Jangli Ram and Others vs State of C.G.

Dhirendra Mishra, J.—The Appellants have preferred this criminal appeal u/s 374(2) of the Code of Criminal Procedure (for short ''the Code'') against the judgment of conviction and order of sentence dated 12-9-2003 passed by the 2nd Additional Sessions Judge, Ambikapur, in S.T. No. 465/2002 whereby learned 2nd Additional Sessions Judge has convicted the Appellants under Sections 148, 452, 302 read with Section 149 and 307 read with Section 149 of the IPC and sentenced each of them to undergo R.I. for 1 year; R.I. for 7 years & fine of Rs. 100/-; life imprisonment and fine of Rs. 100/- and R.I. for 7 years & fine of Rs. 100/-respectively with usual default clauses.

The case of the prosecution, in brief, is that on 24-8-2002 at about 6 a.m. complainant Lalli Namna was present in his house. His father Jeevlal, Mongia, Savita and Budhram were also present in his house. The Appellants and other accused persons armed with club, battleaxe, sword and rod attacked Jeevlal in revenge of the quarrel which had taken place a day before the incident. He sustained multiple injuries on his head and other parts of the body. When Lalli and Paras intervened and tried to save, they were also assaulted by the accused persons and they also sustained injuries over head, leg and other parts of the body. After committing the offence, the accused persons went away The incident was witnessed by Savita, Budhram, MongiaBai etc..

Merg intimation was given by Dasru Ram, ward boy of District Hospital, Ambikapur, on 24-8-2002 at 14.20 hours vide Ex.-P/29. On the basis of report lodged by Lalit @ Lalli on 24-8-2002 at 7.35 hours, offence was registered against the Appellants and Bablu @ Vishwanath & Arju Uraon. Injured Jeevlal, Lalit, Paras and Ramphal were sent for medical examination to Government Hospital, Ambikapur vide Ex.-P/31, Ex.-P/32, Ex.-P/33 and Ex.-P/34 respectively. The medico legal examination reports of Jeevlal, Lalit and Paras are Ex.-P/21, Ex.-P/22 and Ex.-P/23 respectively. Jeevlal died in the hospital on the same day. Dr. J.K. Relwani (PW-11) conducted the postmortem and submitted his report vide Ex.-P/27. Inquest over the dead body of the deceased was prepared in the presence of witnesses vide Ex.-P/2. Site plan was prepared by the Investigating Officer vide Ex.-P/35. On memorandum (Ex.-P/3) of Charki Bai, Bablu @ Vishwanath (Ex.-P/4), Dinesh @ Daroga (Ex.-P/5) and Dilip (Ex.-P/6), weapon of offence i.e. blood stained axe, sword and 2 iron rods were recovered vide Ex.-P/7, P/8, P/9 and P/10 respectively. On memorandum of Dipak (Ex.-P/13), Dharampal (Ex.-P/15) and Jangli (Ex.-P/16), blood stained bamboo Sticks were seized vide Ex.-P/14, P/17 and P/18 respectively. Halka Patwari prepared Nazri Naksha of Ex. P/20 as per information given by Budhram and Sushila. Weapons of offence seized from the accused persons were sent for medical examination and report of the doctor is Ex.-P/24.

In the same incident, accused Dipak Toppo also sustained injuries and he was sent for medical examination to Government Hospital, Ambikapur, vide Ex.-D/4 and his medical report is Ex.-P/25.

After completing the investigation, charge sheet was filed against the Appellants and other co-accused persons namely, Pushpa Bai and Charki Bai in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions Judge and the same was received on transfer for trial by the learned Additional Sessions Judge. Since co-accused Babli @ Renu, Arjun and Bablu were minor, separate charge sheet was filed against them in the Juvenile Court.

Learned Additional Sessions Judge framed the charges under Sections 148, 452, 506-B, 302/149 and 307/149 against all the accused persons. They abjured their guilt.

The prosecution examined 15 witnesses in all to establish the prosecution case, thereafter statements of the accused persons were recorded in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. Appellant Dipak Toppo, in reply to question No. 74, in his statement u/s 313 of the Code of Criminal Procedure also stated that on the date of the incident Lalli and Paras had assaulted him by rod and lathi. At the time of quarrel in the evening he was not present. On 24-8-2002, he had gone to the house of Ram Kumari. On the same day he was to return to the battalion. He had good relationship with Ram Kumari. At that time. Ram Kumari and her husband were not there. When he enquired about incident of previous night, Jeevlal assaulted him. When he stopped, Paras assaulted him. When he ran, Lalli closed the door and he became unconscious by the assault of Paras. He is innocent. He does not know as to how Jeevlal, Lalli & Paras sustained inj uries.

Learned trial Court after hearing learned Counsel for the respective parties, convicted and sentenced the Appellants as mentioned in paragraph-1 of the judgment, however, accused Pushpa and Charki Bai were acquitted of all the charges by giving them benefit of doubt.

