Rohtash and Others vs State of U.P.

Naheed Ara Moonis, J.—Instant appeal has been preferred by the appellants Rohtash, Raghubir (now dead), Gulab Singh and Mula, challenging the impugned judgment and order dated 21.8.2012, passed by 1st Additional District and Sessions Judge, Bijnor whereby the appellants have been convicted under Sections 302 /34 and 201, I.P.C. and sentenced to life imprisonment and four years rigorous imprisonment respectively, in Sessions Trial No. 327 of 1981, State v. Rohtash and others. Both the sentences awarded to the accused appellants were directed to run concurrently. The genesis of the prosecution case, narrated in a nut shell, is that the informant Shanker Lal lodged a first information report on 13.9.1981 at about 8.45 a.m. with respect to an incident occurred in the night between 12/13.9.1981 at about 3:00 a.m. vide Crime No. 172 of 1981, u/s 302, I.P.C. against all the appellants, alleging that Shankar Lal (informant), Buddhu (deceased), his sarahu (husband of the wife''s sister), who had taken field of Shahabuddin s/o Ilahi Bux on Batai. Buddhu''s nephew Kishori (P.W. 2), and Dilawar s/o Chandan had gone from their houses for irrigating their fields from canal water flowing near the jungle of Kalapur. Buddhu (deceased) started irrigating his paddy field by opening a channel in canal and thereafter he sat on the demarcation boundary (mend) alongwith his nephews Kishori and Dilawar. At about 4.00 a.m., all the appellants Rohtash s/o Bharat, Raghubir s/o not known (since dead), Gulab Singh s/o not known and Mula s/o Harne came at the spot, Rohtash (appellant No. 1) and Mula (appellant No. 4) were equipped with spears, whereas Raghubir (appellant No. 2, now dead) and Gulab (appellant No. 3) were armed with lathi. They asked Buddhu why he had stopped irrigation of their fields by opening the channel in the canal. On their interrogation, Buddhu replied that his paddy crops were drying up that is why he was irrigating his field from the canal. This infuriated the appellants, who all started assaulting Buddhu with their respective weapons. Kishori and Dilawar looking to the ghastly act of the appellants stealthily shied away from the incident place in order to save their lives and watched dehumanized and savage act from some distance. The miscreants after badly and brutally assaulting Buddhu dragged him towards north. Witnesses Kishori and Dilawar ran towards their village wailing and bemoaning and narrated the entire incident to Shanker Lal (informant) Jagdish Prasad (village Pradhan), Ram Swarup and others. All the aforesaid persons accompanied with other localities came to the place of the assault but victim could not be found there and only sprinkled blood could be spotted. They, therefore, proceeded to trace the victim following the dragging marks and broken paddy crops, which led them to the nearby field of Idwa, where they found the corpse of Buddhu under a Sheesham tree.

Leaving deceased corpse of Buddhu under the care of village folk informant went to the police station Nagina, where he lodged a written report scribed by Kalyan Singh, the son-in-law of the deceased. On the basis of said report police swung into action and Jagdish Prasad. Head Constable registered the crime same day at 8.45 a.m. by preparing chik F.I.R. (Ex. Ka-3). Relevant G.D. entry was also prepared by the said Head Constable.

Investigation of the crime was entrusted to S.I. Lalman Singh, who after recording informant''s statement came to the incident place and took the corpus of the deceased Buddhu in possession and thereafter conducted inquest on the dead body and prepared the inquest report and other relevant documents. Thereafter the corpus of deceased Buddhu was sent to mortuary for autopsy under the vigil of constables Ram Das and Mahendra Singh. The Investigating Officer thereafter recorded statements of witnesses Kishori and Dilawar and subsequent thereto prepared the site plan (Ex. Ka-6). He also collected plain and blood stained earth (Ex. Ka-7) and kept the same in a sealed container.

The post-mortem on the dead body of the deceased Buddhu was conducted by Dr. J.P. Singh (P.W. 4) on 14.9.1981 at 4.45 p.m., who proved post-mortem examination report (Ex. Ka-2). The following ante-mortem injuries were found on the corpus of the victim:

(i) Punctured wound 4 cm. x 1 cm. x bone deep left side face near mandible.

(ii) Punctured wound 6 cm. x 1 cm. x bone deep left ear.

