Badari and Others vs State of U.P.

Poonam Srivastav, J.—The instant appeal was preferred by three Appellants Badari, Phool Chand son of Ram Kishun and Ram Tirath son of Thakur. Badari is dead and appeal stands abated in respect of Appellant No. 1.

Argument has been advanced in respect of Appellant Nos. 2 and 3. They are convicted u/s 307/34, I.P.C. and sentenced to undergo 5 years R.I. in Sessions Trial No. 135 of 1979, State v. Badari and two Ors. Police Station Mubarakpur, district Azamgarh.

Sri. Rajiv Lochan Shukla appears on behalf of the Appellants and A.G.A. represents the State.

At the very outset learned Counsel for the Appellants has apprised the Court that there were cross cases of the same incident. Four persons including all the three Appellants Badari, Phool Chand and Ram Tirath had received injuries. However, the cross case ended in an acquittal. Two persons namely Balihari P.W. 3 and Chhotak P.W. 2 have received injuries in the instant case. The occurrence is alleged to have taken place on 4.4.1977 at 6.30 a.m. The F.I.R. was registered at Case Crime No. 56 of 1977 on the same day, i.e., 4.4.1977 at 8.15 a.m. at police station Mubarakpur, district Azamgarh.

The prosecution case is that on the date and time of occurrence the first informant was running his tube-well and water was flowing from the Government Nali which is commonly used by accused as well. Each of the tube-well owners are allowed to use the Government Nali to flow the water to irrigate their respective fields but the drain is used one at a time. Two tube-wells cannot run simultaneously and make the water flow through the Government Nali. According to prosecution case as narrated in the F.I.R. the accused stopped the flow of water of the first informant and started their own tube-well and water was flowing to the fields of Badari which led to an altercation. The accused Badari assaulted Chhotak with spade, Phool Chand and Ram Tirath were armed with ballam. All the three accused assaulted Chhotak causing injuries on his chest. Witness Madan, Indram, Gorakh and Balihari resident of Kukudipur tried to intervene. However, Chhotak fell down as a result of injuries and he was taken to the hospital. Balihari is also alleged to have received injuries in the said incident. The F.I.R. was lodged by P.W. 1 Bajjan.

Prosecution examined Bajjan as P.W. 1, Chhotak P.W. 2, Balihari P.W. 3, Gorakh P.W. 4, Dr. F.B. Singh P.W. 5 and S.I. Brij Bhushan Singh P.W. 6 who investigated the case and submitted charge-sheet.

Injuries received by Chhotak was examined by Dr. F.B. Singh on 4.4.1977 at 8.30 a.m. and injuries of Balihari were examined at 5.15 p.m. on the same day. Both the injury reports are quoted below:

Examined Chhotak S/o Bajjan aged about 30 years, resident of village Sathiaon, P.S. Mubarakpur, district Azamgarh on 4.4.1977 at 8.30 a.m. brought by C.P. 709, Prabhu Narayan Singh, P.S. Mubarakpur.

M.I.: Triangular old scar 1 cm. below Lt. lower eye lid over (?) Zygomatic bone of Lt. side of face.

Injuries:

Incised wound 2 cm. x .8 cm. x bone deep over lower part of sternum with fresh bleeding. Adv X-ray of the part for confirmation of depth and injury to an (P.T.) internal organ.

Incised wound 1 cm. x .3 cm. x muscle deep .5 cm. below the Rt. tibial tuberosity with frank bleeding over the ant. aspect of Rt. leg.

Abrasion of 4 cm. x 2 cm. size over the back of Lt. elbow.

Incised wound 12 cm. x 2.5 cm. in the mid of the wound having tail on both sides. Direction of the wound is obliquely from above downwards. Site of wound is over the back just on the Rt. side of midline at the level of T. 8 spine and extending from T. 8 to T. 10 spine for the depth of the wound. X-ray advised and to confirm cutting of the vertebrae. Frank bleeding from wound is present.

Stitch applied, Inj. coramine 1 Amp 1 ml. given. G.C. is poor. Pulse 100/mt, feeble, regular Pt. is conscious. Resp. 18/mt.

