Dev Chand and Others vs State of U.P.

Mukteshwar Prasad, J.—This criminal appeal by three brothers, Dev Chandra, Kewal and Shyamdhari sons of Kumar Koeri has been filed against the judgment and order dated 1.7.1981 passed by Sri S. K. Misra, the then Additional Sessions Judge, Azamgarh, whereby they were convicted under Sections 304 Part II and 324, both read with Section 34 of the Penal Code and were sentenced to undergo rigorous imprisonment for a period of 4 years and 3 years respectively thereunder. Both the sentences of each accused were ordered to run concurrently.

Shyamdhari, Appellant No. 3 expired during pendency of this appeal in this Court.

The parties are Koeri by caste except Chandra Deo Yadav, one of the accused. Baljor, father of informant Subhash had filed a civil suit against Dev Chandra, Shyamdhari, Kewal, Chandra Dev and Indra Dev in respect of sehan darwaza and the civil suit was pending in the month of May 1978. One Pawaroo cousin of Baljor shifted to village Udai at a distance of about 15 miles from village Hathiya P.S. Jeanpur. Pawaroo had executed a sale deed in respect of his agricultural holdings and delivered possession to Rekha, Ramjeet, Kedar, Mangal, Ganpat and Baljor, Pawaroo had given his share in the house to informant''s father and Baljor was in possession over the entire house.

On 25.5.1978 at about 3 p.m. the informant got prepared a Palani (hut) for placing at his main door. In the meantime, all the three Appellants and one Chandra Deo arrived there and assaulted the informant (Subhash), Rekha and Ramjeet with lathies. Accused Kewal gave barcha blow to Subhash on his chest with a view to kill him. All the accused except Kewal were armed with lathies. Subhash sustained injuries and fell down. He too used lathi for defending himself. On the alarm raised by the informant, his co-villager Sudama Singh, Ram Birksha, Ganpat, Jhinnu and Brigunath arrived there and intervened.

Subhash got a report of incident prepared by Sudama Singh and he accompanied by Rekha and Ramjeet reached police station Jeanpur by a taxi. He handed over his report to local police and a case was registered at Crime No. 123 at 4 p.m. on the same day.

The local police sent all the three inured to the District Hospital for medical examination of their injuries.

On 25.5.1978 at 5.30 p.m. Dr. B. Das, Surgeon of District Hospital examined injuries of Subhash and found one punctured wound 2 cm. ? 1 cm. ? thoracic cavity deep over front of left side chest 4 cm. away from mid line and 3.5 cm. near to left nipple. The injury was kept under observation and advised X-ray. The injury was caused by blunt pointed object and was fresh at the time of examination.

On the same day, at 4.20 p.m. Dr. Das examined Rekha and found two traumatic swellings on left side head.

Both the injuries were kept under observation and advised X-ray. The injuries were caused by blunt object. The patient was unconscious and was admitted in the hospital.

Dr. Das further examined Ramjeet on the same day at 4.45 p.m. and found contusion 8 cm. ? 3 cm. over the right side back, abraded contusion 12 cm. ? 2 cm. on the right side back and one abrasion on back on middle part.

All the three injuries were simple and were caused by some blunt object including lathi and were fresh at the time of examination.

Dr. O. P. Khatri, the then Radiologist of the District Hospital got X-ray done of the injuries sustained by Rekha and found fracture of frontal and parietal bones on 26.5.1978. He X-rayed injuries of Subhash also on the same day.

Rekha expired in the District Hospital on 27.5.1978 at 5.05 a.m.

S.I. Rajbali attached to P.S. Kotwali reached District Hospital after receiving a memo from the District Hospital regarding death of Rekha. He prepared inquest report and other relevant papers for conducting autopsy and sent the dead body in sealed condition to mortuary through Constable Chandrika Prasad.

Dr. R. R. Rai conducted post mortem examination on 27.5.1978 at 5.20 p.m. and found rigor mortis was present in the upper and lower limbs. The following ante mortem injuries were found:

(1) Contused swelling 8" ? 5" on left side head starting from left side of forehead and going backward of head on left side.

(2) Contused swelling 6.5" ? 6" on right side of head starting from right side face and right side forehead and going backward of head right side.

