Om Prakash and Another vs State of M.P.

T.K. Kaushal, J.—This appeal has been preferred against the judgment dated 19-7-1994 passed by First Additional Sessions Judge, Bhopal in Session Trial No. 133/1985, convicting three accused persons, including appellants u/s 302, IPC for committing murder of Chain Singh (shall be referred as deceased No. 1) and his brother Hemraj (shall be referred as deceased No. 2) sentencing them to imprisonment for life. Initially, this appeal was preferred by three accused persons. During pendency of this appeal, accused Kailash brother of the appellants died and appeals against him stood abated.

Facts of the case, in short, are that there had been a dispute between father of the appellants viz., Kunwarji and one Gopal regarding Bhumiswami ownership of the agricultural land bearing Survey Nos. 385 and 386 ad-measuring about 9 hectares in Village Kodiya. During pendency of litigation Gopal sold disputed land to deceased No. 1-Chain Singh and some part of the land to Beni Madho Tiwari (P.W. 10). On 21-6-1985 at about 1 p.m., at the behest of Beni Madho (P.W. 10), on the basis of application moved by Gopal to the Revenue Authority for conducting demarcation proceedings (seemankan), Ramswaroop, Patwari (P.W. 2), Ramakant Shrivastava, Revenue Inspector (P.W. 3), Tulsiram Choukidar (P.W. 1), Beni Madho Tiwari (P.W. 10) and Chain Singh, son of Prem Chand (P.W. 12) along with deceased persons reached over there. Appellants from their hut situated in adjoining field, armed with axe and farsi rushed to the place of occurrence and started assaulting to deceased No. 1 (Chain Singh). Hemraj (deceased No. 2) came to rescue his brother. Appellants, then, assaulted deceased No. 2 also. After committing the incident, appellants fled away from the place of occurrence. P.W. 10 along with Chain Singh (P.W. 12) proceeded to the Police Station, Bairagarh, and lodged First Information Report (Exh. P-24) against three accused persons. A case at Crime No. 216/1985 u/s 302 of IPC was registered against them.

Deceased persons succumbed to their injuries while they were on the way to hospital. Police prepared Naksha Panchnama of dead body of deceased No. 1, Chain Singh (Exh. P-32) and dead body of deceased No. 2- Hemraj (Exh. P-33). On 22-6-1985, Dr. D.K. Satpathi (P.W. 7) conducted post-mortem of dead body of deceased No. 1. Vide Exh. P-15 (post-mortem report) found following injuries:-

(1) Incised wound 2 cm x 5 cm x skin deep spindle shaped transversely placed right side shoulder.

(2) Abrasion 8 cm on right thigh on lateral aspect having both ends narrow and slightly widen in middle.

(3) Incised wound 6 cm x 5 cm x skin deep on right leg.

(4) Incised wound 7 cm x 5 cm x skin deep on right leg calf.

(5) Incised wound 8 cm x 2 cm having more depth in middle on right leg leaving cut marks on both bones (Tibia and Fibula).

(6) Abrasion 7 cm x 2 cm on right leg.

(7) Fracture of Tibia bone on right leg.

(8) Incised wound 3 cm x 1 cm x skin deep on right leg.

(9) Incised wound 6 cm x 3 cm x skin deep on right leg.

(9-A) Incised wound 2 cm x 5 cm x skin deep on left leg.

(10) abrasion 6 cm long on right thigh.

(11) Contusion 5 cm x 1.5 cm on right upper arm.

(12) Incised wounds 3 in number; each 7 cm long on little finger, index finger and on upper part of middle finger.

(13) Incised wound 9 cm x 2 cm x muscle deep on right side of back scapula region, caused fracture of the ribs and has accused the lung, found about 200 cc blood deposited.

(14) Incised wound 2 cm x 2 cm x muscle deep back on left side causing fracture of 7th rib and has accused the lung.

(15) Linear abrasion about 13 cm long on the back.

(16) Incised wound 6 cm x 3 cm x skin deep on parietal region.