Homicidal death of deceased Jeev Lal is not in dispute. Even otherwise, from the evidence of eyewitnesses Ramphal, Lalli Uraon, and Paras Nath, who also sustained inj uries in the same incident and from the evidence of Dr. Ghanshyam Singh (PW-10), who noticed as many as 8 injuries (lacerated and incised) on various parts of the body of the deceased & gave his medico legal examination report Ex.-P/21; and Dr. J.K. Relwani (PW-11), who conducted autopsy (Ex.-P/ 27) on the person of the deceased and who found the following injuries on his person and opined cause of death as coma due to fracture of skull as a result of head injury and excessive bleeding, it is established mat Jeev Lal died homicidal death.

� One repaired wound over forehead middle of 5 cm size;

� One repaired wound horizontally placed on scalp middle of size 6 cm;

� One repaired wound on left parietal region obliquely placed of size 4 cm;

� One repaired wound adjacent to right ear of size 7 cm;

� 2 superficial lacerated wounds of size 2 cm � 5 cm;

� Repaired wound over left pinna of size 4 cm;

� Superficial lacerated wound of right pinna of size 3 cm;

� Repaired lacerated wound on right eyebrow of size 1 cm; Superficial lacerated wound of size 2 cm x Vi cm adjacent to left ear;

� Contusion of size 5 cm � 3 cm over left shoulder;

� Contusion of size 3 cm � � cm over right shoulder;

� Contusion over right elbow of size 2 cm � Vi cm;

� Contusion over right forearm of size 2 cm � � cm;

� Fracture over middle of index finger;

� Number of small contusions on epigastric region between the ribs hollowed portion;

� Contusion over right glutial region of size 2 cm � 1 cm;

� Contusion over right thigh middle and interior and posterior region;

� Fracture of size 6 cm over right temporal region of skull;

� Vertical fracture on middle of skull of size 5 cm;

� Excessive intra-cerebral haemorrhage of brain substance. Clotted blood present.

Learned Counsel for the Appellants referring to the evidence of Lalli Uraon argued that first information report of Ex.-P/30 is doubtful and concocted document, as the same was not recorded on the basis of information of Lalit @ Lalli Uraon. The information was given to the police by Ram Kumari, who has not been examined during trial. In the same incident, Appellant Dipak Toppo was also referred to the Government Hospital, Ambikapur (Ex.-D/4). Dr. Ghanshyam Singh, who examined Appellant Dipak, noticed 3 lacerated wounds over occipital region, one lacerated wound on right temporal region and one lacerated wound over left pinna vide Ex.-P/25. Appellant Dipak was not present when the quarrel took place between the parties in the evening of 23-8-2002. Dipak had cordial relations with Ram Kumari and her husband Budhram. On the date of the incident, at 6 am, he went to them to try to resolve the dispute with proposal of compromise, however, Ram Kumari and Budhram were not present. Deceased Jeev Lal, Paras and Lalli started assaulting him after closing the door. Hearing the cries of Dipak, other accused persons came to the place of incident by scaling the roof to save the life of Dipak, as the complainant party had closed the front door. Dipak was unarmed when he went to Budhram''s house and he became unconscious due to assault by the complainant party. The independent witnesses have not proved memorandum and seizure. The incident did not take place in the house of Lalli and the map annexed with the charge sheet is false. The prosecution has not explained the injuries present over the head of Dipak and thus, the prosecution has deliberately suppressed the genesis of the offence. All the witnesses examined by the prosecution are near relatives. They have inimical relationship with the accused persons and their evidence cannot be believed. A day before the incident, the complainant party had attacked the Appellants, as a result, the accused persons had also sustained injuries. On their report, crime No. 130/02 was registered against the deceased, witnesses Ramphal, Lalli and Budhram. In that incident, Appellant Dilip, Dinesh and Jangliram also sustained injuries as described in Ex.-D/6, Ex.-D/7 and Ex.-D/8. There is material contradiction in the evidence of prosecution witnesses in respect of place of incident, the manner of assault and the direction from which the accused persons entered the house of complainant. There is material contradiction and omission in the statements of witnesses from their earlier statements. There was unexplained and inordinate delay in recording statements of the prosecution witnesses. The other accused persons went to the place of incident to save the life of Dipak after hearing his cries. Dipak had sustained grievous injuries on his vital part i.e. head and was unconscious.

On the other hand, learned Counsel for the State would argue that the conviction is based on the evidence of injured eyewitnesses who sustained grievous injuries in the same incident. Report was promptly lodged against the Appellants by injured witness Lalli. The accused persons armed with lethal weapons i.e. axe, club and sword etc. attacked the house of the complainant party and brutally murdered Jeev Lal, who sustained multiple injuries on vital parts of his body. When the other injured persons tried to save him, the accused persons also attacked them and caused grievous injuries. The injury report of the injured eyewitnesses has been duly proved by the doctor. The injury sustained by Dipak was simple in nature and the same was caused while the victims tried to save them.

