Maharaj Singh and Another vs State

V.D. Chaturvedi, J.—This Criminal Appeal has been filed against the judgment and order dated 18881 passed by the then Sessions Judge, Aligarh in Sessions Trial No. 469 of 1980 whereby he has convicted the appellants under Section 304 (Part II)/34, 325/34,324/34 and 323/34 IPC and has sentenced them to five years RI, one and a half years RI, one year RI and three months RI respectively. The sentences were ordered to run concurrently.

The written report Ex. Ka5 lodged by Puran Singh son of Dhundhi Singh resident of village Subkara, P.S. Gonda, District Aligarh disclosed that in the morning of 3071980 the complainant''s nephew Ashok Singh, aged about 7 years, was watching his cattle which were grazing in jungle; that Km. Gudda, (daughter of accused Maharaj Singh) was also there to watch her cattle; that they have quarreled there and have beaten each other; that Km. Gudda made its complaint to her father Maharaj Singh, who in turn had beaten the complainant''s nephew Ashok; that Ashok told this incident to the complainant''s brother Nihal Singh who thereafter went to Maharaj Singh and asked him as to why he had beaten his nephew whereupon Maharaj Singh became irked, replied in harsh words and threatened that he would cut each of them and challenged him that if he (Nihal Singh) was a real son of his parents he must stay there and he (Maharaj Singh) would not leave him alive; that Maharaj Singh dashed to his house and brought a spear and his brother Amar Singh brought a lathi; that Amar Singh exhorted �MARO SALON KO JINDA NA BACH SAKEN� whereupon Maharaj Singh inflicted a spear blow at the left side of Nihal Singh''s chest; that complainant''s brother Hodil Singh with a lathi reached there for the rescue of Nihal Singh and made efforts to protect Nihal Singh whereupon a spear blow on his chest was also inflicted; that when complainant''s mother Giriraji, reached there, the accused persons had assaulted her also; that the accused persons had beaten them on the pathway and on Chabutara; that the occurrence took place at 1.30 p.m.; that the witnesses Hoti Singh, Mahabir Singh, Roshan Singh, and the complainant and others reached there whereafter the accused persons ran away; that while the complainant was carrying his brother Nihal Singh and Hodil Singh and mother Giriraji Devi to police station on a cart, his brother Nihal Singh succumbed to his injuries on the way to the police station. The written report (Ex. Ka2) was submitted at P.S. Gonda same day at 2.45 p.m.

The investigation of the case was conducted by Om Prakash Sharma (P.W. 8) the then Station Officer of P.S. Gonda. He reached the spot, prepared the inquest report, collected the blood stained and simple soil from the place of occurrence, prepared all relevant papers and sent the dead body of Nihal Singh for its autopsy.

Dr. Raj Kumar (P.W. 1)conducted the autopsy on the corpse of Nihal Singh on 3171980 at 4 p.m. and found the following ante mortem injuries.

(1) Lacerated wound size 3/4" x 1/2" x scalp deep on the top of head

(2) Incised wound, size 21/4" x 1" x thoracic cavity deep on the left side of chest in 4th inter costal space 3/4" internal to left nipple.

On internal examination, his third and fourth left ribs (below injury No. 2) were found fractured and left lungs were found punctured. In Doctor''s opinion the death was the result of shock and haemorrhage due to injury No. 2. The postmortem report is Ex. Ka1.

Injured Hodil Singh (P.W. 3) was medically examined on 307 1980 at 3.45 p.m. by Dr. H.N. Singh (P.W. 5) who found the following six injuries on his person:

(i) Stabbed wound 2 cm. x 1 cm. x 2 cm. in size on the right side of chest 2.2cm above the right nipple at 2'' O clock position. Margins are dean cut and regular. Shape of wound is spindle shaped and gaping is present Fresh blood is present. Air is coming out from wound.

(ii) Contusion 12 cm. x 1.5 cm. in size on the leftside of back 4 cm away from mid line at level of Dorsal 7th spine. Colour is red.

(iii) Contusion 5 cm. x 2 cm. in size on the right side of back, 2cm. away from mid line at level of 9th dorsal 7th spine.

(iv) Traumatic swelling 5 cm. x 4 cm. on dorsum of right hand. Colour is red. Marked tenderness present.

(v) Indeed wound 1 cm. x 0.1 cm. x O.1 cm. in size on the PIP joint of right index finger. Margins are regular and clean cut Fresh blood is present.

(vi) Traumatic swelling 3 cm x 2 cm. in size on the back of right forearm 6 cm distal to olecranon. Colour is red.