Dr. Rai further found fracture of both parietal bones. Semi-clotted and clotted blood was seen under scalp of head both sides. Frontal bone was also fractured. Membrane covering the brain matter was congested. In the opinion of the doctor, death was caused due to coma resulting from head injuries.

The case was investigated by S.I. Sudama Singh. He interrogated Subhash, Ramjeet, Ganpat, Jhinnu and Brigunath. After inspection of the scene of incident he prepared a site plan. He collected blood stained earth and plain earth in two containers and prepared fard.

On 30.5.1978, the investigation was taken up by S.I. Kailash Pati Pandey who was Station Officer, Jeanpur. He interrogated the accused on 30.5.1978. He sent bloodstained earth for examination and after completing the investigation, submitted charge-sheet.

All the four accused were charged under Sections 302 and 307 both read with Section 34, I.P.C. on 29.7.1979. They pleaded not guilty and claimed to be tried.

In support of its allegations, the prosecution examined. P.W. 1 Subhash, the informant and one of the injured, P.W. 2 Ranjeet, another injured, P.W. 3 Bhrigunath Prasad, who is said to be an eye-witness, P.W. 4 S.I. Kailash Pati Pandey the I Ind Investigating Officer of the case, P.W. 5 S.I. Sudama Singh, Ist Investigating Officer of the case, P.W. 6 Dr. B. Das, who examined the injuries of Subhash, Rekha and Ramjeet on 25.5.1978 in the District Hospital, P.W. 7 Dr. R. R. Rai who conducted autopsy on the dead body of Rekha on 27.5.1978, P.W. 8 Bajrangi X-ray technician of District Hospital, P.W. 9 I. H. Khan, X-ray technician of the District Hospital, P.W. 10, S.I. Rajbali who prepared inquest report, etc., P.W. 11 Dr. O. P. Khatri Radiologist of the District Hospital.

Two Court witnesses Dr. B. S. Singh, the then Medical Officer Incharge Primary Health Centre, Azamgarh and Constable Devi Prasad Dube posted at P.S. Jeanpur were also examined.

Dr. B. S. Singh examined the injuries of accused Ram Kewal on 25.5.1978 at 5.00 p.m. and found two lacerated wounds on the head and forehead. Besides there were three abrasions also. According to him, all the injuries were fresh, simple and injury Nos. 1 and 2 were caused by blunt object. The remaining injuries could be caused by friction.

Both the accused Kewal and Dev Chand totally denied all the accusation levelled against them by the prosecution and pleaded their false implication. Accused Dev Chand pleaded alibi. Accused Kewal disclosed that his father Kumar Koeri, Chandra Dev and Indra Deo had purchased the house (khandhar) of Pawaroo through a sale deed in the year 1976. He placed chapper on the walls and tethered cattle. The informant and other lived in the northern portion of the house and as such, the execution of the sale deed by Pawaroo in their favour was not relished. On the impugned date, Baljor, Subhash and others started damaging his chapper with a preparation to commit his murder. On the protest Subhash and Rekha assaulted him with lathies. He rushed to save his life but he was chased. On his alarm, Sheetal Deo, Kailash and Chandra Dev arrived there and used force in self-defence. He was taken to Azamgarh Hospital and got his injuries examined. He was admitted in the Hospital. He sent a report to the police station but no action was taken by the police.

Accused examined D.W. 1 Pawaroo, D.W. 2 Raghuvansh Bahadur, record keeper of the office of Superintendent of Police, Azamgarh and D.W. 3 Vishwa Nath Singh, advocate.

After having heard learned Counsel for the parties and considering the entire evidence on record led by them, learned Judge found Dev Chand, Kewal and Shyamdhari guilty under Sections 304 Part II and 324, both read with Section 34 of Penal Code and convicted and sentenced them, as noted above.

Accused Chandra Deo was given benefit of doubt and was acquitted.

I have heard learned Counsel for the Appellants, learned A.G.A. and gone through the record including oral and documentary evidence led by the parties in the trial court carefully.

