼ cm on the right side skull anterior to ear line 8½ cm above the right ear. iv. Abraded bruise 4½ cm x 2 cm on the posterior aspect of left shoulder.
v. Abrasion 1 cm x ¾ cm on the left side back below injury no.4.
vi. Abrasion 1½ cm x 1 cm on the left side back on lower half.
vii. Bruise 7½ cm x 2 cm on the posterior aspect of right shoulder.
viii. Bruise 4 cm x 1½ cm on the posterior aspect of right shoulder lateral to injury no.7. ix. Bruise 6½ cm x 2 cm on the lateral side of left upper arm on lower half part.
x. Bruise 11½ cm x 2 cm on the lateral side left chest.
xi. Abrasion 4 cm x 1 cm on the posterior aspect of right forearm on middle third part. xii. Suspected fracture of bones on middle of right forearm. Swelling and tenderness present. Advised x-ray right forearm. xiii. Lacerated wound 2 cm x ¼ cm x ¼ cm on the anterior aspect of left thigh on the middle third part. xiv. Lacerated wound 1 cm x ½ cm x ¼ cm on the anterior aspect of left leg on lower 1/2 part. xv. Bruise 3½ cm x 1½ cm on the posterior aspect of left forearm on upper ½ part.
Doctor opined that probable duration of injuries was found to be about ½ day and were caused by blunt weapon. The injuries except injury no.12, which was advised for x-ray, were simple in nature. PW6 Dr. Kailash Chand prepared the injury report of injured Ranjit (Ext.Ka.11).
7. PW6 Dr. Kailash Chand further examined the injured Om Prakash on the same day at about 3 pm. Following injuries were found on the body of the injured:-
i. Incised wound 5½ cm x ½ cm x ½ cm on the right side skull anterior to ear line.
ii. Lacerated wound 1½ cm x ¼ cm x ¼ cm on the left side skull 8½ cm above left ear.
ii. Lacerated wound 1 cm x ¼ cm x ¼ cm on the left side skull joining injury no.2 at right angle. iv. Lacerated wound 4½ cm x 1 cm x bone deep on the anterior aspect of right leg on lower half. v. Incised wound 2 cm x ¼ cm x ¼ cm on the anterior aspect of left leg on upper ½ part.
vi. Lacerated wound 2 cm x ½ cm x ¼ cm on the anterior aspect of left leg below the injury no.5. vii. Lacerated wound 1 cm x ¼ cm x 1/8 cm on the anterior aspect of left leg medial to injury no.6. viii. Abraded bruise 6 cm x 1½ cm on the lateral side of left knee joint.
ix. Incised wound 1 cm x ¼ cm x ¼ cm on the medial side of left wrist joint.
x. Abrasion 2½ cm x ¼ cm on the dorsum of left hand.
xi. Abrasion ½ cm x ½ cm on the dorsum of left hand near the base of little finger.
xii. Abrasion 1½ cm x ½ cm on the dorsum of left hand near the base of ring finger.
xiii. Traumatic swelling on the dorsum of left hand. Advised x-ray.
xiv. Bruise 14½ cm x 2½ cm on the back on both sides.
xv. Bruise 4½ cm x 2 ½ cm on the left shoulder.
xvi. Multiple abrasion present in area 4½ cm x 1 cm on the lateral side of left upper arm. xvii. Bruise 4 cm x 2 cm on the left upper arm on deltoid region.
xviii. Bruise 4 cm x 3 cm on the medial side of right foot near toe.
xix. Complaint of pain on the right palm and left hip.
xx. Bruise 4 cm x 3 cm on the medial side of left thigh on upper ½ part.
Doctor opined that probable duration of injuries was found to be ½ day old. The injuries except injury nos. 1, 5 & 9 which were caused by sharp weapon, were caused by blunt weapon. All the injuries except injury no.13 which was advised for x-ray and kept under observation, were simple in nature. PW6 Dr. Kailash Chand prepared the injury report of injured Om Parkash (Ext.Ka.12).
8. PW5 Dr. D.C. Mobar on 31.07.1980 got conducted x-ray of right forearm of injured Ranjeet under his supervision vide x-ray plate no.2839 and prepared x-ray report of injured Ranjit (Ext.ka.7) and found fracture of radius and ulna bone into middle third. No calus was seen. He also got conducted x-ray of right forearm of injured Pheru vide x-ray plate nos. 2837, 2838 and prepared x-ray report (Ext.Ka.8) wherein fracture of ulna bone in its lower sixth was found. No calus was seen. He also got conducted the x-ray of left hand of injured Om Parkash under his supervision vide x-ray plate no. 2840 wherein no abnormality was seen and prepared x-ray report (Ext.Ka.9).
9. After recording the statements of rest witnesses and completing the investigation, SI Chaman Parkash Sharma (PW4) submitted the charge-sheet (Ext.Ka.6) against the accused-appellants Ram Chandra, Nathan, Sohanvir, Tirath Pal, Sri Chand, Atroo and accused Shyam Singh under Sections 147, 148, 324, 342 and Section 307 I.P.C.
