Asha and Others vs The State

H.C. Mital, J.—The occurrence giving rise to these two appeals had taken place on 19-5-75 at about 9 a.m. in the morning in village Maharajpur Kalan, Police Station Laksar, district Saharanpur, wherein on account of the injuries one Magan Lal son of Krishna Dutta had died and Krishna Dutta, Jagat, Janardan, Paras Ram, Surjan, Shiv Prakash and Ved Prakash had received total number of 22 injuries. On the other side Tungal, Asha Ram, Hardeva and Moti Ram had received total number of 17 injuries. The occurrence had taken place in respect of a small piece of land belonging to Gaon Sabha of the village. The main dispute at the time of the occurrence was regarding its cultivation.

According to Krishna Dutta, father of Magan Lal deceased, he was in possession over the plot for the last 6-7 years and had sown paddy seeds, a day before the occurrence, i.e. on 18-5-75, and when in the morning on 19-5-75 he found (1) Asha Ram (2) Malkha son of Hardeva (3) Jaggam (4) Hardeva (5) Parsi (6) Dharam Pal (7) Tungal (8) Moti (9) Bhagtoo (10) Deep Chand (11) Malkha son of Latoor (12) Sumeru son of Bhikkhi (13) Mamraj (14) Babu (15) Hukum and (16) Sumera son of Mangta armed with lathis, spear and Gandasa, destroying the crops sown by him and on his protests they attacked as a result of which Krishna Dutta, Magan Lal, Ved Prakash, Jagan, Shiv Dutta, Paras Ram and Surjan received grievous and simple injuries and his son Magan Lal succumbed to his injuries when he was taken to the Hospital at Laksar. A written report of the occurrence was sent by Krishna Dutta to the Police Station which reached there at 2 P.M. at a distance of 8 miles.

Dharampal, one of the accused in the above case, also submitted his written report at police station Laksar at 2.35 p.m. on the same day wherein he named 18 person as accused. As the police submitted final report after investigation on the basis of his report, he filed a complaint under Sections 147/148/323/324/307, IPC on the basis of which the case was committed to the court of Sessions. The trial Judge decided both the session cases simultaneously. The trial Judge, however, believed the prosecution case in ST No. 397 of 1977, hence convicted and sentenced the accused named in the FIR of Krishna Dutta under Sections 302/149/307/149, 325/149, 324/149, 323/140 and Section 447 IPC to life and various sentences of imprisonment against which Criminal Appeal No. 1931 of 1978 has been preferred. The trial judge acquitted the accused of the complaint case, hence Asha Ram, the complamant, has preferred Criminal appeal No. 109 of 1979 against the Judgment of acquittal.

As both these appeals relate to the same occurrence, they were heard together and are being disposed of by a common judgment.

The injuries of all the injured on the side of the prosecution were examined by Dr. A.K. Singhal, who found the following injuries on their persons:

Injuries of Krishna Dutta vide injury report dated 19-5-75 (Ext. ka 2)

Incised wound 4 1/2 cm x 1/2 cm x 4/10 cm over left side forehead, 2 1/2 above the left eye brow, advised X-ray skull.

Lacerated wound 5 cm x 2 cm x scalp deep over side scalp (head) 11 1/2 cm above from right ear.

Lacerated wound 1 cm x 1/2 cm x skin deep over right forearm lower 1/3 inner side.

Punctured wound 2/10 cm x 2/10 cm x 6/10 cm over right elbow joint inner side.

Long abrasion 20 cm x 4/10 cm over left side chest back intending from upper 1/3 to lower 1/3 chest back.

Abraded contusion 4 cm x 2 cm over left side chest back middle 1/3, 1 1/2 cm from mid line.

Contusion 3 cm x 3 cm over right hand back near the base of right thumb.

Injuries of Magan Lal vide injury report dated 19-5-75 Ex. ka 3.

Stab wound 1 cm x 1/2 cm x 12 cm depth directing wound ward, backward left laterally in epigestic.

Stab wound 3/10 cm x 3/10 cm x 6/10 cm over left side chest back lower 1/3, 10 cm from mid line.

