Baramdin and Others vs State of U.P.

Amar Saran, J.—This criminal appeal has been preferred against the judgment of the learned VII Ith Additional Sessions Judge, Fatehpur, dated 11.5.2000 in S. T. No. 555 of 1998, convicting the Appellants to life imprisonment u/s 302 read with Section 34, I.P.C. and a fine of Rs. 1,000 each. In default of payment of fine, the Appellants were to undergo 3 months'' simple imprisonment. They have further been convicted to 7 years'' R. I. u/s 307 read with Section 34, I.P.C. and a fine of Rs. 500 each. In default of payment of fine, they were to undergo a further imprisonment for one month. The sentences were to run concurrently.

We have heard Sri Rahul Misra, amicus curiae appointed in this case by us, and learned A.G.A. and perused the judgment and record.

The prosecution case was that on 7.7.1998 at about 5 p.m. the Appellants arrived at a panchayat where a dispute between the parties about taking out of a drain from the land of the informant, Raja, with the Appellant Baram Deen was under consideration. Immediately, the Appellants Baram Deen, who armed with a country-made pistol, his brother Bachcha Lal who was armed with a gun, his son Bodhan armed with a gun and his son Moti, armed with a country-made pistol, fired at the persons present in the panchayat causing injuries to deceased Keshav, Raja (P.W. 1 and the informant of the case), the injured Ram Chandra (P.W. 2), Rajendra (who was not examined in the Court), and P.W. 5 Phool Chandra. On the cries raised by the people present in the panchayat, the Appellants Baram Deen and others ran away.

After that the injured were brought on a bullock-cart to the police station. On the way, near the residence of Shiv Prasad, Keshav expired. The report of this incident was lodged by Raja, P.W. 1, at P.S. Keshavpur, 9 km. away, on 7.7.1998 at 8.30 p.m. S.O. P.S. Keshavpur, S.I. Sri S. K. Misra, the Investigating Officer, was present when the case was registered and he prepared the copy of General Diary and check report and recorded the statements of the informant at the police station. He then sent the injured Ram Chand and Rajendra for medical examination through Constable Krishna Saran and the injured Phool Chandra through Constables Sone Lal and Ram Bilas Ram. The informant was also sent for medical examination. After that he conducted the inquest (Ext. Ka-7) on the dead body at the police station. The body was then dispatched after preparation of the relevant papers for post mortem through Constable Rama Singh and H. C. Sumer Singh.

The post mortem on the dead body of Keshav Singh, aged 50 years, was conducted by Dr. R. K. Misra, on 8.7.1998 at 3 p.m. Rigor mortis was passing off from the upper extremity and was present at the lower extremities. There was no sign of decomposition. The abdomen was slightly distended. The following ante-mortem injuries were seen:

Wound of fire arm entry 1/2 cm. x 1/2 cm. in front of left side of chest 9 cm. below the mid clavicular line. No blackening or tattooing present. Margins inverted irregular and at places lacerated.

Wound of fire arm entry 1/2 cm. x 1/2 cm. present in mid axillary line. 11 cm. lateral to left nipple, margins are inverted, and lacerated.

Wound of fire arm exit 1 cm. x 1 cm. everted margins present just below the inferior angle of right scapula.

The thorax wall and pleura were lacerated. Both the lungs were punctured. One small metallic bullet was recovered from the right lung. The stomach contained half litre of blood and semi-digested food was present in semi-solid form. The small intestines were full. The death was due to shock and haemorrhage due to ante-mortem fire arm injuries sustained.

The medical examination of Raja, the informant, was conducted by Dr. S. R. Singh, P.W. 4, at C.H.C., Khaga, on 8.7.1998 at 12.35 a.m. The following injuries were found on his person:

One firearm wound of entry on the middle and lateral part of left leg. The diameter of wound is 0.2 cm. x 0.2 cm. x muscles deep. The margin is inverted. There is no blackening and charring. The injury was kept under observation and X-ray was advised, and, in the opinion of the doctor, was caused by firearm and the duration was within 12 hours.

Dr. S. R. Singh medically examined Ram Chand on 8.7.1998 at 1 a.m. and found the following injuries:

One firearm wound of entry on skull 6.5 cm. above root of nose. The diameter of wound is 0.2 cm. x 0.2 cm. x scalp deep with inverted margin. Wound is full of dry clotted blood. There is no blackening and tattooing.

