Bhartu and Others vs State of U.P.

Anant Kumar, J.—This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the accused persons, Bhartu, Dharampal and Kunwarpal against the judgment and order dated 16.9.1988 passed by Sri S.C. Tyagi, IVth Additional District and Sessions Judge, Saharanpur in respect of Sessions Trial No. 278 of 1988 convicting and sentencing the appellants under Section 302 read with Section 34, I.P.C. to undergo rigorous imprisonment for life and under Section 307 read with Section 34, I.P.C. rigorous imprisonment for 7 years. Both the sentences were directed to run concurrently. The F.I.R. was lodged by the complainant Sri Samay Singh son of Malkhan Singh, resident of village Pandukheri, Police Station, Nanauta, district Saharanpur on 2.10.1983 at 8:05 a.m. It was stated in the complaint that his grandfather Kripa had died issueless who was having 9 bighas of land regarding which in the family of complainant and his uncle Bhartu, there was a dispute. In the said land, the crop of paddy was standing. On 1.10.1983 in the evening, father of the complainant Malkhan Singh, his brother Brijpal and Bhram Singh had gone to take chart from the field. They had seen that on the land in dispute uncle Bhartu, his sons Dharampal and Kunwarpal were cutting the crop of paddy. When they objected to this and stated that the matter is pending in the court and they should not cut it till the case is decided, thereupon Bhartu and his sons Kunwarpal and Dharampal had started beating father of the complainant. At that time, Bhartu was having lathi, Kunwarpal was having tabal and Dharampal was having country-made-pistol. Hearing commotion, the villagers Kabaj, son of Nathu came there and had seen the occurrence. The accused persons after doing maarpeet had left the scene of occurrence at about 6-6:30 p.m. Due to the incident, father of the complainant Malkhan had died and brothers Brijpal and Brahm Singh had sustained injuries. The complainant received information about the incident from the witness Kabaj and when the complainant went at the field, father of the complainant was found dead and both the brothers were found in an injured conditions but since, in the night, no arrangement for conveyance could be made, they could not come to the police station accordingly. A request was made that the report be lodged and action be taken. The complaint of the complainant was registered as Crime No. 88 of 1983, under Sections 302, 307and 323, I.P.C. The investigation was handed over to Sri Sultan Singh Rai, S.I. who visited the place of occurrence. He collected the plain soil and bloodstained soil. One live cartridge of 12 bore was also collected from the scene of occurrence. The injured Brijpal and Brahm Singh were medically examined and x-ray of them was also done. The dead body of Malkhan Singh-deceased was sent for postmortem and inquest report was prepared.

Brahm Singh and Brijpal were examined at the Primary Health Centre, Nanauta, District Saharanpur at 9:55 a.m. and 10:15 a.m. respectively on 2.10.1983.

The doctor found the following injuries on the person of Brahm Singh:

(1) Lacerated wound 5.5 c.m. x 0.25 c.m. x Scalp deep on the left side head 8 c.m. above left ear.

(2) Lacerated wound 1 c.m. x 0.25 c.m. x skin deep on the left side head 2 c.m. in front of injury No. 1.

(3) Traumatic swelling 19 c.m. x 10 c.m. on the left lower part of arm and upper part of forearm including left elbow.

(4) Traumatic swelling 4.5 c.m. x 3 c.m. on the outer aspect right hand.

(5) Traumatic swelling 8 c.m. x 4 c.m. on the front left leg in middle.

(6) Traumatic swelling 6 c.m. x 4 c.m. on the outer aspect of left foot.

Injury No. 3 was kept under observation and x-ray was advised. Rest injuries were simple, all the injuries were caused by blunt object, duration was about 1/2 day.

The doctor found the following injuries on the person of Brij Pal:

(1) Lacerated wound 4 c.m. x 0.5 c.m. x Scalp deep on the right side head 10 c.m. above right ear.

(2) Lacerated wound 4 c.m. x 0.5 c.m. x bone deep on the right side forehead.

(3) Traumatic swelling 11 c.m. x 10 c.m. on the back of left hand, advised X-rays.

(4) Traumatic swelling 6 c.m. x 4 c.m. on the left cheek below left ear.

(5) Traumatic swelling 4 c.m. x 2 c.m. on the back of right hand at the root of right index finger, advised X-rays.

(6) Contusion swelling 3 c.m. x 1.5 c.m. (8 c.m. x 4 c.m.) on the right side thigh middle 1/3.

(7) Contusion swelling 4 c.m. x 1.5 c.m. (8 c.m. x 4 c.m.) on the left thigh and lower 1/3.

Injuries No. 3 and 5 were kept under observation, advised X-rays, rest injuries were simple. All injuries were caused by blunt objects and duration was about 1/2 day.

The post-mortem examination of the dead body of Malkhan Singh was done by Dr. R.K. Verma on 3.10.1983 at 3:40 p.m. The doctor found the following ante-mortem injuries on the dead body of Malkhan Singh-deceased:

(1) Lacerated wound of 2 c.m. x 1/2 c.m. on the left side of the face, 2 c.m. front and lateral side of the left ear on the upper part of the cheek.

