Malti Devi Singh & Others vs State Of U.P. on 1 April, 2016

[Cites 23, Cited by 12]

Allahabad High Court

Malti Devi Singh & Others vs State Of U.P. on 1 April, 2016

(Delivered by Hon.Arvind K.Tripathi,J) Shri Rajul Bhargava, learned counsel for the appellants assisted by Ms. Archana Tripathi, Advocate appeared on behalf of the appellants and Shri Mahendra Singh Yadav, learned A.G.A. appeared on behalf of the State.

The instant Criminal Appeal has been preferred against the judgment and order of conviction and sentence dated 17.2.2004 passed by learned Additional Sessions Judge, Fast Track Court No.2, Ballia in Sessions Trial No.16 of 2003 arising out of Case Crime No.105/2002 under sections 302, 504, 506 I.P.C. PS.Sukhpura, District Ballia convicting and sentencing the appellant Tribhuwan Singh under section 302 I.P.C. and accused appellants Nagendra Singh, Dharmendra Singh and Malti Devi under sections 302 read with 34 I.P.C. for life imprisonment with fine for a sum of Rs.5000/-, in default of payment of fine one year's additional imprisonment was awarded. All the appellants were acquitted under section 504/506 I.P.C.

The brief facts of the case is that the First Information Report was lodged and registered at Police Station Sukhpura at Case Crime No.105/02 under sections 302/504/506 I.P.C. by the informant Mukesh Kumar Singh, son of the deceased. The First Information Report was got written by scribe Anil Kumar Singh s/o Satyadeo Singh, r/o Sukhpura. According to First Information Report Ramesh Kumar Singh r/o Police Station Sukhpura, District Ballia. His father was working at Ganga Nagar, Rajasthan. His father, the informant and other family members came from Ganga Nagar to Sukhpura village on 10.7.2002. There was 'Gobargas plant and garhi (small pond)behind his house. On 11.7.2002 at about 4.30 P.M. on the said land behind his house the accused appellant Tribhuwan Singh s/o Nagendra Singh, Nagendra Singh s/o Gauri Singh, Dharmendra Singh s/o Nagendra Singh suddenly started unloading soil from tractor. His father Ramesh Kumar Singh raised objection, then they abused and asked him to leave the place otherwise he would be killed. In the meantime Nagendra Singh, accused appellant exhorted to bring licensed gun, pharsa and country made pistol from house and to kill him. Thereafter meantime Tribhuwan Singh went towards his house by scooter and when he returned, his sister was sitting on pillion of scooter. After alighting from the scooter Tribhuwan Singh took himself gun and gave pharsa to his father and katta to his sister Malti Devi. All the said four accused appellants abused and exhorted with an intention to kill. Trbhuwan Singh shot fire with gun at his father who after receiving gunshot injury fell down. The entire incident was witnessed by Anil Kumar Singh s/o Parshuram r/o Sukhpura, Kameshwar Singh s/o late Chandrama Singh r/o Sukhpura, Bhola Singh s/o Lalmuni Singh r/o Sukhpura and other persons. He took his father in an injured condition with the help of other persons for treatment to Sadar Hospital where doctor declared him dead. Leaving the dead body in the hospital, he went to lodge the First Information Report on the same day i.e. on 11.7.2003 which was got written by scribe Anil Kumar Singh. The First Information Report was registered at 18-15 (6.16 P.M). The distance from the place of the occurrence to the police station was about one km. After the First Information Report was registered, chick report was prepared. G.D. entry was made. Panchayatnama was prepared as Ext.Ka.3. From the spot blood stained and simple soil were taken.

Postmortem examination was conducted that was prepared and proved as Ext.Ka.4. Map and site plan were prepared. The statement of the witnesses were recorded. After completing formalities charge sheet Ext.Ka.7 was filed by the Investigating Officer. Chick report First Information Report was exhibited as Ext.Ka-8. G.D. entry was proved and exhibited as Ext.Ka-9. Other relevant papers were filed and exhibited.

