Criminal Appeal No.486-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.486-DB of 1998
Date of decision: 29.8.2008
Naresh and another
......Appellants
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.M.S.Joshi, Advocate,
for the appellants.
Mr.S.S.Randhawa, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Naresh Kumar and Krishan Gopal faced trial before the
learned Additional Sessions Judge Faridabad for murdering Santosh
Kumar, son of complainant Brij Bihari. Both the accused were found
guilty of offence under Section 302 read with Section 34 IPC and
were sentenced to undergo imprisonment for life and a fine of
Rs.2,000/- each. They have challenged their conviction and
sentence vide the present appeal.
Prosecution case was set in motion on the basis of the
statement made by complainant Brij Bihari to SI Ram Kishan, Police
Station Mujessar that he had been informed at about 8.30 A.M. that
his son Santosh Kumar was lying murdered in the street. When the
Criminal Appeal No.486-DB of 1998 2
complainant reached the spot, he found that his son was lying dead
in a pool of blood in the street in front of the house of Krishan Gopal.
There were knife injuries on the neck and head of his son. One knife
was also lying besides the dead body. He came to know that a day
before a quarrel had taken place between Santosh Kumar and his
friends Pardeep, Gopal and Mahesh.
On the basis of the statement of the complainant formal
FIR No.7 dated 3.1.1996 was registered by the police of Police
Station Mujessar under Section 302/34 IPC.
The investigating Officer visited the spot and completed
inquest proceedings on the dead body of Santosh Kumar and sent it
for post mortem examination.
The post mortem examination was conducted by Dr.Renu
Gambhir (PW-1) on 3.1.1996 at 2.20 p.m. and following injuries were
found on the person of the deceased:-
1. Bone deep incised wound 3″x 1/2″ on left parieto
occipital region. 5 ¼” above left pinna.
2. Transverse stab wound 1 ½”x 1/2″ on right side of
back of chest. 2″ above base of neck. On probing
depth was 8″ down and medically. On dissection under
lying major blood vessels were cut and going down
medially cutting upper lob of lung ¾” wide and depth in
lung was 3″. Whole of pleural cavity was full of blood.
3. Incised wound muscle deep 3/4″ x 1/2″ on right
clavicular region 2″ below and medial to injury No.2.
4. Incised wound muscle deep 1″x1/2″ on interior side of
chest 1 ¼” below injury No.3.
Criminal Appeal No.486-DB of 1998 3
5. Incised wound 3/4″x1/2″ transverse on back 1 ¾”
below injury No.2. In was on right side, just lateral to
spine and muscle deep.
6. Incised wound muscle deep on the back on right side
just lateral to thoracic spine transverse oval shape
muscle deep 2″ below injury No.5.
All the other organs were healthy except for injuries as
described.
In the opinion of the doctor, the cause of death was due
to shock and haemorrhage caused to vital organs like lungs and
injuries to major blood vessels of neck. All the injuries were ante
mortem in nature and were sufficient to cause death. The duration
between injuries and death was within few minutes and between
death and post mortem was within 12 hours.
During investigation, statements of Pardeep Kumar
Mahesh and Gopal were recorded by the Investigating Officer. After
completion of investigation and necessary formalities, accused were
sent up for trial. Charge against them was framed under Section 302
read with Section 34 IPC on 6.6.1996 to which they pleaded not
guilty and claimed trial.
The material witnesses examined by the prosecution at
the trial were Dr.Renu Gambhir (PW-1), Mahesh (PW-4), Pardeep
Kumar (PW-5), Gopal (PW-6) and Ram Kishan, SI (PW-8).
On the conclusion of prosecution evidence, accused
Naresh, when examined under Section 313 Cr.P.C. in reply to
questions No. 1 and 7 stated as under:-
“As a matter of fact Santosh deceased had entered in our
Criminal Appeal No.486-DB of 1998 4house and caused knife blows in the chest and back of
my father. My father had to retaliate in his self defence.
Gopal and Pardeep were accompanying Santosh at that
time. I had come afterwards and on noticing me the
assailants ran away from there.”
“Actually Pardeep Kumar (PW-5) and Gopal PW-6) were
the companions of the deceased and they had
accompanied the deceased at the time of attack upon my
father. So they have made false statements. Otherwise,
as a matter of fact both these witnesses were the
aggressors. I had come afterwards. I am innocent.”
Accused Krishan Gopal, when examined under Section
313 Cr.P.C. in reply to questions No. 1 and 7 stated as under:-
“As a matter of fact Santosh deceased had entered in my
house and caused me knife blows in my chest and back.
I had to retaliate in my self defence. Gopal and Pardeep
were accompanying Santosh at that time. My co-accused
Naresh had come afterwards and on noticing him the
assailants ran away from there.”