10. Learned Chief Judicial Magistrate took cognizance of offences against the accused-appellants and accused Shyam Singh for offence punishable under Sections 147, 148, 324, 342 and 307 I.P.C. and after complying the provision of Section 207 of Cr.P.C. committed the case for trial by the court of sessions.
11. On 18.02.1983, learned 5th Additional Sessions Judge, Muzaffar Nagar framed charges for offence punishable under Sections 148, 307/149 I.P.C. against the accused Ram Chandra and Shyam Singh and under Sections 147, 307/149 I.P.C. against rest accused persons on the basis of police papers. The accused Shyam Singh was acquitted. The accused-appellants pleaded not guilty and claimed to be tried.
12. Prosecution in order to prove its case examined informant, Smt. Hoshiyari as PW1, injured Pheru as PW2 and Sunehra as PW3 as the witnesses of the fact. PW1, Smt. Hoshiyar proved the written complaint (Ext.Ka.1). The Investigating Officer SI Chaman Prakash was examined as PW4 to prove the Chik Report (Ext.Ka.2), copy of GD registering the case (Ext.Ka.3), recovery memo of injured persons from the locked room of accused-appellant Ram Chandar along with two locks, keys and kundha (Ext.Ka.4). He also proved the steps taken in investigation, site plan (Ext.Ka.5) and charge-sheet (Ext.Ka.6). Dr. Kailash Chand was examined as PW6 to prove the injury reports of injured Pheru (Ext.Ka.10), injured Ranjeet (Ext.Ka.11) and injured Om Prakash (Ext.Ka.12). Dr. D.C. Mobar was examined as PW5 to prove the supplementary report prepared on the basis of X-ray examination of the injuries of injured Pheru (Ext.Ka.7), Ranjeet (Ext.Ka.8) and Om Prakash (Ext.Ka.9) and the prosecution evidence was closed.
13. Statements of accused-appellants and co-accused Shyam Singh under Section 313 Cr.P.C. were recorded wherein they denied the prosecution case and stated that they had been falsely implicated in this case on account of enmity with the informant. Accused Sri Chand stated that he was implicated in this case because he is son of Ram Chandar. Appellant, Atroo stated that he was witness in cross-case on account of which he was falsely implicated. The appellants, Tirath Pal and Sohanvir stated that they were implicated in this case being the sons of accused-appellant Ram Chandar. Appellant, Nathan stated that accused-appellant Ram Chandra is his father and he also sustained injuries, therefore, he was falsely implicated. The acquitted accused Shyam Singh stated that Kaley was indebted to him who had executed a sale deed in favour of Pheru and Sunehra, thereafter, he instituted a suit against Kaley and a suit for consideration of sale deed against Pheru and Sunehra. He further stated that he was doing pairvi of the case of Ram Chandra. He was not present on the place of occurrence and on account of enmity as stated above, he was falsely implicated in this case.
14. The accused-appellants examined Dr. D.D. Gupta as DW1 to prove the injury report of accused-appellant, Nathan (Ext.Kha.1) who had medically examined him on 30.07.1980 at 6:20 pm and found following injuries on his person:-
i. contusion 2½" x 2" on left elbow of its back-red.
ii. contusion 2½" x ½" on left leg upper one third aspect-red.
iii. contusion 3½" x ¾ on right thigh upper one third outer aspect-red.
iv. contusion 3" x ¾ on back of left shoulder-red.
v. contusion 2" x ½" on back of right hand-red.
vi. contusion 3½" x ¾" back left side lower one third-red.
Doctor opined that injuries were simple in nature caused by blunt object and the probable duration was within 24 hours (one day).
15. The accused-appellants also examined witness Mahendra Singh as DW2 to prove the cross version of the incident. The accused-appellants adduced following evidences in defence:-
i. copy of Chik F.I.R. Case Crime No. 279A, under Sections 395, 397 I.P.C. Chik No.236 dated 01.08.1980 at 12:30 p.m. regarding the incident took place on 30.07.1980 at 3-4 a.m. lodged against Pheru, Ranjeet, Om Prakash, Jay Prakash and Jai Pal (Ext.Kha.2). ii. copy of judgment in Case No.61/11 (Ram Chandra vs Pheru), under Section 145 Cr.P.C. passed on 01.09.1981 (Ext.Kha.3). iii. copy of judgement passed by Ist Additional Sessions Judge, Muzaffarnagar in Criminal Revision No. 112 of 1980 (Ram Chandra vs. Pheru and others) dated 04.09.1980 (Ext.Kha.4). iv. copy of judgement passed by IVth Additional Sessions Judge, Muzaffarnagar in Criminal Revision No. 115 of 1981 (Pheru and others vs. Ram Chandra and Another) dated 05.12.1981 (Ext.Kha.5). v. copy of judgement passed by S.D.M. Jansath in Case No.104/11 of 1981 (Ram Chandra vs. Pheru) dated 21.06.1982 (Ext.Kha.6). vi. copy of order dated 11.07.1980 in the case Ram Chandra vs. Pheru (Ext.Kha.7).
vii. copy of complaint in the case Ram Chandra vs. Pheru and others under Sections 395, 397 I.P.C. regarding occurrence dated 30.07.1980 at 3-4 a.m. (Ext.Kha.8).