One firearm wound of entry on the left side of lower part of neck. The diameter of wound 0.2 x 0.2 cm. x muscles deep with everted margin. There is no blackening and charring.

Both the injuries were kept under observation and X-ray was advised. In the opinion of the doctor, the injuries were caused by the firearm and duration was within 12 hours.

Dr. S. R. Singh also conducted medical examination of the injured, Rajendra, on 8.7.1998 at 12.45 in the night and found the following injuries:

One firearm wound of entry on the left side of skull, 6 cm. above the left ear pinna. The diameter of wound is 0.2 cm. x 0.2 cm. x scalp deep. The margin is everted. There is no blackening and tattooing.

One firearm wound of entry on the middle of forehead with diameter of 0.2 cm. x 0.2 cm. x scalp deep with everted margin. There is no blackening and charring.

Both the injuries were kept under observation and X-ray was advised. In the opinion of the doctor, the injuries were caused by firearm and duration was within 12 hours.

Dr. S. R. Singh also examined Phool Chandra on 7.7.1998 at 9.30 p.m. at C.H.C., Khaga, and found the following injuries:

One firearm wound of entry on the lower eyelid''s upper part, margin of upper lid is lacerated 0.2 cm. x 0.1 cm. Eyeball is full of blood. There is no blackening and charring. The margin of wound is everted.

One firearm wound of entry on the front of lower part of (Lt) side of chest, the diameter of wound was 0.2 cm. x 0.2 cm. x skin deep. The margin is everted. There is no blackening and charring. Both the injuries were kept under observation and were referred to District Hospital, Fatehpur for X-ray and management. In the opinion of the doctor, these were caused by firearm and duration was fresh.

On 5.1.1999, charges under Sections 302 read with 34, I.P.C. and 307 read with 34, I.P.C. were framed against the accused persons, who pleaded not guilty and claimed trial.

Three eye-witnesses, P.W. 1 Raja, P.W. 2 Ram Chand and P.W. 5 Phool Chandra have been examined in this case.

P.W. 1 Raja is the injured and informant. The deceased Keshav was the father-in-law of his sister. On the date of the incident the deceased had come to his house in village Thuryani. As the Appellants were taking out their dirty water by means of a drain in front of his house, he had objected to that, which had resulted in a dispute between the parties. He had called for a panchayat on the date of the incident for getting the drain blocked and had collected his relations and villagers for the purpose. At about 5 p.m. the Appellants emerged carrying firearms and they fired at the persons present in the panchayat resulting in the injuries to Raja, Ram Chandra and Phool Chandra, Rajendra and the deceased Keshav. When the persons present in the panchayat raised cries, then all the four accused fled. The informant was taking all the injured persons including himself to the police station, Keshav died on the way near the residence of Shiv Prasad. At the qasba Kishunpur he dictated the report to the injured Ram Chand and affixed his signature to the same. Then he handed over the report to the S.O. at the police station and narrated the incident to the Investigating Officer. He was sent along with the other injured for medical examination and they were medically examined at about mid-night. On the next day, they reached their village via P.S. Kishunpur. They met the Investigating Officer in the village. The Investigating Officer was shown the spot. The injured persons also showed the three blood-stained clothes which were taken into possession by the Investigating Officer, who prepared their recovery memo (Ext. K-1). His written report, which was handed over at the police station, was marked Ext. Ka-2.

P.W. 2, Ram Chandra, has deposed that Raja was his maternal cousin brother. He had mentioned about the dispute regarding the drain between the parties and the convening of the panchayat and, thereafter, how the four accused persons emerged and resorted to abuses and then fired at this witness and the other three injured. On the cry of the panchayat members present, the accused ran away. He also deposed about the deceased and the injured proceeding to the police station and the deceased expiring on the way near the residence of Shiv Prasad.

