Madhya Pradesh High Court
Chhedilal & Ors. vs The State Of M.P on 13 September, 2012
Author: N.K.Gupta
Bench: N.K.Gupta
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
DIVISION BENCH: Hon'ble Mr. Justice Rakesh Saksena
&
Hon'ble Mr. Justice N.K.Gupta, JJ.
CRIMINAL APPEAL NO.1492 OF 2004
Chhedilal & others.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.276 OF 2005
State of Madhya Pradesh.
Vs.
Ijjatlal & others.
---------------------------------------------------------------------------------------
Cr.A.No.1492/2004
Shri Vijay Nayak, Advocate for the appellants.
Shri Uamesh Pandey, Government Advocate for the
respondent-State.
Cr.A.No.276/2005
Shri Umesh Pandey, Government Advocate for the
appellant-State.
Shri Pranay Gupta, Advocate for the respondents No.10
and 11.
Shri Vijay Nayak, Advocate for rest of the respondents.
---------------------------------------------------------------------------------------
JUDGMENT
(Delivered on this the 13th day of September, 2012) PER: N.K.GUPTA,J.
This judgment passed by us shall govern the disposal of Criminal Appeal No.1492/2004 and Criminal 2 Cr.A.No.1492/04 & Cr.A.No.276/05 Appeal No.276/2005, since both the appeals arise out of common impugned judgment.
2. The appellants-accused in Criminal Appeal No.1492/2004 has preferred this appeal against the judgment dated 12.08.2004 passed by the First Additional Sessions Judge, Rewa in ST No.209/2000, whereby the appellants were convicted and sentenced as under:
Name of Conviction Sentence Fine Default the accused U/S (IPC) (Rs.) sentence Appellants 302/34 Life 1000/- three months No.1 to 4 imprisonment imprisonment 325/34 one year RI 500/- three months imprisonment 324/34 six months RI 300/- three months imprisonment 323/34 three months 300/- one month RI imprisonment Appellants 325/34 one year RI 500/- three months No.5 and 6 imprisonment 324/34 six months RI 300/-
three months
imprisonment
323/34
three months 300/-
one month
RI
imprisonment
All the sentences were directed to run
concurrently.
3. The State has preferred Criminal Appeal
No.276/2005 against the said impugned judgment on the ground that all the respondents-accused be convicted for 3 Cr.A.No.1492/04 & Cr.A.No.276/05 commission of offence punishable under Section 302 of IPC read with Section 34 or 149 of IPC and the respondent-accused Matadeen may also be convicted for commission of offence punishable under Section 302 of IPC read with Section 34 or 149 of IPC and sentenced in an appropriate manner.
4. The prosecution case, in short, is that on 25.7.2000, at about 9:00 AM in the morning, Makradhwaj (PW-3) along with Mordhwaj, Tungdhwaj, Gopal and Gulab @ Chandramani went to plough "kachhar wala khait" at village Khadhu, Police Station Panwar District Rewa. At about 9:00 AM on reaching at the spot, they observed that one "nachani wala khait" was filled with water, and therefore Mordhwaj went to create a drain in that field. But at that time all the appellants and the respondents in Criminal Appeal No.276/2005 came to that field with a tractor which was driven by one Ijjatlal and they started ploughing that field. Mordhwaj tried to stop them and therefore they took the victim Mordhwaj near the well situated in a field having Survey No.205/7 and assaulted him brutally due to which he died at the spot. Thereafter Tungdhwaj went to stop them, but he was also beaten by them. The assailants were armed with sang, farsa, sticks and so many deadly weapons.
Thereafter Mohanram (PW-4), Shyamkali (PW-6), 4 Cr.A.No.1492/04 & Cr.A.No.276/05 Angdhwaj (PW-8), Garundhwaj (PW-9) etc. also went to the spot with a request that the assailants should not assault the victims. But the accused persons also assaulted Mohanram, Shyamkali, Tungdhwaj, Angdhwaj, Garundhwaj and Santkumari, who sustained various injuries. When Tungdhwaj was taken to the Police Station, he died in the way. In the meantime, some one informed the SAF Police having a camp at Police Station Jawa. ASI Shantanu Prasad Pyasi and his companions reached the spot and they got a merg intimation Ex.P-1 from the complainant Makradhwaj. The panchayatnam lash was prepared and the dead body was sent for the postmortem to the concerned hospital. The complainant Makradhwaj tried to lodge an FIR at Police Station Panwar but he was directed that his FIR will be written at Outpost Virpur and when he reached the Outpost Virpur, he was informed that the police force was sent to the spot, and therefore he should get the report lodged at the spot. Ultimately, Makradhwaj came to the Village Khadhu and he gave a Dehati Nalishi (FIR) Ex.P-5 to SHO Phoolsingh (PW-14).