We have heard learned Counsel for the parties. We have perused the record of the trial Court as also the impugned judgment.

FINDINGS OF THE TRIAL COURT

Learned trial Court, after setting up issues for consideration in paragraph-5 of the judgment, has acquitted all the accused persons of the charge u/s 506-B of the IPC with a finding that none of the injured eyewitnesses have deposed that they were threatened by the accused persons with their life. Rejecting the defence that the prosecution witnesses are relatives and have inimical relationship with the accused persons, therefore, they should be disbelieved, it has been held that on due appreciation of their evidence, it cannot be said that they have deliberately exaggerated the role played by the accused persons.

Repelling the challenge to the veracity of the first information report (Ex.-P/30) lodged by Lalit, it has been held that ASI Chandel obtained information from the complainant while he was admitted in the hospital, registered FIR and thereafter obtained his thumb impression in the hospital. Since FIR was lodged in haste, therefore, the names of woman accused persons are missing in the FIR.

Regarding argument of delay of 4 days in forwarding copy of the FIR u/s 157 of the Code to the concerned Magistrate, it has been observed that the accused persons were arrested on 24-8-2002 and were produced before the Magistrate with the case diary. In these circumstances, delay in forwarding FIR is immaterial.

The trial Court has further held that accused Pushpa, Charki Bai and others might have gone armed with lathi with other family members to the house of the complainant to quarrel, however, the prosecution has failed to prove beyond reasonable doubt that they assaulted the injured persons and accordingly, the version of the defence that they are innocent has been accepted.

It has been further held that Appellant Dipak along with his mother, sister and others had gone to quarrel in the house of the complainant. Probably, during quarrel, the injured persons caused him some injury and because of this, all the accused persons armed with sword, rod, lathi etc. entered the house of the complainant by scaling the roof and also through the door and searched paras, Lalli and Jeevlal and mercilessly beat them. In paragraph 29, it has also been held that condition of Dipak was not serious and he did not sustain grievous injury and it cannot be said that he was unable to participate in quarrel.

It has been further held that except Charki & Pushpa, all other accused persons armed with lethal weapons in furtherance of common object of murdering I Jeevlal, Lalli and Paras entered the house of Budhram and in furtherance of their above common object, they caused fatal injuries to Jeevlal and caused his death. They caused grievous injuries to Lalli and Paras with a common object of attempting on their life.

The trial Court has also held that the prosecution has failed to prove the memorandum of the accused persons and recoveries in pursuance thereof by leading independent and reliable evidence. It is also observed that Appellant Dipak sustained injuries in the same incident, however, the defence of the accused persons has been rejected that he had gone to Budhram to amicably settle the dispute by compromise and it has been observed that during quarrel, probably, some injuries were caused to him by the complainant.

The description of the place of incident as house of Lalli in Nazri Naksha of Ex.-P/3 5 and site plan of Ex.-P/20, in fact, refers to the house of Rani Kumari and the Appellants are not entitled for any benefit with respect to the discrepancy in the version of the prosecution witnesses before the Court.

Learned Counsel for the Appellants have seriously challenged the veracity of the first information report. It has been vehemently argued that the report is ante dated and the same was deliberately delayed to implicate the innocent persons. De facto lodger of FIR, Ram Kumari, has not been examined in whose house the incident took place. The prosecution has also deliberately changed the place of incident as house of complainant Lalit whereas, the incident occurred in the house of Ram Kumari.

The report of Ex.-P/30 is purportedly lodged by Lalli on 24-8-2002 at 7.35 am in the police station. The report has been proved by ASI M.S. Chandel (PW-13), who has deposed in para-1 that the report of Ex.-P/30 was recorded on the basis of information given by complainant Lalit on 24-8-2002 at about 7.35 am against 7 accused persons whereas, Lalli Uraon (PW-4), in his examination-in-chief, stated that the incident is of August, 2002 at about 5 am. Entire family of the accused persons entered their house from different directions and assaulted him, as a result, his left hand was broken from 2 places and also suffered fracture on right hand. Because of the injuries he became unconscious and he regained consciousness only in the hospital in the next morning. The incident occurred in the house of Ram Kumari. He did not go personally to the police station to lodge the report, as he was unconscious. Even after gaining consciousness, he did not lodge report in the police station. In para-10, he admitted the suggestion that the report was lodged by his sister Ram Kumari, though he further stated that he himself narrated the above facts to Ram Kumari.