The prosecution to prove its case, examined as many as eight witnesses namely, PW-1 Anil Kumar Singh, eyewitness, PW-2 Mukesh Kumar Singh, son of the deceased who is also eyewitness and lodged the First Information Report, PW-3 Bhola Singh (eyewitness account), PW-4 Dr.B.K.Rai, Medical Officer, Sadar Hospital, District Ballia who conducted the postmortem examination on the body of the deceased Ramesh Kumar Singh and proved the postmortem examination report, PW-5 Vijay Shanker Yadav, SHO, Narhi Police Station, District Ballia proved the G.D. entry and other papers including site plan, PW-6 constable Kanhaiya Tiwari who was posted at Police Station Sukhpura who prepared chick Report and made G.D. entry no.18 on 18.15 P.M on 11.7.2002. Constable Mahendra Singh was examined as PW-7 who was present at the time of panchayatnama. Thereafter the dead body was sealed and sent to mortuary for postmortem examination, PW-8 Pramod Mishra who proved the case diary and proved carbon copy. After the evidence was closed from side of the prosecution, the statement of the accused appellants were recorded under section 313 Cr.P.C. It was stated by the Nagendra Singh that the father of the accused appellant Tribhuwan Singh was falsely implicated. According to him he was present there with licensed gun on the date of the incident. He was cleaning the land in question. The other side wanted to grab the land forcibly. When Ramesh Kumar Singh and others with an intention to grab the land came there, they were armed with lathi, bhala, pharsa. They wanted to attack hence just to threat them and to avoid the incident pointed out the gun and said that he would fire. The deceased Ramesh Kumar Singh while exhorting reached near him and tried to snatch the gun. Incidentally there was fire causing firearm injury to the deceased Ramesh Kumar Singh. Intentionally he did not fire to cause injury. However, false allegation was made to implicate him. According to accused appellant Dharmendra Singh he being brother of Tribhuwan Singh, was implicated. According to Malti Devi who also denied the allegations and charges and said that being sister of Tribhuwan Singh she was falsely implicated in the present case. However, no evidence was placed in defence.

The postmortem examination on the body of the deceased Ramesh Kumar Singh was conducted by Dr. B.K.Rai, PW-4 on 12.7.2003 at 4.30 P.M. and he noted following ante-mortem injuries:

1) Lacerated wound 3 cm x 3 cm in round. Margin inverted. Blackening on skin present around the wound.

2) Skin rashes present on chest and both shoulder joint.

3) On internal examination brain was found congested. Right lung punctured, fracture on 1st 2nd 3rd ribs. Death was about one day old, since the postmortem examination was done. The cause of death was due to shock as a result of firearm injuries.

After hearing parties and perusal of the record trial court held the appellant Tribhuwan Singh guilty under section 302 I.P.C. and other appellants under section 302 read with 34 I.P.C. who were convicted for life imprisonment with fine. However, they were acquitted under section 504/506 I.P.C.

Being aggrieved against the impugned judgment of conviction and sentence the present appeal has been preferred.

Counsel for the appellants assailed the judgment on the ground that the other side was aggressor. It was sudden fight on the spur of the moment and in exercise of right of self defence the accused appellant Tribhuwan Singh shot fire which caused injuries to the deceased Ramesh Kumar Singh. He further contended that it was not a case of premeditation. While Ramesh Kumar Singh deceased tried to snatch the gun and the accused appellant Tribhuwan Singh did not cause it, hence during snatching by both the persons it was accidental fire, hence no offence is made out against the appellants and even against the appellant Tribhuwan Singh no offnce is made out. He further contended that had there been intention to kill, then all the appellants should have used their respective weapons i.e. gun, country made pistol and pharsa, hence clearly it was an accidental fire. Since the other side were armed with weapons. Hence there was apprehension of attack by them as even earlier the incident had taken place and as such just to threat and stop other side gun was pointed towards them. Hence even if, the prosecution case is admitted, in view of the defence. It is a case of self defence and as such no offence is made out and impugned judgement of conviction and sentence is liable to be set aside.