P.W. 5, Phool Chandra, has deposed that he knew the accused persons from before who belonged to his village Thuryani. The informant was his maternal cousin brother. The accused Baram Deen had taken out the drain and was discharging his dirty water through it on their land. The informant had protested against its construction but Baram Deen had not listened to that and harboured ill-will against him. On 7.7.1998, Raja had called the panchayat for closing the drain. This witness, Rajendra, Ram Chandra, Keshav, Ram Asrey, Ram Nazar etc. were present at Raja''s door. Baram Deen was also called in the panchayat but he did not come there. However, at 5 p.m. Baram Deen and Moti armed with country-made pistols, Bachcha and Bodhan, armed with a single-barrelled gun came out of their houses. Baram Deen''s wife tried to catch hold of him. Then Baram Deen gave her a push, upon which she fell on her arms. Thereafter all the four accused-Appellants fired at the persons present in the panchayat causing injuries to this witness Phool Chandra as well as Rajendra, Ram Chandra, Raja and Keshav. There was confusion in the panchayat. When the witnesses Ram Nazar and Ram Asrey raised a cry, then all the four accused persons decamped from the spot alongwith their weapons. Raja arranged for a bullock-cart and then took all the injured persons to Kishunpur on it. The injured Keshav died near the residence of Shiv Prasad. The condition of this witness Phool Chandra, was serious, as he was vomiting and he could not see because of the injury to his left eye. After that Ram Chandra handed over the report (Ex. Ka-2) at the police station. After showing their injuries to the Head Constable, they were taken for medical examination at the Khaga Hospital. He was examined there at 9.30 p.m., then was sent to Fatehpur Hospital where he was X-rayed. He was treated for a week and he has lost vision from the left eye. His statement was recorded u/s 161, Cr. P.C. after 14 days.

Apart from the aforesaid eye-witnesses, P.W. 3 Dr. R. K. Misra, who conducted the post-mortem as described above on the body of the deceased ; P.W. 4 Dr. S. R. Singh, who has conducted the medical examination of the injured Raja, Ram Chandra, Rajendra and Phool Chandra in the night of 7/8.7.1998, as described above ; P.W. 6 S.I. S. K. Misra, who was the S.O. P.S. Kishunpur, who has conducted the investigation, as described above ; P.W. 7 Dr. K. P. Singh, who has conducted the X-ray on the eye of the injured Phool Chandra on 9.7.1998, are the formal witnesses who have been examined in this case. P.W. 7, Dr. K. P. Singh, has found a rounded metallic shadow on the maxillary region on the face of Phool Chandra. Nothing was found under the X-ray of stomach of Phool Chandra.

In statements u/s 313, Cr. P.C. the Appellants have denied the prosecution case and suggested that the deceased Keshav belonged to the Kewat gang and he was murdered by someone and they had been falsely implicated. However, the Appellants have not led any evidence in defence.

It was argued by Sri Rahul Misra that P.W. 1 Raja has stated in his cross-examination that he did not know whether Smt. Dasiya, wife of the Appellant Baram Deen, received any injuries in the incident, but then admits that she received an injury on her arm. He was also unable to state whether any F.I.R. was registered against him, Rajendra and Phool Chandra on 8.7.1998 at 8.30 a.m. However, P.W. 2 Ram Chandra has admitted that Smt. Dasiya received a firearm injury in the incident but he had not disclosed this fact either in his F.I.R. or to the Investigating Officer. From these admission it was sought to be argued that Smt. Dasiya had actually received firearm injuries in the incident which were not explained anywhere in the prosecution evidence, hence the Appellants had to be given the benefit of doubt.

It may be noted that the defence has not even cared to examine Smt. Dasiya or to prove her injuries and have also not cared to bring any F.I.R. from the side of the defence on the record. No suggestion was even given to any of the witnesses that firing was resorted to from the prosecution side which resulted in the firearm injury to Smt. Dasiya and in their right of private defence the Appellants had taken recourse to the firing on the prosecution witnesses and the deceased. The defence version as suggested to the witnesses in the cross-examinations and by the Appellants in their statements u/s 313, Cr. P.C. was that actually the deceased Keshav was a member of the Kewat gang who had caused the injury to him. Likewise the other suggestions to the witnesses was that Keshav had called miscreants for committing dacoity at the house of Baram Deen and that the villager had received firearm injuries when they confronted the dacoits, remains a mere suggestion and has not been substantiated anywhere by the Appellants by leading any evidence to that effect in defence. It is also significant that P.W. 5 Phool Chandra has stated in his examination-in-chief itself that when Baram Deen and other Appellants came out angrily with their weapons at the time of the panchayat, then Baram Deen''s wife tried to catch hold of him but she was pushed aside and she fell on her arms. Thereupon, all the four Appellants fired from their weapons. In such circumstances, it could not be ruled out that the alleged injury on the arm of Smt. Dasiya, the wife of the Appellant Baram Deen, could have been received in that firing.

