Ram Ratan and Others vs State of U.P.

Vishnu Sahai, J.—This appeal has been preferred by Ram Ratan, Swami Nath, Shiv Baran, Mano Ram, Ram Bachan alias Om Prakash, Sobha Ram and Ram Pyarey against the judgment and order dated 23.3.1990, passed by Ist Additional Sessions'' Judge, Faizabad, in Sessions'' Trial No. 318 of 1987, whereby they have been convicted and sentenced, in the manner, stated hereinafter :

(I) u/s 302/149, I.P.C. to imprisonment for life and to pay a fine of Rs. 1,000 each, in default to undergo six months R.I. ;

(II) u/s 307/149, I.P.C. to five years'' R.I. and to pay a fine of Rs. 500 each, in default to undergo five months'' R.I. ;

(III) u/s 325/149, I.P.C. to three years'' R.I. and to pay a fine of Rs. 300 each, in default to undergo three months'' R.I. ; and (IV) u/s 323/149, I.P.C. to three months'' R.I.

In addition, Ram Ratan and Swami Nath have been convicted for the offence punishable u/s 148, I.P.C. and sentenced to undergo two years'' R.I. and to pay a fine of Rs. 200 each, in default to undergo two months'' R.I. and Shiv Baran, Mano Ram, Ram Piyare, Ram Bachan alias Om Prakash and Shobha Ram for the offence punishable u/s 147, I.P.C. to one year''s R.I. and to pay a fine of Rs. 100 each, in default to undergo one month''s R.I.

The sentences, on all the counts, have been directed to run concurrently.

Shortly stated, the prosecution case runs as under:

Informant Mata Prasad P.W. 1, Smt. Kamla Devi P.W. 2, deceased Haunshila Prasad, Shiv Ram (not examined) and the seven Appellants, namely, Ram Ratan, Swami Nath, Shiv Baran, Mano Ram, Ram Bachan alias Om Prakash, Sobha Ram and Ram Pyarey, at the time of incident, were living in village Sahjauna, hamlet of Sindhora within the limits of police station Inayat Nagar, in district Faizabad.

The informant and the victims on one hand and the Appellants on the other are inter-related. Appellants Ram Pyarey, Shiv Baran and informant Mata Prasad were real brothers of deceased Haunshila Prasad. Appellants Sobha Ram and Mano Ram are the sons of Appellant Ram Pyarey. Appellant Swami Nath is the son of Appellant Sobha Ram. Appellants Ram Pyarey, Shiv Ram, Mano Ram and Swami Nath, at the time of incident, were residing in the same house. Appellants Ram Ratan and Ram Bachan alias Om Prakash are the sons of Appellant Shiv Baran and at the time of incident were residing with him.

In the division of ancestral property between informant and the deceased on one hand the Appellants on the other, the eastern portion of the house along with the appurtenant open land was given to the informant and Haunshila Prasad and northern portion along with the appurtenant open land in the same house was given to Appellants Shiv Baran and Ram Pyarey. However, Shiv Baran and Ram Pyarey wanted to take possession of the open land appurtenant to the portion of the informant and Haunshila Prasad. On account of this, relations between them and the informant and Haunshila Prasad became strained. Proceedings under Sections 107/116, Cr. P.C. also took place between them.

On 14.3.1987, at 3.00 p.m., when informant Mata Prasad was at his door, the seven Appellants, namely, Ram Ratan, Swami Nath, Shiv Baran, Mano Ram, Ram Bachan alias Om Prakash, Sobha Ram and Ram Pyarey, out of whom Ram Ratan was armed with a ballam (spear), Swami Nath with a spade and the remaining Appellants with lathi and danda, came and started throwing pual, which was stacked in front of the portion of the informant. When he refrained them from doing so, the Appellants armed with lathi and danda belaboured him. He raised cries, hearing which Haunshila Prasad, Smt. Kamla Devi and Shiv Ram came. Appellant Ram Ratan instigated that they be killed. Thereafter he inflicted a ballam (spear) blow on the stomach of Haunshila Prasad, who fell down as a consequence thereof ; Appellant-Shiv Nath inflicted a blow with spade on the forehead of Smt. Kamla Devi and the remaining Appellants started assaulting the informant ansd Ors. with lathi and danda. Informant ansd Ors. raised cries, hearing which Salik Ram and Guru Charan reached on the place of the incident. They also saw the incident. Thereafter, the Appellants ran away.

