Thagai and Others vs State of U.P.

We have heard Sri Nagendra Mohan, learned counsel appearing for the surviving appellants and learned AGA for the State and perused the record.

The instant appeal, filed by the appellants, is directed against the judgment and order dated 06.11.1981 passed by Sri B.K. Mishra, the then First Additional Sessions Judge, Bahraich in Sessions Trial No. 222 of 1981 [State v. Thagai and 11 others], whereby the appellants were convicted and sentenced as under:--

"Section 148 IPC : 18 months RI.

Section 147 IPC : 12 months RI.

Section 302 /149 IPC : Life imprisonment.

Section 323 /149 IPC : 3 months RI."

Vide order dated 24.11.2015 passed by this Court the instant appeal so far as it relate to appellant No. 2 Nagesar, appellant No. 5 Khelawan, appellant No. 7 Bholey, appellant No. 8 Manna and appellant No. 11 Salik has already been abated.

The relevant facts giving rise to the present appeal are as under:

On 03.03.1981 at about 6.00 P.M. a Panchayat was called by the cousins of first informant Ram Karan, namely, Jhingur and Sahaj Ram to settle the dispute regarding construction of brick wall raised by Thagai and Ram Khelawan by encroaching their land and whereon they were also trying to open their drainage. During the Panchayat Thagai and Ram Khelawan expressed their disagreement for the demolition of the wall and they started to abuse the cousins of first informant, during altercation Jwala Prasad and Kunwar Bahadur came to the Panchayat and asked them not to abuse, the atmosphere deteriorated and on exhortation of Thagai he armed with Barchhi, Pyare and Nagesar armed with Gandasa, Rikkhi, Dayaram, Khelawan, Anant Ram, Bholey, Manna, Malik, Surat and Salik armed with lathis chased Jwala Prasad and Kunwar Bahadur and in front of Ahata of Vidhyadhar near the tree of Neem they showered blows from their respective weapons upon them. Hearing the cries Sukhdevi wife of Ram Karan, his sons Jagdish and Barati came there and saw the incident, tried to save the deceased, during which Rikkhi struck the first informant with lathi and Daya Ram and Anant Ram had beaten his, wife, sons Jagdish and Barati, Sahaj Ram was beaten by lathi. After Jwala Prasad and Kunwar Bahadur became lifeless, the accused Thagai exhorted to behead them but on account of arrival of other persons of the village and nearby, they ran away from the scene of occurrence.

On this written report chik FIR was scribed at Police Station Kotwali Dehat Case Crime No. 120 of 1981, under Sections 147 , 148 , 302 , 323 /149 , 504 , 506 I.P.C. was registered and entered into the general diary of the police station.

The dead bodies of the deceased were sent for postmortem examination. Injured were sent for their medical examination and treatment. After completion of the investigation charge-sheet was submitted against all the named accused.

After committal of the case to the Court of Session, the accused were charged under Sections 147 , 302 /149 , 323 /149 I.P.C. The accused Thagai, Pyare and Nagesar were also charged separately under Section 148 I.P.C.

In support of the charges on behalf of the prosecution besides documentary evidence in oral evidence of three witnesses, namely, Ram Karan P.W.1 (first informant), Badloo Ram P.W.2 and Mehndi Hasan P.W.3 were examined.

On behalf of the defence genuineness of the paper filed by the prosecution was admitted. After completion of the prosecution evidence, statements of the accused were recorded under Section 313 of the Code of Criminal Procedure and in the defence one witness Dr. Saroj Mishra D.W.1 was examined.

The defence case as revealed from the statements of the accused was that Thagai and Ram Khelawan had constructed new wall in place of old wall. Nagesar and Pyare, at that time, were sitting in their houses nearby in their house Jhingur, Sahaj Ram, Jwala Prasad, Kunwar Bahadur, Barati, Jagdish armed with lathis and Gandasa, came there and started to demolish the newly constructed wall, when Thagai asked them not to do so, all the above named persons started to shower lathis and Gandasa blows on them. Jwala Prasad had struck Nagesar with a blow of Gandasa, thereafter Thagai snatched Gandasa from Jwala Prasad. Khelawan, Bhole and other persons with the help of lathi and bricks defended themselves. They sustained injuries and were medically examined in Jail. Witness Badloo Ram is the near relative of Ram Karan P.W.1. The other accused persons are relatives of each other.