The contention of the learned amicus curiae that it could at the highest be described as a case where the right of private defence has been exceeded, hence the Appellants could at best only be convicted u/s 304, Part I of the Penal Code, is also not acceptable. The facts in the decision of Hanumantappa Krishnappa Mantur v. State of Karnataka 1992 SCC 667, cited by the amicus curiae were that there was a property dispute between the parties, and that the land was in possession of the Appellant. The interim order u/s 145(1), Cr. P.C. which had earlier been passed in favour of the deceased had later been cancelled and the Appellants had even raised crops on the disputed land. In the altercation which took place between the parties over the said land, the deceased had even bitten the left middle finger of the Appellant No. 1, and at that moment the Appellants had attacked the deceased with an axe causing his death. In that case the Appellants had been held to have exceeded the right of private defence and had accordingly been convicted u/s 304, Part I of the Penal Code. However, in the present case, we find that no right of private defence accrued or was even claimed by the Appellants, which they could be said to have exceeded for converting the offence to one u/s 304, Part I.

One other case cited by the learned amicus curiae viz. Krishnan v. State of Tamil Nadu (LVI) 2006 ACC 540: 2006 (3) ACR 2671, was also distinguishable. There the Appellant was accused of murdering his own elder brother and an eye-witness had given details of the quarrel between the deceased and the Appellant and it had been stated that when the deceased and another witness had admitted to hit the Appellant with a thorned stick, the Appellant had tried to avert the blow by covering his head with his hands and the blows had landed on his elbows causing him injuries. In such circumstances the Apex Court has held that the right of private defence clearly accrued to the Appellant as the witnesses P. Ws. 1 and 5 (son and widow of the deceased) had admitted to initial aggression on the part of the deceased. In such circumstances, it was observed that non-examination of the doctor who treated the Appellant''s witness, the non-lodging of the cross-F.I.R. and even the failure to raise the plea of private defence u/s 313, Cr. P.C. were not held to be grounds for disentitling the Appellant from raising the plea of private defence of person, especially as the Appellant had stated in his statement u/s 313, Cr. P.C. that the deceased had tried to assault him although he did not mention that he had hit the deceased back. However, in the present case, we find that no such plea of there being any assault by the prosecution party on anyone from the side of the Appellants including the Appellant Baram Deen''s wife, has been raised and, therefore, the mere mention by two witnesses of Smt. Dasiya having some injury on her person could not provide the Appellants with any right of private defence or of exceeding the said right for giving him the benefit of Section 304, Part I, even if we proceed on the footing that the right of private defence may be raised on the basis of the material present on record even if the Appellant raises no such plea and the Appellant is only called upon to establish his case by preponderance of probability.

In another case,Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702 (V 33 C 141), where the right of private defence was claimed, the Appellants who were in possession of some evacuee property, the land whereof had been sold in a public auction to the complainant and a sale certificate had been issued and allegedly the actual delivery had been given in pursuance of a warrant issued by the Managing Officer, but the Appellant was neither present at the time of delivery nor aware of it. When the complainant-party had come armed with deadly weapons and tractor to the field, and the Appellants'' relations had asked them to clear out of the field and on their refusal they had pushed them and caused simple injuries to them. It was held in such circumstances that the Appellants had not exceeded the right of private defence and it was not material that the plea had not been raised in their statements u/s 342, Cr. P.C. although the same had been established by cross-examination as well as by adducing the defence evidence. Here, as we have shown above, no basis for raising the plea of private defence had at all been made out.

Another contention raised by the learned amicus curiae that the witnesses, who have been examined in the present case, are all partisan and interested and no reliance should be placed on their testimony as independent witnesses and members of the panchayat, who are said to be present, have not been examined. We find that in the present case since as many as three injured witnesses have been examined, it was not at all necessary for the Court to have multiplied the number of witnesses. It is also well-settled now that bystanders and others are notoriously reluctant to appear in cases as witnesses as they do not wish to embroiled in the dispute between the parties. Hence, non-production of the alleged independent witnesses does not detract from the prosecution version in the present case which appears to quite natural and reliable.