16. The trial court examined Constable Surendra Kumar as court-witness, C.W.1, on the request of accused-appellants to prove the fact that on 30.07.1980 he was posted at police station Khatauli and at 05:15 p.m. Inspector Subhash Chand Garg, SI Chaman Parkash, SI Sukhlal Sharma along with Constables Babu Ram and Amrish Chandra returned to police station along with accused-appellants Ram Chandra, Sohanvir, Shri Chand in custody and handed over the above named accused-appellants to him along with two locks, keys and kundha which was mentioned in GD Report No. 24 on 30.07.1980 at 05:15 p.m. (Ext.C.1).
17. Learned court below after hearing the arguments of learned Additional Government Counsel and learned counsel for accused-appellants, acquitted the accused Shyam Singh and after appreciation of evidence it was held that marpeet first of all took place inside the Gher and subsequently Ranjit and Pheru were brought to the house of Ram Chandra where they were assaulted again. Learned court below also held that Ram Chandra and his family members were in possession of the Gher since before occurrence and when the proceedings under Section 145 Cr.P.C. was dropped on 11.07.1980, Pheru and others tried to show their possession and occupied that Gher and the accused persons had every right to defend their possession and they had right to cause injuries to Pheru and others. Learned court below further observed that accused Ram Chandra etc. were in possession over the Gher and Pheru and Ranjit had forcibly occupied the Gher on the same day, although accused persons did not take the plea of self-defence. Therefore, Ram Chandra could exercise the right of private defence. It was further held that it is inevidence that after beating the injured Pheru and Ranjit, the accused persons dragged them to their house and got them confined and concocted a false story. Learned court below further held that accused persons had every right to cause injuries to Pheru, Ranjit and Om Parkash inside the Gher, but dragging of Pheru and Ranjit to the house of accused Ram Chandra is totally illegal and unlawful. If Pheru and Ranjit were brought to the house of Ram Chandra, accused had no right to beat them. It was further held that accused-appellants had mercilessly beaten the injured. Learned lower court also referred to the statement of PW2, Pheru who had stated that accused-appellants repeatedly beaten him and Ranjit inside the house also. On appreciation of evidence it was held that Ranjit and Pheru were conscious when they were being beaten inside the Gher and subsequently they become unconscious while they were dragged to the house of Ram Chandra from the Gher. This was totally illegal and unlawful. Similarly, the bearting of Pheru and Ranjit insdie the house of Ram Chandra was also illegal and unlawful. Learned court below also held that it is not definite as to which of the injuries had been sustained by Pheru and Ranjit inside the Gher and at the house, since Ram Chandra etc. caused injuries to Pheru and Ranjit in self-defence in side the Gher, therefore, the accused persons cannot be convicted for the offence punishable under Sections 147, 323, 324, 325 I.P.C. for beating inside the Gher because they were exercising the right of private defence. The moment these accused persons dragged Ranjit and Pheru to the house of Ram Chandra and confined them inside a room and began to beat them, they committed an offence punishable under Section 147 and 323/149 I.P.C. Learned lower court also held that since it is not clear as to which of the injuries had been received inside the Gher and which of the injuries had been received inside the house of Ram Chandra, therefore, the accused persons can be convicted for the minor offence under Section 323 I.P.C. and they cannot be convicted for the offence punishable under Sections 324/325 I.P.C. The accused Shyam Singh was acquitted and accused-appellants Ram Chandra, Nathan, Sohanvir, Tirath Pal, Shri Chand and Atroo were convicted and sentenced as follows:-
(i) Accused-appellants Sri Chand, Tirath Pal, Sohanvir was released on probation for a period of one year for keeping peace and good behaviour on each of them furnishing personal bond of Rs.1000/- and two sureties of the like.
(ii) Accused-appellants Ram Chandra, Atroo and Nathan were sentenced to undergo rigorous imprisonment for six (06) months for offence punishable under Section 147 I.P.C. and to further undergo rigorous imprisonment for six (06) months for offence punishable under Section 323 read with Section 149 I.P.C. Both the sentences were directed to run concurrently.
18. Feeling aggrieved by the impugned judgement of conviction and order of sentence dated 27.09.1984, accused-appellants preferred this criminal appeal under Section 374 (2) Cr.P.C.