(iii) Punctured wound left side back on the skull 4 cm. x 1'' 1/2 cm. x bone deep.

(iv) Punctured wound left side 4 cm. below injury No. 3.

(v) Contusion 6 cm. x 6 cm. left upper arm back.

(vi) Traumatic swelling 6 cm. x 4 cm. on left side chest.

It was noted by the doctor that rigor mortis had passed off and the skin of the corpus had begun to peel off on account of decomposition. On internal examination left temporal and frontal bones were found fractured. Membrances were found lacerated. Fracture of 2nd and 8th ribs were also found. Pleura and left lung were lacerated. In the stomach, semi digested food was found. The doctor opined that the death had occurred owing to shock and hemorrhage as a result of ante-mortem injuries.

The Investigating Officer proceeded further with the investigation and collected credible and clinching materials showing the complicity of the appellants in the commission of the said crime and resultantly he submitted charge-sheet against the accused persons u/s 302 /34 read with Section 201, I.P.C.

After committal of the case, charges were framed against the appellants u/s 302 /34 read with Section 201, I.P.C. The accused persons denied those charges and claimed to be tried.

The prosecution examined three witnesses of fact, namely Shanker Lal (P.W. 1), who is the informant of the incident, Kishori and Dilawar (P.Ws. 2 and 3), who were ocular witnesses of the incident. Besides them prosecution also examined formal witness Dr. J.P. Srivastava (P.W. 4), who had conducted the autopsy of the victim, Head Constable Jagdish Prasad (P.W. 5), who had registered the case in the general diary, who proved Chik F.I.R. and S.I.. Ram Kumar Singh (P.W. 6), who proved the investigation done by S.I. Lal Man Singh. Affidavit filed by Ram Das (Constable), who had taken away the deceased body for autopsy and identified the same before the post-mortem doctor was also filed by the prosecution.

The statements of the accused persons namely Rohtash, Raghubir, Gulab and Mula were recorded u/s 313, Cr. P.C. The accused persons denied the prosecution version and claimed themselves to be innocent.

As is mentioned above trial Judge found the appellants guilty of the charged crime and, therefore, convicted and sentenced them for those offences. Hence this appeal.

During the pendency of the appeal. Raghubir (appellant No. 2) died, hence his appeal stands abated.

The main thrust of the argument of Sri G.S. Chaturvedi, the learned senior advocate, appearing on behalf of the appellant, is that the first informant was not an eye-witness of the occurrence and he had lodged the first information report on the basis of narration of the incident by Kishori (P.W. 2) and Dilawar (P.W. 3), who happened to be nephew of the deceased and were alleged to be present at the time of the occurrence. There are material contradictions in their testimonies which do not corroborate with medical evidence. No independent witness has come forward to support the prosecution case. The investigation was not done in a fair and impartial manner. The charge-sheet was submitted against the appellants without making proper and fair investigation. The story of dragging the dead body after assault stands falsified as there was no mark of dragging on the person of the deceased. The cornerstone of the argument was that the accused appellants have exercised right of private defence as the complainant party were committing aggression. They were irrigating field mischievously by opening the canal on the dint of their muscle power, and, on resistance by the appellants, the complainant party tried to overpower them. The appellants had reasonable apprehensions that grievous hurt would be caused if the right of private defence is not exercised. The appellants, due to grave and sudden provocations, acted at the instinct of self preservation. The appellants were erroneously convicted u/s 302 /34, I.P.C. and sentence awarded by the court below is too excessive. The entire incident had occurred due to grave and sudden provocation with no intention of causing death of the victim. No specific role has been attributed to the accused persons. It is an offence of culpable homicide not amounting to murder. Pre-meditation on the part of the accused to commit murder is absent. The blows inflicted on the victim were not sufficient to cause his death therefore, the present case would not travel beyond Section 304, Part-II, I.P.C. It was further argued that mitigating view may be taken as the incident had taken place three decades ago. Raghubir (appellant No. 2) has already died and the appellants No. 1, 3 and 4 are not having good health. No useful purpose would be served by keeping them behind the bars. There is material conflict in the prosecution version which creates doubt about its veracity. The entire prosecution story has been distorted so as to implicate the appellants in the aforesaid offence.