Learned counsel for the appellants further submitted that whether the incident took place in a sudden fight on the spur of the moment and even if the appellant exceeded right of self defence, then in both the cases offence will not travel beyond section 304 I.P.C. and so for as Tribhuwan Singh is concerned he is in jail since 17.7.2002, hence he has completed more than thirteen and half years. He relied the judgement of the Apex Court reported in 2010 (2) SCC(Cr.)1037, Darshan Singh vs. State of U.P. Darshan Singh Vs. State of Punjab and another, 2010(2) SCC (Cr.) 1037

24. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:

"..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."

25. When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.

26. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book 'Principles of Penal Laws' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.

27. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.

28. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.

29. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.

30. The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: "It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other." But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.

31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.

32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.

33. A legal philosopher Michael Gorr in his article "Private Defense" (published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:

"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".

34. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

35. This court in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife".

36. According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.

37. The courts have always consistently held that the right of private defence extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100 of the IPC. According to the combined effect of two clauses of section 100 IPC taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened.

38.When we see the principles of law in the light of facts of this case where Darshan Singh in his statement under section 313 has categorically stated that "Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the gandasa. I apprehended that I too would be killed and I then pulled the trigger of my gun in self defence." Gurcharan Singh died of gun shot injury.In the facts and circumstances of this case the appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself.

BRIEF ENUMERATION OF IMPORTANT CASES:

39. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28 Madras 454; Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.

40. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.

58. The following principles emerge on scrutiny of the following judgments:

(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.

Yogendra Morarji vs State Of Gujarat on 10 December, 1979, 1980 (2) SCC (Cr.) 394 Equivalent citations: AIR 1980 SC 660, 1980 CriLJ 459, (1980) 2 SCC 218 Author: R Sarkaria

13. The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under? Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not & punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is] a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of Section 100 are relevant The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailent; Sixthly; the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities." (Section 99).

14. Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this Section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai v. State of Gujarat , under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.

15. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded under Section 313 of the CrPC, 1973.

16. Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code (See Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup , Pratap v. State of U.P. .

17. Let us now deal with the facts of the case in hand in the light of the principles stated above. We have already stated that the presence of the eye-witnesses, Khima (P.W. 2), Ravudan (P. W. 3) and Rata Sava (P. W. 4) at the time and place of occurrence and their evidence on the narrow point that the accused fired three shots from his revolver one of which hit and caused the death of Kana was not challenged by the accused in cross-examination or otherwise at any stage. Therefore, the position is that in the absence of proof of circumstances that the accused had caused the death in the exercise of his right of private defence, the charge of culpable homicide would be held to have been established against him by the prosecution. We must therefore focus our attention on these points: Had the accused discharged the burden that lay on him under Section 105, Evidence Act to prove his plea of private defence? Had he sufficiently established on a balance of probabilities all the circumstances necessary to show that the homicide of Kana was justified on the ground of self defence? If the answer to the preceding questions be in the negative, does the evidential material on record, albeit insufficient to establish affirmatively the circumstances necessary to bring his case within the relevant General Exceptions contained in the Penal Code, conferring and regulating the exercise of the right of private defence of body, in the totality of the circumstances of the case, has the effect and impact of inducing a reasonable doubt with regard to the mensrea requisite for the offence of culpable homicide?

17A. At First, we may catalogue here certain admitted or undisputed facts appearing in the prosecution evidence itself. These are:

1. About 45 minutes or one hour before the occurrence, there was a sharp quarrel or heated altercation between the accused, Yogendra, on one side, and Ravudan (P. W. 3), Rata (P.W. 5), Vala and Kana (deceased) on the other, over payment of certain amounts.