4. Panchayatnama lash of the deceased Mordhwaj was also prepared and his dead body was sent for the postmortem. The injured persons were also sent to the hospital for their examination and treatment. Dr. M.K. 5 Cr.A.No.1492/04 & Cr.A.No.276/05 Pandey (PW-16) examined Shyamkali, Garundhwaj, Mohanram, Angdhwaj, Santkumar and he gave reports from Ex.P-67 to Ex.P-77. Dr. Pandey found three injuries on the victim Shyamkali, six injuries on the victim Garundhwaj, four injuries on the victim Mohanram, two injuries on the victim Angdhwaj and two injuries on the victim Santkumari. The injured persons were also referred for radiological examination. Dr. G.S.Vyas (PW-17) found a fracture of ulna on the victim Garundhwaj and on examination he found seven injuries upon him. He prepared a report Ex.P-73. Similarly, it was found that the victim Mohanram sustained a fracture of left elbow, 4th metacarpal and middle toe in his leg. Totally he received nine injuries in the incident. Dr. Pandey (PW-16) also conducted the postmortem on the bodies of the deceased Mordhwaj and Tungdhwaj and gave his reports Ex.P5A and Ex.P72. Mordhwaj sustained two injuries. One incised wound on his right parietal region, but second wound (a punctured wound) was fatal by which his heart and lungs were pierced through and through. Similarly, Tungdhwaj had also sustained two injuries. He sustained a fracture of right parietal region and also a punctured wound in the abdomen which was through and through, and therefore vital organs were cut. After due investigation, a charge sheet was filed 6 Cr.A.No.1492/04 & Cr.A.No.276/05 before the Judicial Magistrate First Class, Rewa, who committed the case to the Sessions Court, Rewa and ultimately it was transferred to the First Additional Sessions Judge, Rewa.
5. The appellants-accused abjured their guilt. They did not take any specific plea in the defence. However, seven witnesses were examined in defence. One Radhika Prasad Tiwari (DW-1) was examined to prove the FIR lodged by the appellant Chhedilal, whereas Jawaharlal (DW-2), Awadhesh (DW-3) and Ramkanhai (DW-4) were examined to prove the possession of the disputed land. Dr.Amitabh Awasthi (DW-5) was also examined but he could not prove anything in favour of the accused. Ghanshyam (DW-7) has stated about the alibi for the appellants Hetlal and Himmatlal, whereas Munnalal (DW-6) was examined about the alibi for the appellant Ghanshyam.
6. After considering the evidence adduced by the parties, the learned First Additional Sessions Judge, Rewa convicted and sentenced the appellants as mentioned above, whereas appellant No.5 Matadeen and appellant No.6 Pushparaj were acquitted from the charges of offence punishable under Section 302/34 and all other co-accused persons including the respondents in 7 Cr.A.No.1492/04 & Cr.A.No.276/05 the counter appeal were also acquitted from all the charges appended against them.
7. We have heard the learned counsel for the parties at length.
8. Learned counsel for the appellants in Criminal Appeal No.1492/2004 has submitted that the FIR Ex.P-5 was highly delayed. Actually it is not an FIR in the eye of law. The FIR which was lodged at Outpost Virpur was not submitted with the charge sheet, and therefore genesis of the crime is not appropriately given by the prosecution. On the other hand, genesis of the crime was given by Chhedilal in his FIR, which was proved by Radhika Prasad Tiwari (DW-1), hence the entire eye-witnesses are not telling the truth. They were not at the spot and they are telling a falsehood, because two persons were killed in the incident. It is also submitted that the suit property was of the appellants and the deceased persons as well as their companions were the encroachers on that land. Therefore, if any crime has been done by the appellants, then it was done in the right of private defence. It is further submitted that both the deceased had sustained only two injuries on their body, whereas so many persons are convicted for various offences. There is a material contradiction between the evidence given by so many 8 Cr.A.No.1492/04 & Cr.A.No.276/05 persons, and therefore it is prayed that the appellants be acquitted from all the charges.