Per contra learned A.G.A. appearing on behalf of the State, supported the impugned judgment by contending that it is evident from the record that appellants No. 1, 2 and 3 belonged to Chauhan community, and appellant No. 4. Mula, belong to Saini community. The appellants were notorious persons. They were exerting their personal right over the canal from which the paddy crops of the deceased was to be irrigated. On account of the threats and fear of the appellants, the victim had gone in the night to irrigate his field but even that could not be tolerated by the appellants. The appellants armed with spear and lathi assaulted the victim to such an extent that he died. The appellants dragged the dead body of the deceased in the field of Idwa and left it under a Sheesham tree. Happening of the incident is admitted to both the parties. The testimony of near kith and kins cannot be discarded who had witnessed the entire incident. Minor variations in the ocular testimony would not be sufficient to throw out the entire prosecution case. The evidence of a witness cannot be brushed aside solely on the ground of mere relationship if it are found to be correct and reliable. A close relative would be the last person to screen away the real culprits and falsely implicate innocent persons. The fact that the eye-witnesses are the close relatives of the deceased is no ground to discard their testimonies. The appellants equipped with spear and lathi exhorted to assault the victim with the object of eliminating him. Merely because the incident had occurred three decades ago would not be sufficient for reducing appellant''s sentence. There is no exaggeration in the evidence of the witnesses. There is consistency and resemblance in the prosecution version and the evidences brought on record. The broad spectrum of the prosecution version may be taken into account to sift its truthfulness and correctness. There may be minor discrepancies in prosecution version due to normal errors of perception or due to lapse of memory or due to faulty investigation but there is a complete chain of evidences connecting the appellants with the commission of gruesome crime. Prior concert or prior plan of the accused persons has to be judged from the facts and circumstances of the case. Common intention may develop even at the spur of the moment or at the point of time of commission of the crime. The onus to prove valid exercise of right of private defence was on the appellants but they failed to discharge the same convincingly.

We have heard learned counsel for the appellants and learned A.G.A. and have been taken through the record.

For appreciating the arguments advanced by the learned counsel for the parties, it is inevitable to examine depositions of all the prosecution witnesses. The statement of the informant Shanker Lal (P.W. 1), though he is not an eye-witness of the incident, indicates that he has narrated the same incident in his first information report as was disclosed to him by Kishori and Dilawar (P.W. 2 and 3). It has explicitly been stated by him that the co-accused Gulab is the maternal uncle of Raghubir. Rohtash is the uncle of Gulab. They are Chauhan by caste and were living in the adjoining village Patpara Gawonri. They all hail from one family and at the time of the incident they were cultivating their field adjoining the field of Sahabuddin s/o Ilahi Bux which was taken by the victim and his nephew Kishori on Batai. The victim and his nephew Kishori had sown paddy crops in the field of Sahabuddin which was drying because of not being irrigated and the only source of irrigation was the canal. The informant and the witnesses are Harijans by caste. In his cross-examination, he stated that on the fateful day of occurrence, it was the turn of the victim to irrigate his field by opening a water channel from the canal. There was some verbal duel with the accused persons and regarding that appellant accused had not made any complaint or lodge a first information report. It has been stated by him that the police station is 4-5 miles away from his village and the corpse of the deceased was found at about 6.00 a.m. in the morning. The incident had taken place in the wee hours of the night. He had come alongwith Kishori, Dilawar and other persons comprising of village people and the corpus of the deceased was lying at one kilometre away from the place of assault under a sheesham tree. Thereafter he retracted to the house of deceased and got a written report scribed by Kalyan Singh, son-in-law of the deceased. Subsequent thereto he went ahead to lodge the first information report at the concern police station. At the place of occurrence where the deceased was brutally and savagely assaulted, there was trail and track of blood on the dispersed and trampled paddy crops. The hand of the deceased were tied and there was mark of dragging on his back.

