Brahma Pal and another vs State

M.M. Gupta, J.—Criminal Appeal No. 2064 of 1974 has been filed by Brahm Pal and Pyare. Criminal Appeal No. 2003 of 1974 has been filed by Rampal, Subedar, Hariom and Vikram and Criminal Appeal No. 2086 of 1974 has been filed by Puttoo. Among these appellants Puttoo and Brahmapal were convicted under Section 148, I.P.C. and sentenced to two years rigorous imprisonment. Rest of the appellants were convicted under Section 148, Section 304, Part I and under Section 323 read with Section 149, I.P.C. Under Section 148 they have been sentenced to undergo rigorous imprisonment for two years. Under Section 304, Part I they have been sentenced to undergo rigorous imprisonment for seven years and under Sections 3241149 they have been sentenced to undergo rigorous imprisonment for three years.

It is stated that there was a long standing enmity between the appellants on the one hand and the complainant and the injured on the other. There was a series of litigation between them and proceedings under Section 107, Cr. P.C. were also taken against both the parties.

It is stated that on October 20 1973 Rampal and Ram Das appellants were carrying paddy in bullock carts. When the bullock carts reached near the Chabutra of the complainant Lochan the bullock cart of Rampal and Ram Dass dashed against the bullock cart of Lochan. Lochan protested against it. In the meantime Ram Das and Rampal appellants proceeded to cause him injuries. In the mean time his cousin Dambar came to save him but he was given lathi blows by Ram Pal and Ram Das appellants. On his raising an alarm Laik, Kanhai, Vishnu and Ram Sahai came. Thereupon Ram Das and Rampal rushed towards their houses and went away saying that they would set them right. Shortly afterwards Ram Das with a lathi and Rampal with a pistol, Puttu with a spear, Jwala and Ram Pyare with lathis. Subedar, Hariom and Vikram came out with their licensed guns. Besides them Brahma Pal with his gun and Pyare with a pistol also came near the Chabutra. Ram Dass and Ptampal shouted that the Kisan should be set right. Thereafter they started causing them injuries. They also fired their guns and pistols. In the course of the occurrence Kanhai, Ram Sahai and Vishnu tried to save the persons on their side. Chhokey came out of the house. Chhokey and Kanhai fell down on the spot. In the mean time Smt. Katori and Smt. Champa also came out to save them. They were also injured. Chhokey among them died on the spot. Kanhai, Vishnu, Laik, Dambar, Ram Sahai and Katori also received injuries.

Lochan proceeded to the police station Musajhag and lodged the first information report at 8.05 P.M. on October 20, 1973. Sri Surendra Nath Singh, S.I. Avas present at the police station at the time the report was lodged. He commenced the investigation by recording the statement of Lochan. He reached the scene of occurrence at about 12 in the night and recorded the statements of the injured on the scene of occurrence. The condition of Kandhai was serious. His statement, therefore, could not be recorded. He, however, recorded the statement of Laik and Vishnu. He also took the bloodstained clothes of the injured in his possession and prepared their memorandum. The injured including Kandhai were sent for medical examination. He also found the dead body of Chhokey on the scene of occurrence. He prepared its inquest report and diagram of the body. After sealing it, it was sent for post mortem. The injured of the case including Kandhai who were unconscious were sent for medical examination to District Hospital, Badaun where the injuries of Kandhai were examined at 8.15 A.M. on October 21, 1973 by Dr. B.K. Chopra. He found on his person the following injuries:

(1) Lacerated wound 4 cm. x 1 cm. x bone deep on the left side of fore head, 6 cm. above left eye.

(2) Lacerated wound 1 cm.x1/4 cm. scalp parietal region 9 cm. above the right ear.

(3) Two Lacerated wounds 1 cm. x 1/4 cm. x. scalp deep, left temporal region.

(4) Lacerated wound 1 cm. x 1/4 cm. x scalp deep 3 cm. above injury No. 3.

(5) Contusion 4 cm. x 2 cm. on front of right arm.

(6) Contusion with swelling 10 cm. x 8 cm. on the dorsal of left hand.

(7) Abrasion 8 cm. x 2 cm. on the right upper part of the chest lying horizontally.

All the injuries were caused by blunt object. Injuries No. 3 and No.''6 were kept under observation. X'' ray was advised of the skull and injury on the left hand. Duration was about 18 hours.

On the person of Vishnu who was examined at 9 A.M. he found the following injuries:

(1) Contusion with swelling on left upper eye lid, 3 cm. x 3 cm.

(2) Contusion with swelling over the left eye lid.

(3) Gun shot wound of entry on the right shoulder 1(4 cm x 1/4 cm x muscle deep.

Scorching and tattooing were present. A30

(4) One gun shot palpable on the right shoulder, 8 cm. from injury No. 3.

Injury No. 2 was kept under observation, X''ray was advised. It was caused by blunt object. Injury No. 3 was simple caused by fire arm. X''ray was advised of the right shoulder. Duration was about 18 hours.