Kana was claiming Rs. 60A- as his dues from Yogendra on account of stones quarried and supplied by him to the accused a few days earlier (vide Khima, P. W. 2), Similarly, Ravudan and his workmen, Vala and Rata were demanding Rs, 200/- from the appellant, which, according to Ravudan, was the amount due to him from the appellant in respect of the digging of a well, Yogendra not only refused to pay anything to them, but unceremoniously turned them out of She house of Malshi, This rude behavior of the accused was (sic)esented by Ravudan and Ms companions (vide Ravudan, P. W. 3 and Rata, P.W. 5).

2. On being turned out of the house of Malshi, Ravudan, Kana, Vala and Rata met Khima who Joined them Just outside the house of Malshi and assured them that he Would get soma amount for them from the accused with whom ha (Khima) claimed to have good, relations,

3. While discussing among themselves about the dispute with the accused over payment of their dues, these five persons, namely, Khima, Kana, Ravudan, Rata and Vala moved to some distance from the house of Malshi along the road and reached near the field of one Vira Momaya. The distance between the place of occurrence and the Vada of Malshi, according to Khima (P.W. 2), is 100 paces? while according to the inspection note of the trial Judge, this distance is 325 ft,, Even if Khima's version was taken at its face value, the fact remains that these persons went together to a considerable distance along the cart-road leading; to Bhuj.

4. These fives persons then stood or fingered together in or by the side of the road for about 45 minutes or about one hour, at a considerable distance from the house of Malshi.

The inference about the duration at their remaining there in or by the side of fee road, is deducible from the prosecution evidence itself. In the F.I.R. as well as at the trial, Khima (P.W. 2) stated that the dispute with the accused in the house of Malshi over payment of the dues of Kana, Ravudan, etc. took place at about 8 p. m. In the F. I, R., Khima gave the time of seeing the jeep of the accused coming out, of the Vada of Malshi as 9.30 p. m., implying that the occurrence took place shortly after 9.30 p.m. After trial, he did not pin-point the time of occurrence, though an effort to give the impression that the incident took place soon after their coming out of the Vada of Malshi is discernible, Ravudan (P. W. 3) admitted in cross examination'that Kana received the fatal shot at about 9.15 or 9.30 p.m, According to him, the dispute over payment of their dues with the accused in the house of Malshi took place sometime between 8 and 0 p.m. The statement of P.W. 5 is on this point, similar to that of P.W. 3. Jesang Sava (P. W. 6), Sarpanch stated that it was 9 p. m. when he heard the report of gunshot Ganga Ala (P. W. 7) places the time of occurrence at about 9.15 p.m. on the basis of the gun-fire report heard by him and P.W. 6, while they were in the Chora. Taking the time of the quarrel inside the house of Malshi as about 8.15 p. m. (on the basis of the evidence of Khima, Ravudan and Rata), and that of the occurrence as 9.15 p.m. , it is evident that these five persons were lingering in that road leading to Bhuj, for about 45 or 60 minutes,

5. According to the F. I. R. (Ex, A) lodged by Khima, they were all "waiting outside" to explain/convince Yogendra-bhai" when he would come out in his car for going to Bhuj and that was why ha had tried to stop the car by raising the hand. He admits that the F.I. R, was made by him and signed by him, although he adds that before obtaining his signature thereon, it was not read over to him, Even so, Khima did not specifically dis-own this portion of Ex. A when it was read out to him at the trial, In the wit-ness-stand, Khima stated that since ha was in pressing need of money he told Kana that be had good relations with Yogendra, and he "would see to it that he (Kana) got some amount from Yogendra". In cross-examination also, Khima stated: "I had gone to the scene of the incident, simply with a view that I might get my dues".

6. When at about 8.15 p.m. they saw the lights of the station-wagon of the accused they stood on the right side of the road in the field, and as the wagon approached that place, Khima and Kana raised their hands signalling to the accused to stop the vehicle, and according to Khima, the accused then did stop the vehicle for a moment, while according to P. W. 3 and P. W. 5, the accused had only slowed down the vehicle.

