Roop Singh and Others vs State

Palok Basu, J.—The vital question which arises in this criminal appeal is as to whether on the facts and circumstances of the present case the Appellants can be said to have proved the existence of preponderance of probability about the exercise of their right of self defence.

Roop Singh Sanwal Singh, Jagraj Singh, Roopa, Ram Autar, Jagdish and Ram Naresh have preferred this appeal against the judgment and order dated 12th March, 1979 passed by the I Additional Sessions Judge, Farrukhabad in Session Trial No. 53 of 1978.

The charge against the Appellants was that they committed an unlawful assembly on 23rd April, 1977 at about 12.30 P.M. in village Ismailpur, police station Gursahaiganj, District Farrukhabad with the common object of committing murders of Babu Singh Deopal Singh and Rambir Singh and thereby committed the offence punishable u/s 147 and 302/149 IPC.

The prosecution case was that Bhanwarpal Singh had teased PW 3, Beti Devi in the morning of 23rd April, 1977 when she has gone to ease herself. This was noticed by Rambir Singh, her own uncle. Exchange of abuses took place and Bhanwarpal Singh threatened that he would see them soon. At about 12.30 P.M. when Rambir Singh with his two relatives Deopal Singh and Babu Singh had reached near Gulloo Ki-Madhaiya, the Appellants and the said Bhanwarpal Singh being armed with lathis and Dandas started assaulting them. Bhanwarpal Singh said that since he has'' been insulted in the morning the victims should be extinguished. Deopal Singh and Babu Singh used their knives in self defence, but they were killed on the spot. Rambir Singh escaped and tried to flee, but the Appellants chased him and killed him near the mango tree of Bansh Gopal Kahar. This is the gist of the entire story put through the first information report, said to have been oldged on 23rd April 1977, at 1 50 P.M. by Ganga Singh, who is the brother of Rambir Singh. The chick report was prepared by PW 7 Sri Krishna Head constable and PW 8 Chhotey Lal, Sub-Inspector, was present at the police station, who took up the investigation.

Appellant Roop Singh however, lodged a first information report at the same police station Gursahaiganj on 23rd April 1977 at 1.40 P.M. (that means 10 minutes before the prosecution first information report is said to have been lodge). In that first information report Roop Singh alleged that there was an altercation between Rambir Singh and his brother Bhanwarpal Singh around 10 A.M. as a result of which Rambir Singh got annoyed. At about 12.30 P.M., the same day, Appellant Roop Singh and his brother Bhanwarpal Singh had gone to collect Moram (sand) in village Ismailpur and when they reached near Gulloo-Ki-Madhaiya, his brother Bhanwarpal Singh sat down there for that purpose, Rambir Singh Kedar Singh, Gyan Singh, Baboo Singh and Deopal Singh came and sorrounded his brother Bhanwarpal Singh and started stabing him with knife after abusing him. He and his brother Bhanwarpal Singh raised hue and cry, attracting several villagers, who came and intervened and plied lathis in self defence. His brother had sustained 9 injuries. He wanted ''hat the matter be investigated.

In the prosecution case Rambir Singh, Deopal Singh and Baboo Singh allegedly died of lathi injuries and their post-mortem examination was conducted on 24th April 1977, at 3 P.M., 3-30 P.M. and 4.15 P.M. respectively, by Dr. V.B. Bansal (P.W. 5). He found the following ante-mortem injuries on the person of:

Rambir Singh.

Lecerated wound 1 1/2" x 1/2" over left side head, scalp deep.

Lecerated wound 1/2" x 1/2" overright side mandible muscle deep.

Abraded contusion 5" x 1 1/2" over left sidechest upper part.

Contusion 4" x 2" over right side shoulder.

Lacerated wound 1" x 1/2" x bonedeep over left forearm middle C fracture of under lying bone.

Lacerated wound 1 1/2" x 1/2" x bone deep over right upper arm C of bone.

Lacerated wound 1" x 1/2" x bone deep over right lower part C fracture.

Lacerated wound 1 1/2" x 1/2" over left side lying just below tibialtuberosity.

Abrasion 1/2" x 1/4" over left side abdomen. Death due to shock and haemorrhage.

Deopal Singh.

Lacerted wound 2" x 1/4" scalp deep over left side head back.

Lacerated wound 1/2" x 1/2" bonedeep 2" above leftelbow C of bone of left upper arm.

Contusion 4" x 2" over right side of neck.