Duration of his injuries was found fresh. The injury Nos. 1 and 4 were kept under observation and were advised for Xray. His injury report is Ex. Ka3.

P.W. 5 Dr. H.N. Singh also examined Smt. Giriraji on 3071980 at 4.20 p.m. and found the following five injuries :

(1) Lacerated wound 5 cm. x 0.5 cm. x 0.5 cm. in size on the right side of skuff 5cm. above right eye brow. Margins are irregular and contused. Fresh blood is present.

(2) Incised wound 1.5 cm x 0.2 cm x 0.5 cm on the left side of face 3 cm away from tragus of left ear. Margins are dean cut and regular. Fresh blood is present

(3) Incised wound 3.5 cm x 0.5 cm x 0.5 cm on the right palm 0.5 cm distal to wrist. Margins are regular and clean cut. Spindle shaped. Fresh blood is present.

(4) Indeed wound 1.5 cm x 0.2 cm x 0.2 cm on the middle phalanx of left index finger on ventral aspect. Margins are dean cut and regular. Fresh blood is present.

(5) Contusion 7 cm x 3 cm on the left side of back just above iliac crest. Colour is red.

The duration of injuries was fresh. Her injury report is Ex. Ka 4.

After recording the statements of witnesses and after completing the usual investigation, the I.O. submitted the charge sheet Ex. Ka16 against both the appellants.

After committal of the case, the charges under Section 302/34, 324/34 and 323/34 IPC against both the appellants and thereafter the additional charges under Section 307 and 324 I.P.C. against the appellant Maharaj Singh were framed to which they denied and pleaded not guilty.

The prosecution produced P.W. 1 Dr. Raj Kumar, P.W. 2 Puran Singh (complainant), P.W. 3 Hodil Singh (injured), P.W. 4 Smt. Giriraji (injured), P.W. 5 Dr. H.N. Singh, P.W. 6 H/c. Krishan Pal Singh, P.w.7 C/. Netra Pal Singh, P.W. 8 Om Prakash Sharma, I.O. and P.W. 9 Dr. R.S. Sharma.

Hoti Singh was examined as Court witness No. 1

P.W. 2 Puran Singh, P.W. 3 Hodil Singh and P.W. 4 Smt. Giriraji are the Witnesses of fact. Remaining witnesses are, more or less, of formal nature.

The defence plea is that the deceased Nihal Singh, Hodil Singh, Smt. Giriraji and the complainant Puran Singh entered into the house of the appellant Amar Singh and started abusing and beating him by lathies; that on the cry of Amar Singh, the respondent Maharaj Singh reached there with a spear for his rescue and wielded his spear in the right of private defence of the persons of Amar Singh and himself and thus Nihal Singh and others sustained injuries.

Respondent Amar Singh got his injuries examined by Dr. C.P. Gupta (a private doctor) on 3171980 at 1.00 p.m. His injury report (Ext. Kha3) shows the following six injuries:

(1) Lacerated wound 4 cm x 0.5 cm x muscle deep on left side of scalp 10 cm above left eye brow sagitally placed, margins are ragged, pus present and coming out on pressing the edges.

(2) Lacerated wound 2cm x 2cm on right side of forehead 5 cm above right eye brow, pus present ragged nestius.

(3) Traumatic swelling over base of left thumb and palm, advised Xray left hand.

(4) Abrasion 0.5cm x0.5cm over dorsum of left thumb over proximal phalanx, scab present, on removing scab surface is pink.

(5) Contusion 3cm x 3 cm over dorsum of left forearm 7 cm above wrist, reddish blue colour.

(6) Abrasion 1 cm x 1 cm over acranial end of left clavicle scab present, on removing scabsurface is pink.

The duration of these injuries was found one and a half day.

The accused/appellants produced D.W. 1 Raja Baboo Agrawal, in their defence.

The gist of the material evidence is as under:

P.W. 2 Puran Singh (complainant) deposed that the accused Maharaj Singh is the real brother of Amar Singh; that they were residing separately in his (witness''s) village; that on the date of occurrence Ashok (nephew of the witness) and Km. Gudda (daughter of accused Maharaj Singh) went to the jungle to facilitate the grazing of their respective cattle; that they quarreled there and had beaten each other; that Gudda made its complaint to Maharaj Singh, whereupon Maharaj Singh had beaten Ashok; that Ashok made its complaint to Nihal Singh hence Nihal Singh went to Maharaj Singh and asked him why he had beaten his nephew Ashok; that Maharaj Singh used harsh words against Nihal Singh and asked Nihal Singh if he (Nihal Singh) was a legitimate son of his father he must stay there; that Maharaj Singh fetched a spear and Amar Singh brought a lathi; that Amar Singh exhorted that he (Nihal Singh) should not be left alive whereupon Maharaj Singh inflicted a spear blow on the chest of Nihal Singh; that Hodil Singh, Smt. Giriraji Devi and he (Pooran Singh) reached there for the rescue of Nihal Singh but the accused persons had beaten Hodil Singh and Giriraji Devi also. Amar Singh inflicted a lathi blow on Nihal Singh also; that Hodil Singh defended himself from his danda; that witnesses Hoti Singh, Mahabir Singh, Roshan Singh and many others reached there whereafter the accused persons had run away; that Nihal Singh succumbed to his injuries while he was being carried to hospital; that the occurrence took place on the path way at 1.30 p.m. The witness denied the suggestion that he alongwith others had beaten Amar Singh in Amar Singh''s Courtyard. The witness proved written report Ex. Ka2.

P.W. 3 Hodil Singh (injured) and P.W. 4 Smt. Giriraji Devi (injured) corroborating P.W. 2 Puran Singh, supported the prosecution version.

P.W. 1 Dr. Raj Kumar conducted autopsy on the dead body of Nihal Singh.

P.W. 5 Dr. H.N. Singh medically examined Hodil Singh and Smt. Giriraji.

P.W. 6 H/C Krishna Pal Singh prepared the Chik report and the G.D. of the registration of the case.

P.W. 7 C/Netra Pal Singh carried the dead body of Nihal Singh for postmortem.

P.W. 8 Om Prakash Singh is the Investigating Officer.

P.W. 9 Dr. R.S. Sharma is the radiologist who took the xray of the chest and right hand of Hodil Singh and prepared its report. He found fracture of the middle finger of Hodil Singh.

C.W. 1 Hoti Singh stated that on the date of occurrence at about 1.00 or 1.30 in the noon he was at his house where he heard the sound of wielding of lathies, therefore, he reached the house of Amar Singh where lathies were being wielded and Nihal Singh was lying dead; that he also saw that Hodil Singh and Smt. Giriraji Devi suffered injuries; that Maharaj Singh and Amar Singh were not present there; that he did not see any person causing injuries to Nihal Singh, Hodil Singh or Smt. Giriraji Devi. He admitted that he and the accused persons both belonged to Thakurela caste whereas Nihal Singh and Hodil Singh etc. belonged to Chaudhary caste. He denied the suggestion of having colluded with the accused persons.

D.W. 1 Raja Baboo Agrawal (the record keeper in S.S.P''s office) deposed that any application of Amar Singh s/o Ram Chandra was not received in his office on 3181980; that the papers of concluded investigations, received from C.O''s office, are entered in a register by him. He was not crossexamined.

I have heard Sri P.N. Misra, Senior Advocate assisted by Sri Apul Misra for the appellants and the learned A.G.A. for the State and have examined the record very carefully.

The learned Counsel for the appellants argued that enraged by the beating to Ashok, the deceased Nihal Singh alongwith his brothers Puran Singh and Hodil Singh entered the house of Amar Singh and had beaten him by lathies; that Maharaj Singh reached there with a spear and defended Amar Singh by spear; that Amar Singh also used lathi in his defence; that had the appellants not used the spear and lathi in the right of their private defence both the appellants would have been killed. He claimed that the act of the appellants falls under Section 100 I.P.C. He drew my attention to the injury report of Amar Singh (Ex. Kha3). He also pleaded that the real place of occurrence was the Courtyard of Amar Singh and not the pathway or the Chabutra.

Firstly, I examine as to what was the place of occurrence. According to prosecution, the occurrence took place on pathway and the Chabutra of Rajendra Singh whereas according to defence plea it took place in the house of Amar Singh (appellant),

P.W. 2 Puran Singh (complainant), PW3 Hodil Singh (injured) and PW4 Smt. Giriraji Devi (injured) all have deposed that the occurrence took place on pathway and on Chabutra of Rajendra Singh. The memo (Ex. Ka13) of taking blood stained earth shows that it was collected from the place �A� and �B� which are (in site plan Ex. Ka12) places on pathway and Chabutra of Rajendra Singh. A person may tell a lie but the circumstances do not CW1 Hoti Singh deposed that occurrence took place in the house of Amar Singh. His name found place in the F.I.R. as witness. He was examined by the Court on 1951981 but the injured witness Hodil Singh (PW3) had already deposed on 30.03.1981 (before 19.05.81), that the accused persons and the witnesses both belonged to the caste of Thakurale Jat and that the witnesses had colluded with the accused person. Therefore, he (Hodil Singh) would not produce them. In such circumstances CW1 Hoti Singh cannot be believed. The evidence of the injured witnesses Hodil Singh and Smt. Giriraji Devi cannot be disbelieved. The blood stained and simple earth collected by the I.O. from the pathway and the Chabutra confirms that there was no place of occurrence other than the places deposed by injured witnesses. No blood stain was seen at the house of Amar Singh. In view of the reasons discussed above, the contention that the place of occurrence was the house of the appellant Amar Singh is rejected.