7. Immediately after the accused had stepped or slowed down the vehicle in response to the signal given by Khima and Kana, he stretched out his hand and fired three rounds in quick succession one of which hit Kana. At the time of the firing, Kana, Khima, Ravudan, Rata and Vala were together on the right side of, the vehicle at a distance of about 5 feet from it,

8. In cross-examination, Khima stat-(sic)ated that the accused fired the revolver after aiming it towards them. Ravudan did not say anything about the aiming of the revolver towards any particular person. He simply said that the accused fired three rounds, whereupon Kana was hit. The High Court has correctly appreciated and interpreted the (evidence of these witnesses to reach the finding that the accused had not fired Ms revolver after aiming at any particular person.

9. Shortly after the firing, the accused sped away in his vehicle towards Bhuj by the same road,

10. At about 11.15 P. M. on the day of occurrence, when Laxman Singh, Polios Sub-Inspector (P. W. 11) went to the Police Station, Bhuj on being sent for from his house, he found the accused already there in the Police Station. Head Constable Bakatwar Singh, who was in- charge of the Police Station during the temporary absence of the Sub-Inspector, was also there, The accused gave information to the Sub-Inspector that the family of his Manager was in danger.

Rane J, who wrote the leading judgment in the High Court, noted that "the evidence of the Sub-Inspector shows that when he went to the Police Station at 11 P.M. on the date of the incident, the accused was there". Notwithstanding this evidence, the learned Judge observed) "From the above circumstance, however. It cannot be inferred as to at what time the accused had actually gone to the Police Station", With respect, we are unable to appreciate this "reasoning", If She accused was found already present in the Police Station at 11.15 P.M. , he must have reached there, at least, shortly before that,

11. Within five or ten minutes of receiving the information from the accused that the family members of his Manager at Raydhanpar were in danger, Sub- Inspector Laxman Singh, Deputy Superintendent of Police, Pahuja, and some members of the police force proceeded in the Police Van to Raydhanpar and reach- ed there at 12 midnight. The police party remained in Raydhanpar for 5 or 10 minutes and returned to Bhuj after leaving some armed constables near the house of Malshi and elsewhere in the village, On his return from Bhuj at 0.30 Hrs., the Sub-Inspector recorded the First Information Report No, 75/70 made by the accused in the cross-case, in which he complained of the commission of offences under Sections 147/336 etc., I.P.C. against Khima, Ravudan, Rata and others. When the Sub-Inspector was about to 'complete' the recording of the accused's complaint, Khima (P.W. 2) also came there and lodged the P. I. R. (Mark A) in this case. P.W. 6, Jesang Sava who had accompanied Khima, stated in cross-examination that when they reached the Police Station, the accused was already there with Sub-Inspector, Deol,

12.(i)There is no evidence on the record to show that after his arrival in the Police Station, the accused or his jeep was allowed to move out, or in fact moved out of the Police Station, On the contrary, Laxman Singh (P. W. 11), in spite of an attempt on his part to feign ignorance with regard to this fact, had to admit after some equivocation, under the stress of cross-examination, that during the night the jeep of the accused was "lying outside the compound of the Police Station", P.W, 8, also admitted that when they went to the Police Station to lodge the report, "the Jeep of the accused was lying in the compound."

(ii) Although the Sub-Inspector (P. W. 11) stated that after 0.30 Hrs. that is, on his return from Raydhanpar, he did not allow the accused to move out of the Police Station, The other evidence shows that even during the period the Sub-Inspector and party had gone to Raydhanpar, the accused or Ms jeep could not have been permitted to go out from the Police Station, P.W. 11 admitted in cross-examination that at 23-25 hrs. information was received in the Police Station from the Hospital on telephone that Kana with a bullet wound was in the Hospital and his condition was serious and that steps be taken to get his Dying Declaration recorded. Five minutes later, further information was received from the Hospital that Kana had died. Damji who was then in charge of the Police Station made entries in the Station Diary with regard to the receipt of these informations. With this information in their possession, the Police could not in the normal course, have allowed the accused, even if he wanted to move out of the Police Station, In all probability therefore, the accused after his arrival in the Police Station remained there.