Duration: of injuries fresh, caused by sharp edged weapon except injuries No. (3) which is caused by friction. Patient is referred to District Hospital, Azamgarh for X-ray and further treatment. Injuries are kept under observation.

Sd. Illegible. (Dr. F.B. Singh) Seal L.T.I. of Chhotak attested

Sd. Illegible 4.4.1977 (Seal)

Examined Balihari S/o Bachanu aged about 40 years, resident of Sathiaon P.S. Mubarakpur, district Azamgarh on 4.4.1977 at 5.15 p.m. brought by Kamla Kant Pandey, C.P. No. 121 P.S. Mubarakpur.

M.I.: Black mole on Rt. front of chest 4 cm. above Rt. clavicle.

Injury:

(1) Abrasions 1 cm. x .4 cm. and .4 cm. x .4 cm. with traumatic swelling over the dorsal aspect of Rt. hand in the middle.

Injury is simple caused by friction.

Duration about half day.

Sd. Illegible. (Dr. F.B. Singh) Seal L.T.I. of Balihari attested.

Sd. Illegible. 4.4.1977

The accused were charged that, they on 4.4.1977 at about 6.30 a.m. in village Sathiaon within the circle of P.S. Mubarakpur, in furtherance of common intention of attempt to commit murder, caused injuries with a phawara (an instrument for digging earth) and spear to Chhotak and thereby committed an offence u/s 307/34, I.P.C.

The defence has produced documentary evidence and extract of khatauni for the years 87-92 Fa Ext. Kha-1, another extract of Akar Patra 45 Ext. Kha-2, and copies of injury reports Ext. Kha-3 to Kha-6 and a copy of F.I.R. Ext. Kha-7 have been filed.

Sri. Rajiv Lochan Shukla has placed the F.I.R. as well as statements of witnesses of fact to substantiate his argument that eye-witnesses including the injured witness have made glaring contradictions which is sufficient to come to a conclusion that they were not present at the time of occurrence and the incident as narrated in the F.I.R. did not take place in the manner as claimed by prosecution. It is also argued that in fact four persons have received injuries on the side of the accused namely Petari wife of Badari and all the Appellants Tirath Ram, Phool Chand and Badari Ram. Their injuries were examined on the same day. Phool Chand was examined at 8.20 a.m., Tirath Ram was examined at 9 a.m., Badari was examined at 7.30 a.m. and Petari was examined at 4.45 p.m. After the cross report was registered on the side of the defence Majrubi Chitthi was prepared. Injuries on the side of the defence are detailed hereinbelow:

Examined Petari, W/o Badari aged 30 years resident of Sathiaon, P.S. Mubarakpur, district Azamgarh on 4.4.1977 at 4.45 p.m. brought by Kamla Kant Pandey C.P. No. 121 P.S. Mubarakpur.

M.I. - Black mole of pin head size on Lt. side of face 4 cm. on point of Lt. ear pinna.

Injuries:

(1) Lacerated wound 1 cm. x 1/2 cm. x skin deep over one dorsal aspect of Lt. mid finger at the junction of 1st and 2nd phalange.

(2) Lacerated wound 2 cm. x 1/2 cm. over one palmar aspect of Lt. index finger longitudinal in direction and skin deep.

(3) Traumatic swelling with contusion 6 cm. x 4 cm. over the dorsal aspect of Lt. hand present around the basis of index and middle finger.

(4) Abrasion 1 cm. x 1/2 cm. over the dorsal aspect of base of Rt. index finger.

(5) Contusion 5 cm. x 4 cm. red in colour over the right side of back 3 cm. below the lower end of Rt. scapula.

All the injuries are simple.

R.T.I. of Pitari attested.

Sd. F.B. Singh

Sd. F.B. Singh Medical Officer Primary Health Centre, Sathiaon, Azamgarh.

Examined Tirath Ram male aged about 40 years S/o Thakur Ram R/o Sathion P.S. Mubarakpur, district Azamgarh at 9 a.m. on 4.4.1977.

Brought by Phool Chand S/o Ram Kishun R/o Sathiaon P.S. Mubarakpur, Azamgarh.