We also find no force in the argument of the learned amicus curiae that only two or three injuries may have been received by the deceased and the injured persons and, as such, it could not be said that all the accused persons had any common intention to cause the death of the deceased and to inflict the injuries on the injured witnesses. We are not impressed by the submissions of the learned Counsel. The accused persons had all come fully armed at the time when the panchayat was taking place which had been called to prevent the taking out of a drain and discharging their efflulents over the land of the informant and the deceased and that they had resorted to firing on the deceased. In such circumstances, it cannot be said that the act not committed in furtherance of any common intention or that at best that it only showed similar intention.

We are also not impressed by the argument of the learned amicus curiae that the injury on the deceased could not be attributed to the weapons assigned. He has contended that such small firearm wounds of entry of 1/2 cm. x 1/2 cm. with an exit wound would more probably be the result of firing by a rifle and could not be attributed to the S.B.B.L. guns or country-made pistols which have been attributed to the Appellants. Here, it needs to be emphasized that nothing can be predicated about the injuries from non-standard weapons and even less could be said about country-made pistols which could even be sometimes of 315 bore, whose projectile is a bullet. Even single-barrelled weapons sometimes cause a single shot. Moreover, in this case, one small metallic pellet was even recovered from the right lung, hence the user of such weapons cannot be ruled out. Moreover, the cross-examination of the witnesses P. Ws. 1 and 2 to the effect that Smt. Dasiya, the wife of the Appellant Baram Deen, received injury during the incident, appears to confirm that the incident took place at the time and place alleged.

One last argument on behalf of the Appellants that the Appellant Moti was a juvenile as he has given out his age as 19 years on 27.4.2000 when he was examined u/s 313, Cr. P.C. which would make him less than 18 years in age on 7.7.1998, i.e., the date of incident. At that material time the Juvenile Justice Act, 1986 was in force, in which the material age u/s 2(h) for granting any benefit under the Juvenile Justice Act, was 16 years for a boy and 18 years for a girl. As the Appellant Moti''s age had exceeded 16 years on the date of offence, he could be conferred no benefit under the Juvenile Justice Act. Also as no controversy regarding the Appellant Moti''s age who had not claimed the benefit of being a juvenile at any stage, as he was sent to a regular jail, tried along with the other accused etc. existed in the case, hence the Court recorded no finding based on its own assessment regarding the age of the Appellant Moti, and simply accepted the age given by him. It would be too late in the day now for the Appellant to claim benefit of the Juvenile Justice Act, because under the amended definition of Juvenile, vide Section 2(k) of the Juvenile Justice Act, 2000, which is applicable from 1.4.2001, the age of the juvenile has been made eighteen years.

For all these reasons we find no ground to interfere with the order of conviction recorded by the learned trial court.

However as the Appellants appear to have been in jail, since the very beginning, and they also do not appear to be in a position even to engage a counsel on their behalf, hence they were provided with an amicus curiae by this Court to represent them. Also the incident appears to have taken place in a fit of anger, because the accused-Appellants were being prevented by the prosecution side from taking out a drain from their house, which ran over the land of the prosecution side, hence there would have been no outlet for the discharge of effluents from their house. As the wife of Appellant Baramjit even clung to him to prevent him from shooting with his weapon, as deposed by P.W. 5, Phool Chandra, this also suggest that the incident took place in a fit of anger. We also cannot conclude that all the accused resorted to firing or that all the fires made by the accused struck the deceased and injured. In these circumstances it is provided that on completion of 14 years in jail, as provided u/s 433A of the Code of Criminal Procedure, the case of the accused-Appellants be considered sympathetically under the remission and other procedures of the State for commuting the life sentence awarded to them. A compliance report may be sent to this Court by the Jail authorities and the learned C.J.M., Fatehpur, about the grant of remission, probation etc. on the completion of an actual term of 14 years by the Appellants. With these observations this appeal is dismissed. The order may be sent to the C.J.M. and the jail where the Appellants are detained within two weeks by the registry for compliance.