According to the eye-witness Kishori (P.W. 2), nephew of the deceased, Buddhu had taken field of Ilahi Bux on Batai and the paddy crops were sown. There was no source of irrigation except the canal. The accused appellants were exerting exclusive right on the canal at the dint of their muscle power and were not allowing others to irrigate their fields against their wishes. There was no pumping set or tube well from where the field of the deceased could be irrigated. The field of the appellant Mula was adjoining the field of the deceased and the paddy crops of the deceased was drying because of lack of irrigation. The victim alongwith Kishori (P.W. 2) and Dilwar (P.W. 3) went to irrigate the paddy crops in the wee hours of night. Kalyan, the son-in-law of the deceased had come on 13.8.1981. The victim was not present in his house. He came from Nagina about 9.00 ''o'' clock after doing labour work. At that time it was decided by them that they will irrigate their paddy crops at about 3.00 a.m., as the appellants would never allow them to take water from the canal. They reached at their field at about 2.30/3.00 a.m. in a full moon light. They blocked the southern channel leading to the field of co-accused Mula and opened a water drain towards their field. The victim alongwith Kishori and Dilwar sat at one place. Soon thereafter accused appellants Mula and Rohtash armed with spear and Raghubir (now dead) and Gulab armed with lathi exhorted them and threatened as to who had opened the canal. On this Buddhu replied that he had opened canal for watering his paddy crops which was fading away on account of lack of irrigation. The accused appellants outburst their wrath and anger and started assaulting Buddhu mercilessly and brutally which could not be borne by him and he fell down on the ground. The accused persons dragged the victim towards the northern side. Kishori (P.W. 2) and Dilwar (P.W. 3) retraced their steps so as to save their lives. They did not intervene looking to the barbarous and brutal thrashing of the victim by the appellants. They ran towards the village bewailing and lamenting, where they narrated the entire story to the informant and other persons and asked them to extend their hands to save the life of his uncle (Buddhu). When Kishori, (P.W. 2) came at the place of assault alongwith Shanker (informant) and other persons, the corpus was not lying there. Only blood was found there. There were also marks of dragging of body. There were broken and dispersed crops showing the track of dragging. Following the dragging marks of body of the victim, they reached at the place where the corpus was lying and there was diffusion of blood on the earth. In his cross-examination he had categorically stated that there was full moon light. On the fateful day, it was neither the turn of the victim nor of the appellants to take water from the canal. He was having spade and as soon as he alongwith Buddhu and Dilawar reached at the canal and opened water for irrigating paddy crops, just after 5 to 7 minutes the accused appellants appeared at the spot where the incident of assault took place. The appellants closed flow of water towards the field of the victim and opened the same towards the field of Mula (appellant No. 4), On account of opening water towards the field of Mula, the paddy crops of the victim could not be irrigated. It was also disclosed by him that Rohtash and Mula assaulted him with spear and when the victim fell on the ground, Raghubir (now deceased) and Gulab gave blows with lathi. This witness was 15 to 20 paces away from the place of occurrence. He was not assaulted by the accused appellants. On the next day being Sunday, the canal used to remain closed therefore, they decided to take water in the night. The victim was under apprehension that the accused persons will not allow him to take water from canal as verbal duel had already taken place. On account of scare and fear, they decided to take water in the night.

The statement of P.W. 3 Dilawar is consistent with the statement of P.W. 2 Kishori Lal. There is no deviation in the statement of P.W. 3 with the prosecution case. Both the prosecution witnesses had seen the incident and at their pointing out the corpus of the deceased was recovered. In their cross-examination nothing has emitted to create doubts about their presence and the manner of assault inflicted to the victim.

Dr. J.P. Srivastava (P.W. 4) who conducted post-mortem of the deceased and prepared the postmortem report was examined. He had proved the post-mortem report which was marked as Ex. Ka-2. He deposed that the injury Nos. 1 to 4 were punctured wound and all injuries were on the left side of the body and were caused by spear which resulted into internal damage of membrances and fracture of scalp, vertebrae and parietal bones. Traumatic swelling was found on the left side of chest of the deceased in an area of 8 cm. x 4 cm. caused by lathi. Second and eighth ribs were found fractured on the left side and the pleura was found lacerated the cumulative effect of all injuries inflicted to the victim were sufficient to cause his death. The victim had died instantaneously as a result of ante-mortem injuries. He was further examined by the defence where he specifically stated that he could not find any mark of dragging because the skin of the deceased had started to peel off as a result of which there was possibility of effacing the mark of abrasion caused by dragging.

H.C. Jagdish Prasad (P.W. 5) was examined to prove the Chik F.I.R. and G.D. entries made by him on the basis of written first information report which were marked as Ex. Ka-1, Ka-3 and Ka-4. He has proved the same deposing that special report was sent through constable Vijay Kumar Tyagi on 13.8.1981 which was entered in the G.D. and marked as Ex. Ka-5.