“Actually Pardeep Kumar (PW-5) and Gopal(PW-6) were
the companions of the deceased and they had
accompanied the deceased at the time of attack upon us.
So, they have made false statements. Otherwise, as a
matter of fact both these witnesses were the aggressors.
I had to retaliate in my private defence and my co-
accused Naresh had come afterwards. We are innocent.”
Criminal Appeal No.486-DB of 1998 5
The learned trial Judge did not accept the defence
version but accepted the evidence led by the prosecution and held
the appellants guilty of the said crime.
We have gone through the record of the case and heard
learned counsel for the appellants as well as the learned State
counsel.
This case is based on an eye witness account. Although
the complainant had lodged the FIR on the basis of recovery of the
dead body of his son but during investigation of the case the
statements of the eye witnesses were recorded. Mahesh (PW-4) one
of the eye witnesses of the occurrence did not support the
prosecution case during trial.
Pardeep Kumar (PW-5) deposed that on 3.1.1996 at
about 8.30 A.M. he was going to school along with Mahesh. Santosh
and Gopal were coming from Durga Mandir Street. When they
reached near the house of Krishan Gopal, he caught hold of Gopal.
Santosh tried to rescue him and as a result Krishan Gopal caught
hold of Santosh from his neck. Naresh inflicted knife blows on the
neck and head of Santosh and he died at the spot. PW-5 further
deposed that before the said occurrence, on 2.1.1996 there was a
jagran ceremony in Devi Durga Mandir. A quarrel had taken place
between him, Naresh, Santosh and Leela. Naresh and Leeladhar
were on their opposite side. Gopal (PW-6) has corroborated the
statement of PW-5.
Accused Krishan Gopal has taken the plea of self
defence. The presence of Pardeep Kumar (PW-5) and Gopal (PW-6)
at the spot is admitted. It has been further pleaded by the accused
Criminal Appeal No.486-DB of 1998 6
that co-accused Naresh had come to the spot later on.
It has been held by the Apex Court in Deo Narain v. The
State of U.P. 1973 CAR 72 (SC) as under:-
” The right of private defence of the body commences as
soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offence,
though the offence may not have been committed, and
such right continues so long as such apprehension of
danger to the body continues. The threat, however, must
reasonably give rise to the present and imminent, and not
remote or distant, danger. This right rests on the general
principle that where a crime is endeavoured to be
committed by force, it is lawful to repel that force in self
defence. “To say that the appellant could only claim the
right to use force after he had sustained a serious injury
by an aggressive wrongful assault is a complete
misunderstanding of the law embodied in the above
section. The right of private defence is available for
protection against apprehended unlawful aggression and
not for punishing the aggressor for the offence committed
by him. It is a preventive and not punitive right.”
“But while dealing with the appellant’s case
curiously enough the High Court has denied him the right
of private defence on the sole ground that he had given a
dangerous blow with considerable force with a spear on
the chest of the deceased though he himself had only
received a superficial lathi blow on his head. This view of
Criminal Appeal No.486-DB of 1998 7the High Court is not only unrealistic and unpractical but
also contrary to law and indeed even in conflict with its
own observation that in such cases the matter cannot be
weighed in scales of gold.”
The Apex Court in the case of Gottipulla Venkata Siva
Subbrayanam & Ors. v. The State of Andhra Pradesh & Anr. 1970
CAR 105 (SC) has held that right of private defence of a person and
property is recognized in all free, civilized, democratic societies within
certain reasonable limits. Those limits are dictated by two
consideration: (1) that the same right was claimed by all other
members of the society and (2) that it was the State which generally
undertakes the responsibility for the maintenance of law and order.
The citizens, as a general rule, are neither expected to run away for
safety when faced with graver imminent danger to their person or
property as a result of unlawful aggression, nor were they expected,
by use of force, to right the wrongs done to them or to punish the
wrongdoer for commission of offences. The right of private defence
serves a social purpose and there was nothing more degrading to the
human spirit then to run away in face of peril. This right was
basically preventive and not punitive.
In the case of Kanshi Ram v. State of M.P.2001 (4) RCR
556, the Apex Court has held that the plea of self defence could be
taken in cross examination of prosecution witnesses or in the
statement of the accused under Section 313 Cr.P.C.or by adducing
evidence if the accused had failed to specifically took the plea of right
of private defence even then it could be taken on the basis of
Criminal Appeal No.486-DB of 1998 8
evidence on record.