9. On the other hand, learned Government Advocate appearing on behalf of the State has submitted that the conviction and sentence directed by the trial Court appears to be correct for the appellants No.1 to 4, but other respondents in the counter appeal and the appellants No.5 and 6 in Cr.A. No.1492/2004 were also involved in the crime of double murder, and therefore they should be appropriately convicted and sentenced accordingly.
10. In rebuttal, learned counsel for the appellants and learned counsel for the respondents in counter appeal have submitted that the trial Court has rightly acquitted those respondents, and therefore no interference is warranted in the judgment on the basis of State Appeal.
11. After considering the submissions made by learned counsel for the parties and after going through the evidence adduced by both the parties before the trial Court, it is to be considered that whether the Criminal Appeal No.1492/2004 filed by the appellants can be allowed? Whether the Criminal Appeal No. 276/2005 filed by the State can be allowed? And what would be the 9 Cr.A.No.1492/04 & Cr.A.No.276/05 sentence awarded to the appellants-accused as well as respondents-accused in the result?
12. Witnesses Makradhwaj (PW-3), Mohanram (PW-4), Rajendra Prasad (PW-5), Shyamkali (PW-6), Angdhwaj (PW-8), Garundhwaj (PW-9) etc. were examined as eye-witnesses, whereas the complainant Makradhwaj is the most important witness from the side of the prosecution. It appears that all other witnesses went to the spot one by one, and therefore they could not see the assault caused by the accused persons to the deceased Mordhwaj and Tungdhwaj. Rajendra Prasad (PW-5) has stated in an omnibus manner that all the accused persons including one Ijjatlal, who was driving the tractor had assaulted the victims. Rajendra Prasad is the brother-in-law of the witness Garundhwaj. But he admitted in para 6 that when he reached the spot, he found that the deceased Mordhwaj and Tungdhwaj were injured, which clearly indicates that he could not reach the spot when the incident took place with the deceased persons. Similarly, looking to the evidence of witnesses Mohanram, Shyamkali and Angdhwaj, it appears that they also reached to the spot after the incident took place with both the deceased persons. Angdhwaj has admitted that he is a lame person and he cannot walk very fast, and therefore when he reached to the spot, the accused 10 Cr.A.No.1492/04 & Cr.A.No.276/05 persons had already assaulted both the deceased persons. Under such circumstances, the evidence of these eye-witnesses can be considered for the assault caused to themselves respectively. Mohanram(PW-4) has stated that he was beaten by Ramraj, Chhedilal and Hetlal. Similarly, Shyamkali (PW-6) has stated that Chhedilal and Hetlal assaulted her by sticks and sang. However, in para 8 of her cross examination, she could not tell the name of accused Chhedilal for her assault. Angdhwaj (PW-8) has stated that he was assaulted by Matadeen and Himmatlal by various weapons. Garundhwaj (PW-9) has stated that he was assaulted by Pushpraj by an axe, Hetlal by a sang and Ramraj by a farsa. The injuries caused to the various witnesses were duly proved by Dr. Pandey (PW-16) by the reports Ex.P-67 to Ex.P-71 and injuries are matching with the allegations made by these witnesses.
13. Similarly, the injuries caused to the deceased Mordhwaj and Tungdhwaj are also matching with the reports given by Dr. Pandey after performing the postmortem on their bodies. Looking to the injuries caused to the deceased, it appears that the appellants No.1 to 4 have rightly been convicted for commission of offence punishable under Section 302 of IPC, because 11 Cr.A.No.1492/04 & Cr.A.No.276/05 they were the persons who assaulted the deceased Mordhwaj and Tungdhwaj.