After the Appellants ran away, informant Mata Prasad got his F.I.R. scribed by Vijay Kumar, who after scribing it read it over to him. He, then signed on it. Thereafter he proceeded along with the F.I.R. and victims Haunshila Prasad, Shiv Ram and Kamla Devi to police station Inayat Nagar, where he lodged his F.I.R.

The F.I.R. of the incident was lodged by informant Mata Prasad on the date of the incident itself (on 14.3.1987) at 5.15 p.m. at police station Inayat Nagar.

In the F.I.R. the seven Appellants are named and on the basis of the F.I.R., offences punishable under Sections 147/148/149/324/323/307, I.P.C., were registered against the Appellants.

A perusal of the chik-F.I.R. shows that the distance between the place of the incident and the aforesaid police station was fifteen kilometres.

It is pertinent to mention that after lodging of the F.I.R. the informant and the other victims were sent for medical examination to District Hospital, Faizabad, where on the date of the incident itself (14.3.1987), they were medically examined.

Haunshila Prasad was examined by Dr. K. U. Ahmad P.W. 3 at 5.15 p.m. who found on his person one punctured wound 5 cm. x. 1.5 cm. x cavity deep on the left lower chest, 12 cm. above the umbilicus and one lacerated wound 1 cm. x 0.5 cm. x 0.5 cm. on the left side of forehead.

In the opinion of Dr. Ahmad, the punctured wound was dangerous to life ; was attributable to a sharp edged object ; and the lacerated wound, which was simple in nature, was attributable to a blunt object.

The duration of injuries noted in the injury report by Dr. Ahmad was half day.

It is pertinent to mention that in his substantive statement Dr. Ahmad also expressed the same opinion and also stated therein that the injuries of Haunshila Prasad could have been caused on 14.3.1987, at 3.00 p.m.

The evidence of Dr. K. U. Ahmad shows that on 14.3.1987, at 3.00 p.m., Haunshila Prasad succumbed to his injuries at District Hospital, Faizabad.

The injuries of informant Mata Prasad, Kamla Devi and Shiv Ram were medically examined on 14.3.1987, at 5.45 p.m., 6.05 p.m. and 6.45 p.m., respectively, by Dr. Sant Kumar P.W.6 at District Hospital, Faizabad.

Dr. Sant Kumar found on the person of Mata Prasad two lacerated wounds and one bright red contused swelling ; he found on the person of Kamla Devi one lacerated wound ; and on that of Shiv Ram two bright red contusions and a swelling.

In the opinion of Dr. Sant Kumar, the injuries of the aforesaid persons were fresh and attributable to a blunt weapon.

In his statement, in the trial court, Dr. Kumar reiterated the said opinion and also stated that the injuries of the aforesaid persons could have been caused on 14.3.1987, at 3.00 p.m.

The autopsy on the corpse of Haunshila Prasad was conducted on 16.3.1987, at 4.00 p.m. by Dr. A. K. Rai P.W. 5, who found on his person two surgical incised wounds one lacerated wound and a contusion of right side of chest.

On internal examination, Dr. Rai found fracture of 3rd, 4th and 5th ribs on the right side ; pleura lacerated on the right side ; and peritoneum cut.

The cause of death spelt out in the post-mortem report was shock and haemorrhage on account of ante-mortem injuries.

It is pertinent to mention that in his deposition in the trial court, Dr. Rai reiterated the said cause of death and also stated therein that the ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death.