19. It has been submitted by learned counsel for accused-appellants that from the oral and documentary evidence available on the record, it is proved that the informant party had tried to take possession over the Gher forcibly and in this regard marpeet has taken place. It is further submitted that from the evidence available on record it has been held by learned court below that it is the informant party who were aggressor and the appellants assaulted the injured persons in exercise of their right of private defence, therefore, accused-appellants have wrongly been convicted and sentenced by the court below. Injuries have also been sustained from the side of appellants in the incident which has been explained by the prosecution, meaning thereby, the prosecution has suppressed the genesis of the case, therefore, benefit of the doubt should be extended to the accused-appellants. It it is further submitted that on 30.07.1980 at about 3-4 a.m. Pheru, Ranjit, Jai Pal, Jai Prakash, armed with Lathi, Ballam and Om Parkash, armed with country made Katta, came to the house of appellant, Ram Chandra with intention to commit dacoity and started assaulting the appellants, thereupon, in defence the appellants also used lathi and danda and apprehended Pheru and Ranjit with the help of villagers and rest persons fled from there after taking a bundle of Rs.2000/- regarding which appellant, Ram Chandra lodged a first information report on 01.08.1980 at 12:30 p.m. (Ext.Kha.2) and the learned court below has wrongly disbelieved the defence case. In order to prove the defence version, witness Mahendra Singh was examined as DW2 who has supported the defence case. On the request of appellants, Constable Surendra Kumar was also examined as court witness, CW1, who has proved the GD entry no.24 on 05:15 p.m. dated 30.07.1980 (Ext.Ga.1), which proves that injured Pheru and Ranjit were recovered from the house of appellant, Ram Chandra. From the evidence on record, it is proved that Pheru, Ranjit, Om Prakash, Jai Prakash and Jai Pal committed dacoity in the house of Ram Chandra and Pheru, Ranjit and Om Prakash sustained injuries while appellants were exercising their right of private defence. The learned court below has wrongly and illegally disbelieved the version of the defence, therefore, the impugned judgement of conviction and order of sentence passed against the accused-appellants is liable to set-aside.
20. Learned A.G.A. has opposed the appeal and submitted that the occurrence has taken place on 30.07.1980 at about 6 a.m. and the first information report has been lodged promptly on the same day at about 9:30 a.m, which rules out the chances of concoction of a false case against the appellants. The police station is about 5 miles away from the place of occurrence. The chik report was proved by the evidence of Investigating Officer, PW4 SI Chaman Prakash. The first information report has been lodged on the basis of written complaint (Ext.Ka.1) written by Rajveer on the dictation of PW1, Smt. Hoshiyari. It is further submitted that PW1, Smt. Hoshiyari is an eye-witness who has given vivid description of the incident in her deposition and nothing come in her cross-examination to discredit her deposition. The injured witness PW2, Pheru has also given vivid description of the prosecution case which finds support from the deposition of independent witness PW3, Sunehra. The injured Pheru and Ranjit were recovered from a room of the house of appellant, Ram Chandra door of which was locked by Ram Chandra and the same was opened by appellant, Ram Chandra on the direction of PW4, Chaman Prakash. The accused-appellants Ram Chandra, Sohanveer and Shri Chand were found sitting in veranda of the house and were arrested from there. It is further submitted that at the time of recovery of injured Pheru and Ranjit they were found unconscious lying on the floor of the room and a lot of injuries were found on their body. The Investigating Officer, PW4 took two locks, keys and Kundha in his possession and sealed them and prepared recovery memo of the injured in presence of witnesses Sunehra and Jagdish. The prosecution case is supported by medical evidence and X-ray report, which have been proved by Dr. Kailash Chand (PW6) and Dr. D.C. Mobar (PW5). It is further submitted that learned lower court has held that injured have sustained injuries while they were taking forcible possession over the Gher of accused-appellants and accused persons caused injury in exercise of their right of private defence of property, but learned lower court has also held that the injured Pheru and Ranjit were dragged from Gher to the house of Ram Chandra and were also assaulted there in furtherance of common object and held the accused-appellants guilty for offence punishable under Sections 147, 323/149 I.P.C. and released Shri Chand, Tirath Pal and Sohanvir on probation for one year and the accused-appellants Ram Chandra, Atroo and Nathan were sentenced to undergo rigorous imprisonment for six (06) months for offence punishable under Section 147 I.P.C. and to further undergo rigorous imprisonment for six (06) months for offence punishable under Section 323/149 I.P.C., which is meagre sentence and requires no interference by this Court.