14. The testimony of the witnesses Makradhwaj as well as Angdhwaj and Garundhwaj is also corroborated by the Dehati Nalishi Ex.P-5 lodged by Makradhwaj to SHO Shri Phoolsingh (PW-14). Learned counsel for the appellants has submitted that the Ex.P-5 was not at all the FIR in the eye of law, because the complainant Makradhwaj has admitted that first he went to the Police Station Panwar and thereafter Outpost Virpur where he lodged an FIR, and therefore that FIR was the first version given by the witness Makradhwaj, but that FIR was not produced before the Court with the charge sheet, hence a highly delayed FIR was submitted with the charge sheet. The incident took place in the early morning, whereas the FIR (Dehati Nalishi) was lodged at about 2:00 PM in the noon. Learned counsel for the appellants has placed his reliance on the judgments of the Hon'ble Apex Court in the case of "State of MP Vs. Mishrilal", [2003(9) SCC 426], "Tulsiram Vs. State of MP", [2008(17) SCC 13] and "Kanhai Vs. State of Bihar", [2001(3) SCC 451] to show that if the FIR is delayed, then prosecution story comes in the clouds of doubt. In the case of Tulsiram (supra), it is observed that if prosecution does not come with clean hands, 12 Cr.A.No.1492/04 & Cr.A.No.276/05 making genesis of the incident doubtful, then conviction cannot be directed.
15. In the present case the aforesaid judgments cited by learned counsel for the appellants are not of so much important, because there is no FIR which was lodged at Outpost Virpur. When the complainant Makradhwaj went to the Police Station Panwar, he was informed that police force has gone to the spot, and therefore report may be given to the higher authorities, who had already approached to the spot. Hence, there was no possibility that his report could be written at Outpost Virpur. He has explained the delay caused in lodging the report. He had lodged a merg intimation Ex.P-1 to the ASI Shantanu Prasad Pyasi (PW-1) of Police Station Jawa and in that report it was clearly mentioned that a quarrel took place and one Mordhwaj was killed at the spot whereas Tungdhwaj died when he was being taken to the Police Station. Though the report Ex.P-1 does not have much detail of the incident, but it is also an FIR in the eye of law. Since the details of the incident were given in the FIR Ex.P-5 and the delay is duly explained by the complainant, therefore it shall be presumed that the FIR given by the complainant to the SHO Phool Singh was the FIR and genesis of the incident may be observed from that FIR.
13
Cr.A.No.1492/04 & Cr.A.No.276/05
16. Learned counsel for the appellants has tried to show that the appellant Chhedilal had lodged an FIR at Police Station Panwar, which was duly proved by the defence witness Radhika Prasad Tiwari (DW-1). It would be apparent from the case file that a Rojnamcha was mentioned in the statement of Head Constable Radhika Prasad Tiwari, but no copy of that Rojnamcha was taken to the record. However, the entire narration of that report is mentioned in the statement of Radhika Prasad Tiwari by which it would be clear that the report given by the appellant Chhedilal was entered into the register maintained under Section 155 of Cr.P.C. meant for non- cognizable offences, that means the allegations made by Chhedilal were confined to the offence under Section 323 of IPC only and it was also clear that he sustained only one superficial injury. If both the stories are compared, then the appellant Chhedilal sustained only one superficial injury. Where in the counter story two persons were killed and 5-6 persons were injured, therefore it cannot be said that the report made by the appellant Chhedilal was the correct genesis of the incident.
17. The genesis of the incident matches with the FIR Ex.P-5, looking to the injuries caused to the victims as well as the deceased persons. However, in this connection, the judgment of the Hon'ble Apex Court in 14 Cr.A.No.1492/04 & Cr.A.No.276/05 the case of "Somappa Vamanappa.........Vs. State of Mysore", (AIR 1979 SC 1831) may be referred in which it is held that the rejection of FIR would not detract the testimony of eye-witnesses which will have to be assessed on its own merits. Under such circumstances, the testimony of the eye-witnesses may be considered on their own merits.
18. The various eye-witnesses have proved their injuries and they named the persons, who caused them such injuries, and therefore it would be apparent that all the appellants No.1 to 6 had assaulted these victims by various weapons causing them grievous injuries also, and therefore offence under Section 325/34, 324/34 and 323/34 of IPC is made out against all the appellants in the case. Similarly, it is specifically mentioned by complainant Makradhwaj that the appellants No.1 to 4 took the deceased Mordhwaj near the well and thereafter they assaulted. Similarly, all such persons had assaulted the deceased Tungdhwaj. In the present case more than 14-15 persons were implicated as accused, but the witness Makradhwaj confined upon only four accused persons, who assaulted the deceased Mordhwaj and Tungdhwaj. The version told by the witness Makradhwaj is duly corroborated by the witness Angdhwaj and Garundhwaj and also by the injuries found in the 15 Cr.A.No.1492/04 & Cr.A.No.276/05 postmortem reports. Therefore, it is apparent that the appellants No.1 to 4 dragged the victim Mordhwaj near the well and they assaulted him till his death.