It is pertinent to mention that with respect to the same incident Appellant Mano Ram lodged a cross F.I.R. on the date of the incident itself (14.3.1987) at 8.45 p.m. at police station Inayat Nagar, district Faizabad and he and Appellants-Om Prakash and Swami Nath were also medically examined in District Hospital, Faizabad by Dr. Sant Kumar on the date of the incident ; Mano Ram at 9.15 p.m. and Shiv Ram and Swami Nath at 9.30 p.m and 9.45 p.m. respectively.

On the person of Mano Ram, Dr. Kumar found two lacerated wounds, one incised wound, and one punctured wound ; on that of Om Prakash one lacerated wound and four contusions ; and on that of Swami Nath a lacerated wound.

It is significant to mention that a injury each of Om Prakash and Mano Ram and the solitary injury of Swami Nath was situated on head.

In his substantive statement, Dr. Sant Kumar stated that the injuries of the aforesaid persons were half a day old and could have been caused on 14.3.1987, at 3.00 p.m.

The case was investigated in the usual manner and thereafter the Appellants were charge-sheeted.

The case was committed to the Court of Sessions in due course, where the Appellants were charged on a number of counts and thereafter put up for trial. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

During trial, in all, the prosecution examined twelve witnesses. Two of them, namely, Mata Prasad P.W. 1 and Kamla Devi P.W. 2 were examined as eye-witnesses.

During cross-examination, the suggestion given to them was that when Appellant-Mano Ram was digging out water from the joint well for moistening mud, members of the family of informant armed with lathi and ballam assaulted him ; when Appellants Swami Nath and Om Prakash rushed to rescue him, they also assaulted them ; and in self-defence they assaults them (informant and his family members). The eye-witnesses denied the said suggestion.

The learned trial Judge believed the evidence of eye-witnesses and convicted and sentenced the Appellants, in the manner, stated in paragraph-1.

Hence this appeal.

We have heard Mr. M. P. Yadav for the Appellants and Mr. Mohd. Mansoor, for the Respondent and perused the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. ; and the impugned judgment. After the utmost circumspection, we are of the view that this appeal deserves to be allowed.

It would become manifest from the above that the conviction of the Appellants rests on the ocular account furnished by Mata Prasad P.W. 1 and Kamla Devi P.W. 2. Since in para 2, we have set out the prosecution story on the basis of the recitals contained in their examination-in-chief, we do not want to burden our judgment by adverting to the details in their evidence. In short, their evidence shows: The Appellants are inter-connected and related to them. There was enmity between them and deceased Haunshila Prasad on one hand and Appellants-Shiv Baran and Ram Pyarey on the other (since in para 2 we have referred to it, we are not detailing it). On account of it on 14.3.1987, at 3.00 p.m., when Mata Prasad was at his door, the seven Appellants, namely, Ram Ratan, Swami Nath, Shiv Baran, Mano Ram, Ram Bachan alias Om Prakash, Sobha Ram and Ram Pyarey, out of whom Appellant-Ram Ratan was armed with a ballam, Swami Nath with a spade and the remaining Appellants with lathi and danda, came and started throwing pual, which was stacked in the land appurtenant to the portion of his house and when he objected, those armed with lathi and danda assaulted him. He raised cries, whereupon the deceased Haunshila Prasad, Shiv Ram and Kamla Devi came. Thereafter, Ram Ratan instigated that Haunshila Prasad be killed and inflicted a spear blow on his stomach ; Appellant-Swami Nath assaulted Kamla Devi with a spade ; and the other Appellants assaulted him ansd Ors. Then the Appellants ran away.

In our view, it would not be safe to accept the testimony of informant Mata Prasad and Kamla Devi for the reasons stated hereinafter :

(a) There was enmity between them and deceased Haunshila Prasad on one hand and Appellants Shiv Baran and Ram Pyarey on the other and as we have mentioned in para-2 the other Appellants are very close relations of Shiv Baran and Ram Pyarey ;

(b) Both of them are accused in the cross case, which was instituted on the counter F.I.R. in respect of the same incident lodged by Mano Ram on the date of the incident (14.3.1987) at 8.45 p.m., at police station Inayat Nagar, district Faizabad ; and (c) They have not explained injuries sustained by Appellants Om Prakash, Mano Ram and Swami Nath, who, as would become manifest from a perusal of para 8, sustained substantial injuries attributable to blunt weapon and pointed weapon.