Injuries of Jagan vide injury report dated 19-5-75 Ext. ka 4.

Lacerated wound 1 cm x 1/2 cm x skin deep over left thigh upper 1/3 inner side.

Punctured wound 2/10 cm x 2/10 cm x 5/10 cm over left ghleted region (buttock) outer side.

Contusion 5 cm x 2 cm over right side chest back upper 1/3 (scapular region).

Injuries of Parasram vide injury report dated 19-5-75 Ext. ka 5.

Punctured wound 3/10 cm x 2/10 cm x 5/10 cm over right side abdomen back middle 1/3, 12 1/2 cm from mid line.

Abrasion 1 cm x 1 cm over right side scalp (head) 3 cm from occipital.

Contusion 2 cm x 2 cm x over right thumb near nail.

Injury report of Surjan Dutt vide injury report dated 19-5-75 Ex. ka 6.

Contusion 6 cm x 7 cm over left forearm outer side near elbow joint kept under observation.

2....

Injuries of Shiv Dutta vide injury report dated 19-5-75 Ex. ka 7.

Contusion 9 cm x 6 cm over left arm middle 1/3rd outer side with facture of under neath bone.

On X-ray of injury No. 1 facture of shaft humerus was noted.

Injuries of Ved Prakash Vide Injury report dated 19-5-75 Ext. ka 8.

A punctured wound 1/2 cm x 3/10 cm x 7/10 cm over right arm middle 1/3rd outer side.

Punctured wound 1/2 cm x 2/10 cm x 5/10 cm over left thigh middle 1/3rd back.

Punctured wound 2/10 cm x 3/10 cm x 5/10 cm over left thigh middle 1/3 inner side.

Contusion 4 1/2 cm x 2 cm over left side chest back upper 1/3 (scapular region).

Contusion 3 cm x 2 cm over right forearm upper 1/3 back.

Magan Lal, however, succumbed to his injuries on 20-5-75 and his autopsy was conducted by Dr. S.P.S. Verma, who noted the following injuries, Vide Ex. ka 10.

Ante Mortem Injuries:

Stab wound 1 cm x 1/2 cm x 12 cm deep directing back ward and left laterally in epigastrium 5 cm below Xiphisternum in mid line.

Stab wound 3/10 cm x 3/10 cm x 6/10 cm over back of left side of chest at lower l/3rd 10 cm from mid line.

Internal examination.

A wound 1 1/2 cm x 1/2 cm in stomach wall. Lobe of liver was punctured through and through in the size of 2 cm x 1/2 cm. In the opinion of Doctor the death was due to haemorrhage and shock on account of injuries.

Injuries on the side of the Appellants of Criminal Appeal No. 1931 of 1978 were examined by Dr. Prem Prakash on the same day, i.e. 19-5-75 and he noted the following injuries:

Injuries of Mori Ram, vide injury report dated 19-5-75 vide Ext. kha 11.

Oblique reddish contusion 7 cm x 5 cm on right shoulder blade. Left fore arm swelling all around within an area 9 cm x 6 cm.

Linear abrasion non scabbed 20 cm long x skeen deep commencing from lower third part out-side of left side back and going down wards and forwards towards abdomen upto unbliens blood oozing out on cleaning.

Abraded non-scabbed reddish contusion 2 cm x 1 cm transverse on left iliac bone blood oozing out on cleaning.

Non-scabbed abrasions 3 cm x 0.3 cm x skin on right hypothenear ennuance rt. hand, blood oozing out on cleaning.

Injuries of Hardeva vide injury report Ext. kha 12 oated 19-5-75:

Lacerated wound 2.5 cm x 0.4 cm x scalp on rt. side bead 10 cm above rt. ear. bleeding on pressing.

Contusion 6 cm x 1.5 cm on back and outer side of left elbow. There is swelling all around. Advised X-ray.

Reddish oblique contusion 8 cm x 2 cm on back of injury.

Reddish oblique contusion 6 cm x 1.5 cm on upper part of right shoulder balde outer side.