S.I. Ram Kumar Singh was examined as P.W. 6. He deposed that he was posted at Police Station Nagina with S.I. Lalman Singh, who was initially entrusted with the investigation and on account of his ailment, he could not appear before the court to get his statement recorded. S.I. Ram Kumar Singh proved the signature of the Investigating Officer Lalman Singh who had conducted the entire investigation and proved his signature on the documents prepared by him and the statement of witnesses recorded u/s 161, Cr. P.C.

Constable Ram Dass proved the affidavit filed by him in respect of corpus of Budhu deceased being brought by him for post-mortem which was marked as Ex. Ka-23.

The statement of the accused persons u/s 313, Cr. P.C. were recorded to controvert the allegations made against them. The accused persons denied their complicity in the commission of the said occurrence and also charges levelled against them. They claimed themselves to be absolutely innocent and were falsely implicated on account of enmity. They admitted their caste and the caste of the complainant party. They also admitted that they were known to the prosecution witnesses much prior. They pleaded ignorance about the incident and the preparation of documents.

The learned trial court on the basis of thread bare analysis of the entire evidence brought on record found guilt of the appellants proved for the charged offence punishable u/s 302 /34 read with Section 201, I.P.C. and, therefore, convicted them and awarded sentence of life imprisonment and four years R.I. under respective sections.

We have given anxious consideration to the submissions advanced by the learned counsel for the appellants.