21. I have given thoughtful consideration to the submissions made by the parties and have gone through the evidence available on record and the impugned judgement of the court below. In this case, the State has preferred appeal for enhancement of the sentence. The state has not preferred appeal on the point that learned court below has probably given the protection of the right of private defence of property, to the appellants. Therefore, it cannot be agitated by the State in this appeal. In this case, first information report was lodged promptly by PW1, Smt. Hoshiyari within four and a half hours on the basis of written complaint (Ext.Ka.1). The prompt first information report rules out any kind of concoction. The Chik report (Ext.Ka.2) was proved by PW4 S.I. Chaman Prakash by secondary evidence who stated that the Chik report was scribed by Constable Brahm Singh. In examination-in-chief, PW1 Smt. Hoshiyari stated that accused Sohanveer, Nathan, Tirath Pal and Shri Chand are real brothers and are sons of Ram Chandra. Accused Atroo is the real nephew of Ram Chandra and they are Harijan by caste. Accused Shyam Singh is Gujur by caste. The deposition of this witness on above fact is admitted to the appellants in their statements recorded under Section 313 Cr.P.C. She further deposed that that a case was pending regarding disputed Gher from four years, which was won by her. From the perusal of Ext.Kha.7, it appears that Ram Chandra moved an application for initiation of proceeding under Section 145 Cr.P.C. which was registered as Case No. 104/11 of 1981 (Ram Chandra vs. Pheru and others) which was decided by Sub-Divisional Magistrate, Jansath on 11.07.1980 wherein it was alleged by opposite party that they had purchased the land of disputed Gher by sale deed. Learned Sub-Divisional Magistrate held that there is no legal document to support the possession of first party and droped the proceeding holding that there is no apprehension of breach of peace and parties were directed to approach civil court regarding adjudication of their title, which was challenged in Criminal Revision No.112 of 1980 (Ram Chandra vs. Pheru and others) which was allowed vide order dated 04.09.1980 by the then Ist Additional Sessions Judge, Muzaffarnagar, the copy of the judgement is filed as Ext.Kha.4. Thereafter, concerned SDM decided the proceeding under Sectioni 145 Cr.P.C. after remand vide judgement and order dated 01.09.1981 against which Pheru preferred Criminal Revision No. 115 of 1981 (Pheru and 4 others vs. Ram Chandra and another) which was allowed by IVth Additional Sessions Judge, Muzaffarnagar vide order dated 05.12.1981 and the judgment and order dated 01.09.1981 was set-aside and the case was remanded to concerned SDM to decide the proceeding under Section 145 Cr.P.C. afresh, the copy of the judgement of revisional court is filed as Ext.Kha.5. Later on, the proceeding under Section 145 Cr.P.C. was decided by SDM, Jansath vide judgement and order dated 21.06.1982 and Pheru was restrained for not evicting or interfering in the possession of Ram Chandra until he was dispossessed according to law. The judgement of SDM, Jansath dated 21.06.1982 is filed as Ext.Kha.6.
22. From above discussions, it is proved that the incident took place after passing of the judgement in the proceeding under Section 145 Cr.P.C. dated 11.07.1980 by which the proceeding under Section 145 Cr.P.C. initiated on the application of Ram Chandra was dropped. And latter on, in the proceeding under 145 Cr.P.C. it was found that appellant Ram Chandra was in possession and the husband of informant was restrained from interfering in the possession of appellant, Ram Chandra, until he is dispossessed according to law.
23. Form the appreciation of documentary evidence, it is proved that appellants were setting in disputed Gher and this occurrences took place after dropping of proceeding under Section 145 Cr.P.C. by Sub-Divisional Magistrate vide order dated 11.07.1980, which later on was set-aside in revision and ultimately it was found that appellant, Ram Chandra was in possession of the disputed Gher.
Section 96 of Indian Penal Code reads as follows:-
"Nothing is an offence which is done in exercise of right of private defence."
24. In Munshi Ram & Others vs. Delhi Administration, AIR 1968 SC 702, it was held by Hon'ble Apex Court that the possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. Hon'ble Supreme Court in Ram Rattan & Others vs. State of U.P., AIR 1977 SC 619 has held that it is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normal- ly visited with the onerous penalty of law.
25. Hon'ble High Court of Allahabad in Maharajadin vs State of UP, 1968 Cr.L.J. 666 held that when accused on trespassing another's land) the were on he has the right different its possession even against true owner.
26. From the evidence on record, it is proved that accused-appellants were provided the possession of disputed Gher and after the proceeding under Section 145 Cr.P.C., husband and sons of the informant tried to take forceful possession of the Gher on this count, this incident took place.
Section 97 of Indian Penal Code deals with the right of private defence of body and of property, which reads as follows:-
"97. Every person has a right, subject to the restrictions contained in section 99, to defend-
Firstly- His own body, and the body of any other person, against any offence affecting the human body; Secondly- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
Section 99 of Indian Penal Code defines the extent to which right of private defence may be exercised. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Section 101 of Indian Penal Code states that when such right extends to causing any harm other than death.
Section 103 of Indian Penal Code states that when the right of private defence of property extends to causing death, which reads as follows:-
"103. The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing death or of any other harm to the wrong-doer, if the offence, committing of which, or the attempting to commit which, occasions the exercise of right, be an offence of any of the descriptions hereinafter enumerated, namely:
First.- Robbery;
Secondly.- House-breaking by night;
Thirdly. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as human dwelling, or as a place for the custody of property; Fourthly.-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Section 105 of Indian Penal Code deals with commencement and continuance of the right of private defence of property, which reads as follows:- "105. The right of private defence of property commences when a reasonable apprehension of danger to the property commences."