M.I. - (1) Black mole on left side of toe just outer to angle of mandible.

(2) Old healed sear just below the left eye.

Injuries:

(1) Contusion on pulp of left ring finger, red colour, nail is blackish.

(2) Contusion on outer border of left side 3 cm. x 1 cm., red colour, 8 cm. below the malecalus.

(3) Abrasion on dorsum of back of Right thumb 1/4 cm. x 1/4 cm.

Opinion:

(1) All injuries are simple and caused by blunt object.

(2) Probable duration fresh.

L.T.I. of Tirath Ram attested

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

Examined Phool Chand male aged about 25 years S/o Ram Kishun R/o Village Sathiaon P.S. Mubarakpur, district Azamgarh, at 8.20 a.m. on 4.4.1977.

Brought by self.

M.I. (1) Small rounded healed sear on right temple.

(2) Small rounded healed sear 1 cm. below M.I. M.I. (i).

Injuries:

(1) Abrasion on dorsum of distal digit of Right thumb 1.5 cm. x 1 cm.

(2) Contusion on outer of left forearm 4 cm. x 1.5 cm. red colour.

(3) Abrasion on dorsum of base of left middle finger 1/4 cm. x 1/4 cm.

(4) Contusion of present of left right 10 cm. above the knee joint 5 cm. x 1 cm. red colour.

Opinion:

(1) All injuries are simple.

(2) Injuries No. (1) caused by friction.

(3) Injuries No. (2), (3) and (4) caused by blunt object.

(4) Probable duration fresh.

L.T.I. of Phool Chand attested.

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

Examined Badari Ram male aged about 45 years S/o Ram Kishun R/o Village Sathiaon, P.S. Mubarakpur, district Azamgarh at 7.30 a.m. on 4.4.1977.

Brought by Phool Chand S/o Ram Kishun R/o Sathiaon, P.S. Mubarakpur, Azamgarh.

M.I. (1) One black mole on left chest.

(2) Black mole 5 cm. above M.I. M.I. (1).

Injuries:

(1) Abrasion on dorsum of rare of Right index finger 1/2 cm. x 1/2 cm.

(2) Contusion on back of right forearm just above the wrist 4 cm. x 2 cm. red colour.

(3) Contusion on inner border of left forearm 6 cm. x 2 cm. red colour.

(4) Contusion on left side of body 2 cm. away from midline 14 cm. x 2 cm. running downward and medially red colour.

(5) Contusion of Right side of body 7 cm. x 2 cm. running parallel to injury No. (4) red colour.

(6) Punctured wound 2 cm. below the left anterior superior Illiac spine 1 cm. x 1/2 cm. x 2 cm. margin sharp cut fresh bleeding present.

(7) Contusion on front of Right leg 1 cm. x 1 cm. just below the knee joint.

(8) Abrasion on front of Right leg in middle part 1 cm. x 1/2 cm.

Opinion:

(1) Injuries No. (1) to (5) and (7) and (8) caused by blunt object.

(2) Injury No. (6) caused by sharp object.

(3) All injuries are simple.

(4) Probable duration-fresh.

L.T.I. of Badari Ram.

Attested.

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

Sd. G.K. Vishwakarma 4.4.1977 Medical Officer, Govt. Hospital, Mubarakpur, Azamgarh.

The injury report on the side of the accused has been proved by the same doctor, i.e., P.W. 5 Dr. F.B. Singh. Learned Counsel submitted that since the cross case stands admitted and place of occurrence is near the fields of Ram Tirath, the only conclusion is that force was used by the Appellants in self defence. To substantiate this argument reference has been made to the site plan Ex. Ka-7.

Learned Counsel has also laid emphasis on the fact that it was only Chhotak who received injuries as a consequence of marpeet by the injuries alleged to have received by Balihari is only by friction and evidently self inflicted. Besides the injuries of Balihari was examined in the evening at 5.15 p.m. Learned Counsel has pointed out the statement of Dr. F.B. Singh P.W. 5 where he has specifically admitted in his cross-examination that the injuries which were incised wound could be caused by khurpi and same was not on any vital organ. Besides, there was no supplementary injury report though X-ray was advised and prosecution has not been able to show that the injured Chhotak suffered any major injury or damage to any organ of his body which could lead to possible death therefore, conviction u/s 307, I.P.C. is uncalled for.