Abrasion 1/2" x 1/4" over leftside fore head.

Abraded contusion 10" x 3" over right forearm.

Lacerated wound 1" x 1/2" x muscle deep leftside thigh.

Lacerated wound 1" x 1/2" x muscle deep over left leg front.

Death was due to shock and haemorrhage as a result of ante-mortem injuries.

Babu Singh.

Lacerated wound 1" x 1/2" x scalp deep over back of head.

Lacerated wound 1 1/2" x 1/2" over right side head.

Lacerated wound 3/4" x 1/2" over left side head.

Multiple abrasion in area of 4 1/2" x 4" over right shoulder and deltoid region.

Abraded contusion 4 1/2" x 1/2" over right fore-arm back.

Abrasion 2" x 1/2" over right leg.

Multiple contusions over back in area of 13" x 11.

Swelling over neck from 4" x 1 1/2".

Death due to esphysises a result of strangulation.

On the accused side Bhanwarpal Singh had died subsequently, but the aforesaid first information report lodged by Roop Singh was initially registered u/s 307 IPC. It is admitted that a charge-sheet was submitted by the police in the said case u/s 302 IPC because admittedly Bhanwarpal Singh succumbed to the injuries within three days. The defence has examined D W 4 Dr. Subhash Chandra Dubey who medically examined the injuries of Bhanwarpal Singh on 23rd April 1977 having been brought to him by constable Aroon Prakash of police station Gursahaiganj. He found the following injuries on the person of Bhanwarpal Singh.

Incised wound 11 cm x 2 cm x muscle deep along the Lower half of back of left fore arm.

Incised wound 5 cm x 2 cm x muscle on right side of Epigastric region

Incised wound 3 cm x 1 cm x muscle 3 cm outer to injury No. 2.

Penetrating wound about 5 cm x 3 cm x small bowel loop producing out 3 cm above abdominal cavity.

Penetrating wound 3 cm x 1 cm x abdominal cavity deep.

Penetrating wound about 11 cm x 2 cm x abdomenal cavity deep small lower loop from wound transversely across the right side of abdomen near umblious.

Condition poor, pulseless when examined at about 1.30 O.M.

The other defence witness is Dr. K.K. Agarwal (P.W. 1), who conducted the post-mortem examination on the dead body of Bhanwarpal Singh in the District Hospital, Fatehgarh, after his death on 29-4-77 and found the following ante-mortem injuries vide his post mortem report, Ext kha 3:

Stitched wound 4" long-1" above umblicus on left side abdomen.

Stitched wound 5" long-2" below umblious on right side abdomen.

Stitched wound 2" long on right sub-costal region 1" from centre.

Stitched wound 2" long on right sub-costal region 1" right to injury No. 3.

Stitched wound 3" long on left illiac fossa oblique.

Stitched wound 5" long on back of left wrist and fore arm.

Drassed healing wound 1" x 1" x skin middle of right arm.

Dressed healing 2" x 1/2" x skin on back left side.

'' Death due to shock and injuries.

The medical evidence brought on record on behalf of the accused shows that Bhanwarpal Singh had received injuries caused by knife and as a result of which he died subsequently after about six days of the occurrence.

The defence has also brought on record the dying declaration of Bhanwarpal Singh recorded by D.R.S.C. Dubey, vide Ex. kha-5. On the basis of the medical evidence, the contention of the accused is that Babu Singh and Deopal Singh had attacked Bhanwarpal Singh first with their knives and it was in self defence of Bhanwarpal Singh [that Rambir Singh, Babu Singh and Deopal Singh were assaulted with lathis by Bhanwarpal Singh and some out-siders that is strangers to the disputed occurrence in order to save Bhanwarpal Singh. It was as a result of the said assault that the three persons died on behalf of the complainant.

To complete the chronology of the prosecution case, it may be stated here that the Investigating officer (PW 8) Chhotey Lal, proceeded to the place of occurrence and prepared the inquest report on the dead body of Babu Singh, Deopal Singh and Rambir Singh. These are Exts. ka-7, Ka-8 and Ka-9. The relevant document about Challan Lash and letter to the Chief Medical Officer for conducting the post-mortem examination have been duly proved as Exts. Ka-7 to Ka-20. Two knives were recovered from near the dead bodies of Babu Singh and Deopal Singh. Its recovery memo has been proved as Exts. Ka-21 and Ka-22. He recovered the sample of blood stained earth from the spot, vide Ext. Ka-24. After completing the investigation, a charge-sheet has been filed against the Appellants.

