Mahipal Singh (In Jail) vs State of U.P.

J.C. Gupta and S.K. Agarwal, JJ.—Appellant Mahipal Singh has filed this appeal against the judgment and order dated 16.8.80 passed by Sri N.N. Sharma, the then Session Judge, Aligarh, convicting the Appellant u/s 302, I.P.C. and sentencing him to imprisonment for life.

Appellant Mahipal Singh and co-accused Surajpal Singh were tried together for committing the murder of Smt. Jaywanti at about 6.30 a.m. on 22.4.79. The first information report of the said incident was lodged by P.W. 2 Tota Ram., the husband of the deceased, at the police station on the same morning at 7.30 a.m. The case as set up in the first information report was that co-accused Surajpal Singh had taken possession of a portion of the Chak of the complainant and had included the same in his Chak. A litigation was going on between the parties in that connection. On the fateful morning, both the accused persons started digging the said land with spade for erection of a ''burji.'' The wife of the first informant with her son Mohan Lal objected to this act of the accused persons whereupon Surajpal Singh started abusing them. Hearing the abuses, first informant Tota Ram P.W. 2, Chandrapal Singh P.W. 5 and Amar Singh P.W.4 also reached there. It is further stated that Surajpal accused then asked his son Mahipal Singh Appellant to bring gun and kill the aforesaid persons so that litigation could be finished forever. Mahipal Singh accused then entered into the "kothari" of his tubewell and brought licenced gun and then opened fire towards Tota Ram. However, Jaywanti came in between and the shot hit her and she fell down on the ground. It is further alleged that Mahipal Singh then fired a second shot but the same did not hit anyone. It is then claimed that Amar Singh and Chandrapal witnesses came forward and grappled with Mohan Lal and succeeded in snatching gun from Mahipal Singh after giving him a beating with lathi and sankhi. The first informant after leaving the snatched gun at his house got first information report Ex.Ka-2 scribed by Amar Singh and lodged the same at the police station at 7.30 a.m.

Sri Indrajit Sharma P.W.9 who was posted as station officer Atrauli was present at the police station when the F.I.R. was lodged. He took up the investigation and interrogated Tota Ram and Mohan Lal at the police station itself and then went to the spot, where after inspection he prepared site plan Ex. Ka-10. Sub-Inspector Shivpal Singh completed the inquest proceedings under the order of the station officer. Blood-stained earth and plain earth Ex.1 and Ex.2 were also taken in possession of by the Investigating Officer through Memo Ex.Ka-3. One dhoti was also found on the spot which was taken into custody vide memo Ex. Ka-3. The Investigating Officer thereafter recorded statements of other witnesses and after completing investigation submitted charge-sheet against both the accused namely; Appellant Mahipal Singh and his father Surajpal Singh.

Dr. Sushil Kumar Suri P.W.6, conducted autopsy on the dead body of Smt. Jaywanti on 23.4.79 at 3.15 p.m. and only one ante-mortem injury; i.e., a gun shot wound of entry on the forehead left side. 3" � 13/4 � brain cavity deep, with brain matter coming out was found, which had blackening. In the internal examination fracture of frontal bone on left side was found. Membranes were also ruptured on left side and the portion of brain was coming out from the wound. Twenty shots and one wadding piece were recovered from brain matter. Post-mortem Report Ex.Ka-7 was prepared by the said doctor.

Injuries of Mohan Lal were examined on 22.4.79 at 10.00 a.m. and following injury was found.

Abrasion 7.5 cm. � 2 cm. on the Anterio medial aspect of right upper arm placed obliquely, 8 cm. below the right shoulder joint. Serum and blood oozing was present.

In the opinion of the doctor the injury was simple caused by friction of some hard object.

The defence of the accused persons was that the prosecution version was not correct. Accused Surajpal stated before the Court in his statement u/s 313, Code of Criminal Procedure that Totaram, Mohan Lal, Shri Ram, Kailashi came there armed with lathi, pharsa and ballam and started assaulting him and Mahipal and snatched the gun which in the course of scuffle went off.

The Appellant Mahipal also supported the version of his father. From the defence side also, an F.I.R. was lodged by Suraj Pal Singh which has been proved as Ex. Kha-1 and it was stated therein that on 22.4.79 at about 6.30 a.m. in the morning Surajpal Singh was sitting near his tubewell when Totaram, Mohan Lal, Shri Ram and Kailashi came there and started uprooting burji from his Chak. On being objected, they started assaulting him and his son Mahipal with the aforesaid weapons, whereupon he picked his gun but the aforesaid persons snatched the same from him forcibly and during the process of snatching, the gun went off accidentally. Injuries on the defence side were caused to Surajpal as well as to his son Mahipal and the injury reports have been proved as Ex. Kha-2 and" Kha-3. Dr. Pradeep Kumar D.W.2 proved the said injury reports. Mahipal had the following injuries on his person.