Learned A.G.A. has replied the arguments of Sri. Rajiv Lochan and has candidly admitted the cross case which was also investigated by the same Investigating Officer P.W. 6 who had submitted charge-sheet though the trial ended in an acquittal but he has disputed that the accused could avail any benefit of private defence.

I have perused the documents brought on record including the injury reports of either side, statement of the witnesses, other documentary evidence on behalf of the defence and taken into consideration the arguments of the respective counsels. The fact of altercation on the date and time of occurrence is a fact admitted by both the parties and established by two cross reports and injuries on both sides which is proved by the doctor P.W. 5, therefore, the time and place of occurrence is not disputed and I hold it did take place which resulted in causing injuries to both sides. However, neither any State appeal was preferred by the State in the cross case nor any revision against acquittal was filed at the instance of the Appellants and, therefore, at present it is only to be examined whether the Appellants caused injury with an intention to commit an offence u/s 307, I.P.C. in furtherance of their common intention. On a close scrutiny of oral and documentary evidence, it is clear that the cause of altercation was one which arose suddenly on account of stoppage of flow of water by one of them and the other insisting to flow his water in Government Nali. It cannot be said that the Appellants had any intention to kill the injured and with this precise intention they assaulted Chhotak P.W. 2. It was a sudden quarrel which took place at the spur of the moment and both parties indulged in the criminal act which resulted in the injuries.

So far the question of right of private defence is concerned, Sri. Rajiv Lochan Shukla has placed reliance on two decisions of the Apex Court in the cases of Raghbir Singh and Ors. v. State of Haryana (LIV)2009 ACC 269 : 2009 (1) ACR 637 (SC) and Arun v. State of Maharashtra (LV)2009 ACC 608 : 2009 (2) ACR 1276 (SC). In both the cases the Apex Court has held that in a particular set of circumstances whether a person acted in exercise of right of private defence is a question of fact to be determined in the facts and circumstances of each case. Therefore, it is evident that no definite formula can be propounded to hold that whether such a right was available to the accused or not. Number of injuries is also not safe for determining as to who was the aggressor. This question has to be decided with great caution and in a given situation of assault, whether it is caused in the guise of self preservation and the plea of private defence can be negated or not. This question is to be decided with great circumspection.

In the instant case, the circumstances of the case established conclusively that both the parties wanted to flow their water in the Government Nali and wanted to have their way and an upper hand and with a view to get their way, force was used but there was no intention to kill any one or to cause any grievous injury. It was only to deter the other party. It is thus, evident that though there were sharp edged heavy weapons available nearby but none of them used it to cause any serious injury. It was only to ward of the other party, assault was resorted to. In the circumstances, I do not think that the learned Counsel appearing on behalf of the Appellants has been successfully able to establish his right to exercise self defence. No doubt the complainant has been acquitted in the cross case but this cannot be a ground for acquittal of the present Appellants as well.

The prosecution has not been able to establish the offence u/s 307/34, I.P.C. and conviction for the said offence not sustainable, therefore, is hereby quashed. However, to meet the ends of justice the Appellants who have admittedly indulged in using force to cause physical injuries with a view to stop flow of water, be it simple in nature, are liable to be punished for the offence u/s 323, I.P.C. alone.

In the circumstances, the appeal is partly allowed. The Appellants Phool Chand and Ram Tirath are convicted u/s 323, I.P.C. and sentence of five years awarded by the court below is reduced to ''already undergone'' and fine of Rs. 1,000 each. The amount of fine shall be deposited within a period of four months. In the event of default, further imprisonment of three months R.I. The Appellants need not be awarded any imprisonment specially after a lapse of such a long period. The conclusion of learned Sessions Judge that the Appellants had caused injuries with an intention to kill is without any evidence and absolutely unreasonable. The findings of the learned Sessions Judge cannot be sustained and quashed.