PETITIONER:
RAM KARAN & ORS.
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT04/03/1982
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
DESAI, D.A.
VARADARAJAN, A. (J)
CITATION:
1982 AIR 1185 1982 SCR (3) 395
1982 SCC (2) 184 1982 SCALE (1)288
ACT:
Sentencing-Imposition of appropriate sentence, under
section 302 or 304 depends on the nature of offence of
culpable homicide-Evidence showing homicide by both parties
in a Civil Suit in a sudden fight in the heat of passion
upon a quarrel-Appropriate sentence would be one under
sections 304(1)/34 Indian Penal Code and not under sections
302/34 Indian Penal Code-Probability of culpability not
proved by legal evidence-Benefit of doubt must ensue in such
cases.
HEADNOTE:
The five accused Ram Karan, his sons Sunil Kumar, Ved
Prakash, Anil Kumar, Satish Kumar and deceased son
Chhoteylal filed a Civil Suit 34 of 1967 against the decased
Prakash Chandra, his brother Gopi Chandra and one Krishan
Devi, alleging that while constructing their new house
Prakash Chandra had encroached upon a portion of their land.
In that suit appellant Ram Karan got Commissioners appointed
by the court on five or six occasions for taking
measurements of the properties with the object of proving
his case of encroachment by Prakash Chandra, the deceased.
But these Commissioners' reports were set aside on the
objection raised by Prakash Chandra and the other
defendants. The last Advocate Commissioner Mr. Mathur (C.W.
1) visited the spot on 6-9-1970, the day of occurrence,
accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for
deceased Prakash Chandra and Mr. Mahesh Chandra (C.W. 3) who
appeared for Ram Karan. After the completion of the survey
work and measurements at about 1 P.M. when all the three
lawyers were standing and talking in front of the house of
the appellants deceased Prakash Chandra and Umesh Chandra
came there to talk to the Commissioner, which interference
was not liked by the appellants. This resulted in a sudden
quarrel, exchange of hot words later followed by assault
with knife etc., on the appellants which, according to
prosecution, was in the exercise of right of self-defence by
the prosecution party, particularly Dinesh Chandra (P.W.
11). On the side of the appellants Ram Karan's son Chhotey
Lal (accused) died and on the side of the prosecution
Prakash Chandra and his son Umesh Chandra died and Dinesh
Chandra (P.W. 11) was grievously injured. All the five
accused were tried and convicted by the Sessions Judge for
offences under sections 302/149 I.P.C. (two counts) and
307/149 I.P.C. and were sentenced to imprisonment for life
and rigorous imprisonment for four years respectively. Ram
Karan was also convicted under section 147 and sentenced to
undergo rigorous imprisonment for one year and his four sons
were convicted under section 148 and sentenced to rigorous
imprisonment for two years. In appeal the
396
High Court acquitted Anil Kumar and Satish Kumar, set aside
the conviction and sentence under sections 147 and 148
I.P.C. in respect of the rest and confirmed (a) their
sentence of life imprisonment by altering the conviction one
under sections 302/34 I.P.C. and (b) their sentence of four
years rigorous imprisonment to one under sections 307/34
I.P.C. Hence the appeal by special leave by Ram Karan and
his two sons.
Acquitting Ram Karan and allowing the appeal of the
other two in part, the Court
^
HELD: Having regard to the age of the appellant Ram
Karan who was about 70 years old at the time of the
occurrence, there is a reasonable doubt as to whether he
would have caught hold of the young man Dinesh Chandra (P.W.
11) by his waist and whether he would have asked all his
sons to attack and kill Prakash Chandra and his sons. The
appellant Ram Karan is entitled to be set at liberty. [409
D-E]
BY MAJORITY
Per Fazal Ali, J. (and on behalf of D.A. Desai, J.)