(17) Incised wound 5 cm x 0.5 cm x skin deep on skull region causing fracture of parietal bone.

Dr. D.K. Satpathi (P.W. 7) prepared post-mortem report (Exh. P-15) and found cause of death of deceased No. 1-Chain Singh to be excessive bleeding resulting in shock due to multiple injuries on the body of the deceased.

On 22-6-1995 at Medical College, Bhopal, Dr. Bhanu Prakash Dubey (P.W. 9) performed post-mortem of deceased No. 2-Hemraj. Vide Exh. P-20 (postmortem report) found following injuries:-

(1) Abrasion 3 cm on right shoulder on anterior aspect, red in colour.

(2) Incised wound 1.5 cm x 0.5 cm x bone deep on mastoid region on the left side of the face.

(3) Incised wound 6 cm x 11/2 cm x muscle deep on left forearm on anterior middle aspect, causing fracture of the corresponding bones.

(4) Incised wound 7 cm x 2 cm x bone deep on right leg causing cut of Tibia bone.

Dr. Bhanu Prakash Dubey (P.W. 9) prepared post-mortem report (Exh. P-20) and found cause of death due to excessive bleeding resulting in shock on account of aforesaid injuries.

During course of investigation, police prepared spot map and seized blood stained and plain soil from the scene of occurrence. On 23-6-1985 police arrested the accused persons and on their information recovered respective weapons of offence. Aforesaid weapons were sent to the doctor who had conducted postmortem, raising some queries to seek their opinion. Thereafter, soil, clothes, weapons etc. have been sent to Forensic Science Laboratory, Sagar for examination.

After completion of the investigation, police submitted charge-sheet against three accused persons in the Court of concerned Judicial Magistrate First Class. Then case was committed to the Session Court for trial. Trial Court framed the charges against three accused persons u/s 302 of IPC. Appellants abjured guilt and pleaded innocence and further pleaded self defence of their persons and property.

To substantiate the case of prosecution, statements of Tulsiram Choukidar (P.W. 1), Ramswaroop, Patwari (P.W. 2), Ramakant Shrivastava, Revenue Inspector (P.W. 3), Gorelal (P.W. 4), Omprakash (P.W. 5), Dashrath Prasad, Constable (P.W. 6), Dr. D.K. Satpathi (P.W. 7). G.P. Shakha, SI (P.W. 8), Dr. Bhanu Prakash Dube (P.W. 9), Beni Madho Tiwari (P.W. 10), Bhagirath (P.W. 11), Chain Singh son of Prem Chand (P.W. 12), Pramod Kumar (P.W. 13), Dr. Prashant (P.W. 14), D.S. Shahi, Town Inspector (P.W. 15) and Chunni Lal, Naib Tehsildar (P.W. 16) were recorded. In support of defence, statements of Dr. M.D. Keshwani (D.W. 1), Ku. Chandra Gupta, Advocate-cum-Notary (D.W. 2), Shivnarayan Sharma, Clerk of the Counsel (D.W. 3) were recorded.

After appreciating the aforesaid defence, Trial Court vide judgment dated 29-6-1987 observing that the accused persons duly exercised their right of self defence of property as well as of persons and caused injuries to the deceased persons, thereby committed no offence and acquitted them of all the charges. Impugned judgment was assailed by the complainant Beni Madho Tiwari (P.W. 10) in High Court in Criminal Revision No. 450/87. This Court vide order dated 21-9-1992 set aside the judgment of acquittal and remanded case to Trial Court for re-examination of accused persons u/s 313 of Cr.PC and to give them opportunity to lead defence evidence, if they wished so. In compliance of the order, Trial Court further recorded the statements of Hemraj (D.W. 4), Motilal (D.W. 5) and accused Kailash (D.W. 6) and after considering the entire evidence on record afresh, vide impugned judgment, convicted and sentenced the appellants as above.

This appeal has been preferred against impugned judgment on the ground that appreciation of evidence is not proper, Trial Court has failed to consider the fact that the land in question belonged to the appellants and they also sustained injuries in this incident. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence and opposed the appeal.