(iii) The Sub-Inspector had come to know from the F.I.R, lodged by the accused, that his jeep had been damaged. Towards the end of Ms statement in cross-examination, the Sub-Inspector, Laxman Singh Deol, again stated: "Since morning, the jeep was in the com-pound of the Police Station. The windscreen glass of the jeep was broken. There were 10 or 15 dents on the bonnet of the vehicle". He however, conceded that he had not drawn the Panchnama of attaching the jeep till the evening of July 31, 1970.

(iv) The accused himself carried his revolver and cartridges to the Police Station and surrendered the same to the Police who however, formally seized it later in the morning under a Panchnama. But Deol (P. W. 11) has admitted that the revolver and the cartridges were with the accused throughout when he was in the Police Station even prior to their formal attachment, under the Panchnama, Ex. 48.

18. We may now turn to two other material facts which have been alleged by the accused but were denied by the prosecution witnesses concerned when they were put to them by the defence in cross-examination. They are: (a) pelting the jeep with stones and (b) blocking or barricading the road by which the accused was proceeding to Bhuj.

Counsel for the appellant submitted that in view of the fact, the case of Tribhuwan Singh is covered either under exception 2 or exception 4 of section 300 I.P.C. and no role of assault has been assigned to other accused appellant, but they were convicted with the aid of section 34 I.P.C., hence the impugned judgment is liable to be set aside.

Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that from the evidence adduced by the prosecution it is clear that while the accused appellants except Malti Devi with the aid of other persons tried to fill soil on the disputed land of pond, over which the complainant was claiming the possession. On exhortation of the accused appellant Nagendra Singh appellant Tribhuwan Singh went to his house, brought licensed gun, katta and pharsa, hence it was not a case of sudden fight and there was no provocation from the side of complainant. The appellants were aggressor and it was an act of premeditation. There was no contradiction in the statement of the witnesses which are corroborated by the medical report, hence the trial court rightly convicted and sentenced under section 302 read with section 34 I.P.C., hence the appeal is liable to be dismissed.

Considered the submissions of counsel for the parties and perused the record.