19. Learned counsel for the appellants submits that all the persons who went to the spot sustained injuries whereas complainant Makradhwaj did not sustain any injury, though he claims to be an eye-witness. Under such circumstances, the testimony of complainant Makradhwaj cannot be accepted, because it is highly doubtful that Makradhwaj was present at the spot at the time of incident.
20. The submission of learned counsel for the appellants cannot be accepted, because according to the report as mentioned by Head Constable Radhika Prasad (DW-1), appellant Chhedilal himself accepted the presence of this witness, and therefore it cannot be said that he was not present at the time of incident, because he did not sustain any injury. On the contrary, he has admitted that when he saw that his two brothers were killed, he went to the village by making hue and cry so that some more persons may come and stop the appellants-accused in assaulting the various persons, therefore he could not get any injury. Since the presence of this witness is accepted by appellant Chhedilal in his FIR, therefore there is no doubt about the presence of the 16 Cr.A.No.1492/04 & Cr.A.No.276/05 that complainant Makradhwaj at the time of incident and he is an eye-witness.
21. According to the evidence given by the eye- witnesses, it is nowhere established that the appellants Matadeen and Pushparaj had assaulted any of the deceased by any weapon. Similarly, it is not established by the witnesses that the remaining respondents of the counter appeal had assaulted any of the deceased. Under such circumstances, the appellants Matadeen and Pushparaj as well as the remaining respondents of the counter appeal could not be convicted for commission of offence punishable under Section 302 of IPC either directly or with the help of Section 34 or 149 of IPC. Hence, the learned Additional Sessions Judge has rightly acquitted these accused persons from the charges of offence under Section 302 read with Section 34 or 149 of IPC.
22. Similarly, it is not established that the remaining respondents of the counter appeal had participated in assault causing injuries to the various victims of the case. Though their presence is proved, but no overt-act of those persons was established so that their common intention or common object may be presumed for the assault done by the appellants of the main appeal to the various injured persons of the case. 17
Cr.A.No.1492/04 & Cr.A.No.276/05 Under such circumstances, they could not be convicted for the offence under Section 325, 324 or 323 of IPC either directly or with the help of Section 34 of IPC. The learned Additional Sessions Judge has rightly acquitted the respondents of the counter appeal except the appellants Matadeen and Pushparaj from the charges of offence punishable under Sections 325, 324 and 323 of IPC read with Section 34 or 149 of IPC. Under these circumstances, looking to the evidence adduced by the prosecution in the case, the appeal filed by the State cannot be accepted.
23. Learned counsel for the appellants has submitted that the land in dispute was in possession of the appellants, and therefore the members of the opposite party were making interference in their possession, hence they should be given an advantage of right of private defence as well as of the position that it was a free fight and there was no intention of the appellants to kill the deceased Tungdhwaj or Mordhwaj. In support of his contention, learned counsel for the appellants has placed his reliance on the judgments of the Hon'ble Apex Court in the case of "Tarsem Singh & others Vs. State of Punjab", [2002(2) SCC 673], "Dattu Vs. State of Maharashtra", [2005(11) SCC 261], "Vajrappa Vs. State of AP", [2004(10) SCC 18 Cr.A.No.1492/04 & Cr.A.No.276/05 152], "Bagdiram Vs. State of MP"[2004(12) SCC 302] and in the case of "State of Haryana Vs. Sher Singh", [2002(9) SCC 356]. But looking to the factual aspects of the present case, the aforesaid judgments of the Hon'ble Apex Court are not applicable in the case. It is nowhere proved that the victims were the aggressors or their actions were such so that right of private defence of the property as well as of person was accrued to the appellants.