Ram Karan P.W.1, the first informant, proved the FIR and reiterated the facts contained in the first information report. During the cross-examination, he had admitted that there was a dispute regarding construction of wall. He claimed that he had not seen injuries of Thagai, Nagesar and Bholey. Badloo Ram P.W.2 also reiterated the facts contained in the first information report and proved the memo Exhibit Ka-2. During the cross-examination he admitted that he had heard the cries in his house. He was not invited in the Panchayat. Thus, according to this witness when he reached at the scene of occurrence, marpeet was going on.

Mehndi Hasan P.W.3, is a formal witness, who proved the chik FIR Exhibit Ka-3, copy of G.D. Entry Exhibit Ka-4, inquest proceedings, diagram of dead body and other papers Exhibit Ka-5 to Ka-10. Site Plan Exhibit Ka-11, recovery memo Exhibit Ka-12 and charge-sheet Exhibit Ka-12.

Dr. Saroj Mishra, D.W.1 is the Medical Officer, who had medically examined the accused persons on 06.03.1981 and found injuries on their person. The said injuries have been recorded in the injury reports Exhibit Kha-1 to Kha-4, proved by this witness. The details of the injuries of the accused persons have been quoted in the judgment of the trial court, hence at the appellate stage there is no need of repetition of those injuries again and the same practice we adopt about the ante mortem injuries of the deceased and injuries sustained by the complainant''s side.

After completion of the trial, the learned trial Judge convicted the accused persons after finding evidence of the prosecution trustworthy and sentenced the appellants accordingly. He rejected the arguments that by hiding of the injuries of the appellants, Ram Karan P.W.1, had committed perjury, hence he cannot be relied upon. He treated Badloo Ram P.W.2 to be an independent witness and rejected the argument that he had reached at the spot during marpeet and he did not know, who started the scuffle. Conviction was based on this fact also that accused did not deny the incident and pleaded exercise of right of private defence of the property. Plea of self defence was rejected on the ground that FIR was not lodged by the appellants and injuries were simple, whereas the complainant''s party have received 37 injuries, out of those two persons had succumbed to the injuries.

Though in the memo of appeal challenge was made to all the findings recorded by the learned Sessions Judge, however, during the argument, at the very outset, Sri Nagendra Mohan, learned counsel for the surviving appellants has submitted that he does not intend to challenge the correctness of the findings recorded by the learned Sessions Judge except on the point that the appellants were exercising their right of private defence of the property. He has further submitted that it is admitted to both the sides that brick wall was being constructed by Thagai and Khelawan and Jhingur and Sahaj Ram had objected on the ground that these two persons were encroaching their land. During the evidence it has come out that boundary wall was constructed and Panchayat was called to force Thagai and Khelawan to remove their wall to the extent it was encroaching the land of Jhingur and Sahaj Ram.

His next argument is that no witness, who acted as Panch or participated in Panchayat proceedings was produced by the prosecution. On this ground he has submitted that prosecution has withheld material witness about the fact of Panchayat and the prosecution could not be permitted to establish the fact of Panchayat by Ram Karan P.W.1 and Badloo Ram P.W.2. He further elaborates his argument that when Panchayat is not proved, then the defence version that the complainant''s party went to the house of the appellants and started to demolish the wall should be believed on the preponderance of probabilities. He has further submitted that when the complainant''s party was the aggressor, greater number of injuries were received by the complainant''s party, would only lead to the conclusion that the appellants'' party exceeded their right of private defence of the property but they cannot be held guilty of committing murder and forming unlawful assembly.

On behalf of the State findings recorded by the learned Sessions Judge have been justified and it has been submitted that the prosecution is not obliged to examine every witness. Panchayat was duly proved by Ram Karan P.W.1.

Before we propose to deal with the arguments submitted on behalf of the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, , para-4 of the report reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, which is extracted as below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

Since the correctness of the medical evidence has not been disputed by the defence even at the stage of trial and during the appeal same stand has been maintained, therefore, for the sake of brevity, we do not intend to repeat the ante mortem injuries found on the dead bodies of deceased Kunwar Bahadur and Jwala Prasad.