Now I examine the defence plea whether the injuries to the deceased and the injured persons were caused in right of private defence or as aggressors. Among the appellants, it is only Amar Singh who sustained injuries, which have already been reproduced above. From the complainant''s side three persons (including the deceased), sustained injuries. Nihal Singh sustained two injuries, Hodil Singh (PW3) sustained six injuries and Smt. Giriraji Devi sustained five injuries. Thus the total number of injuries sustained by three persons of the complainant''s side was thirteen whereas the injuries sustained by appellant Amar Singh is only six. The examination of the injuries sustained by Amar Singh shows that out of the six injuries he sustained two abrasions of very small size, one contusion, one traumatic swelling and two lacerated wounds. Four of the injuries (injuries No. 3 to 6) sustained by Amar Singh are on nonvital parts of the body.

On the other hand, deceased Nihal Singh sustained one cavity deep incised wound on chest and one lacerated wound on the top of head. His injuries were so serious that he died on the spot. The injured Giriraji Devi sustained three incised wounds, one lacerated wound and one contusion. The location and the size of the injuries sustained by her are evident of the fact that the gravity of her injuries was much more than that of the injuries sustained by Amar Singh. Hodil Singh out of his six injuries sustained one stabbed wound (2 cm. x 1 cm. x 2 cm. on the right side of chest), two contusion, one incised wound and two traumatic swelling besides the fracture in middle finger of right hand. His injuries were more serious in nature than that of Amar Singh. Thus the number of injuries, the nature of the injuries and the number of persons injured all go to suggest that the complainant''s party was the victim and not the aggressors.

The defence argument is that the deceased Nihal Singh, injured Hodil Singh and the complainant Puran Singh, all armed with Lathies, attacked upon Amar Singh who defended himself by Lathi: that Maharaj Singh also reached their with a spear for the rescue of his brother Amar Singh. Had there been three aggressors namely Hodil Singh, Nehal Singh and Puran Singh, the injuries sustained by Amar Singh would not be so simple and minor. The number and nature of injuries sustained by Amar Singh do not commensurate with the number of aggressors, alleged by appellants. The absence of injuries on the person of Puran Singh complainant also indicate that he did not participate in the occurrence.

Smt. Giriraji was an old woman. She could not be an aggressor, but she sustained five injuries, referred above. Had her sons been aggressors, there was no occasion for her to sustain these injuries. But she could have the occasion to sustain these injuries, if her sons were being assaulted and she had gone there to protect her sons.

In view of what has been discussed above, the defence plea that Hodil Singh, Nihal Singh and Puran Singh attacked upon Amar Singh by Lathies is not sustainable. Consequently the plea that Amar Singh and Maharaj Singh in exercise of the right of private defence, caused injuries to Nihal Singh, Hodil Singh and Smt. Giriraji Devi is also not sustainable.

The participation of both the appellants in the occurrence has already been admitted by them by way of pleading right of private defence. I, therefore, feel no need to scrutinize the evidence on the point whether the appellants participated in the occurrence or not.

The appellants were convicted under Section 304, (partII) of I.P.C. and not under Section 302 I.P.C. The learned trial Court passed the sentence of only five years R.I. for offence under Section 304 (partII) I.P.C, 11/2 years R.I. for offence under Section 325 I.P.C., one year R.I. for offence under Section 324 I.P.C. and 3 months R.I. for offence under Section 323 I.P.C. All the sentences were made to run concurrently. The sentences awarded under Section 304 partII is much less than the adequate sentence of imprisonment. The trial Court, thus, had already taken a lenient view in awarding the sentences. I, therefore, see no reason to interfere in the sentences awarded by the trial Court. The appeal, therefore, has no force and deserves to be dismissed. It is accordingly dismissed.

The C.J.M. Lalitpur is directed to get the appellants arrested and lodged in jail to serve out of sentences awarded by the learned trial Court.

Certify a copy of this judgment to the Court below.