In order to prove the prosecution case, four alleged eye-witnesses have been examined. PW 1 is Ganga Singh, the informer being brother of Rambir Singh, deceased. PW 2 is Usman Khan, PW 3 is Beti Devi and PW 4 is Gyan Singh. The other four are formal witnesses, a reference about whom has already been made above.

It may be stated here that the defence-first information report lodged by Roop Singh had been proved as Ext. Kha-1 and the injury report and the post-mortem examination report of Bhanwarpal Singh has already been noted above. To repeat, the prosecution own case is that Roop Singh Appellant was arrested by the sub-Inspector Chhotey Lal (PW 8), after the first information report of Ganga Singh was lodged.

In this connection, it may be noted here that the Appellant Roop Singh, in his statement u/s 313 of the Code of Criminal Procedure has reiterated his stand and disclosed in his first informal ion report saying that he did not beat Rambir Singh or Deopal Singh or Babu Singh, but the villagers had beaten them. The other three defence witnesses examined by Appellants are DW 1, Dr. K.K. Agarwal, who conducted the post-mortem examination on the dead body of Bhanwarpal Singh, DW 2 is Sukhwashi Lal Lekhpal, who has tried to prove the absence of any entry in the name of PW 2 Usman Khan in village Rajla Mau. He has been examined to show that the said PW would have no reason to visit village Rajla Mau and consequently will have no occasion to witness the incident. DW 3 is Kailash Singh, who was Record-keeper in the Tubewell Division. He has been examined to prove that from tubewell No. 19 the plots of village Ismailpur used to be irrigated, but on 23rd April 1977, there being no power (electricity power), no irrigation took place. The reference about DW 4, Dr. Subhash Chandra Dubey has already been made above.

Sri Vinod Prasad and Sri V. Saran, learned Counsel for the Appellants and Sri K.C. Saxena, learned Additional Government Advocate have been heard at length for and against the appeal and the entire record has been scrutinised thoroughly.

It is well settled that in a criminal trial the accused may be extended the benefit of a right of private defence if they succeed in creating preponderance of probability in support of their theory. The important point to be remembered in this regard is that the truthfulness of the defence theory of cross story, or judging the preponderance of absence of probability towards that theory/story would become relevant only after the court finds presentation version worthy of belief.

Coming to the facts of the present case, there cannot possibly be any doubt about the place and time of the occurrence. The prosecution as well as accused admitted the place of occurrence and the time of incident. However, according to the prosecution case, no incident, is said to have happened inside the Marhaiya. But if the defence version is true or may be true, then some incident may have happened even inside Gulloo-Ki-Marhaiya.

In order to determine this ticklish question about exactness of the place of occurrence, it may be mentioned here that the" Investigating officer (PW 8) Chootey Lal has categorically admitted in the very first line of his cross-examination that he had found blood from inside the Marhai of Gulloo and had taken that also in his possession. He further admits that he had not forwarded that blood stained earth to the Chemical Examiner or serologist for his report. In this regard, the learned Counsel for the Appellants insisted that the entire occurrence as narrated by the three eyewitnesses should be held to be confined to outside the Marhaiya of Gulloo. It is true that if one goes by the statements of PW 1 Ganga Singh, PW 2 Usman Khan and PW 4 Gyan Singh, human blood would not have been found inside the Marhai of Gulloo.

Shri K.C. Saxena, has, however, argued that there was likelihood of even Bhanwarpal Singh going inside the Marhai and if his blood had fallen there, human blood would still be found and, therefore, the prosecution case should not fail or succeed only on recovery or non-recovery of human blood from inside Gulloo-Ki-Marhaiya.

The point in controversy is not as to whether the blood found inside Gullo-Ki-Marhaiya was that of Bhanwarpal Singh deceased on the accused side or that of Deopal Singh or Babu Singh deceased on the prosecution side. The point for which search is to be made is as to who can be said to be aggressor. If the first information report lodged by Roop Singh is taken in toto, it would indicate that Bhanwarpal Singh, his brother was inside Gulloo-Ki-Marhaiya when he was attached by the prosecution side. It is this part of the story narrated by Roop Singh which has been corporated by the statement of the Investigating Officer when he says that human blood was recovered from inside Gulloo-Ki-Marhaiya. The prosecution case as it is does not admit any incident inside the Marhaiya Therefore, the place of occurrence as suggested by the defence is probabilised.