The injuries on the person of Ram Sahai who was examined at 8.30 a.m. on October 21, 1973 were as follows:

(1) Lacerated wound 3 cm x 1/4 cm x muscle deep on front temporal region, 10 cm above right ear.

(2) Lacerated wound 2 cm x 1(4 cm x muscle deep on left side parietal region, 9 cm above left ear.

(3) Lacerated wound 3 cm x 1/2 cm x muscle deep on left side temporal region 8 cm above the left ear.

(4) Two abrasions on top of left shoulder 2 cm apart each 1/2 cm x 1/2 cm.

(5) Incised punctured wound on the left elbow 1/2 cm x 1/2 cm x 2 cm deep.

(6) Traumatic swelling with contusion 4 cm x 3 cm on the left elbow surrounding injury No. 5.

(7) Contusion 8 cm x 6 cm in the dorsum of left hand.

(8) Complained of pain in the right shoulder.

Contusion 8 cm x 1 cm on the front of right thigh.

Complained of pain in the chest

Two left inner teeth were broken. Bleeding was found.

All the injuries were simple except injury No. 7. Injury 5 was caused by some sharp object. Rest of the injuries were caused by some blunt object. Duration was about 18 hours.

Laiq was examined at 9.35 a.m. A lacerated wound 114 cm x 1/4 cm x muscle deep on the left eye brow middle was found. The injury was kept under observation. X''ray was advised for nature of the weapon and type of the injury.

Smt Champa and Katuri were found to have one lacerated wound and contusion respectively. These injuries were also caused by some blunt object and were simple.

Damber was examined at 9.15 a.m. He had as many as 19 gun shot wounds on different parts of the body and one contusion on the right scapular region. All the injuries were caused by blunt object. All these injuries were about 18 hours old at the time of the examination, according to Dr. B.K. Chopra.

Kanhai died on October 21, 1973 and Vishnu died on October 28, 1973. The autopsy on the body of Chhokey was performed by Dr. T.P. Dharmo on October 22, 1973 at 12.30 in the day. His probable age was about 60 years while the probable time since death was about 2 days. He had found two gun shot ante mortem wounds of entry on right side of chest between the 3rd and 4th interposal space 2" from sternum and another gun shot on sternum of the same level cavity. No charring was present. Death in his opinion was due to the gunshot injury and haemorrhage.

Autopsy on the cadaver of Kandhai was conducted on October 22, 1973 at 8 a.m. by Dr. V.K. Chopra. According to him the deceased was about 45. He died at 11 a.m. on October 21, 1973 in District Hospital Badaun. He found present ante mortem injuries consisting of five lacerated wounds on the head, two contusions on the right arm and on left hand. He further found an abrasion on the chest. The death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries.

Autopsy on the body of Vishnu was renamed by Dr. V.K" Chopra on October 29, 1973. He was aged about 1.5 and duration since death was about one day. He had on his person two gun shot wounds and a contusion. In the opinion of Doctor Chopra cause of his death could not be ascertained.

Sri Surendra Math Singh continued the investigation on November 2, 1973 and prepare 1 the site plan. He also recovered blood where he found the dead body of the deceased. The took bloodstained and unstained earth in his possession and prepared the memorandum. He also recovered and pellets and two fired cartridges from the of occurrence. He prepared their memoranda and sealed them. He further found the Khirki of the Chaupai of Cbhokey und Lochan broken, he found marks of shots on the window. He took them in his possession. With effect from October 22, 1973 Sri Surya Pratap Singh took up the investigation from. Surendra Nath Singh. He recorded the statements of Dambar and Ram Sahai on October 23; 1973. He sent the blood stained clothes of the deceased and the injured and blood stained earth found on the scene of occurrence to the Chemical Examiner. After completing the investigation be submitted the charge sheet against the appellants.

The appellants denied the manner in which the occurrence is stated by the prosecution witnesses to have taken place. It was claimed that Ram Das and his father were taking their bullock carts through the Rasta. Laiq, Kandhai and Ram Sahai objected to their bullock carts being taken through that Rasta. When they objected to it they gave thorn Lathi blow Ram Das rushed towards his house. H is claimed that Ram Dass also used Lathis in his self defence. Subedar and Devi also came to their rescue but they were also beaten Smt. Champa and Katuri also came to save them but were given Lath blows. It is claimed that they went inside the mouse. Some shots were fired but it was not known to them wlid had fired them. On their side injuries were received by Ram Dass, Subedar appellants, Devi and Smt. Kituka. Ram Dass had also lodged the report at police station Mustapha at 5 p.m. on October 21, 1973.

The injuries of Subedar appellant were examined by Dr. V.K. Chopra who examined him on October 21, 1973 at 10.11 p.m. On the person of Subedar ha found five lacerated wounds on the head and abraded contusion on left arm, one confusion on the right shoulder and one more contusion on the back and on the right hand. ''Besides these injuries he also found one abrasion. All the injuries were caused by blunt object, They were simple in nature and duration was 1112 day.

Ram Dass was examined by him at 10 p.m. on October 21, 15373. He found two lacerated wounds on the head and abraded contusion on the back. His injuries were also simple and were caused by object.