Copy of the FIR was received in the Court of Judicial Magistrate 1st Class on 28-8-2002 vide Ex.-P/44. Learned trial Court has rejected the defence of the Appellants mat FIR is a fabricated document and has held that Vimal Khalkho (PW-6) informed the police about the incident where Didi was present, thereafter the police went to the place of incident and brought the injured persons to the hospital. ASI Chandel obtained information from Lalit in the hospital, recorded the same in the FIR and thereafter obtained his thumb impression in the hospital. The above finding is contrary to the evidence of lodger of FIR Lalli as also ASI Chandel, who registered the FIR. The above finding is contrary to evidence available on record.

It is true that delay in forwarding copy of first information report u/s 157 of the Code itself would not make FIR doubtful, however, in view of the material discrepancy present in the prosecution case regarding lodging of FIR, not forwarding the first information report promptly to the concerned Court is a serious infirmity, which cannot be brushed aside only on the ground that the accused persons, after their arrest, were produced before the concerned Magistrate on 25th August, 2002 and, therefore, the delay is of no consequence.

Considering the fact that the complainant party and the Appellants were in inimical terms, the infirmity pointed out by the Appellants regarding FIR attains significance. Indisputably, Appellant Dipak also sustained injuries in the same incident and he was referred to the hospital for medical examination vide Ex.-D/4 and his medical examination was conducted at 8.30 am on 24-8-2002. Dr. Ghanshyam Singh (PW-10) has proved his injury report of Ex.-P/25 and has found following injuries on his person:

(1) 3 lacerated wounds of size 2�1/4, � 1/4 � 1/4 cm, 1 � 1/4 � 1/4 cm, 1 � 1/4, � 1/4 cm on occipital bone, obliquely placed and clotted blood was present.

(2) One lacerated wound of size 5 � � x 1/4 cm on right temporal region, obliquely placed and clotted blood was present.

(3) One lacerated wound of size � � 1/4 X 1/4 cm on left pinna upper part irregular in shape and clotted blood was present.

(4) One lacerated wound of size 7 � � � 1/4 cm on right parietal bone, obliquely placed and clotted blood was present.

(5) One lacerated wound of size � � 1/4 � 1/4 cm on occipital region.

For injuries 1, 2, 4 and 5, he advised for X-ray. However, he described Injury No. 3 as simple in nature. All the injuries were caused by hard and blunt object. However, no X-ray report has been filed and proved.

(PW-13) ASI Chandel has denied the suggestion that Dipak first came to the police station and lodged the report. He further denied that report lodged by Dipak has deliberately not been produced. However, in the absence of any explanation with respect to the cause and circumstances in which Dipak sustained injuries and he was referred for medical examination, the defence of the Appellants that the prosecution has deliberately suppressed the genesis of the offence appears to be probable. Had the Investigating Officer tried to ascertain the same, the defence version of the incident could come to the fore and investigation would not have been one sided.

The sum and substance of evidence of PW-2 Ramphal is that he is the real brother of Jeevlal whereas, injured Paras is his real maternal uncle. On the date of incident, he along with Lalli, Paras, Budhram, Savita, sister of Savita and Nani of Savita were present in home. He went to attend the call of nature with Lalli at 5.30 am towards agricultural field. Around 6 am when they entered the house from the back door, he saw the accused persons were hurling abuses on them. All the accused persons armed with lathi were coming towards his house. He woke up other members and told the same. Jeevlal and Paras woke up whereas others were still sleeping. Appellant Dipak, both woman accused and one juvenile girl entered the house. Dipak, his mother and Pushpa were holding lathi. They entered from eastern door whereas, other accused persons namely, Daroga, Vishvanath, Bablu, Jangli, Arjun and Dharampal entered the house from back side door, Bablu was armed with sword. Daroga was armed with rod. Dharampal was armed with dagger. Dilip was armed with lathi. Arjun was armed with rod. The accused persons assaulted Jeevlal, who fell on ground. When Paras and Lalli tried to intervene, the accused persons also assaulted both of them. When he tried to intervene. Jangli assaulted him by brick on his waist. He tried to defend by a pipe lying nearby. While he was attempting to flee, Bablu assaulted him by sword on his head. He ducked the assault. However, on 2nd assault, his right hand middle finger was chopped. Thereafter, he fled from the place of incident and went to the house of his uncle and reached Ambikapur Hospital at 2-3 pm. His sister Ram Kumari has a bread factory. Bablu etc. used to quarrel with Ram Kumari and eat bread. The accused persons quarreled on the date of the incident as Jeevlal had forbidden Bablu from quarrelling with Ram Kumari. He is also a witness of memorandum and seizure from the accused persons. However, he has denied any interrogation of the accused persons by the police in his presence, though he has admitted his signature in memorandums and seizures from Ex.-P/3 to Ex.-P/10. He has denied the suggestion of the defence that a day before the incident, in the evening, he along with Jeevlal, Lalli and Budhram assaulted Jangli, Dilip and Dinesh. However, he has admitted that a criminal case has been registered against the aforesaid persons on the basis of report of Dilip. He has also admitted that in the previous night, there was Marpeet with Jeevlal, Lalli and Paras. He has admitted that Dipak is constable in Police. He came to the village on the eve of ''Rakshabandhan''. He was not present when the quarrel took place in the previous night. Dipak came alone after the quarrel of the night, however, he added that he was kicking the door. He has denied the suggestion that Appellant Dipak came to resolve the dispute by compromise. He also denied that Jeevlal, Lalli and Paras closed the door and committed Marpeet with Dipak and on hearing his cries, Bablu scaled the roof and came inside to rescue Dipak and he assaulted Jeevlal after snatching the rod from Lalli. He has denied the suggestion that he was not present at the time of incident, as he had fled to village Parsodi after quarrel of the previous night. He also denied that he sustained the injuries in the incident of previous night.