A very vital question now arises as to the manner of assault. If the prosecution story as narrated by Ganga Singh (PW 1), Usman Khan (PW 2) and Gyan Singh (PW 4) is to be believed as correct, then neither of the two deceased Deopal Singh and Baboo Singh would get any opportunity to take out the knives from their "phaint" (cloth-case tied to the waist). All the three eye witnesses say that while those two (Deopal -and Baboo were being beaten that they took out their knives from their "plaint" and charged upon Bhanwarpal Singh (deceased on the accused side). The user of the knife would have to be preceded by taking out the knife from the phaint. This action of taking out the knives would be impossible if 7 Appellants were already in the process of assaulting both the deceased by lathis and Pandas who would not get opportunity to take hands to the waist, release the phaint, take out the knife, open it up and then use or to move. It would in other words be impossible to accept the prosecution version that the two deceased Deopal Singh and Baboo Singh should have taken out their knives from their phaint in order to resort to their self defence as is sought to be made by the allegations in the first information report lodged by Ganga Singh and the statements of the prosecution witnesses made in the Court during deposition. In continuation of this discussion, there is yet another remarkable aspect. In this regard, it is apparent from the three post-mortem examination reports that heads, shoulders, arms and chest were the portions of the body where lathi blows were caused. Therefore also some injuries on the legs and the back. Under the circumstances, not only that the two deceased would never have been able to take out their knives when the attack was continuing, the Appellants would positively prevent them from using those knives in that manner, in self defence as the prosecution suggests. The reach of hands using lathis and Dandas would be much more longer than the hands attempting to use knives.

The defence version that Bhanwarpal Singh was attacked with knives by four persons, appears to be highly probable from the type of injuries sustained. As per the statement of Dr. Subhash Chandra Dubey, the knife injuries sustained by Bhanwarpal Singh were of sufficiently long dimension. Thus those knife injuries could safely be attributed to some one intentionally causing all those injuries rather than those being caused in an unintended manner of self defence.

Another important aspect which cannot be lost sight of is that how and why only Bhanwarpal Singh sustained knife injuries? If really Deopal Singh and Baboo Singh had attempted to word off the attack on them by using their knife in self defence, there ''was every likelihood of some other Appellants sustaining knife injuries. The argument of the state counsel that even if some knife injuries were there on the accused side, they may not have come out with the details thereof, has to be rejected out-right because of the statement of PW 1 Ganga Singh to the effect that only Bhanwarpal Singh had received injuries when Deopal Singh and Babool Singh had started wielding knives in self defence. It sounds rather strange that two persons armed with knives from before who have wielded those weapons to save themselves when attacked by seven Appellants, only Bhanwarpal Singh the deceased on the defence side and none else should have received knife injuries. It may be mentioned here that PW 4 Gyan Singh, the accused in the cross case, has admitted the pendency of the cross case u/s 302 IPC against him and has further admitted that he is the nephew of Ganga Singh by village relationship. It has been intelligently brought out in the cross examination of this witness that the lathis with the Appellants and Bhanwarpal Singh as is the prosecution case, were 8" longer than the height of the persons present there. If that be so, the very idea that in the face of wielding of those weapons Deopal Singh and Baboo Singh would take out knives from their phaint and attack Bhanwarpal Singh is indeed inprobable if not impossible.

The equally important angle of looking at the prosecution case would be that if Bhanwarpal Singh and 7 other Appellants had actually resorted to attacking Deopal Singh and Baboo Singh and chased Ranbir Singh they also would have been admittedly armed with other weapons than lathi and Dandas. In view of the aforesaid discussion it appears quite probable on the facts and circumstances of the present case that Bhanwarpal Singh was attacked by Rambir Singh, Deopal Singh and Baboo Singh, who may also have been joined by other accused, namely Kedar Singh and Gyan Singh, as is mentioned in the first information report lodged by Roop Singh, (Ext. Ka-2).

In view of the aforesaid discussion the defence has succeeded in creating preponderance of probability in favour of the right of self defence, pleaded by Appellant Roop Singh through his cross report, Ext. Ka-1. Therefore, it has to be held that the prosecution has failed to prove its case beyond all reasonable doubt and the benefit must go to the accused.

The result, therefore, is that this appeal succeeds and is allowed. The conviction and sentences awarded to the Appellants are set aside. They are acquitted of all the charges framed against them, they are on bail. They need not surrender. Their bail bonds are discharged.