1:1. Exception 4 to section 300 I.P.C. provides that
culpable homicide is not murder if it is committed without
pre-meditation in a sudden fight in the heat of passion upon
a sudden quarrel and without the offenders having taken
undue advantage or acted in a cruel or unusual manner. [399
D]
1:2. In this case, the incident occurred upon a sudden
quarrel and no one took undue advantage or acted in a cruel
or unusual manner on either side. Prakash Chandra and Umesh
Chandra on the side of the prosecution died and Chhotey Lal
on the side of the accused died and each of them met a
homicidal death. Therefore exception 4 to section 300 Indian
Penal Code is clearly attracted and the offence of murder
would be reduced to culpable homicide in respect of Sushil
Kumar and Ved Prakash and, therefore, they would be guilty
of committing on offence under section 304(1)/34 I.P.C. A
sentence of rigorous imprisonment for seven years would be
appropriate; conviction and sentence under sections 307/34
I.P.C. being in order would run con currently.
[399 B-C, G-H,
400 A]
Per Varadarajan, J. (contra).
Sunil Kumar and Ved Prakash were the aggressors and
they have been rightly convicted under section 302 read with
section 34 I.P.C. for the offence of murder of Prakash
Chandra land Umesh Chandra and under sections 307/34 I.P.C.
with reference to P.W. 11. Neither Exception 2 nor Exception
4 to section 300 I.P.C. would apply to the facts of the case
and the offence cannot be brought under section 304 (Part I)
I.P.C. The evidence of P.Ws. 1, 10 and 11 proves beyond
reasonable doubt that these two appellants Sunil Kumar and
Ved Prakash attacked the deceased Prakash Chandra and Umesh
Chandra with knives as a result of which both of them, who
had no weapons died on the spot and these two appellants
attacked P.W. 11 with knives with such intention that if he
had died as a result of the injuries sustained by him they
would be guilty of murder in furtherance of their common
intention to murder. Their conviction under section 307/34
is proper. [408 F-H, 409 C-D]
397
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
329 of 1975.
From the Judgment & Order dated the 15th April, 1975 of
the Allahabad High Court in Crl. A. No. 1144 of 1971.
R.L. Kohli and S.K. Sabharwal for the Appellants.
D.P. Uniyal and R.K. Bhatt for the Respondent.
The following Judgments were delivered:
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated 15.4.1975 of the Allahabad High
Court by which the Judges of the High Court while acquitting
the accused, Anil Kumar and Satish Kumar, altered the
conviction of Ram Karan, Sunil Kumar and Ved Prakash from
one under ss. 302 and 307 read with s. 149 I.P.C. to one
under ss. 302 and 307 read with s. 34, I.P.C. and confirmed
the sentences of imprisonment for life imposed on these
appellants.
The prosecution case has been detailed in the judgment
of the High Court as also in the judgment of our learned
Brother Varadarajan J. and it is not necessary to repeat the
same. So far as the question of occurrence is concerned that
has been proved beyond reasonable doubt as pointed out by
Brother Varadarajan, J. as also by the High Court. We also
agree with the appreciation of the evidence by Brother
Varadarajan, J. and his conclusion that the two deceased
died at the hands of the appellants.
The entire occurrence seems to have been the result of
a chronic land dispute between the parties in which several
commissions were issued and which ultimately proved futile.
The prosecution has no doubt proved that the two persons
were killed at the hands of the accused and that the
occurrence had taken place while the Commissioners were
present at the spot though they were not able to see the
actual assault and were, therefore, not in a position to
depose the detailed manner in which the assault had taken
place.
The only serious question on which we would like to
sound a discordant note from our Brother Varadarajan, J. is
as to the actual nature of the offence which had been
committed by the appellants, Sunil Kumar and Ved Prakash. It
would appear from the evidence
398
of CW 1 as also other eye-witnesses that the accused were
also assaulted with knife and one of them, Chhotey Lal, died
as a result of the injuries caused to him. The medical
evidence as also the evidence of CW 1 clearly shows that
there was exchange of hot words, followed by the assault on
the appellants which, according to the prosecution, was a
result of the exercise of self-defence by the prosecution
party, particularly Dinesh Chandra.