TWswimess has been confronted with his diary statement of Ex.-D/1 in which omissions regarding returning after attending the call of nature and entering from back side door; at that juncture the accused persons were hurling abuses, waking up members of the family and informing them about the accused persons coming to assault; Appellant Dipak, 2 woman accused persons & one juvenile girl entered from eastern door and other accused persons entered from back side door; accused Dharampal was holding dagger, Arjun & Daroga rod and Dilip club, are present. However, the witness has claimed that he had narrated the above facts to the police. Omission in the diary statement with regard to assaulting him by sword by Bablu as a result his right hand middle finger was chopped has also been pointed out in cross-examination.

P W-4 Lalli Uraon has deposed that he and the accused persons reside in Namankala. He is residing in the house of his brother Jeevlal. The house of accused persons is at a distance of 50 meter from his house. The entire family of the accused persons Dipak, Bablu, Jangli, Daroga entered their house at about 5 am in the month of August, 2002. Half of them entered from the front door whereas, others entered from back side door. First they assaulted Jeevlal, thereafter Paras. He hid himself in the room, however, some of them came inside his room by scaling the roof. He hid himself in the box out of fear, however, he was taken out from the box. Dharampal assaulted him with lathi on his hand, as a result his left hand broke at 2 places and he suffered fracture of right wrist. Dipak assaulted him by rod on his head. They also assaulted by brick and stone. Bablu was holding sword. He assaulted Jeevlal with sword. Jeevlal became unconscious. He also became unconscious. He regained his consciousness in the hospital. The incident occurred because Jeevlal had forbidden Bablu from quarreling with his sister Ram Kumari. Bablu and Daroga used to eat bread after consuming liquor in the bread factory and hurl abuses. He has denied that they assaulted Dipak. He cannot say as to how Dipak sustained injuries, as he was inside his room. He has admitted the suggestion that he could not see as to who assaulted whom outside his room. The accused persons came after assaulting his brothers inside his room. At that time, he did not see any injuries on the head of Dipak. He has denied the suggestion that on the previous night, he along with Jeevlal, Paras and Budhram had assaulted Dilip, Dinesh and Jangli and had broken hand of Dilip. He has admitted that Dipak was not present when the incident took place in the previous night. He has denied the suggestion that when Dipak came for compromise, he was beaten by the complainant party after closing the door and on hearing his cries, Bablu came inside the house after scaling the roof.

In paragraphs 17 & 18 of his cross-examination, he has admitted that he did not disclose to the police that accused persons assaulted Jeevlal and Paras, thereafter they came to his room by scaling the roof and Dharampal assaulted by club on his right hand whereas, Dipak assaulted with rod on his head. He has admitted that he is disclosing the above fact for the first time before the Court.

PW-5 Parasnath is also an injured witness. He has also deposed that on the date of incident, at time of sun rise, entire family of Jangli came to their house. They including Dipak, Arjun, Daroga, Jangli, were in all 10 in-number. They were holding Danda, dagger, sword and brick. They attacked Jeevlal. When he intervened, they also assaulted him. They also assaulted Lalli and Ramphal. Jeevlal became unconscious and thereafter they all left considering them dead. The police took him to the hospital. He has admitted that he does not know the names of 8 accused persons and he did not tell the names of 8 accused persons to police. He is not aware as to how the names of the above accused persons have been mentioned in his statement. Lalli was present at the time of incident. He has further stated that when they were sleeping, Dipak came alone and thereafter he returned. The accused persons again came. He does not know if Dipak was assaulted by anybody. Dipak came from the front door. He has denied the suggestion that after Dipak came inside their house, they closed the door and thereafter Bablu came by scaling the roof. In cross-examination, he has stated that he named only 3 persons, Dipak, Arjun and Daroga and gave number of accused persons. He correctly identified Dipak in the doc.