Devi was examined at 10.30 P.M. on October 21, 1973. He found one lacerated wound on the head and four more lacerated wounds on different parts of the body. He also had an abrasion on the right hand. His injuries were simple and were about halfday in duration.

Smt. Kituka was examined on October 21, 1973 at 10.45 P.M. by Dr. V.K. Chopra. She had three lacerated wounds and an abrasion. All the injuries were simple in nature.

The prosecution case rests on the eye witness account of Lochan P. W. 1, Dambar P.W. 4 and Ram Sahai P.W. 5. Besides these witnesses the two Investigating Officers and the doctors who performed the autopsy were also examined. The Head Moharrir who had scribed the report at the police station was also examined. The appellants did not examine any witnesses in their defence.

The learned Sessions Judge after discussing the prosecution evidence and also after considering the defence version came to the conclusion that the appellants had a right of self defence, in causing injuries and death of Chhokey, Kanhai and injuries to the other injured but in respect of those coaccused who had guns and pistols with them he came to the conclusion that they had exceeded their right of private defence. He, therefore, convicted them under Section 304, Part I and those who had guns under Section 324, I.P.C. He also convicted those persons who had lathis with them under Section 147, I.P.C. but he did hot hold that they had exceeded the right of selfdefence in causing injuries to the deceased or the injured. He also held in respect of Brahmpal and Puttu appellants that they did not exceed the rights of selfdefence. He only convicted them under Section 148, I.P.C. and not either under Section 304, Part I read with Section 149 or under Section 3421149, I.P.C

The learned counsel for the appellant has argued that after accepting the defence version that the appellant had caused injuries in the exercise of right of selfdefence committed an error in finding the appellant guilty of having exceeded the right" of selfdefence. He also contended that they could not be convicted of rioting under Section 148, I.P.C.

The prosecution version is supported by Lochan P.W. 2, P.W. 4 Dambar and P.W. 5 Ram Sahai. P.W. 2 Lochan states that at first Ram Das and Rampal appellants caused lathi injuries to Dambar but by the time Kandhai, Ram Sahai, Vishnu and Laiq came on the scene on the alarm raised by him they rushed back to their houses and thereafter all the appellants and their coaccused came out armed with lathis and guns on the scene of occurrence and thereafter lathi fight started in which Dambar, Kandhai and Ram Sahai received injuries. Subedar received lathi injuries which were caused by Damber. His gun fell down from his hand but as he went down to pick up his gun he was further given more lathi blows. From the crossexamination it would appear that both Ram Das and Subedar had received five or six lathi blows each. Subedar had also fired his gun after picking it up. He has further admitted in cross examination that when the lathi fight between both the sides ended only then guns were fired. The guns were only fired after Subedar had received injuries and had fallen down. So far as this version is concerned it is supported by the other two eye witnesses who have been examined in this case. The learned Sessions Judge held that the appellants and their coaccused had the right of selfdefence. It also appears from the injuries of Subedar which have been proved by Dr. V.K. Chopra that he had received as many as five lacerated wounds on his head. This naturally gave the right of selfdefence to the appellants and their coaccused. The guns were fired only after Subedar and other persons on the side of the coaccused received injuries. The question of committing offence of rioting by the appellants would therefore not arise if they were exercising the right of self defence. In State v. Nathu (1) it was held that the assembly could not be designated as an unlawful assembly if its object was to defend the property by use of force. These limits were prescribed by law. Similarly in the instant case the assembly of the appellant could not be held to be unlawful if their object was to exercise right of selfdefence. If the assembly of the appellants and their coaccused was not unlawful each one of the coaccused would be liable for individual act and they could not be convicted of offence with the aid of Section 149. In this case the only person who died as a result of gun shot wounds was Chhokey but he had only two gun shot wounds and these two gun shot wounds could be caused even by one shot fired by any individual appellant who had a gun with him. So far as Kanhai is concerned he did not receive any gun shot wounds. He received blunt weapon injuries. Vishnu deceased and Dambar had also received firearm injuries. So far as Vishnu''s injuries are concerned Dr. Chopra could not give any opinion about the exact cause of his death. The injuries of Dambar received by firearm were simple in nature. In respect of the injuries of Vishnu and Dambar the appellants could not be said to have exceeded the right of selfdefence. Since the individual appellant who caused fatal injury to Chhokey is not known, it is not possible to convict all the appellants under Section 304 part I for exceeding the right of self defence. In State of Bihar v. Nathu (supra) it was held that in a case where some of the accused were with Bhalas but it was not possible to say which of them were so armed and which of them inflicted the fatal wounds on the deceased. It was found that the persons who caused the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. It was held that none of the accused could be convicted. That being the position the appellants in this case also cannot be convicted for exceeding the right of self defence as it is not proved who caused the fatal blows.

ORDER.The appeals are, there fore, allowed. The conviction and sentence imposed against the appellants are hereby set aside. They are on bail, hereby set aside. They are on bail bonds are cancelled and sureties are discharged .