Reddish vertical contusion 9 cm x 3 cm on front and upper third part of right thigh.

Reddish vertical oblique contusion 8 cm x 2 cm on back of right foresean lower third part with external deformity and fracture of under lying bones Adv. X-ray.

Lacerated wound 1.5 cm x 0.4 cm x bone deep on back and inner side of rt. forearm lower third. Blood come out from wound on slight in-dominal.

Injuries of Asha Ram dated 19-5-75 vide Ext. kha 13.

Stab wound 1.2 cm x 1 cm x depth not probed oblique in direction on left side crest in mid axillary one at 4 Oclock position 11 cm apart on wards of out from left muscle. The margins are clean cut having sharp angles at the two extremeties. Surgical emphysema all over left side chest.

Oblique reddish contusion 5 cm x 1.5 cm on dorsum of left hand from the bone of middle finger upto base of thumb with swelling all around.

Injuries of Tungal Singh vide injury dated 19-5-75 Ext. kha 14.

Transverse fractured wounds 5.5 cm x 0.75 cm x bone deep in middle of rt side head close to middle line. 10 cm above right head.

Oblique reddish contusion 4 cm x 2 cm on upper third part of right side back. Parellel and 4 cm below injury No. 2 on right side back.

Reddish contusion 10 cm x 2 cm onliquely parellel and 4 cm below injury No. 2, on right side back.

Oblique reddish contusion 8 cm x 1.5 cm on left side back lower third.

The X-ray of his head was taken on 23-5-75 under the supervision of Doctor and he found the fracture of his right parietal bone.

On X-ray of Hardeva communicated fractures of right radious and Ulna bones under injury No. 6 were found.

From the above it is clear that both sides received at large number of iniuries some of which were grievous while injuries of Magan Lal proved fatal and injury no 1 of Asha Ram a stab wound on the left side chest though resulted in surgical emphysema as lung had also been punctured still it did not Drove fatal and he survived. The injury undoubtedly could have proved fatal. The number and nature of injuries on both sides clearly indicate that both sides had indulged in attacking each other. Admittedly the fight had taken place as there was a dispute regarding possession over a small piece of land which belonged to Gram Samaj. According to Krishna Dutta, it had been in his cultivation for the last 6-7 years while according to the other side Krishna Dutta was in unlawful possession which ceased to exist after October, 1974 on the oral direction by the Sub-Divisional Magistrate and thereafter the Harijans, i.e. Asha Ram and others had cultivated the same and sown and Sown Ravi crop and thus they were in possession on 19-5-75 at the time of occurrence. Both parties adduced evidence in respect of their possession in the two cases. In Criminal Appeal No. 1931 of 1978 besides the oral testimony of eye witnesses there is evidence of PW 9 sukhbir Singh Lekhpal and PW 10 Janeshwar Prasad, Pradhan of the village. In Criminal Appeal No. 109 of 1979 Asha Ram and others had also exammed the same Janeshwar Prasad as PW 4 There are some documents also on record. Hence we first proceed to decide as to which of the parties was in possession on the date of incident.