The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint and continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
27. It is pertinent to mention that accused-appellants in their statements under Section 313 Cr.P.C. had not taken any plea regarding the right of protection of possession of Gher. The appellants had adduced evidence regarding committing of robbery on 30.07.1980 at 3-4 a.m. by Pheru, Ranjit, Om Parkash, Jai Prakash and Jaipal who started assaulting with lathi, spear and at that time Om Parkash was armed with country made Katta and in self defence the appellants defended themselves with lathi-danda and with the help of villagers they apprehended Pheru and Ranjit. Rest persons fled from there. In this regard, defence has examined witness Mahendra Singh (DW2) and has filed Chik No.236 of 1980, Crime No.279A, under Sections 395/397 I.P.C. regarding alleged incident of dacoity (Ext.Kha.2) and has also filed the injury report of appellant, Nathan (Ext.Kha.1).
28. Hon'ble Apex Court in Majjal vs. State of Haryana, reported in (2013) 6 SCC 789 held that it is mandatory duty of the First Appellate Court to make proper analysis of the evidence and to consider whether the trial court's assessment of the evidence and its opinion regarding conviction deserve to be confirmed, because the personal liberty of an accused is curtailed because of the conviction. First Appellate Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.
29. Honourable Apex Court in Bakshish Ram and Another vs. State of Punjab, reported in AIR 2013 SC 1484 held that the Appellate Court has to apply its independent mind and record its own finding by making independent assessment of evidence. In the absence of independent assessment by the Appellate court, its ultimate decision cannot be sustained.
30. Keeping in mind the above legal propositions in deciding this appeal, independent appreciation of the evidence is to be done. In this case, Smt. Hoshiyari (PW1) is the informant and eyewitness, Pheru (PW2) is injured eyewitness who had sustained about 24 injuries and he along with injured Ranjit were found unconscious in a locked room of the house of appellant, Ram Chandra by the Investigating Officer and were for medico-legal and treatment. The fact of recovery of the injured inside the locked room of the house of appellant, Ram Chandra has also been admitted by the accused-appellants by producing Constable/Clerk Surendra Kumar (CW1) who has proved G.D. Report No.24 at 05:15 p.m. dated 30.07.1980 by which the accused-appellants Ram Chandra, Sohanvir Singh and Sri Chand were arrested and lodged in lock up along with two locks, keys and Kundha. The accused-appellants have produced the defence witness Manhendra Singh (DW2) to prove that injured Pheru and Ranjit were apprehended and were kept inside the room of the house of appellant, Ram Chandra.
31. PW1 Smt. Hoshiyari in her statement stated that her litigation regarding Gher was going on with accused Ram Chandra since four years and she had won the case. She further stated that on the day of occurrence at about 6 a.m. her husband Pheru and son Ranjit were sitting inside the Gher and she was busy in supplying fodder to cattle, in the meantime all the seven accused-appellants including accused Shyam Singh arrived there, at that time Ram Chandra and Shyam Singh were armed with balkati, Sohanvir was armed with hockey and rest accused were armed with lathi, and untied the cattle which was objected by her husband and son, thereupon, accused persons started assaulting them with their respective weapons and hurled abuses. All the accused-appellants including Shyam Singh dragged her husband Pheru and son Ranjit to the house of Ram Chandra and got them confined there in a room. She further deposed that at the place of occurrence she got the complaint written by Rajveer on her dictation, thereafter, she put her thumb impression upon the written complaint (Ext.Ka.1). On the same day, she had gone to P.S. Khatauli, District Muzaffarnagar and lodged the first information report after handing over the written complaint (Ext.Ka.1) at P.S. Khatauli. In cross-examination, she has admitted that a litigation was going on in between Rajveer and appellants. She has corroborated the fact that Rajveer had written the complaint on her dictating at the place of occurrence under a Chhapper. She has deposed that the motive behind the occurrence was that she had won the case regarding the disputed Gher which gets corroboration from Ext.Kha.7 which is the judgement passed by Sub-Divisional Magistrate, Jansath on 11.07.1980 by which the proceeding of Case No. 104/11 of 1981 under Section 145 Cr.P.C. initiated on the application of appellant Ram Chandra was dropped in which Ram Chandra had admitted that Gher in question belongs to one Sukkhan and after his death his legal representative Atar Singh had executed a sale-deed on 05.07.1979 in favour of Pheru on the basis of which Pheru was trying to take possession of the disputed Gher. In that proceeding husband of Smt. Hoshiyari stated that he obtained the disputed Gher by way of sale-deed execused by Atar Singh and is in possession of it, therefore, the proceeding of Section 145 Cr.P.C. was dropped. Although, that proceeding was challenged in revision two times but ultimately in proceeding under Section 145 Cr.P.C. Ram Chandra was found in possession of the disputed Gher vide judgement and order dated 21.06.1982 passed by SDM, Jansath. PW1, Smt. Hoshiyari in her cross-examination has specifically deposed that the motive behind this incident was that the proceeding under Section 145 Cr.P.C. was dropped on 11.07.1980 by SDM concerned which gets support from Ext.Kha.7. Therefore, the motive of the occurrence is proved beyond reasonable doubt.