Learned Counsel for the Appellants has assailed the judgment mainly on the grounds that out of three Appellants, Shyamdhari expired during pendency of this appeal. The Appellant No. 1 (Dev Chand) pleaded alibi but his plea was not accepted by the trial court. The trial Judge has further erred in not recording any finding as to who was aggressor and as to how injuries were caused to Appellant No. 2 Kewal also. According to him, learned Judge committed error in appraisal of the evidence on record and did not accept the plea of the accused that he used force in exercise of his right of private defence of property and person. It is true that no F.I.R. was lodged by the Appellants but an application was sent to the Senior Superintendent of Police, Azamgarh. It was also submitted that no independent witness was produced on behalf of the prosecution to corroborate the testimony of Subhash and Ramji and the house of the P.W. 3 Bhrigunath was situated at a considerable distance from the scene of incident. Considering the omissions and contradictions in the statements of the prosecution witnesses and injuries sustained by Kewal, the Appellants are entitled to be acquitted.

On the other hand, learned A.G.A. has urged that the trial court considered and discussed the evidence on record in detail and took into consideration all aspects of the matter and the appeal is liable to be dismissed.

Reliance has been placed by the learned Counsel for the Appellants on two decisions of Supreme Court in Deo Narain Vs. The State of U.P., and Gottipulla Venkatasiva Subbrayanam and Others Vs. The State of Andhra Pradesh and Another,

I have given my anxious consideration to the argument advanced on behalf of the parties. I have perused the decisions and scrutinised the evidence on record led by the parties also but I find that the contention of the learned Counsel for the Appellants is not well founded and cannot be accepted.

According to the F.I.R. on the impugned date at about 3.00 p.m. the informant and others were making preparation for shifting of Palani (which had been prepared on the same date) to the main door with the help of villagers including Rekha and Ramjit. P.W. 1 Subhash informant, P.W. 2 Ramjit and P.W. 3 Bhrigunath Prasad stated in very clear words that Subhash and others got prepared a marai for placing at the main door. Ranjit, Rekha, Bhrigunath and others had assembled there for the purpose of shifting the madai to the main door. The madai was ready and was prepared at a distance of 7-8 steps from the main door of the informant''s house. All the three witnesses disclosed in unambiguous words that Madai was to be placed at the main door. In the meantime, all the four accused named above armed with lathi and ballam arrived there and asked Subhash not to place madai at the door and when he claimed that he would place madai at his door, the accused wielded their lathi and Ramjit and Rekha, Shyamdhari too wielded lathi at Subhash but he sustained no lathi injury. Thereafter, accused Kewal gave a barcha blow on his chest and then he used his lathi in self-defence, which hit on the head of Kewal. There is sufficient and reliable evidence on record that Ramjit and Rekha were unarmed and as such, there was no question of using lathies by them and causing injuries to accused and others on the impugned date. All the three witnesses (Subhash, Ranjit and Bhrigunath) were cross-examined extensively and effectively on behalf of defence but nothing material could be elicited in their cross-examination to disbelieve their testimony.

Accused Kewal pleaded that his father Kumar, Chandradev and Indradev had purchased the house (khandhar) of Pawaroo through a sale deed executed in the year 1976 and placed chappar on the walls of khandhar and tethered cattle therein. According to him, this purchase of khandhar was not relished by the informant''s father Baljor because they resided in the northern portion of the house. Kewal pleaded that on the impugned date, Baljor, Subhash and Ors. (names not disclosed) were demolishing chappar of the accused after having made preparation to cause injuries and to commit murder and on his protest, Subhash and Rekha assaulted him with lathi and caused head injuries. He rushed to save his life but he was chased by them and thereafter, Shital Deo and Kailash arrived there and they all used force in self-defence. It is noteworthy that no witness of the village was examined on behalf of the Appellants who could say that Baljor and Subhash were damaging chapper placed on the wall by the Appellants and on protest, Subhash and Rekha joined together and wielded their lathi on Kewal. First of all, it is noteworthy that no co-villager came forward to depose in favour of the Appellants that it was Subhash and his father and others who were aggressors and took law in their hands. On the other hand, there is sufficient evidence of three witnesses including the brother of Rekha that Rekha and Ranjit were unarmed at the time of incident. Moreover, doctor who conducted autopsy found fracture of frontal bone and both parietal bones. There was semi-clotted blood seen under scalp on both side of head. There is also reliable evidence to the effect that Rekha became unconscious on the spot after sustaining head injuries and he never came into senses till his death at District Hospital on 27.5.1978 at 5.00 a.m.