24. The appellants have tried to establish that they had the possession on the land bearing Survey No.205/7 and the quarrel took place on that field, and therefore the victims were the aggressors. If the evidence led by the prosecution is read in an appropriate manner, then it would be clear that there was no dispute relating to the possession of the land bearing Survey No.205/7. A well is situated in that land and such land was of the appellants. However, a dispute took place when the appellants had tried to get the occupation of "nachni wala khait". It was not at all established by the appellants that "nachni wala khait" was the Survey No.205/7. On the contrary, it appears that "nachni wala khait" was a bigger land of area more than 20 acres. Initially its survey number appears to be 205/4. It is nowhere claimed by the appellants that they were the owner and occupier of the 19 Cr.A.No.1492/04 & Cr.A.No.276/05 land bearing Survey No.205/4. It is strange that the ownership and possession were suggested to various witnesses like Makradhwaj (PW-3) and Angdhwaj (PW-8) who were the sons of Mohanram (PW-4). However, no question was asked to the witness Mohanram (PW-4) about the ownership and possession of the property whereas Mohanram was the person who had the complete knowledge of the ownership and possession of the property. It indicates that a confusion was created about the ownership and possession of the property by asking questions to such witnesses, who had no much knowledge about the ownership and possession of the property.
25. After going through the entire record which is submitted by the Tahsildar and Patwari, it appears that out of "nachni wala khait" i.e. Survey No.205/4, some portion was taken by the appellants in Survey No.205/7, and therefore a map was modified in the revenue records, but no physical possession was given to the appellants of that portion, hence that portion of Survey No.205/7 was disputed. Since no demarcations were made after modification of the map, therefore it cannot be said that the appellants were in possession of that portion which was shifted from the Survey No.205/4 to Survey No.205/7. The learned Additional Sessions Judge has 20 Cr.A.No.1492/04 & Cr.A.No.276/05 rightly held that the appellants did not have any possession on the disputed land. If the evidence adduced by the prosecution is considered carefully, then it would be clear that the incident initiated on "nachni wala khait"
and thereafter the deceased Mordhwaj was dragged to the land bearing Survey No.205/7 where a well was situated and thereafter the entire quarrel took place where the deceased Mordhwaj was lying as injured. Therefore, possession and ownership of the land bearing Survey No.205/7 was not at all in dispute. The incident initiated on the land i.e. "nachni wala khait" which was not of the appellants. The learned Additional Sessions Judge has rightly observed that the quarrel started for the land which was not in possession of the appellants.
26. According to the FIR lodged by Chhedilal, it is alleged that the victims went to the spot to take the possession of the field forcefully whereas if the entire incident is assessed for that allegation, then it would be apparent that both the deceased and other eye-witnesses were not at all prepared for taking the possession of the land of the appellants by any force. On the contrary, if the appellants were ploughing their own field, then what was the necessity to the appellants to bring so many persons with them with deadly weapons. Under such circumstances, it is apparent that the victims were not 21 Cr.A.No.1492/04 & Cr.A.No.276/05 aggressors, on the contrary the appellants were the aggressors.
27. Learned counsel for the appellants has submitted that if two views are possible, then advantage is to be given to the accused persons. In support of his contention, he has placed his reliance on the judgment of the Hon'ble Apex Court in the case of "Shingara Singh Vs. State of Haryana", [2003(12) SCC 760]. But due to the factual position of this case, the said judgment of the Hon'ble Apex Court is not applicable in the present case. Position is not such that two views are possible in the case. The position is apparent that the appellants came to the spot with deadly weapons and with some persons to occupy the possession of "nachni wala khait"
(Survey No.205/4) forcefully, which was not of the appellants. On the other hand, the victims were not aware that the appellants would take the forceful possession of the property which was not demarcated physically, and therefore the members of the complainant party were not prepared and they did not have any weapon with them. If the members of the complainant party had some weapons, then it was not possible that the appellants could kill two persons and injured so many victims without getting injuries to their companions, whereas the appellant Chhedilal sustained only one 22 Cr.A.No.1492/04 & Cr.A.No.276/05 superficial injury in the entire incident. Under such circumstances, it would be apparent that no member to the complainant party was in a position to do anything. They could not even defend themselves in an appropriate manner, because they were not prepared. Therefore, the report lodged by the appellant Chhedilal appears to be a cooked document and quarrel did not take place as per the allegations made by the appellant Chhedilal in his FIR. On the contrary, it is established that the members of the complainant party went to the spot to plough in "kachhar wala khait" at village Khadhu, then they saw that water was filled in "nachni wala khait" , and therefore deceased Mordhwaj went to that place to drain the water, but before he could do anything he found that the appellants had already entered in that field to occupy it forcefully, and therefore he tried to stop the appellants and ultimately he lost his life. Under such circumstances, there is no overt-act proved against the deceased Mordhwaj or other victims which might have given rise to any right of private defence or any cause of action with the appellants to do such type of crime. Under such circumstances, no right of private defence had accrued to the appellants either for the property or for the persons.