32. The witness Smt. Hoshiyari (PW1) is an illiterate lady who had put her thumb impression on her statement recorded in the court and also on the written complaint (Ext.Ka.1). She has stated that she had gone to police station alone for lodging the first information report. She has further stated that Birbal, Jagdish and Mangta had not accompanied her while she was going to lodge the first information report. She is an illiterate lady, therefore, she had stated that she had gone to lodge the first information report at 02 p.m. Perusal of the Chick report (Ext.Ka.2) and GD registering the case (Ext.Ka.3), shows that first information report was lodged at about 9:30 a.m. Therefore, the contradiction to the effect that PW1 had gone to lodge the first information report at 2 p.m. is because of her being illiterate which does not go to the root of the case, therefore, it will not affect the prosecution case.
33. PW1 Smt. Hoshiyari has further deposed that after assaulting her husband Pheru and son Ranjit, the accused-appellants dragged them to the house of Ram Chandra and confined them in a room. When her husband and son fell down after sustaining injuries caused by accused persons, she raised alarm, thereupon, villagers arrived there. Her son Ranjit had sustained injuries on his skull, both hand and legs by balkati. Her husband Pheru had sustained injury of balkati on his head and hand. When her son Om Parkash reached at the place of occurrence, Pheru and Ranjit had became unconscious. She has further deposed that Jaipal also reached at the place of occurrence. She has denied the suggestion of accused-appellants that no such occurrence had taken place at Gher. Further, she has denied the suggestion that on 30.07.1980 at about 3-4 a.m. Pheru, Ranjit, Jaipal and others had committed robbery at the house of appellant, Ram Chandra. She has also denied that in the alleged robbery appellants, Ram Chandra, Nathan, Sohanvir and Sri Chand had sustained injuries. She has further denied the suggestion of the defence that at the time of committing dacoity at the house of Ram Chandra, Pheru and Ranjit were apprehended after assaulting them. She has further corroborated that the accused-appellants had dragged Pheru and Ranjit to their house by pulling their legs. There is nothing in cross-examination of PW1 which casts doubt on her testimony. The presence of PW1 at the place of occurrence is proved beyond reasonable doubt and her statement inspires confidence and is liable to be relied on.
34. Injured Pheru (PW2) in examination-in-chief has deposed that occurrence took place about three years ago at about 06 a.m. At that time, he along with his son Ranjit was present in the Gher in question where cattle were tied. Meanwhile, accused-appellant Ram Chandra and non-appellant Shyam Singh armed with balkati, Atroo armed with lathi, Sohanvir armed with hockey, Nathan, Shri Chand and Tirath Pal armed with lathi arrived there and started abusing them and when he forbade them, all the accused persons started assaulting him and his son Ranjit where both of them fell down after sustaining injuries. The witnesses Rajveer and Sunehra (PW3) arrived there and saw the incident. Thereafter, the accused persons after catching hold their legs dragged them to the house of Ram Chandra where also they were beaten and become unconscious. He has further deposed that he was medically examined and subjected to X-ray.
35. In cross-examination, Pheru (PW2) has clarified that in the house of Ram Chandra, Tirath Pal had assaulted him and Ranjit with the handle of hand-pump. At that time, laltane (lamp) was lightening. He has further clarified that he had sustained injury of handle of the hand-pump on his scapular region and leg. He gained consciousness at the hospital was discharged from the hospital after 12-13 days. He has further deposed that he had not gone to police station after the incident, because he was unconscious. He has denied the suggestion of the defence that on 11.07.1980 he was taking forceful possession of the Gher after winning the case. He has deposed that he was in possession of the Gher before winning the case. He has further deposed that Sukhan was owner of the disputed Gher and after his death his son Atar Singh became owner of the same.
36. In cross-examination, PW2 Pheru has deposed that he had become semi-unconscious after sustaining injury at Gher and had become unconscious when he was assaulted inside the house of appellant, Ram Chandra. There is nothing in his cross-examination which may casts doubt on his deposition. He has given vivid description of the incident. His statement is natural, inspires confidence and is liable to be relied on.
37. Prosecution witness Sunehra (PW3) is the eye-witness of the incident. He has deposed that the incident took place about four years ago at about 6 a.m. He has further deposed that when had gone to attend natural call, he heard noise coming from the Gher of Pheru and went there where several villagers had already arrived and saw that accused Ram Chandra, Nathan, Sohanveir, Tirath Pal, Shri Chand, Atroo and Shyam Singh were assaulting Pheru and his elder son Ranjit. The accused Ram Chandra and Shyam Singh were armed with balkati, Sohanvir was armed with hockey and rest accused were armed with lathi. In the meanwhile, Om Parkash also reached there who was also assaulted by the accused persons. The accused persons dragged Pheru and Ranjit to the house of Ram Chandra and Om Parkash fled towards tube-well.
38. In cross-examination, PW3 Sunehra has admitted that he was party in the case under Section 145 Cr.P.C. He has further admitted that Nathan had filed a case of theft against him, Asha Ram, Rajveer and Jay Prakash. He has further admitted that Daroga Ji had recorded his statement after three days of the incident. He has further clarified that the tube-well of Om Parkash is towards North of the Gher about 80 to 90 meters. Nothing came in his cross-examination which may discredit his statement. His presence at the place of occurrence is proved beyond reasonable doubt. Statement of PW3 Sunehra, inspires confidence and is liable to be relied on.