PW-3 Savita Uraon is the daughter of Budhram (PW-9). She has stated in examination-in-chief that on the date of incident, in the morning, the accused persons came to her house and assaulted paras, Jeevlal, Lalli and Ramphal, as a result, Jeevlal died and others sustained grievous injuries. However, in cross-examination, she has stated that at the time of incident she had gone towards the well situated behind the house and therefore, she does not know whether Dipak was assaulted by Jeevlal and Lalli. She has further stated that no-one entered from the back side in her presence. She could not see as to who came first and she came inside the house only after the accused persons left the house. She has admitted that she had gone towards the well, therefore, she could not see as to how Marpeet took place.

PW-7 Mungia Bai has deposed that except Jeevlal, Paras, Lalli and herself, no other woman was present in the house. Budhram had gone to attend the call of nature and returned only after the quarrel had ended. She has not named any accused persons except Bablu.

Sushila Minj (PW-8), a child witness aged 14 years, has also stated that all the accused persons were assaulting her maternal uncle Jeevlal. However, she does not know their names. Bablu assaulted with sword. She has been declared hostile and cross-examined by the prosecution. In cross-examination by the defence, she has admitted that she did not witness the incident and she is deposing only as tutored by her father and advocate.

Budhram Uraon (PW-9) is a witness of memorandum and seizure, however, he has denied that the accused persons made any memorandum statement in his presence or any article was seized from them on their disclosure statement. On examination by the Court u/s 165 of the Evidence Act, he stated that when he returned after attending the call of nature, he saw all the accused persons coming out of his house. A boy told him that Marpeet is taking place in his house, on the basis of that he said that they were coming out after assaulting. He has further stated that they were holding danda, rod, sword etc. when the accused persons were coming out of the house.

Dr. Ghanshyam Singh (PW-10) has also examined Jeevlal. Lalit Uraon and Paras and proved their medico legal examination reports vide Ex.-P/21, Ex.-P/22 and Ex.-P/23 respectively. In Injury report of Ex.-P/21, he has described 8 incised & lacerated wounds on skull, left ear, right ear, right eyebrow, left parietal bone on person of Jeevlal. Jeevlal was unconscious. Injuries No. 1,2 and 7 were dangerous to life. All the injuries were caused by hard and sharp object.

He has proved medico legal examination report of Lalit Uraon in which he noticed following injuries:

(1) swelling on the left forearm below shoulder, lacerated wound on posterior side of left knee. Left humerus bone was fractured.

(2) One lacerated wound of size 12 � 2 cm bone deep on occipital bone. The bone was visible.

(3) One lacerated wound of size 5 � 1� cm bone deep on parietal bone.

(4) One lacerated wound of size 9 � 1� � 1 cm on occipital bone.

(5) One swelling of size 9 � 6 cm on right forearm.

(6) 2 abrasions on right thigh and right scapular region.

For injury Nos. 1, 2, 3 & 4 X-ray was advised.

Similarly, as per medico legal examination report of Ex.-P/23, the doctor has noticed 13 injuries in all on the person of Paras on various parts of the body. He advised X-ray for injury Nos. 1 to 8. Injury Nos. 1 and 2 was caused by hard and sharp object whereas other injuries could be caused by hard and blunt object.

On close scrutiny of evidence of eyewitnesses particularly, Ramphal (PW-2), Lalli @ Lalit (PW-4) and Paras (PW-5), we find that initially Appellants Dipak, Charki, Pushpa and one juvenile girl came from the main door to the house and other accused persons came to the place of incident thereafter armed with dagger, sword, lathi etc. after some time. There is evidence available on record that accused Bablu and some others entered the house by scaling the roof. We have also observed that Appellant Dipak sustained injury in the same incident, however, injury over the person of the deceased has not been explained by the prosecution witnesses. They have simply denied having caused any injury to Dipak. We have also observed in the foregoing paragraphs that the first information report is doubtful and the prosecution has tried to suppress the genesis of the offence. The fact that some of the accused persons entered the house by scaling the roof makes the defence of the accused persons probable that Appellant Dipak came alone with a purpose to resolve the dispute through compromise. The complainant party closed the main door and assaulted him and only on hearing his cries, other accused persons reached there armed with weapons to rescue him. Paras has admitted in his cross-examination that initially Dipak came alone and returned. The nature of allegation against Appellant Dipak and other acquitted accused persons i.e. Charki and Pushpa is similar though Ramphal has alleged in his examination-in-chief that Dipak assaulted him, however, this fact is not mentioned in his diary statement of Ex.-D/l and he has deposed the same for the first time in the Court.