(1) Incised wound 13/4" � 1/2" x Bone deep on the right side of head. 3" above the right ear.

(2) Contusion 13/2" � 1/2" on the left deltoid region.

(3) Contusion 3" � 1/2" on the back of middle and lower third of the upper left arm.

(4) Lacerated wound 1/10" � 1/10" x skin deep on the inner part of left upper arm middle third.

(5) Abraded contusion 3/4" � 1/4" with area 2" � 1/2" on the back of left hand.

(6) Multiple abrasion in an area 2" � 2" with swelling of 3" � 3".

All the injuries of Mahipal Singh were caused by blunt weapon except injury No. 1 which could be caused by a spear or sankhi.

Surajpal Singh was examined by the same doctor on the same day at 5.10 p.m. and following injuries were noticed:

Lacerated wound 2" � 1/4" � Bone deep on left side of head 3" above left ear.

Contusion 1" � 1/2" on the back of left hand.

Complaint of pains left side of back no mark of external injury seen.

Injuries were caused by some hard blunt weapon like lathi and were simple in nature.

D.W. 1 Dr. Rama Shanker Bhardwaj produced the X-ray report of Surajpal prepared by Dr. N.S. Pal and the same was proved by D.W. 2. As per this X-ray report fracture in proximal phalynx of right ring finger was found.

At the trial, the prosecution produced nine witnesses in all, namely; (1) Dr. Raj Pal Singh, who proved the injury report of Mohan Lal; (2) Totaram, the first informant and an alleged eye-witness; (3) Mohan Lal, the injured witness; (4) Amar Singh, an alleged eye witness; (5) Chandrapal, P.W. 5 alleged eyewitness; (6) Dr. Sushil Kumir Suri who proved the post-mortem report of the deceased Jaywanti; (7) Constable Ratan Singh, P.W. 7; (8) Constable Mahabir Prasad Gautam as P.W. 8 and (9) Indrajit Sharma, the Investigating Officer. The Court also examined Babul Rai C.W.I., the Ballastic expert who examined the gun alleged to have been snatched from the Appellant Mahipal and he opined that on account of absence of clear marks it was not possible to arrive at the conclusion that the shot recovered from the dead body as well as the spent cartridges recovered from the spot were fired from the said gun.

In defence, the accused persons examined Dr. Rama Shanker Bhardwaj and Dr. Pradeep Kumar as D.Ws. 1 and 2 to prove the X-ray and injury reports. The F.I.R. lodged from the defence side has been got proved as Exh. Kha-1 through P.W. 8 Constable Mahabir Prasad Gautam.

The learned Sessions Judge placing reliance upon the prosecution evidence, convicted and sentenced the Appellant Mahipal only but acquitted accused Surajpal giving him benefit of doubt.

We have heard learned Counsel for the Appellant and the learned A.G.A. appearing for the State.

After examining the evidence and the circumstances appearing in the case closely, we have arrived at the conclusion that the conviction recorded by the learned Sessions Judge is not sustainable and we proceed to give our reasonings in support of the said conclusion.