39. The statements of the above mentioned witnesses are corroborated by deposition of PW6 Dr. Kailash Chand who proved the injury reports of Pheru (Ext.Ka.10), Ranjit (Ext.Ka.11) and Om Prakash (Ext.Ka.12). At the time of medical examination, 24 injuries were found on the body of injured Pheru out of which injury nos. 7 and 19 were caused by sharp edged weapon and injuries except injury nos. 15, 17, & 24 were simple in nature, 20 injuries were found on the body of injured Om Prakash out of which injury nos. 2, 5 & 9 were caused by sharp aged weapon and injuries except injury no.13 were simple in nature and 15 injuries were found on the body of injured Ranjit caused by blunt object and injuries except injury no.12 were simple in nature. Keeping in view the seat and number of injuries, it is proved that they were caused with intention to cause death. The manner and time of assault are corroborated by the medical evidence. The oral testimony of the witness is corroborated by medical evidence. Dr. D.C. Mobar (PW5) has proved the supplementary report prepared on the basis of X-ray examination of the injuries of injured, i.e., Ext.Ka.7, Ext.Ka.8 and Ext.Ka.9. In X-ray report of injured Ranjeet, fracture of radius and ulna bone into middle third was seen, in X-ray report of injured Pheru, fracture of ulna bone in its lower sixth was seen and in the X-ray report of injured Om Parkash, no abnormality was detected. Non-presence of callus proves that the injured have sustained fractures in the incident.
40. Lodging of prompt first information report and the statements of witnesses corroborated by medical evidence, prove the offence beyond reasonable doubt for which the accused-appellants have been charged, but without any suggestion and without alleging any defence by accused-appellants, extending the benefit of right of private defence to the accused shows otherwise reason for not convicting under proper sections by trial court. In this case, accused-appellants after assaulting the injured Pheru and Ranjit dragged them by holding their legs from the place of occurrence and confined inside a room of the house of appellant, Ram Chandra and also lacked the door, from where Investigating Officer recovered the injured in unconscious state after opening the lock by the key which was possessed by appellant, Ram Chandra and the injured were sent to hospital for treatment. The accused-appellants have taken the defence that Pheru, Ranjit, Om Parkash, Jay Prakash and Jaipal had committed dacoity in the house of Ram Chandra and also assaulted Ram Chandra and his son and in defence, the appellants had also assaulted them by lathi and villagers Hari Ram and Budhu by spear and apprehended Pheru and Ranjit. In this regard, appellants have examined Dr. D.D. Gupta (DW1) to prove the injury report of appellant Nathan (Ext.Kha.1).
41. DW1 Dr. D.D. Gupta has stated that he had medically examined the injury of appellant, Nathan on 30.07.1980 at 06:20 p.m and opined that the duration of injury is within 24 hrs. (1 day). In cross-examination, he has stated that the injuries found on the body of injured was simple nature and it could be made by others. From the seat of the injury of Nathan, it appears that they may caused on account of fall. Perusal of the injury reports of injured Pheru, Ranjit and Om Prakash shows that injuries were about half day old which explicitly rule out the possibility that injured had sustained injuries while they were committing dacoity at the house of appellant, Ram Chandra. If it was so, the injuries were found to be more than half day old. Moreover, defence witness Mahendra Singh (DW2) has stated that injured Pheru, Ranjit and Om Prakash had sustained injuries while appellants were defending themselves by lathi and villagers Hari Ram and Budhu by spear. Incised wounds were also found on the body of Pheru and Ranjit which clearly establish beyond reasonable doubt that the occurrence has taken place at Gher at about 06 a.m. and not at 3-4 a.m. as alleged by the defence. Defence witness Dr. D.D. Gupta has admitted that the injury found on the body of Nathan may be caused within 20 hours. In above circumstances, learned lower court has rightly held that defence has failed to prove that Pheru, Ranjit, Om Parkash, Jay Prakash and Jaipal had committed dacoity in the house of Ram Chandra and in that incident they had sustained injuries in self-defence by accused-appellants, but without any defence case holding that Pheru, Ranjit and Om Prakash sustained injuries while they were trespassing Gher is illegal and perverse and evidence in this regard has wrongly been appreciated to give benefit to appellants.
42. In this case, the State has not preferred any appeal against conviction in lesser section and awarding insufficient sentence by the lower court. In above circumstances, keeping in view the oldness of the appeal, the impugned judgement of conviction and order of sentence dated 27.09.1984 passed by learned Additional Sessions Judge-V, Muzaffarnagar is, hereby, upheld with heavy heart.
43. Accordingly, the instant criminal appeal is dismissed.
44. Let a copy of this order along with lower court record be communicated to the lower court concerned for necessary compliance. Lower court is directed to get the accused-appellants served out the remaining sentence awarded to them.
Order Date :- 12.09.2022 Vikas [Mohd. Aslam,J.]