According to PW-2 Mukesh Kumar Singh who lodged the First Information Report, the incident took place on 11.7.2002 at about 4.30 P.M. According to him, he alongwith his father, who was in service at Ganga Nagar, Rajasthan, came to his village Sukhpura on 10.7.2002. There was land of garhi (pond). The accused appellants Tribhuwan Singh, Nagendra Singh and Dharmendra Singh with their tractor started unloading soil on the land in dispute to fill the pond. When his father raised objection, they used abusive languages addressing the mother and sister and asked to leave the place otherwise they would be killed. The accused Nagendra Singh exhorted and instigated to bring gun, pharsa country made pistol. The accused appellant Tribhuwan Singh went to his house by his scooter and came alongwith his sister accused appellant Malti Devi having licensed gun, pharsa, katta. After arriving at the place of incident he gave katta to Malti Devi and pharsa to Nagendra Singh. They started using filthy languages. Nagendra Singh instigated Tribhuwan Singh to shot fire. Tribhuwan Singh shot fire at his father Ramesh Kumar Singh with licensed gun from a distance of about 2 steps aiming on chest of his father who received injuries and fell down. PW-2, the informant, Mukesh Kumar Singh, Bhola Singh, Anil Kumar Singh and Kameshwar were present there who witnessed the incident. Thereafter they left the place of the incident and with the help of others Ramesh Kumar Singh was taken to the hospital where he was declared dead by the doctor. After leaving the dead body he went to lodge the First Information Report at Police Station Sukhpura. In cross examination he did not know the number of garhi but the land belonged to him. His father were four brothers namely his father Ramesh Kumar Singh and three brothers i.e. Sanjay, Ajay and Vijay, He also admitted that alongwith his father 10-12 persons were present there and all raised objection and asked Tribhuwan Singh and others accused not to fill the soil at the place in dispute i.e. garhi (pond). In cross examination he stated that after Tribhuwan Singh shot fire causing injuries to his father Ramesh Kumar Singh, all the accused left the place of the incident. However, he denied the suggestion that 25-30 persons intended to attack and to assault. Tribhuwan Singh and his father tried to snatch gun of Tribhuwan Singh and in the meantime incidentally caused firearm injury. The house of PW-1 Anil Kumar Singh was near the house of the deceased Ramesh Kumar Singh. According to him Ramesh Kumar Singh tried to catch the gun of Tribhuwan Singh and Tribhuwan Singh shot fire at his chest. Receiving firearm injury Ramesh Kumar Singh fell down on the spot and Tribhuwan Singh and other co-accused run away from the spot. Nagendra Singh, Malti, Devi Dharmendra Singh exhorted to kill Ramesh Kumar Singh. There was no fire from country made pistol. He also saw Tribhuwan while coming with gun from his house. In the cross examination he stated that Ramesh Kumar Singh came from his house after hearing abusive language used by Tribhuwan Singh and others. When Ramesh Kumar Singh tried to catch hold gun when Tribhuwan Singh pointed the gun towards him, then in the meantime Tribhuwan Singh shot fire. PW-3 Bhola Singh is also claiming to be an eyewitness account. According to him on exhortation of Nagendra Singh when Ramesh Kumar Singh raised objection not to unload soil from the tractor at his pond (garhi). Tribhuwan singh shot fire. Nagendra Singh was having pharsa, Tribhuwan Singh armed with gun and Malti Devi with country made pistol and Dharmendra Singh was also present there. He is also independent witness. In cross examination he stated that Tribhuwan Singh started filling soil on the land of garhi, 7-8 months prior to the incident. According to him Gobar Gas plant of deceased Ramesh Singh was in plot no.1399. His house and boundry wall was in the same plot which was in possession of the deceased Ramesh Kumar Singh. Vijay, Ajay and Sanjay were brothers of Ramesh Kumar Singh. He heard that there was some civil case with regard to the land against Nagendra Singh which was pending. He has also supported the prosecution case. However, he denied that to take possession over the land in question earlier there was attack by Ramesh Kumar Singh and others upon Tribhuwan Singh. He has also supported this version that Tribhuwan Singh shot fire causing firearm injury on chest of Ramesh Kumar Singh. Dr.B.K.Rai was examined as PW-4 to prove the postmortem examination report. Firearm injury was noted, on the chest, blackening was present. Margin was inverted. Cause of death was as a result of firearm injury.

The incident is admitted to the appellants. But argument on behalf of the appellant was that there was apprehension of attack from side of the deceased party and hence even if Tribhuwan Singh shot fire that was as a right of private defence. However, even if right of private defence was exceeded, that will fall in the category under section 304 I.P.C. In alternative it was submitted that in view of the evidence deceased Ramesh Kumar Simgh tried to snatch the gun of the accused appellants Tribhuwan Singh, hence it was accidental fire during scuffle and both attempted to snatch the gun. Hence it is admitted case that Tribhuwan Singh was having licensed gun and fire was by that gun causing firearm injury on the chest of Ramesh Kumar Singh who succumbed to the injuries on the spot and as per evidence there was exhortation by Nagendra Singh appellant.