Since number of injuries received by Ram Karan P.W.1, Sahaj Ram, Jagdish, Barati and Sukhdei have not been disputed, hence there is no need of reproducing the injuries and the discussion of medical evidence with the observation that except two deceased all injuries received by the injured persons are simple in nature and none of them was caused by sharp edged weapon.

Before proceeding further we would like to make reference of the provisions contained in Sections 103 , 104 , 105 and exception-2 of Section 300 IPC. They are reproduced as under:

"103. When the right of private defence of property extends to causing death.--The right of private defence of property extends, under the restrictions mentioned in section 99 , to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:--

(First)-Robbery

(Secondly)-House-breaking by nigh;

(Thirdly)-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as an human dwelling, or as a place for the custody of property;

(Fourthly)-Theft, mischief, or house-tresspass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."

"104. When such right extends to causing any harm other than death.--If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99 , to the voluntary causing to the wrong-doer of any harm other than death."

"105. Commencement and continuance of the right of private defence of property.--The right of private defence of property commences when a reasonable apprehension of danger to the property commence.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal tress-pass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues."

"Exception 2 of Section 300 IPC.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."

Exception 2 of Section 300 IPC is available only when in the exercise in good faith of the right of private defence of the property has exceeded and caused death. Section 103 IPC provides complete defence to causing death in exercise of right of private defence of the property. However, in the present case none of the conditions mentioned for such exercise are fulfilled.

According to provisions contained in Section 104 IPC right of private defence of property extends to causing any harm other than death, thus, in case we come to the opinion that appellants were exercising their right of private defence of property, even then the appellants were entitled to the benefit conferred by Section 104 read with exception-2 of Section 300 IPC.

In order to decide whether according to Section 105 IPC any right of private defence of property accrued to the appellants or they had caused death of Kunwar Bahadur and Jwala Prasad and injuries to other injured on account of altercation took place during the Panchayat. The result of the appeal is dependent on the fact of Panchayat because in the defence on behalf of the appellants during trial no evidence was given to substantiate their statements that it was complainant''s party who came to demolish the wall and in spite of request not to do so they started to demolish the wall.

Ram Karan P.W.1 has stated that in the Panchayat he was present. During the cross-examination he has replied that he was invited in the Panchayat. On the question of Panchayat we find that statements of Ram Karan P.W.1 is vague. He has not disclosed the place where the Panchayat was held, who were the Panchs and how the matter was supposed to be settled. What we find surprising is that altercation took place during the Panchayat, his sons ran away from there and the accused heavily armed chased to them. It is well known fact that whenever Panchayat is called all the persons come peacefully and without arms. Had the accused were armed Panchs never agreed to initiate the proceedings of the Panchayat. On account of this inherently and improbable statement we come to the conclusion that the story of Panchayat is not acceptable to us and it stands also not proved by other witness Badloo Ram, who was not present during the Panchayat.

Now the other version of the defence remains when the same is considered along with the facts that four accused persons also received injuries about which prosecution witnesses are silent, the probability is that version of the defence regarding occurrence appears to be more nearer to the truth. There is no reason to disbelieve the testimony of Dr. Saroj Mishra, D.W.1; he is a public servant and at the relevant time he was posted as Medical Officer (Jail). The medical examination had taken place three days after the occurrence in the Jail, therefore, possibility is that injuries were not as inflicted otherwise then the medical examination would have been prompt.

Thus, it is established that in the occurrence four accused were injured and the complainant''s side went and started to demolish the newly constructed wall of Thagai and Khelawan. In the light of the provisions contained in Section 105 IPC, we hold that in favour of the appellants right of private defence of property had commenced. In absence of any evidence we do not find it acceptable that thereafter the complainant''s party had started to beat the accused party. On the basis of material on record we hold that the injuries were inflicted by the accused party in excess of what was permitted to them by law to inflict. Thus, the case of the appellants is squarely fell within the ambit of Exception-2 of Section 300 IPC and they are held guilty of culpable homicide not amounting to murder of Jwala Prasad and Kunwar Bahadur, on the stated date, time and place.

We are of the opinion that the appellants can not be punished for the offence under Section 302 IPC. They deserve to be punished for the offence under Section 304-I of IPC. Rest of the offences after cessation of their right of private defence of property amounts to offences, on that count their conviction and sentence need not be interfered with. Appeal deserves to be partly allowed to the extent the conviction and sentence of the surviving appellants under Section 302 IPC deserve to be set aside and they are liable to be convicted and sentenced under Section 304-I IPC. Considering the peculiar facts and circumstances of the case rigorous imprisonment of five years and fine of Rs. 5000/- would suffice for securing the ends of justice and in default thereof six months simple imprisonment.