(2) Lacerated wound on the right side of the temporal bone on the head 3 c.m. x 1 c.m. x bone deep at the 8 c.m. above of the right ear.

(3) Lacerated wound of 3 c.m. x 1 c.m. x bone deep behind the right ear over the mastoid region.

(4) Contusion wound of 6 c.m. x 3 c.m. area below and behind the left ear over the mastoid area.

(5) Contusion of 6 c.m. x 9 c.m. on the left side of the scapular region on the back of the body.

(6) Contusion swelling of the area of 10 c.m. x 4 c.m. on and the anterior aspect of the left upper arm.

(7) Contusion on the both sides of the back of the body upper part in the area of 12 c.m. x 7 c.m.

After completion of the investigation, the Investigating Officer filed charge-sheet against the accused persons. The charges were framed against them.

On behalf of the prosecution, the witnesses of fact P.W.-1 Kabaj, P.W.-2 Samay Singh-complainant, P.W.-3 Brahma Singh-injured have been produced whereas other formal witnesses i.e., P.W.-4 Dr. Narendra Chandra Agarwal, who had medically examined the injured witnesses, Brahma Singh and Brij Pal, P.W.-5 Dr. R.K. Verma who conducted the post-mortem upon the deceased Malkhan Singh, P.W.-6 Sultan Singh Rai, Inspector Vigilance, Meerut, who conducted the investigation, P.W.-7 Constable Raj Bardhan Singh and P.W.-8 Dr. J.G. Garg, Radiologist have been produced.

On behalf of the defence, D.W. 1 Constable Ishwar Singh has been produced whereas one court witness C.W. 1 Virendra Datt Sarma, Chakbandi Lekhpal has been produced.

We have heard Sri Gopal Chaturvedi, learned senior counsel assisted by Sri Samit Gopal, learned counsel for the appellants, Sri P.S. Pundir, learned counsel for the complainant and Sri Sangam Lal Kesarwani, learned Additional Government Advocate and perused the record.

It is mainly argued on behalf of the defence that in fact the disputed plot was originally belonged to Kripa who had died issueless. Kripa had executed a Will in favour of the accused persons and they were in possession of the said land and in fact, they had sown the crop of paddy, as such, they have every right to defend their possession over the land and in fact, Malkhan Singh, Brij Pal and Brahm Singh had intervened in the possession of the accused persons. It is further argued that the F.I.R. has been lodged with much delay. Occurrence has taken place in the evening of 1.10.1983 at about 6-6:30 p.m. whereas the F.I.R. has been lodged on 2.10.1983 at 8:05 a.m. whereas as per the F.I.R., the distance from the place of occurrence to the police station is only 5 K.M. It is further argued that in any case, the accused persons are liable to be acquitted and the trial court has wrongly convicted the accused persons. It is further argued that in the F.I.R., regarding the land in dispute, nothing has been mentioned.

Per contra. Learned counsel for the complainant and Additional Government Advocate have argued that the F.I.R. is not an encyclopedia and only real broader aspect of the crime are to be mentioned therein and the prosecution has every right to bring full facts in oral evidence. It is stated that the place and time of occurrence is admitted as the accused persons themselves have lodged a cross version of the matter which has been deposed by the D.W. 1 Constable Ishwar Singh. They have also filed their injury reports just to show that they have also sustained certain injuries in the scuffle. It is also argued that even if, there was a dispute between the parties regarding the land, they had no right to kill anybody and if, at all the deceased Malkhan Singh and his sons had tried to intervene in their possession, they could have taken legal recourse in this regard and they could not have taken law in their hands.

In this case, a perusal of the F.I.R. shows that there is reflection in the same regarding the land in dispute. The complainant himself has mentioned in the complaint that there was a dispute between the parties regarding the land of Kripa who had died issueless and in respect of the said land, some case was pending. So, it cannot be said that in the F.I.R., there was no mention about the dispute of land. In this case, P.W. 1 Kabaj has been produced which is an independent witness and is having his field very near to the place of occurrence which is evident from the spot memo. P.W. 1 has stated in his statement that on the date of occurrence, at about 6-6:30 p.m. when he was working at his field, there was a mar-peet in the field of Malkhan and in the said field, Malkhan had sown the crop of paddy. At the time of occurrence, Bhartu was beating with lathi, Kunwarpal was having tabal but he was using the tabal from the back side i.e., from the side of lathi and Dharampal was having a country-made-pistol and has made fire when they were leaving the scene of occurrence. He has further stated that after the occurrence, he came to the village and narrated the entire incident to the complainant Samay Singh then Samay Singh went to the Village Pradhan but in the night, no conveyance could be arranged. In the morning, the Village Pradhan had given a tractor-trolley then they had gone to Nanauta Hospital.