However, so for as the appellant Malti Devi is concerned, though as per allegation katta was handed over to Malti Devi but there is no allegation that she shot any fire from the country made pistol. Even no role has been assigned to the accused appellant Dharmendra Singh. Only her presence was shown on the spot so it cannot be said that it is prior meeting of the mind or there was any premeditation to commit murder. Had there been any intention, then katta might have been handed over to Dharmendra Singh or even smt. Malti Devi might have shot fire by that katta, hence in view of the evidence it is clear that no overtact has been assigned to these two appellants Malti Devi and Dharmendra Singh, it also appears unnatural that instead of handing over katta to Dharmendra Singh, it was handed over to Malti Devi who was unmarried lady at that time.

Upon careful perusal of the testimony and circumstances it appears probable that both the appellants Malti Devi and Dharemndra Singh being family members of the other two appellants namely Tribhuwan Singh and Nagendra Singh have been deliberately assigned presence on the spot in order to spoil the entire family. Therefore, their participation in the incident becomes doubtful and motivated.

Hence conviction and sentence of Malti Devi and Dharmendra Singh with the aid of section 34 IP.C. is against the evidence on record and the same is liable to be set aside.

Section 300 I.P.C.

Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault.

Now the matter is to be considered whether Tribhuwan Singh and Nagendra Singh were rightly convicted and sentenced under section 302 I.P.C. and under section 302 I.P.C. read with 34 I.P.C. respectively or their cases are covered under exception 2 and 4 of Section 300 I.P.C. It is a defence case that other side was armed with lathi. Neither there is First Information Report lodged from side of the accused appellants nor any evidence was adduced to show that the other side was aggressor or they were armed with lathi or any other weapon. Had they been aggressor, injury might have been caused to the appellants also and there is no evidence that the deceased or any person from his side assaulted and there was any attempt to assault. Now according to the statement adduced from the side of prosecution the evidence is that the appellant Tribhuwan Singh on exhortation of the accused Nagendra Singh brought his licensed gun and shot fire at deceased Ramesh Kumar Singh, who died on the spot. The other versions in cross examination is that he tried to caught hold the gun and on that basis case of the appellant was that during snatching of gun it was accidental fire. Apart from that gun was pre-loaded with cartridges. The appellant was aware that if there is fire by gun that would cause firearm injury and if the injury was caused that might be fatal and in ordinary course that might have caused death and if the deceased tried to stop Tribhuwan Singh not to use gun or tried to caught hold gun, there was fire by Tribhuwan Singh but there was no attack by Ramesh Singh, as per statement of the witnesses when Tribhuwan shot fire, he was aware that it would hit the deceased Ramesh Kumar Singh and likely to cause death. Hence it is not a case of right of private defence. According to the definition of section 300 I.P.C. except in the cases exception are provided: culpable homicide is murder if the act by which death is caused is done with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death, if person committing an act knows that it is imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any counts for incurring risk of causing death or such injuries. Hence in view of the definition of section 300 I.P.C. the case of the appellant Tribhuwan Singh is covered and he was rightly held guilty of committing murder, and was rightly sentenced under section 302 I.P.C. for committing murder of the deceased Ramesh Kumar Singh.

So for as the accused appellant Nagendra Singh is concerned, it has also been proved by the prosecution that on instigation and exhortation of the appellant Nagendra Singh, Tribhuwan Singh shot fire with his licensed gun causing firearm injury on chest of the deceased Ramesh Kumar Singh who died on the spot, hence he is also guilty and was rightly punished under section 302 I.P.C. read with section 34 I.P.C.

In view of the aforesaid discussions the conviction and sentence of appellant Malti Devi and Dharmendra Singh is hereby set aside.

In view of the facts and circumstances of the case, the present case is not covered under the exception 2 or exception 4 of Section I.P.C.

However, so for as the accused appellants Tribhuwan Singh and Nagendra Singh are concerned their conviction and sentence under section 302 read with 34 I.P.C. respectively, vide judgment dated 17.2.2004 passed by learned Additional Sessions Judge, Fast Tract Court No.2, Ballia is hereby confirmed, their appeal is hereby dismissed.

Accordingly the present appeal is partly allowed.

Date:1.04.2016 RK

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