In view of the medical evidence of Dr. Prashant (P.W. 14), Dr. D.K. Satpathi (P.W. 7) and Dr. Bhanu Prakash Dubey (P.W. 9) and MLC report (Exh. P-32) and post-mortem report (Exh. P-15) of the deceased No. 1 and MLC report (Exh. P-33) and post-mortem report (Exh. P-20) of the deceased No. 2, it remains no longer disputed that the death of deceased persons was of the homicidal in nature.

According to the prosecution, this incident was witnessed by Beni Madho Tiwari (P.W. 10), a Head Constable, who purchased disputed land from Gopal, Tulsiram, Chowkidar (P.W. 1), Ramswaroop, Patwari (P.W. 2), Ramakant Shrivastava, Revenue Inspector (P.W. 3), Chain Singh (P.W. 12) and one Suraj Singh (not examined). Government officials (P.W. 2) and (P.W. 3) did not support prosecution on material particulars and they have been declared hostile. P.W. 10 stated that three accused persons came from their hut situated in adjoining field to the place of occurrence having armed with axe and farsi. They started assaulting deceased No. 1. While deceased No. 2 came to save him, appellants assaulted him also. Deceased persons fell on the ground. P.W. 10 lodged FIR (Exh. P-24) at Police Station, Bairagarh.

P.W. 10 and deceased No. 1 were claiming ownership of the land in dispute as they purchased it from Gopal. Revenue Officials had gone to the field for placing boundary marks on it. Father of the appellants also possessed his land adjoining to the dispute land. At one point of time, P.W. 10 was posted as Constable in Village Kodiya also. But, he purchased this land from Gopal in the year 1985. In Exh. D-3, Khasra Panchsala, name of Kunwarji, father of the appellants, was entered as Bhumiswami. But in Exh. D-6, in compliance of order of Revenue Appellate Court, in placing of Kunwarji name of Gopal was shown to have restored and reentered. P.W. 10 purchased the land through registered sale deed from Gopal, but did not take possession on the same day. This suggestion however, has been denied by P.W. 10 that he and deceased No. 1 had gone to the field for taking possession of the land with the help of Revenue Officials.

In Para 4 of his statement, P.W. 10 stated that he did not visit village frequently hence he did not know the names of sons of Kunwarji, he also did not know their identity by face. With the help of Chain Singh (P.W. 12), he could narrate the names and identity of accused persons in the FIR (Exh. P-24) at Police Station, Bairagarh.

Tulsiram, Chowkidar (P.W. 1) and Chain Singh (P.W. 12) were the local residents of the village. P.W. 1 named 2 accused persons, i.e., the appellants Mahesh and Prakash only. He did not name appellant Kailash at all. Prosecution did not choose to declare P.W. 1 hostile on this point and also did not put any question or suggestions to him, in cross-examination in respect of presence of third accused. P.W. 1 also admitted possession of father of appellant, on the land for last about 20 years and prior to that for a period of about 4-5 years there had been possession of Gopal.

Similarly, Chain Singh (P.W. 12) also admitted possession of the father of appellants on the disputed land for more than four years. P.W. 12 named all the three accused persons to be involved in the incident. In Para 4 of his statement be made it clear that name of accused persons had been mentioned by P.W. 10 to police while recording FIR with his help only.

Evidence regarding presence and involvement of third accused person, i.e., Kailash seems to be suspicious and doubtful. Ku. Chandra Gupta (D.W. 2), Advocate-cum-Notary stated that on 21-6-1985, Kailash came to see her in Bhopal Court to get an affidavit prepared for submitting in the Civil Court. Her statement found corroboration from Exh. D-14. Register of affidavits and Exh. D-15, Affidavit. Similarly, D.W. 3, clerk of the Counsel also stated presence of Kailash in Bhopal Civil Court in connection with hearing of civil matter in which ex parte injunction was granted in his favour two days ago.