It emerges from the submissions advanced by the learned counsel for the appellants that the appellants had exercised their right of defence on the instinct of self-preservation. The accused appellants had imminent danger of their life and property. The complainant parties were aggressor and tried to take law in their hands and they had gone beyond the line of moderation in repelling inflicting injury. However, proven facts indicate otherwise, as during the course of heated confabulations and scuffling, the appellant assaulted the victim out of sudden provocation. The contention of learned counsel for the appellants in connection with right to defence on account of imminent danger to life and property is not convincing as there is nothing on record to corroborate existence of that right and also that it was exercised by the appellants in good faith from the desire of self-preservation. All the surrounding circumstances is to be considered for determining the availability of right of private defence. It is amply clear from the evidence on record that the place of the incident and the death of the victim has not been disowned. The only question for determination is as to how the incident had started and who were the aggressors and who protected themselves by effective self-resistance against those unlawful aggressors. According to the prosecution case, the accused appellants, who were hailing from the upper castes, were restricting the victim party belonging to the scheduled caste from irrigating their field. Buddhu (deceased) was earning his meals by doing trivial work of labour. The victim had taken field of Ilahi Bux on Batai and had sown paddy crops for supporting his family. The victim did not have any source for survival except earning the livelihood by doing the trivial labour work. On an earlier occasion also, there was verbal duel between the appellants and the victim with respect to taking water from the canal from which the fields of the appellants and the victim were being irrigated. Whenever the victim tried to irrigate his field from the canal, he was either put under pressure or was frightened away with threats to face dire consequences. On the fateful night, the complainant party chose to irrigate his field by blocking flow of water running towards the field of Mula. The victim accompanied with Kishori (P.W. 2) and Dilwar (P.W. 3) reached at the canal and diverted the flow of water from canal toward his field by stopping the flow of water in the field of Mula. The appellants who were already present there, looking to the activities of the victim could not squeeze their wrath and anger and ensued quarrelling with the victim. Rohtash and Mula, appellants No. 1 and 4, were equipped with spears. Raghubir (appellant No. 2 now dead) and Gulab Singh (appellant No. 3) armed with lathi started to give blows with their respective weapons. Kishori (P.W. 2) and Dilawar (P.W. 3) who were seeing the incident could not strengthen courage to go ahead to save their uncle on account of merciless and horrific blows inflicted by the accused persons on the victim. The victim was assaulted dastardly and brutally by the accused appellants to such an extent that it culminated into his death. Kishori (P.W. 2) and Dilawar (P.W. 3) had already left the place of occurrence to inform this incident to other family members and, therefore, no injury was sustained by them. The incident is admitted to both the parties on account of dispute with regard to taking water from canal. It is also an admitted fact that Kishori (P.W. 2) and Dilawar (P.W. 3) had gone with the victim to assist him in irrigating the field of paddy crops. The statements of these two eye-witnesses cannot be doubted merely because they had not sustained any injuries. It reflects from the analysis of the occurrence that the accused appellants used to take water from the canal by unleashing terror in the locality because the accused appellants belonged to upper castes and had strong muscle power to overcome and run down the down trodden and weaker communities. The victim belonging to the scheduled caste could not muster courage to take water in broad day for irrigating his paddy crops. He opted to irrigate his field in the wee hours of night so that untoward misplay may not happen. Although there was earlier exchange of heated words between the appellants and the victim with an oblique motive to subdue the victim yet the victim could not consolidate his courage to go ahead for making complaint to any authority. It is explicit from the statement that Rohtash (appellant No. 1) had taken water from the canal to irrigate his field anterior to three days of the incident. Mula (the appellant No. 4) had also taken water on the fateful day. The victim was proscribed by the accused appellants from irrigating his field diverting the water from the canal. The victim was in search of irrigating his field at any moment when the accused appellants may not hinder in his way hence he opted to irrigate his field in the wee hours of the fateful night. It was reflected by the Investigating Officer in his memo that the field of the victim was drying due to lack of irrigation. The victim had sown the paddy crops by incurring sufficient amount and the same remained un-irrigated despite the victim remained in touch with the accused persons for getting water from the canal but the accused appellants were arrogant and squalid, they did not permit the victim to divert water from the canal in his field. The victim staked his life taking water from the canal closing the water flowing in the field of Mula (appellant No. 4). While preparing the site plan, the Investigating Officer has mentioned that the adjacent field of Mula (appellant No. 4) was irrigated and sufficient water was filled in his field which goes to prove that the field of the victim was not irrigated and the victim was gasping to irrigate his field by staking his life. The victim diverted the water running in the field of Mula (appellant No. 4) towards his own field which exploded the appellants and in order to teach him a lesson, the accused appellants had reached at the field of the victim where after some verbal altercation appellants started to assault him with their respective weapons. The post-mortem of the deceased corroborates that the victim had died on account of ante-mortem injuries caused on his person. It cannot be said that there is sudden or abrupt provocation and the victim was inflicted fatal blows in right to self-preservation or defence of person and property both. The appellants assaulted successively to the victims and when the victim fell down, they continued to assault him till he died. For the purposes of establishing that all the accused persons shared same common intention, it is not necessary to prove in every case that there was a prior pre-arranged or pre-concerted meeting of minds between the accused persons. The ingredients which are essentially required to prove the common intention are that there was a meeting of the minds of the accused persons before the offence was committed. Common intention is a question of fact. It is subjective and could be inferred from the facts and circumstances of the case. The appellants, Rohtash and Mula, who were armed with spear and lathi attacked the victim and inflicted several blows and in furtherance of common object to do away with the deceased, appellant Raghubir and Gulab bashed him with lathi resulting into fractures of his ribs. The accused appellants dragged the deceased towards the north and dropped the dead body beneath Sesame tree contiguous to the field of Idwa so as to conceal the corpus. Their intention was to kill the victim as successive blows indicate that the action of the accused appellants was to ensure the death of the victim. The deceased sustained multiple injuries including the fracture of ribs. Thus the effect of totality of evidence respecting common intention shared by all the accused persons cannot be effaced. Proof of common intention is a matter of inference which can be drawn from the channel of evidence and surrounding circumstances. The accused persons caused multiple injuries to the victim, it is not decipherable who was the actual assailant to cause death. It is explicit from the statements of the witnesses that they had seen the accused persons assaulting the victim. On account of fear and threat, the witnesses could not muster courage to go ahead to prevent the accused persons from causing injury to the victim. They left the dead body on the place of assault to inform their family members. When they came back alongwith the family members of the victim, they did not find the corpus at the place where incident had taken place. The corpus was dragged to some distance and was kept under the tree of Sesame. The paddy crops were broken and the blood of the victim was dispersed whereby the corpus of the victim was traced. This offensive act was done by the accused persons with oblique motive of concealing the corpus. The Investigating Officer has also noted this factum that there were marks of dragging and the blood of the victim was dispersed up to the field of Idwa where the corpus was recovered.