28. Similarly, a lonely victim Mordhwaj while stopping the appellants from forcefully occupying with 23 Cr.A.No.1492/04 & Cr.A.No.276/05 the property, could not give any sudden or grave provocation, and therefore it is apparent that both the deceased were killed without any sudden or grave provocation. Similarly, when the various victims came to the spot to save the injured or the deceased, they were being assaulted by the appellants. Under such circumstances, since no right of private defence and no sudden or grave provocation was available to the appellants, then it would be clear that they assaulted the victims forcefully on their own. Due to different factual position, the aforesaid judgments of the Hon'ble Apex Court cited by learned counsel for the appellants are not applicable in the present case.
29. Looking to the entire evidence, which is believable from all corners, it is apparent that the appellant Chhedilal, Hetlal, Ramraj and Himmatlal were intended to kill the deceased Mordhwaj and Tungdhwaj and ultimately they killed them. Therefore they were rightly convicted by the trial Court for commission of offence punishable under Section 302/34 of IPC. Similarly, it is proved that all the appellants have assaulted the various victims voluntarily and they caused grievous hurt to Garundhwaj and Mohanram by hard and blunt objects, hence they were properly held liable for commission of offence punishable under Section 325/34 24 Cr.A.No.1492/04 & Cr.A.No.276/05 of IPC. Similarly, the appellants had assaulted the various victims by sharp cutting weapon and otherwise, therefore the victims Shyamkali, Angdhwaj, Santkumari had sustained injuries, hence the appellants were liable for commission of offence punishable under Sections 324/34 and 323/34 of IPC. The trial Court has not committed any illegality in convicting them for such offences.
30. So far as the sentence is concerned, no death sentence has been given by the trial Court to the appellants and convicted for commission of offence punishable under Section 302 of IPC. The minimum sentence has been given, which is of life imprisonment, and therefore there is no possibility of any reduction in the sentence awarded to the appellants for commission of offence punishable under Section 302/34 of IPC. It is also apparent that the appellants assaulted the victims in a brutal manner. They assaulted the victims Garundhwaj and Mohanram causing them grievous injuries, and therefore the sentence awarded for commission of offence punishable under Section 325 of IPC appears to be correct. Similarly, the learned Additional Sessions Judge has awarded the sentence for commission of offence punishable under Sections 324, 323/34 of IPC in a judicious manner, hence it is not possible to interfere in the sentence awarded by the trial Court.
25
Cr.A.No.1492/04 & Cr.A.No.276/05
31. On the basis of the aforesaid, it is apparent that the appeal filed by the State cannot be accepted, because nothing could be proved against the respondents of that appeal. Accordingly, Criminal Appeal No.276/2005 filed by the State is hereby dismissed. Similarly, nothing could be established by the appellants that they were wrongly convicted by the trial Court for commission of offence punishable under Sections 302/34 or 325, 324 & 323/34 of IPC. Similarly, there is no basis by which any interference can be made in the sentence awarded by the trial Court. Therefore, Criminal Appeal No.1492/2004 filed by the appellant Chhedilal etc. deserves to be dismissed. Consequently, it is hereby dismissed.
32. Appellants Chhedilal, Hetlal, Ramraj and Himmatlal are in custody, hence they shall continue in the jail till completion of the sentence, whereas appellants Matadeen and Pushparaj are on bail, they are directed to surrender before the trial Court forthwith so that the trial Court may execute the jail sentence upon the appellants Matadeen and Pushparaj.
33. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(Rakesh Saksena) (N.K.Gupta)
Judge Judge
13/09/2012 13/09/2012.
Ansari