It is pertinent to mention that no question was put to Dr. Sant Kumar, who medically examined the said Appellants, whether the injuries could be manufactured. In our view, since the injuries included three injuries on the head and a punctured wound, the said injuries could not have been manufactured.

It is true that the learned trial Judge in paras-20, 21 and 22 of the impugned judgment has taken the view that since the injuries of the said Appellants were simple in nature, the prosecution was under no obligation to explain them but we make no bones in observing that once it is accepted that no suggestion was given to Dr. Sant Kumar that the injuries of the said Appellants could be manufactured, the prosecution was under an obligation to explain their injuries.

We feel it pertinent to mention that the injuries of these three Appellants were medically examined within seven hours of the incident taking place. The statement of Dr. Sant Kumar shows that he medically examined all the three injured on 14.3.1987 (on the date of the incident) ; Mano Ram at 9.15 p.m. ; Om Prakash at 9.30 p.m. ; and Shiv Nath at 9.45 p.m.

It is pertinent to mention that the duration of the injuries furnished by Dr. Sant Kumar namely half a day old fits in with the date and time of the incident (the incident took place on 14.3.1987, at 3.00 p.m.).

It is further pertinent to mention that Dr. Sant Kumar stated that the injuries could have been sustained on 14.3.1987, at 3.00 p.m.

For the aforesaid reasons, we are of the view that Appellants-Mano Ram, Om Prakash and Swami Nath sustained substantial injuries in the same incident in which Haunshila Prasad was killed and the informant ansd Ors. were injured.

The Supreme Court in the oft-quoted case of Lakshmi Singh and Others Vs. State of Bihar, , in paragraph-11 has held that three of the inferences which can be drawn in the event of the failure of the prosecution to explain the injuries of the accused are: (a) the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version ; (b) the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable ; and (c) in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

In the said paragraph, the Supreme Court has also held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses (as is the case here) or where the defence gives a version which competes in probability with that of the prosecution.

In our view, all the three inferences set out by the Supreme Court in the case of Lakshmi Singh (supra) could be drawn in the instant case.

We also make no bones in observing that since the Appellants sustained substantial number of injuries including a lacerated wound on the head of Appellant-Swami Nath and a lacerated wound each on the head of Appellants-Om Prakash and Mano Ram, the Appellants could have reasonably apprehended that grievous hurt could be caused to them. In that view of the matter, bearing in mind the provisions contained in clause secondly of Section 100, I.P.C., which provide that if there is apprehension of grievous hurt, the right of private defence of body extends to the voluntary causing of death, in our view, the Appellants had the right to cause death of deceased Haunshila Prasad and to cause injuries to the other victims.

Since excepting Appellant-Ram Ratan other Appellants did not assault deceased Haunshila Prasad and Appellant-Ram Ratan only inflicted a solitary ballam blow on the person of Haunshila Prasad, it cannot be said that the Appellants exceeded the right of private defence of person.

It should be borne in mind that before an accused person/accused persons can be punished for exceeding the right of private defence of person or property, prosecution has to pin-point as to who amongst them exceeded the right (see paras 7, 8 and 9 of State of Bihar Vs. Nathu Pandey and Others, and para 4 of Joginder Ahir and Others Vs. The State of Bihar, .

The rationale behind this is that person who act in the exercise of right of private defence of person or property commit a lawful act (see Section 96, I.P.C.) and for the application of Section 149, I.P.C., there has to be a unlawful assembly ; in terms of Section 141, I.P.C. and for that of Section 34, I.P.C. there has to be a criminal act.

In the result, we allow the appeal ; set-aside the convictions and sentences of Appellants Ram Ratan, Swami Nath, Shiv Baran, Mano Ram, Ram Bachan alias Om Prakash, Sobha Ram and Ram Pyarey, on all the counts ; and acquit them thereunder. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged. In case they have paid the fine it shall be refunded to them.