The submission of learned counsel for the appellants that in the post-mortem report, no mark of dragging was detected which was deposed by the doctor who had conducted the post-mortem of the deceased also does not hold water. In the deposition of the doctor, it is mentioned that the decomposition of body had started and the skin of the deceased was peeling off and hence no dragging mark on the body was found. The ribs of the victim were found broken corresponding to injury Nos. 5 and 6. There was traumatic swelling on the left side of the chest which were caused by lathi. The barbaric assault on the body of the victim speaks voluminous about the intention of the appellants.

The testimony of Kishori (P.W. 2) and Dilawar (P.W. 3) cannot be discredited in its entirety with regard to manner of assault on the ground of some minor inconsistencies in their statements. In all circumstances normal discrepancies are bound to occur in the deposition of witnesses due to normal errors of observation, errors of memory due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence. In the instance case the complainant was not an eye-witness of the occurrence, but his testimony cannot be discarded on account of variation, as he might lack necessary skill or ability to reproduce details of the entire incident as was narrated to him by P.W. 2 and P.W. 3. It is the totality of the evidence on record and its credibility that eventually determines whether the prosecution has proved the charge or not.

The contention of learned counsel for the appellants that no independent witness was examined cannot overshadow the entire prosecution case. The incident was narrated in a natural manner and the testimony of the Kishori and Dilawar (P.Ws. 2 and 3) being the near relatives of the victim is conclusive in nature inspiring confidence to prove its veracity and truthfulness. It is settled law that evidence of near relatives should be examined cautiously. Since the incident had taken place in the wee hours of night, it would not be possible for the prosecution to produce the independent witness to corroborate the prosecution case. No plausible and cogent reason has been shown to conclude false implication of the appellants leaving the actual assailants. No independent witness will muster courage to depose against the accused persons which will entail enmity posing danger to their life and property.

The heuristic argument of learned counsel for the appellants that the complainant party were aggressor and had attacked on the appellants, and the appellants out of sudden provocation and in exercise of right of private defence assaulted the victim to ward off imminent and serious danger to their life and property is highly disproportionate for determining the availability of plea of private defence to life and property. The law relating to private defence is encapsulated in Section 96 to Section 106, I.P.C. For availability to an accused the entire incident must be examined with care and viewed in proper perspective. The right of private defence is a defensive right. It cannot be perpetuated to be availed as a pretext for a vindictive, aggressive and retributive purpose of attack. The accused appellants had acted in a cruel and unnatural manner taking undue advantage of the situation when the victim was unarmed. The prosecution witnesses Kishori and Dilawar had left the place of occurrence on account of imminent and serious danger to their lives. There is no material on record to corroborate that on a sudden provocation without any malice or premeditation the accused-appellants assaulted the victim with lathi and spear having no intention to cause that particular injury on the basis of which the case can be covered by Section 304, Part-II. I.P.C. and the sentence can be reduced. There was no free fight between the accused appellants and the victim in which both had received injuries, but the accused appellants had given blows to the victim which caused latter''s death. It has not been proved that fatal blows were given by the accused appellants in exercise of their right to private defence. It is borne out from the material on record that some verbal altercation had taken place few days anterior to the occurrence of the said incident on the issue of taking water from the canal for irrigating parched paddy crops. The victim was badly rebuked and reprehended by the accused appellants and was proscribed from taking water for irrigating his paddy crops. The victim bolstered courage to irrigate his field taking water from the canal in the wee hours of night. The accused appellants who were already nurturing animus and grudge against the victim were armed with lathi and spear with pre-concerted mind of causing injury to him reached at the place and enquired from the victim as to who had diverted the flow of water from the field of Mula towards the field of the victim. The victim was about to answer, the accused appellants started assaulting him with lathi and spear without affording him opportunity to protect or ward off from the serious danger of life, thus the act of the accused appellants was in furtherance of common intention of committing a crime which cannot be distinguished between the accused persons as to the part taken by each in the crime. There is no evidence on record to corroborate that the appellants have exercised their right to private defence of life and property to defend from attack by putting resistance against unlawful act of the accused. This plea of self-preservation was neither pleaded nor witnesses were cross-examined on the score. There is no whisper to indicate that the incident has occurred at the spur of sudden provocation. The factual scenario and the nature of injuries inflicted on the deceased, the trial court has rightly convicted the accused appellants u/s 302 /304 read with Section 201, I.P.C. Section 299, I.P.C. defines culpable homicide as. "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