P.W. 1 did not name accused Kailash to be present on the spot. At the same time, Advocate/Notary & Clerk of the Counsel both stated presence of Kailash to be in Bhopal at relevant time. This leads to show presence of Kailash in the incident doubtful. In such circumstances, merely on the basis of statement of P.W. 12 only involvement of accused Kailash cannot be found to be established. In respect of FIR (Exh. P-24), evidence of P.W. 10 cannot carry more weightage than evidence of P.W. 12 because for identity of accused persons he was dependent on the help of P.W. 12. On careful perusal of evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 9 and P.W. 12 and Exh. P-24, FIR, it stands clear that only two appellants rushed to the spot and dealt blows to the deceased persons.

Learned Counsel for the appellants submitted that according to Exh. D-3, Khasra Panchsala for the years 1980 to 1984, name of Kunwarji father of appellants was entered as Bhumiswami. However, vide order dated 15-5-1985 of Appellate Court the name of Kunwarji was replaced with the name of Gopal. According to Exh. D-16, order dated 19-6-1985 of Civil Judge Class II, Bhopal, granting ex parte injunction against Gopal, P.W. 10 and the deceased No. 1, indicates a strong case of self defence of property in favour of the appellants. It was directed in Exh. D-16 that service of the order would be made on the parties within two days by plaintiff himself only, i.e., Kunwarji, father of the appellants. That is why Kailash had gone to the Civil Court at Bhopal in that connection only so that affidavit may be filed to show compliance of the order of the Court, P.W. 10 admitted in his statement that service of ex parte order was made on him after two days of incident by the Court''s officials. On 21-6-1985, Revenue Officials reached on the spot in compliance of the order passed by Naib Tehsildar (P.W. 16) on the basis of application dated 14-6-1985 moved in the name of Gopal as Exh. P-37. In addition to fact that sale deed got executed by Gopal in their favour, deceased No. 1 and P.W. 10 approached the Revenue Authority and proceeded for seemankan of the land, with a view to ensure and exhibit their possession.

Learned Counsel for appellants further submitted that P.W. 10 in Para 7. P.W. 12 in Para 12 of their statements had admitted presence of appellants at Police Station at the time of recording of FIR. Appellant Om Prakash lodged FIR against the deceased persons and P.W. 10 at Police Station. But, in view of the fact of death of the two persons of opposite party, police did not proceed further and on that report submitted a final report to close the matter. However, Dr. M.D. Keshwani (D.W. 1) examined injuries of Om Prakash and injuries of Mahesh both. According to Exh. D-12, appellant Om Prakash sustained five injuries including four contusions, on forehead, on right leg etc. Similarly, according to Exh. D-13, appellant Mahesh also sustained three injuries. Neither P.W. 1 nor P.W. 12, explained as to how appellants suffered these injuries. P.W. 10 also did not explain five injuries and three injuries respectively sustained by the appellants.

Learned Counsel for the appellants further submitted that every person has a right to protect possession of his property as well as to protect his person. According to revenue entries and injunction order passed in favour of father of the appellants, appellants had a right to use force against the deceased persons.

Learned Panel Lawyer submitted that such a right of private defence of property cannot be exercised to that extent much less to cause 17 injuries to the deceased No. 1 with such brutality as shown by the appellants. Even brother of the deceased No. 1 who just came to rescue his brother was also killed mercilessly by the appellants. The right of self defence of property does not reach to that extent. Lesser force could have been used by them.

Learned Counsel for appellants further submitted that appellants sustained injuries on their person, hence as a result of provocation, in reply, they returned some assaults to the deceased persons. In heat of sudden and grave provocation this incident occurred. Per contra learned Panel Lawyer submitted that injuries sustained by the appellants arc very superficial and are less in number. Whereas, deceased sustained 17 injuries and 4 injuries that too on vital parts and with great force.