Considering the overall evidence on record; the fact that Appellant Dipak went to the house of the complainant party separately before the other accused persons; he was not present when the quarrel took place between the parties on the previous night; he also sustained numerous injuries on his vital part i.e. head, as a result there was bleeding from his ear also and the doctor advised X-ray of skull; there is no investigation for cause of injuries sustained by him and there is no explanation by the prosecution witnesses about his injuries; a serious doubt has been cast about the veracity of the first information report and Ram Kumari, in whose house the incident took place and who probably gave information to the police about the incident after the incident, has not been examined, we are of the opinion that the defence of Appellant Dipak that he had cordial relationship with Budhram and Ram Kumari and had gone to see them to settle the dispute between his family members and the complainant party through compromise and the complainant party assaulted him after closing the door may be probabilised. We are also of the opinion that the prosecution has failed to prove that Appellant Dipak was member of the unlawful assembly of the other accused persons who attacked the house of the complainant party armed with weapons and his case is similar to other ladies accused namely, Pushpa and Charki, who have been acquitted by the trial Court by giving them benefit of doubt.

The other question for our consideration is - whether the prosecution has established its case against other accused persons namely, Jangli Ram, Dinesh, Dharampal and Dilip that they attacked the house of the complainant in association with other juvenile offenders and committed the offence in furtherance of their common object of murdering Jeevlal and attempting on the life of Paras and Lalli @ Lalit?

The trial Court basically relying upon the evidence of Ramphal (PW-2) has arrived at a conclusion that the aforesaid Appellants were part of the unlawful assembly who attacked the house of the complainant armed with deadly weapons and caused death of Jeevlal and attempted on the life of Paras and Lalit. Indisputably, the incident occurred inside the premises in which injured witness Lalli, Budhram and his wife Ram Kumari were residing though in separate rooms very close to each other. There is discrepancy regarding the place as to whether the incident occurred in the house of Lalli as mentioned in the FIR or in the house of Ram Kumari. However, taking into consideration the evidence available on record that the house of Ram Kumari is at a distance of only 5 meters from the house of complainant, we are of the opinion that the same cannot be a reason to disbelieve the prosecution evidence in this regard.

It was also vehemently argued that there is material inconsistency in the version of the witnesses regarding entry of the above Appellants inside the premises where the incident took place and therefore, the witnesses examined by the prosecution are not reliable and they should be disbelieved. However, on due appraisal of evidence of (PW-2) Ramphal, the trial Court has held that the above accused persons in association with other accused persons armed with lethal weapons in furtherance of common object of murdering Jeevlal, Lalli and Paras entered the house of Budhram and in furtherance of their above common object, they caused fatal injuries to Jeevlal and caused his death. They also caused grievous injuries to Lalli and Paras with an object of attempting on their life. The presence of these Appellants has been duly established from the evidence of Ramphal (PW-2), who has categorically stated that all of them came to the place of incident armed with lethal weapons and started attacking Jeevlal. When Lalli and Paras tried to intervene, they were also attacked. He himself was also attacked by the Appellants, as a result he sustained injuries. Though there is discrepancy in his version that he was examined by the doctor on the same day whereas, his medico legal examination report reveals that he was examined on the following day i.e. 25th August, 2002. However, his version is further corroborated from the evidence of other 2 injured eyewitnesses namely Lalli and Paras. PW-3 Savita Uraon, who also resides in the same premises, Sushila Minj (PW-8) and Budhram Uraon (PW-9) are witnesses of the fact that the accused persons came to the house of complainant party on the date of the incident and they also saw them leaving the house after Marpeet was over. They have further stated that accused persons were armed with weapons. Thus, we are of the opinion that finding of the trial Court that the Appellants and other accused persons armed with weapons entered the house of the complainant party and attacked the deceased & 3 injured persons is based on evidence available on record. Omissions in the earlier diary statements of the aforesaid witnesses are trivial in nature and on overall appreciation of the evidence of witnesses and on the basis of aforesaid omissions, the entire evidence of the injured prosecution witnesses cannot be brushed aside, particularly, when the witnesses have sustained injuries in the same incident.

It was further argued that even if it is held that the accused persons were responsible for causing injuries to Jeevlal, Lalli and Paras resulting in death of Jeevlal, the same was done in exercise of right of private defence, as the complainant party had started assaulting Appellant Dipak after confining him in their house. He had sustained grievous injuries over his head and had the other accused persons not come forward to save Dipak, the complainants would have caused his death. It was also argued that though the Appellants have not examined any witness in their defence to establish their right of private defence and they have also not taken this defence in their statements, however, if the evidence available on record establish the above fact, in that case, they deserve to be acquitted on the ground that the death of Jeevlal and bodily injury on the persons of Paras and Lalli was caused in exercise of right of private defence of Appellant Dipak.

In the matter of Subramani and Ors. v. State of Tamil Nadu 2002 SCC (Cri) 1659, it has been held that:

It is well settled that once it is held that the accused had right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended u/s 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 IPC.