Accordingly, the criminal appeal is partly allowed. The conviction and sentence of the surviving appellants under Section 302 IPC are set aside and they are hereby convicted and sentenced under Section 304-I IPC to undergo five years rigorous imprisonment and fine of Rs. 5000/- each and in default thereof six months simple imprisonment. To this extent impugned judgment and order are modified, rest appeal is dismissed and conviction and sentence of surviving appellants in other sections are confirmed. Learned Sessions Judge, Bahraich is directed to ensure compliance of this order. All the surviving appellants may be taken into custody and send them to jail to serve out the sentence as directed above.

Office is directed to communicate this decision to the lower court forthwith and sent back the original records to the court concerned.

Today after delivery of the judgment in Criminal Appeal No. 805 of 1981 (Thagai and others v. State of U.P.), learned counsel for the surviving appellants Sri Nagendra Mohan, has drawn attention of the court towards the office report dated 13.11.2014 whereby this fact has been placed on record that Sessions Judge, Bahraich vide his report dated 03.11.2014 had intimated the Court that on the date of occurrence appellant No. 3 Rikkhi, appellant No. 9 Malik, appellant No. 10 Surat and appellant No. 4 Daya Ram, were below 18 years of age, their date of birth are 16.08.1962, 10.11.1967, 28.04.1965 and date of birth of Daya Ram could not be ascertained definitely but held to be 15 years, respectively. Date of occurrence is 03.03.1981, thus, in accordance with the provisions contained in Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 they had been declared juvenile.

Since on 01.04.2001 they had crossed the age of juvenility. According to learned counsel for the surviving appellants due to clerical error and accidental omission, the fact resulted in not extending the benefit of Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000 to these appellants.

Learned Additional Government Advocate also agrees that being juvenile on the date of the occurrence the above mentioned appellants were entitled to avail the benefit of Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000.

The judgment delivered today on this point suffers from error arising out of clerical error and accidental omission, which requires correction and Section 362 of the Code of Criminal Procedure permits the Court to do so.

In the interest of juvenile and in accordance with the provisions contained in Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000 after recording findings of guilt the matter of these appellants should have been forwarded to the Juvenile Justice Board to pass orders in accordance with the provisions contained in the said section. There is no legal impediment in correcting the error crept in the judgment delivered today. Therefore, the judgment delivered in the present appeal is amended and the last para i.e. operative portion of the judgment and order dated 02.12.2015 is substituted by the following "Accordingly, the criminal appeal is partly allowed. The conviction of the surviving appellants under Section 302 IPC is set aside and they are convicted under Section 304-I /149 IPC and sentenced to undergo five years rigorous imprisonment and fine of Rs. 5000/- each and in default thereof six months simple imprisonment except appellants Rikkhi, Daya Ram, Malik and Surat. To this extent impugned judgment and order are modified, rest appeal is dismissed and conviction and sentence of surviving appellants except appellants Rikkhi, Daya Ram, Malik and Surat in other sections are confirmed. Learned Sessions Judge, Bahraich is directed to ensure compliance of this order. The matter of appellant No. 3 Rikkhi, appellant No. 9 Malik, appellant No. 10 Surat and appellant No. 4 Daya Ram, on the question of sentence to be passed is being referred to the Juvenile Justice Board concerned for passing appropriate orders in accordance with the provisions contained in Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000 after providing opportunity of hearing to the above appellants. All the surviving appellants except those whose matter is referred to Juvenile Justice Board may be taken into custody and sent to jail to serve out the sentence as directed in the judgment dated 02.12.2015. Learned counsel for the juvenile-appellants undertakes that these appellants shall appear before the concerned Juvenile Justice Board on 04.01.2016, failing which the Juvenile Justice Board will be at liberty to proceed against them in accordance with law.

To the aforesaid extent the judgment dated 02.12.2015 is modified.

The office is directed to send back the lower court record, memo of appeal and certified copy of this order to the concerned Juvenile Justice Board through Sessions Judge, Bahraich, positively within three days.

This order shall form part of the judgment delivered in Court today 02.12.2015.