P.W.-2 Samay Singh-complainant has stated in his statement that Kripa was his grandfather who had no issue. He was having 9 bighas of land and the said land was looked after by them. He has further stated that in the land, they had sown crop of paddy. He has received information about the incident in the evening at about 7:00-8:00 p.m. After receiving information, he had gone to the Village Pradhan and none of the villagers were ready to go with him to the scene of occurrence. Then, he had gone to the place of occurrence and had seen that Malkhan was lying dead and Brij Pal and Brahm Singh were having serious injuries but since, there was no conveyance available, he could not take the injured to the hospital because road was also bad and it was rain. Entire night, they were there in the field and in the morning, they had arranged a tractor-trolley through Village Pradhan and then they had gone to lodge the F.I.R. It is further stated that he was irrigating the field regarding which they were having irrigation receipt which has been produced as Exs. Ka-2 and Ka-3.

Injured P.W. 3 Brahma Singh has given statement in support of the prosecution version. He has stated that on the date of occurrence, he was there at the field alongwith his brother Brij Pal and father Malkhan Singh. Then, accused persons came there to reap the crop of paddy to which he resisted and stated that since, the matter is pending in the court they should not reap the crop. Thereupon, the accused persons started beating them. Bhartu had used his lathi whereas Kunwarpal had used tabal from the back side, i.e., from the side of lathi due to which they had sustained injuries. When the accused persons were leaving the scene of occurrence, Dharampal has opened fire from his country-made-pistol which had missed. He has specifically stated in his statement that the land in dispute was in their possession and they were sowing crop in the same.

Regarding the dispute of land between the parties, the court has summoned C.W. 1 Virendra Datt Sarma, Chakbandi Lekhpal. He has stated in his statement that in plot No. 263, name of Sri Kripa son of Munshi is entered but so far as the entry of the names of Bhartu and his sons are concerned, no clear conclusion can be drawn.

So far as the occurrence is concerned, it appears to be an admitted case between the parties that the occurrence had taken place at the same place and time as stated above. In this regard, D.W. 1 Constable Ishwar Singh has stated in his statement that on 1.10.1983 at about 20:10 Bhartu son of Ghansi had given a oral information at the police station which was registered at Chik No. 67, under Sections 323/504, I.P.C. which was detailed in Rapat No. 27 and which has been marked as Ex. Kha-1. It is further evident that the injury reports of Bhartu, Dharampal and Kunwarpal are also on record which has been marked as Exs. Kha-2, 3 and 4. They were medically examined on 1.10.1983 at about 6:45 p.m. so, it is also evident that the accused persons themselves have admitted the occurrence. A perusal of the judgment of the trial court clearly shows that the learned trial court has in depth considered the dispute between the parties and has rightly concluded that the prosecution has established that Malkhan Singh and his sons were in possession of the land in dispute of Kripa and they had sown the crop of paddy in the same. Since, it is established before the trial court to which we agree that the accused persons had tried to reap the crop, resultantly, this incident took place. It is admitted case between the parties that the accused persons had also lodged a report regarding incident but the defence has very cleverly withheld the said document from the court and this aspect has also been considered by the trial court and since, a vital evidence, which was in possession of the defence side, has been withheld by them, an adverse inference can be drawn that if the said report would have been produced before the court, the same would have gone against the accused persons.

Learned counsel for the defence has argued that the accused persons were having possession of the land in dispute and they have sown the crop of paddy in the said field and since, the deceased and his sons had tried to intervene in the possession, this incident took place, as such, they had got right of private defence in their favour to which they have exercised.

We find that the trial court has rightly pointed out that in fact Bhartu and his sons were in possession of the land, so, there remains no question of right of private defence in favour of the accused persons. However, if for the sake of argument, contention of learned counsel for the defence is taken into consideration and the injuries sustained by the deceased Malkhan Singh and his sons Brij Pal and Brahm Singh are taken into consideration, total injuries sustained by all the three persons are 20 in number and in the said incident, only lathi was used by Bhartu and Kunwarpal had used tabal from the back side, i.e., from the side of lathi. The post-mortem report shows that the deceased had sustained as many as seven ante-mortem injuries out of which there were three lacerated wounds on left side of face, temporal and tempo parietal bones of the head and the skull was found to be broken. The other persons also sustained very serious injuries, so to our view, it cannot be said that the accused persons had inflicted all injuries in their self defence whereas from the side of accused persons, in the injury reports Exs. Kha-2, 3 and 4, all the injuries were found simple in nature. All these aspects have been very deeply considered by the learned trial court. Learned counsel for the defence has failed to point out any such vital defect in the finding of the trial court which may require interference by this Court in appellate jurisdiction. To our view, learned trial court has rightly concluded that the prosecution has succeeded to prove the guilt of the accused persons beyond any shadow of doubt and finding of the trial court need not be disturbed in this appellate jurisdiction.

In view of the above, we find no force in this criminal appeal and is liable to be dismissed.

Accordingly, the criminal appeal is dismissed.

The appellants are on bail. Their bail bonds are cancelled. They will surrender immediately before the C.J.M., Saharanpur. They shall be taken into custody and will serve out the sentence imposed upon them by the trial court. In case they fail to surrender, the Chief Judicial Magistrate, Saharanpur shall take coercive steps. Let a copy of this judgment along the lower court record be sent to the court concerned for necessary information immediately.