It is not in dispute that till October, 1974 Krishna Dutta was cultivating the land. It is also not in dispute that in 1974 Sub-Divisional Magistrate had called a meeting of the Block Pramukh and Lekhpals and therein be had directed that all the unlawful occupants of the land of Gram Samaj be ousted and that land be distributed amongst the Harijans. It is also not disputed that the land had not been lawfully alloted to Krishna Dutta prior to October, 1974 but he had been in unlawful possession and this fact has been stated by PW 9 Lekhpal Sukhbir Singh himself. He, however, stated that he had submitted a report against Krishna Dutta about his unlawful possession on 17-5-75 to the Tehsildar for initiating proceedings against him u/s 122-B of the U.P. Zamindari Abolition and Land Reforms Act and the proceedings did take place. On record there is order of the Tehsildar dated 16-12-75 directing eviction of Krishna Dutta from the plot in dispute and for taking over possession from the unauthorised occupant. Before that Krishna Dutta paid Rs. 90/- as rent for the period during which he had been in unlawful possession through receipt dated 13-6-75 and that receipt is Ext ka 20. On behalf of Asha Ram and others Lekhpal was cross-examined and it was asserted that he submitted the report for taking action u/s 122-B of the UP ZA and LR Act against Krishna Dutta after the incident in collusion and no such report was earlier made irrespective of the fact that the Sub-Divisional Magistrate had directed that all unlawful occupants be evicted in October, 1974. That bonafide he should have submitted report immediately after October, 1974 but to prove possession of Krishna Dutta on the date of incident he submitted a false report subsequently. Morevoer, the order of Tehsildar does not say that Krishna Dutta was also in possession on 19-5-75 nor any notice of the proceedings was given to the opposite parties or general notice was given in the village so that they could challenge and assert their own possession after October 1974 PW 10 Janeshwar Prasad who is admittedly Pradhan of the village since 1972 has stated that even prior to his becoming Pradhan on the plot in dispute Krishna Dutta remained in possession till November, 1974 and thereafter Harijans of the village had sown and grown crop thereon and the dispute took place in 1975 when Krishna Dutta sowed the crop. As the witness had stated against his earlier statement u/s 161 Code of Criminal Procedure he was permitted to be cross examined and his attention was drawn to his earlier statement u/s 161 Code of Criminal Procedure that Krishna Dutta was in possession on the date of the dispute. That he never gave possession to the Harijans but they wanted to take possession thereon and in 1975 after occurrence Teshildar had delivered possession to Kripa and Sumeru. In his cross-examination on behalf of Asha Ram and others he stated that in 1974 Sub-Divisional Magistrate had called a meeting of Lekhpals of the Block and Pradhans prior to October, 1974 and had directed that all unlawful occupants from the Gram Samaj land be evicted and possession be delivered to Harijans. That after that oral order of the Sub-Divisional Magistrate the Harijans had taken possession of the land.

Krishna Dutta filed copy of the Khatauni for 1981 to 83 falsi wherein over the plot in dispute his name is recorded but in khatauni in the column of Kashtakar the name of unlawful occupant is not mentioned. Only names of lawful occupants are mentioned. Hence when admittedly Krishna Dutta was rever in lawful possession nor his unlawful possession was legalised nor he was subsequently allotted land by the order of Sub-Divisional Magistrate or Thesildar, there was no question of any entry in the khatauni in favour of Krishna Dutta. We, therefore, find force in the contention on behalf of Asha Ram and others that Sukhbir Singh Lekhpal made these entries collusively without any lawful authority.

On the other hand, there is no evidence except the oral assertion regarding the possession of Asha Ram and others on the land in dispute. Even the Pradhan Janeshwar Prasad had only stated that Harijans had taken possession. He had not stated that these Appellants had taken possession. Under the circumstances neither of the parties has succeeded in clearly establishing their possession on the date of incident.