In the matter of Kashiram and Ors. v. State of M.P. 2002 SCC (Cri) 68, it has been held thus:

Section 105 of the Evidence Act provides that burden of proving the existence of circumstances which would bring the act of the accused alleged to be an offence within the exercise of right of private defence is on him and the court shall presume the absence of such circumstances. However, the burden on the accused is not so heavy as it is on the prosecution. While the prosecution must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If on the material available on record a preponderance of probabilities is raised which renders the plea taken by the accused plausible then the same should be accepted and in any case the benefit of doubt deserve to be extended to the accused. It has been further held that right of private defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded u/s 313 Code of Criminal Procedure or by adducing defence evidence. It can also be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case. It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn against the defence merely because an accused person has chosen to abstain from the witness box. The right of private defence need not necessarily be exercised for the defence of one''s own person; it can be exercised for the defence of the person of another. So long as an assembly of persons is acting in exercise of the right of private defence it cannot be an unlawful assembly An assembly though lawful to begin with may in the course of events become unlawful. So long as the accused persons were acting in exercise of right of private defence, their object was not unlawful.

In the matter of Gendu Singh v. State of U.P. 2008 Cri.L.J. 3618 (SC), while dealing with the plea of right of private defence, it has been held that the same cannot be based on surmises and speculation. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down the limits of right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and Section 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death; the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence. In paragraph-13, a caution has been sounded as under:

The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

In the light of principles of law laid down in the aforesaid judgments, if we examine facts of the present case, we find that the Appellants are taking plea of right of private defence on the ground that Appellant Dipak was confined by the complainant party in the house and there was a danger to his life. In order to rescue him, the Appellants went inside the house of the complainant party and assaulted Jeevlal, Lalli and Paras, therefore, it cannot be said that when the Appellants and other accused persons entered the house, they had common object of causing death of the aforesaid injured persons. At the most, it may be held that while exercising the right of private defence they exceeded their right and thus, only those persons against whom evidence is available on record that they exceeded their right of private defence can be punished u/s 304 Part-II of the IPC. Since, there is no specific evidence available on record that the Appellants herein in any manner exceeded their right of private de fence and were responsible for the injuries present over the person of the deceased as also Paras and Lalli, they deserve to be acquitted and they cannot be convicted u/s 302 with the aid of Section 149 of the IPC.

Indisputably, the incident occurred inside the house of complainant party. I The Appellants'' defence is that they entered the house of the complainant on hearing shouts/cries of Dipak, who had gone with the proposal of compromise and. who was detained and beaten by the complainant party. From the evidence available on record, we find that all the accused persons armed with lathi, rod and sword attacked the house of the complainant party. Some of the accused persons scaled the roof and attacked the injured persons with lethal weapons. The above act of the Appellants is to be viewed in the light of the incident which occurred in the previous night when the quarrel took place between the Appellants and the complainant party and in which 3 of the accused part)'' alleged sustained injuries. In view of the fact that the accused persons more than 5 in number armed with lethal weapons attacked the house of the complainant party and caused numerous injuries to the deceased as also to two other injured witnesses, whose injury report has been detailed in the foregoing paragraphs, it cannot be said that the Appellants entered the house to rescue Dipak and in our view, the dominant purpose of the Appellants was to teach the complainant party a lesson. Thus, in the facts and circumstances of the case, we are of the opinion that the Appellants cannot be permitted to plead or avail their right of private defence as a pretext for vindictive, aggressive or retributive purpose of offence. It is the right of defence, not of retribution, expected to repel unlawful aggression and not as a retaliatory measure.

On overall appraisal of the evidence available on record, we are of the opinion that the Appellants attacked the complainant party armed with deadly weapons with a common object of murdering Jeevlal, Paras and Lalli and in furtherance of their above common object, they caused fatal injuries to Jeevlal resulting in his death and further caused grievous injuries to Lalli and Paras and thus, they attempted on their life. In these circumstances, the Appellants plea of right of private defence has rightly been rejected by the trial Court.

On the basis of aforesaid analysis, we are of the opinion that the trial Court has rightly convicted Appellants namely. Jangli Ram, Dinesh @ Daroga. Dharampal and Dilip Toppo under Sections 148, 452, 302 read with Section 149 and 307 read with Section 149 of the IPC.

In the result, the appeal in respect of Appellant Dipak is allowed. Conviction and sentences imposed upon him under Sections 148, 452.302 read with Section 149 and 307 read with Section 149 of the IPC are set aside and he is acquitted of the said charges. He be released forthwith unless required to be detained in any other case whereas, the appeal in respect of Appellants Jangli Ram, Dinesh (a), Daroga. Dharampal and Dilip Toppo deserves to be dismissed and it is hereby dismissed. Appellants Jangli Ram and Dilip Toppo were granted bail vide orders dated 1-7-2004 and 21-12-2006 respectively. Their bail bonds are cancelled and they are directed to surrender before the trial Court forthwith.