Even as per the prosecution case as set out in the F.I.R. and in the evidence adduced before the trial court. Surajpal had taken possession of some portion of the land of Chak of Totaram and had included the same in his own Chak much before the present incident. It has been admitted by P.W. 2 Totaram that number of Chak of accused is 79 while he did not know number of his own Chak. It is also admitted to him that both the Chaks are adjacent and contiguous to each other. As per the statement of Totaram, a gool separates the two Chaks and the Chaks of accused persons is to the east of the gool while the Chak of the complainant is towards west of the gool. It could not be disputed and it is also fully borne out from the evidence on record that the place of incident was in the north of the intervening gool meaning thereby that the incident occurred in a portion of the Chak which was in possession of the accused persons. Totaram further admitted that the incident had occurred at a place which was situated at about 3-4 paces inside the Chak of the accused persons. It is also stated by the prosecution witnesses that some litigation was going on in between the parties as to whether the accused persons had trespassed on any portion of the Chak of the complainant. The evidence on record clearly indicates that the accused party was in settled possession of the land where the incident had occurred. The prosecution case itself is that soon before the incident, the accused party was going to raise a burji on the land which was situated to the west of the intervening gool, i.e., on the land which was in settled possession of the accused persons. In this view of the matter, the accused persons had a right of private defence to defend their own property and the complainant party had no right to cause any obstruction in the use of the said land by the accused party. Injuries of Mahipal and Surajpal were examined by Dr. Pradeep Kumar on the same day. The injury reports further indicate that both the accused persons had sustained a number of injuries on their person including one bone deep injury each on the head region. Injury No. 1 of Mahipal was an incised wound bone deep on the right side head while bone deep injury of Surajpal on his head was a lacerated wound. It was not the case of the prosecution that these injuries were manufactured or manoeuvred or had not been received during the course of the incident. In the F.I.R. Ex. Ka-2, Totaram first informant had mentioned that the said injuries were caused by lathi and sankhi during the course of snatching of gun. At the trial, P.W. 2, Totaram in his cross-examination simply stated that during the course of scuffle, only Mohan Lal, P.W. 3 received injuries and he did not give any explanation of the injuries received on defence side. In cross-examination, he was very specific in stating that from their side, nobody caused any injury to the accused persons and at the time when gun was snatched, they all were empty handed. At another place he categorically stated that during the course of incident, none used ''lathi''. ''Sankhi'' or ''Pharsa'' from their side. However. Mohan Lal P.W. 3 gave entirely a different version by stating that gun was snatched from Mahipal after he was given a beating with lathi and sankhi which were used by him and his father. According to him, they had not carried with them either of these weapons and during the course of scuffle, lathi was snatched from the hands of accused Surajpal while sankhi was picked up from the field. While P.W. 4 Amar Singh the alleged eye-witness in clear words has stated that when he reached the spot, he found that abuses were being exchanged from both the sides and at that time, Totaram and his son Mohan Lal were armed with a lathi and sankhi respectively and Mohan Lal and Totaram assaulted Surajpal and Mahipal and snatched his gun. It would thus appear that prosecution case has not been consistent as to in what manner and at what point of time injuries on defence side were caused. From the statement of Amar Singh P.W.4, it is further clear that even before the incident had started and the parties exchanged abuses, Totaram and Mohan Lal were seen there armed with lathi and sankhi. There appears to be much force in the submission of the learned Counsel for the Appellant that from the evidence on record and the circumstances appearing in the case, it is fully borne out that Totaram and Mohan Lal had come there armed with lathi and sankhi and assaulted both Soorajpal and his son Mahipal. As already found above the accused party was in settled possession of the land in dispute and, therefore, they had a right of private defence of property and when the complainant party had come there armed with lathi and sankhi and also assaulted Mahipal and Surajpal with the said weapons causing injuries including bone deep injuries on head, a right of private defence to cause death had accrued to the accused persons as in the circumstances they could have a reasonable apprehension of causing of death or of grievous heart. It is true that the defence version that the gun went off accidentally during the scuffle also does not appear to be true and it has not been stated by either of the accused persons that the gun was used by him in order to save their own life but for that reason alone, the prosecution is not absolved from discharging its burden of establishing its case, nor the prosecution can derive any advantage of the weaknesses of the defence case. It is well-settled that even the true owner has no right to dispossess the trespasser by force if the trespasser is in settled possession of the land and if he is being evicted forcibly, he is entitled to defend his possession and where force is used to the extent of causing bodily injuries of such a nature as were caused to Sooraj Pal and Mahipal in the present case, the right of private defence accrues within the meaning of clauses firstly and secondly of Section 100 of the Indian Penal Code. Where the prosecution does not come out with true version of the nature and origin of the occurrence, it cannot blame the Courts if the entire twisted version presented by it is rejected nor the right of private defence could be denied to the accused merely because he has also not put real and true facts before the Court. The prosecution has to stand on its own legs and the burden of establishing its case beyond reasonable doubt does not get discharged merely for the reason that the defence has also not given true version leading to the death of the deceased. Where both the parties, i.e. the prosecution as well as the defence have not placed before the Court true facts and suppress the real truth, they have themselves to blame and in such a situation, it would be prudent to give benefit of doubt to the accused person.

On a careful and close scrutiny of evidence on record, a strong doubt is created in our mind about the incident occurring in the manner alleged by the prosecution. The explanation given by the prosecution witnesses with regard to the injuries sustained on the defence side is contradictory besides being unworthy of any credence. It is highly doubtful that attack on prosecution side was made on unarmed persons and from the circumstance appearing in the case and the evidence on record, it seemed more probable fhat the complainant party had come to the place of occurrence armed with deadly weapons and tried to dispossess the accused person from their settled possession and in the process caused bone deep injuries on the head of both of the accused persons which in our opinion could not be caused during scuffle alone. In such circumstances, it must reasonably be held that a right of private defence of property and person had accrued to them which could extend to the causing of death u/s 100 of the Penal Code.

For the reasons stated above, we are of the view that it would not be safe to hold Appellant Mahipal guilty of the offence charged for and he is also given benefit of doubt as has been extended to co-accused Surajpal by the Court below.

Appeal is allowed. The order of conviction and sentence passed by the trial court is set aside and the Appellant is acquitted of the offence charged for. Since the Appellant has been taken into custody in pursuance of this Court''s order dated 7.9.99 and is confined in District Jail, Aligarh, he shall be released forthwith unless required to be detained in any other offence. Bail bonds furnished by the Appellant shall stand cancelled and sureties discharged.