In view of our above finding, the right of self defence cannot be availed by either party. However, to hold guilty either side, it has to be determined that the guilty party was the aggressor. It has, therefore, to be determined as to who had started the fight. According to Krishna Dutta, he was at his house at 9 00 a.m. when his son Magan Lal came and informed that Tungal and other Harijans were ploughing the plot in which he had sown Moonji a day before, hence he went there and saw Tungal ploughing the field and at that time he was also arrived with a spear. Along with him other 15 persons were also there and on his protests Dharampal exhorted "Maro sale ko aisa maro phir nahi milega". Thereupon Asha Ram wielded his spear on the waist of Magan Lal while Dharmpal gave a spear blow on the abdomen of Magan Lal and thereafter all other accused started attacking him. Then Shiv Dutta, Jagan Dutt, Paras Ram Surjan Ved Prakash and others arrived who were also attacked and they all receved injuries. He further stated that from his side Surjan and Ved Prakash had wielded lathis in self defence and Jag n had wielded spear after snatching it from Asha Ram. Admittedly he did not make such a statement in the FIR. Moreover, he could not say what happened to the spear of accused Asha Ram which was snatched by Jagan. If there had been any truth in that part his statement, naturally he would have taken that spear to the police station or would have subsequently handed it over to the Investigating Officer in the village, Krishna Dutta in support of his case, however, did not examine any of the injured persons on his die but examined one Mangal PW 2 and Janeshwar Prasad PW 4. Mangal PW 2 is a chance witness. He was carrying sugar-cane to the mill. Admittedly ho did not have the Parchi but had borrowed it from Atma Ram and that he did not give his parchi to Atma Ram on reciprocal basis. He also denied to have made statement u/s 161 Code of Criminal Procedure that accused had attacked Jagan Lal and Krishna Dutta with spear and lathis. He also admitted that he did not tell the Investigating Officer that Surjan and Ved Prakash had wielded their lathis and Jagan had snatched the spear of Asha Ram which he wielded in self defence. Lastly, PW 4 Janeshwar Prasad is also a chance witness He says that while he was going to his house then he witnessed the occurrence. He also stated that Surjan and Ved Prakash had wielded lathis in self defence and Jagan had shatched a spear from Asha Ram and then wielded it in self defence. He also admitted that he did not make such a statement to the Investigating Officer. Thus an improvement has been made to explain the injuries on the side of Asha Ram and others. Morever, it appears highly doubtful that spear of Asha Ram could have been so easily snatched by Jagan and as stated above, if the sams had been snatched that should have been handed over to the investigating Officer. That apart, according to the witnesses Asha Ram caused injury to Magan Lal deceased on his waist, which as contained in the injury report and postmortem report was a stab wound 3/10 cm x 3/10 cm x 6/10 cm over part of left side chest, while on the person of Asha Ram vide injury report Ext kha 13 the stab wound was 1.2 cm x 1 cm x depth not probed and the margins were clean cut having sharp angles at the two extremities. These two injuries normally could not have been caused by the same weapon as the weapon which caused injury to Magan Lal had only caused a wound .3 cm x .3 cm x .6 cm and its margins were not clean cut while the weapon which caused injury to Asha Ram had caused a wound 1.2 cm x 1 cm with margins clean cut.

On the other hand, on behalf of the defence no explanation was given to the injuries received on the side of Krishna Dutta in their FIR and thus they completely concealed that fact. The causing of injuries on the side of Krishna Dutta from the side of Asha Ram and others had not been denied In view of the above, the inception of fight is clearly shrouded in mystery and it cannot be said as to who had first started the fight.

Lastly, it would also not be out of place to mention, as contended on behalf of Asha Ram and others, that the learned trial Judge acquitted Dharampal who was responsible for giving the fatal blow to Magan Lal simply because his name was not mentioned amongst the injured in the FIR lodged on behalf of Asha Ram and others. That the learned trial Judge has acquitted as many as 8 persons and convicted 8 persons out of 16 accused and when the prosecution evidence of eye witnesses, namely Krishna Dutta PW 1, Mangal PW 2 and Janeshwar Prasad PW 4 has been disbelieved in respect of participation of 8 accused including Dharmpal, the main assailant responsible for giving the fatal blow to the deceased, their evidence could not be relied upon to be trust worthy for convicting the present Appellants. We find ample force in this contention as has been held by the Hon''ble Supreme Court in the case of State of U.P. Vs. Moti Ram and another etc., , particularly when no cogent reason for disbelieving the evidence in respect of accused acquitted has been given except that their presence was not admitted on the side of the accused in FIR filed by Asha Ram accused. In the present case there is another circumstance that the state has not preferred any appeal nor Krishna Dutta has filed any revision against the acquittal of those eight accused including Dharmpal to whom the role of giving the fatal injury to the deceased was assigned by the eye witnesses.

The conclusion, therefore, is that Criminal Appeal No. 1931 of 1978 is allowed and the conviction and sentences of Asha Ram and others Appellants for the offences under Sections 302/149, 307/149, 325/149, 324/149, 323/149 and 447 IPC are hereby set aside. They are on bail. They need not surrender their bail bonds are cancelled and sureties discharged.

The other Criminal Appeal No. 109 of 1979 of Asha Ram against acquittal of Kirshna Dutta and others is dismissed.