Section 300, I.P.C. defines murder, Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

For bringing in operation of Exception 4 to Section 300, I.P.C. it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The "fight" occurring in Exception 4 to Section 300, I.P.C. is not defined in I.P.C. A sudden fight implies mutual provocation and blows on each side. Heat of passion requires that there must be no time for the persons to cool down and in this case the appellants had worked out themselves into a fury on account of blocking the flow of water and cutting ridges to take water in the night of the occurrence as the paddy crops sown by the deceased were drying which requires much water to grow. Though in the field of Mula the Investigating Officer observed two and a half feet deep water, whereas not a single drop was found in the field of the deceased. The deceased or P.W. 1 and P.W. 2 had never anticipated that anyone of them would be killed, otherwise they would have arrived there in several number with weapons.

Even the presence of injuries on the body of the accused persons which in fact was none, does not raise the presumption of availability of such a right. Exception 2 of Section 300, I.P.C. clearly enjoins that there cannot be any question of exceeding the right of private defence where accused causes more harm than it is necessary for the purpose of his defence. The clear evidence of P.W. 2 and P.W. 3 in this case that even after Buddhu had fallen down on the ground and rendered harmless and was not in a position to offer any resistance, the accused appellants continued to assault him until they had inflicted all the injuries aforementioned. It is a question of fact which depends upon proved fact of the case to bring the case within the ambit of Exception 4 of Section 300, I.P.C. The appellants have miserably failed to point out any material to corroborate that the incident had occurred out of sudden provocation or by blocking the southern channel connected through canal in the field of accused appellant Mula, any actual damage was being done. The appellants had nothing to protect and they had enough water in their field. The prosecution has fully established to link the weapons used in the commission of the crime and also the chain of circumstances by lodging the prompt first information report. According to the medical report, the injuries caused by spear and lathi were grave on the head resulting into multiple fracture of skull bone and fracture of ribs are sufficient to cause his death and thereafter dragged the dead body and left the same beneath sesame tree in the field of Idwa.

From the factual scenario of the case it transpires that the discrepancies highlighted by the learned counsel for the appellants are not so glaring that will belie the entire prosecution case. The death was caused to the victim by giving grievous injuries with lathi and spear. It is not necessary to prove that each of the participating assailants had the same intention to commit a certain act. The essential ingredient which is required is that each must share the intention of the other. The court below has rightly awarded the sentence u/s 302 /34 read with Section 201, I.P.C. by fastening criminal liability with regard to prior meeting of mind of the accused persons who are jointly and severally liable in respect of every act committed by each of them. The blows inflicted to the victim were sufficient in ordinary course of nature to cause death and it cannot be said that they had not committed act knowingly culminating into imminent danger to life. It is proved that the accused appellants had pre-concerted plan to commit an offence therefore, they were present there from before armed with lathi and spear and caused such bodily injury as was likely to cause death, hence in our opinion such act would not fall within the purview of culpable homicide not amounting to murder. The trial court has dealt with all the issues in detail and has rightly convicted the appellants u/s 302 /34 read with Section 201, I.P.C.

We are therefore, of the opinion that this was a case of intentional murder and not something done in the exercise of right to protect the person or property. In this case different yardsticks among co-appellants cannot be applied.

In the light of above perplexed discussions, this Court does not see, any ground to set aside the order dated 21.8.1982 passed by the 1st Additional District and Sessions Judge, Bijnor. Long passage of time cannot be a ground in every case for reduction of sentence as it would not assuage the gravity of offence. The conclusion is irresistible, that the plea taken that the incident occurred three decades back may be given leniency would be travesty of justice to the victim party. The order dated 21.8.1982 passed by the learned 1st Additional District and Sessions Judge, Bijnore is upheld. The appeal is accordingly dismissed. Appellants bail bonds and personal bonds are discharged. Appellants No. 1, 3 and 4, who are on bail be taken into custody forthwith to serve out the sentence. The appeal against the appellant No. 2 Raghubir stands abated since the appellant No. 2 Raghubir has already died. Let a copy of this judgment be certified to the trial court for compliance.