Adverting to the facts of the present case the occurrence
had admittedly taken place in the house of the accused. This leads
to the inference that the deceased along with Pardeep Kumar (PW-5)
and Gopal (PW-6) had gone to the house of the accused on the
alleged day of occurrence. Pardeep Kumar (PW-5), in his cross-
examination has admitted that a jagran had been arranged by the
appellants in front of their house and a quarrel had taken place at
6.30 p.m. On 2.1.1996 Gopal had gone to attend the jagran first of all
and, thereafter, he had gone along with Santosh and Naresh. Gopal
(PW-6) has, however denied his presence at the jagran. Thus,
admittedly a jagran had been organised by the appellants in front of
their house on 2.1.1996.
Investigating Officer S.I.Ram Kishan (PW-8), in his
cross-examination, has deposed that it had come during
investigation that some altercation had taken place at the time of
jagran on 2.1.1996. This lends support to the statement of Om Wati
(DW-3) that there was a jagran at their residence on 2.1.1996 in
which some altercation between the deceased and Pws had taken
place. Apparently due to this reason the deceased along with Pws
came present in the house of the appellants on the next day.
Appellant Krishan Gopal has taken the plea that he was
inflicted injuries by Santosh and, thereafter, he had retaliated in self
defence. Pardeep Kumar (PW-5), in his cross-examination, has
admitted that it was correct that he was facing a trial in the cross
case under Section 452/326/34 IPC in the Court along with Mahesh
and Gopal. The Investigating Officer also deposed in his cross-
Criminal Appeal No.486-DB of 1998 9
examination that Krishan Gopal was also having knife injuries and his
statement was also recorded by him in the hospital on the same day.
Although the exact nature of injuries suffered by him have not been
proved on record but there is sufficient material on record which
leads to the inference that the deceased had come to the spot along
with Pws and had inflicted injuries on the person of Krishan Gopal,
who, in self defence, inflicted injuries on the person of Santosh. From
these facts, it is established that injuries had been inflicted on the
person of appellant Krishan Gopal by deceased Santosh and a cross
case was also registered against his friends accompanying him
i.e.,Mahesh (PW-4), Pardeep Kumar (PW-5) and Gopal (PW-6) .
Deceased Santosh is also not having a clean record.
Ashok Kumar HC (DW-1) has deposed that FIR No.160 dated
29.6.1995 had been registered against Santosh under Section 307
IPC and Section 25 of the Arms Act at Police Station Mujessar.
Challan was also presented in the said case. However, the case
could not reach its logical end on account of death of Santosh. Desh
Raj, Constable (DW-2) has deposed that FIR Nos. 523, 525, 561 and
568 dated 23.8.1995, 30.8.1995, 11.9.1995 and 15.9.1995
respectively had been registered against deceased Santosh. The
first three FIRs were under Section 379 IPC and fourth one was
under Section 25 of the Arms Act. The Investigating Officer has also
deposed in his cross examination that there were some cases
regarding molestation of girls against the deceased. Complainant
also deposed in his cross-examination that one criminal case was
pending against his son. Thus, it is evident that the deceased was
not a law abiding citizen but was indulging in criminal activities.
Criminal Appeal No.486-DB of 1998 10
Pardeep Kumar (PW-5), in his cross-examination, has
deposed that he was arrested on 10.1.1996 and, thereafter, his
statement was recorded by the police. However, the public
prosecutor, after going through the file, stated that there was no
statement of the said witness. A perusal of the record, on the other
hand, reveals that the statement of Pardeep Kumar (PW-5) was
recorded by the Investigating Officer on 12.1.1996. Gopal (PW-6)
has deposed that his statement was recorded by the police on
18.1.1996. However, the public prosecutor has stated that the
statement of the said witness, as per the police record, was recorded
on 20.1.1996. A perusal of the record also reveals that the
statement of Gopal (PW-6) was recorded on 20.1.1996.
In the present case, the occurrence had taken place on
3.1.1996, whereas, the statements of the eye witnesses were
recorded after a long delay. A cross case was also initiated against
the said Pws. In these circumstances, it would not be safe to rely on
the testimony of Pardeep Kumar (PW-5) and Gopal (PW-6) with
regard to manner of occurrence. The possibility that they have not
given true manner of occurrence cannot be ruled out. An altercation
had also taken place between both the parties a day before the
occurrence. As such, the plea of self defence taken by the accused
gains significance and is rather borne out from the evidence on
record. Deceased Santosh, who was indulging in criminal activities,
had come to the house of the appellants and had inflicted injuries on
the person of appellant Krishan Gopal, who in retaliation, inflicted
injuries on the person of deceased Santosh in self defence. There is
nothing on record to suggest that appellant Krishan Gopal had
Criminal Appeal No.486-DB of 1998 11
exceeded the right of self defence.
Consequently, this appeal is accepted and the appellants
are hereby acquitted of the charge framed against them.
(SABINA)
JUDGE
(JASBIR SINGH)
JUDGE
August 29, 2008
anita