It is true that Kewal sustained injuries on the same day and Dr. B. S. Singh found two lacerated wounds skin deep on the right side head and on forehead and three abrasions. In view of number, nature and seat of injuries of Kewal, it cannot be said that he was justified in exercising his right of private defence of his body and causing injury on the chest of Subhash. The informant admitted that he had used his lathi in defending himself and caused injuries to Kewal. The doctor found one punctured wound cavity deep over the front of left side chest. He was admitted in the hospital. It is noteworthy that Rekha, one of the injured, succumbed to injuries in the District Hospital on 27.5.1978 at 5 a.m. Besides Subhash and Rekha, P.W. 2 Ramjit was also assaulted at the hands of Appellants and others in the course of incident and he sustained two contusions over the right side back and one abrasion.

Had three injured been armed and carrying lathies in their hands, they would not have received so many injuries on their persons and on different parts of their body. Taking into consideration, the number, nature and seat of injuries of Rekha, it cannot be inferred at all that he was aggressor and was having lathi or any other weapon in his hand at the time of incident in question. It appears that lathi blows were repeated and as a result of repeated blows, fracture of frontal and parietal bones took place.

Deochand, Appellant No. 1, pleaded that he was not present at the scene of incident. He, however, did not try to establish this plea and led no evidence. I further find from oral and documentary evidence on record that Baljor had filed a civil suit for permanent injunction restraining Kumar, Deochand and others from interfering in his possession over the disputed sehan darwaza. The Defendants were contesting the suit and had filed written statement. It is, therefore, clear that parties were having strained relations. The Appellants had a motive to commit the crime.

I further find that the incident in question took place at about 3.00 p.m. and F.I.R. was lodged at police station Jeanpur at 4.00 p.m. on the same day at a distance of 4 miles from the village. Thus, there was no delay at all in reporting the incident to the local police.

Similarly, the injuries of Subhash, Rekha and Ramjit were examined at the District Hospital, Azamgarh on the same day between 4.20 p.m. to 4.45 p.m. and all the three were admitted in the hospital.

I have gone through Sections 96 - 106 of Penal Code under the Chapter of the ''Right of Private Defence''. Section 99 of Penal Code provides the extent to which the right of private defence of body may be exercised. It provides that right of private defence in no case extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. In the instant case, there was no danger to the life of Kewal and there was no apprehension that death or grievous hurt would be caused. In this view of the matter, I find and hold that Appellants and others were aggressors and with a view to usurp the house of the informant and build pressure on the informant and his family resorted to violence and caused injuries to Subhash and others. The date and timing of the incident is admitted to the accused also.

So far as the question of exercise of right of private defence of property is concerned, the informant got a madai prepared for placing at his main door. The madai was not placed and before it could be done with the help of villagers, the Appellants and others arrived there asserted their right and caused obstructions and on protest assaulted the informant and others.

Considering the number, nature and seat of injuries as well as number of injured also, it is not possible to conclude that the injuries were self-suffered or manufactured only with a view to falsely implicate the enemies. It is well-settled that an injured member of family of deceased would be the last person to falsely implicate innocent persons instead of real assailants.

According to certified copy of the plaint of Baljor v. Kumar and Ors. Original Suit No. 567 of 1976 age of Plaintiff (Baljor) was 60 years in the year 1976. It means, he was 61 years old in the month of May, 1977. I am not prepared to place reliance on the statement of the accused that an old man aged about 61 years joined his sons and others to commit murder and caused injuries to Kewal and others. In this view of the matter, the defence version does not stand to reason and cannot be accepted.

In view of the aforesaid discussion and analysis of the evidence led by the parties, I have arrived at the conclusion that the learned Judge committed no illegality or error in appraisal of the evidence and rightly found both the Appellants guilty for the offence punishable u/s 304 Part II and Section 324 both read with Section 34 of Penal Code. The trial Judge has taken a very lenient view in respect of sentence. I, therefore, see no reason to further reduce the sentence. Consequently, it is held that this appeal has no merit and it must fail.

In the result, the appeal fails and is hereby dismissed. The conviction of the Appellants (Devchand and Kewal) and sentence recorded against them by the trial court are hereby affirmed. They are on bail. Their bail bonds are cancelled and sureties discharged. They shall be taken into custody and sent to jail to serve out the sentence.