What actually seems to have happened in this case is that original Bhumiswami Copal gave land to father of the appellants and permitted them to continue for quite a long time. When Gopal realised that Bhumiswami rights have accrued to him, he initiated proceedings in Revenue Court. In May, 1985, Gopal succeeded to get his name entered in revenue record as Bhumiswami in place of name of father of the appellants. Immediately. Gopal executed registered sale deed of the land in favour of the P.W. 10 and deceased No. 1. In June, 1985, they approached to Naib Tehsildar (P.W. 16) to have seemankan as a mark of possession on the land.

Assailing the order of change of name in Khasra entries, father of the appellants filed a civil suit against Gopal, P.W. 10 and deceased No. 1 and sought ex parte injunction order to protect his possession on the land. On seeing Revenue Authorities on the field along with P.W. 10 and the deceased persons, who reached on the field without their knowledge and notice, getting provoked under apprehension of dispossession despite having a revenue entry and injunction order in their favour, appellant''s rushed and assaulted the deceased persons.

In the backdrop of the facts that there had been a land dispute between the parties and appellants sustained injuries which were not explained by the prosecution witnesses. Counsel for the appellants placed reliance on Baljit Singh and Another Vs. State of Uttar Pradesh, and in Laxman Singh Vs. Poonam Singh and Others, and prayed for exoneration from the guilt on the ground that accused persons who were in actual possession of the disputed land and when sought to be dispossessed by complaint party under the garb of the order of demarcation/seemankan obtained from Revenue Court, would have a reasonable apprehension of dispossession, particularly, in the backdrop; of the fact that prior to date of the incident, Civil Court had passed an ex parte order of injunction directing the complainant party to maintain status quo in respect of possession of land, appellants are entitled to defend their possession, their person and property in exercise of their right to private defence.

In present case, appellants had sustained injuries which were not explained by the prosecution witnesses. Even assuming for the sake of argument, injuries sustained by the accused persons are comparatively less and to some extent can be ignored also, but entitlement of right to exercise private defence of person is also available to appellants. Deceased No. 1 sustained as many as 17 injuries and deceased No. 2 sustained 4 injuries is indicative of the fact that appellants exceeded their right of defence of person and property both. In present case, complainant party reached on the field along with the Revenue Officer for placing marks of boundary on it, hence, apprehension in the mind of the appellants would be justified upto limited extent only. Imminent use of force should be limited and balanced. By way of self defence, appellants, however, had no right to cause 17 injuries to the deceased No. 1 and further to cause 4 injuries to the deceased No. 2.

Appellants assaulted the deceased No. 1, then assaulted deceased No. 2 also, who came to intervene and continued to assault after receiving injuries on their own person also. A large number of injuries received by the deceased persons, i.e., about 17 injuries by deceased No. 1 and about 4 injuries to deceased No. 2, clearly show that appellants exceeded their right of self defence. Though they acted in heat of sudden and grave provocation, but acted in a cruel manner to some extent. In such a situation, in our considered opinion, though acts of appellants resulted in two deaths successively, but in view of the facts and circumstances of this case, it is covered under Exception 2 as well as partly under Exception 4 of Section 300 of IPC. This is a case where appellants caused deaths in exercise of right of person and property but exceeded that power given to them by law. There appears nothing to show pre-meditation of appellants to commit this incident, but they rushed towards the scene of occurrence on seeing seemankan proceedings, all of a sudden and felt provoked and assaulted the deceased persons but acted in somewhat cruel and unusual manner.

As a total effect, in our opinion, acts of appellants would be an offence not u/s 302, IPC, but an offence to commit culpable homicide not amounting to murder punishable u/s 304 (Part I), IPC. Conviction and sentence of appellants u/s 302, IPC, therefore, is hereby set aside and instead, appellants are convicted u/s 304 (Part I), IPC for committing culpable homicide not amounting to murder of deceased No. 1 and deceased No. 2 respectively and they are sentenced to 10 years RI on each count. Their sentences shall run concurrently. Needless to write, that jail sentence suffered by the appellants pending investigation, trial and appeal shall be set-off as per provisions of Section 428, Cr.PC. Their bail bonds stands discharged.

Appeal allowed in part as indicated above.