In fact, the learned Sessions Judge and the High Court
held that the accused were the aggressors and, therefore,
they had no right of private defence. In order to ascertain
whether the accused had the right of private defence, the
genesis of the incident has to be traced. Now, in this case
the prosecution witnesses being partisan, the only important
injured witness Dinesh Chandra, PW 11 being the son of the
deceased, it would be necessary to ascertain with accuracy
the genesis of the quarrel as revealed from the evidence of
Court witnesses not shown to be partisan. CW 1, Prem Narain
Mathur is the practising advocate and was appointed as a
Commissioner. He was accompanied by Mahesh Chandra, Vakil,
CW 3, advocate appearing on behalf of the plaintiffs
(accused Ram Karan) in the suit in which Commission was
issued and Shri Jafar Imam, CW 2, learned advocate appearing
for the defendants in the same suit. C.W. 1 and C.W. 3 were
at the house of accused 1 Ram Karan. C.W. 1 says that
several persons assembled at that time at the house of Ram
Karan. He is a bit vague but he says that at that time after
tea was served and he was about to leave that place he saw a
person lying on the pavement of the road. This injured
person was lying in front of the house of accused 1 Ram
Karan. This statement has not been questioned in cross-
examination nor adversely commented upon. It gives a clue to
the genesis of the occurrence. After measurements were taken
as directed by the Court, C.W. 1 and C.W. 3 came to the
house of accused 1 Ram Karan. Some persons collected there.
According to C.W. 1 injured persons were seen lying in front
of the house of accused 1 and that was none else than the
deceased. If amongst those who collected at the house were
the two deceased and P.W. 11 Dinesh Chandra, another injured
witness on the side of the prosecution, it is crystal clear
that the prosecution witnesses and the two deceased Prakash
Chandra and Umesh Chandra had come to the house of accused 1
Ram Karan. How, if one of them was armed with a knife, they
must have come with a view to either picking up quarrel or
to guard themselves. The occurrence took place in front of
the house of
399
accused 1. On the side of the prosecution Prakash Chandra
and Umesh Chandra received fatal injuries and Dinesh Chandra
was also injured. However, on the side of the accused
Chhotelal, son of accused 1 Ram Karan, suffered six injuries
one of which proved fatal and he died. Accused Ram Karan
himself was also injured. Injuries on both sides appear to
have been caused with sharp cutting weapon like knife. It is
easy to infer the genesis of the dispute.
Both the parties were completely exasperated with the
litigation. Accused 1 Ram Karan had summoned Commission on
five to six occasions and his attempt to end the litigation
was thwarted by objections being taken on the side of
Prakash Chandra deceased. Therefore, both sides were in an
exasperated mood. Suddenly at the spur of the moment there
ensued a quarrel. Prakash Chandra and Umesh Chandra on the
side of the prosecution died and Chhotelal on the side of
the accused died and each of them met a homicidal death. On
the side of the prosecution Dinesh Chandra was injured, on
the side of accused Ram Karan was injured. From this an
irresistible inference ensues that exception 4 to s. 300,
I.P.C. would be attracted. The exception provides that
culpable homicide is not murder, if it is committed without
premeditation in a sudden fight in the heat of passion upon
a sudden quarrel and without the offenders having taken
undue advantage or acted in a cruel or unusual manner. All
the ingredients of Exception 4 are satisfied. Prakash
Chandra and his two sons and others came to the house of
accused 1 to protest for the work of the Commissioner.
Dinesh Chandra amongst them was armed with a knife. May be,
he may be usually carrying the same for his safety. The
incident occurred in front of the house of accused 1 upon a
sudden quarrel by this confrontation with eyebrows having
been raised because of a persistent litigation, the
occurrence took place. There is no clear evidence to show
that any-one took undue advantage or acted in a cruel or
unusual manner.
Taking an overall view of the situation, we find no
evidence of any intention to kill the two deceased on the
part of the accused because the occurrence itself had taken
place suddenly when, to begin with, the entire episode
started for the particular purpose of partitioning the land
by the Commissioners who had visited the village. In these
circumstances we are satisfied that Exception 4 of s. 300,
I.P.C. is attracted and the offence of murder would be
reduced to culpable homicide in respect of accused Sunil
Kumar and Ved Prakash and, therefore, they would be guilty
of committing
400
an offence under s. 304(1)/34 I.P.C. and they should be
convicted accordingly. To this extent, therefore, we are
unable to agree with Brother Varadarajan, J. that the
conviction of the appellants Sunil Kumar and Ved Prakash
under s. 302 read with s. 34 of the I.P.C. should be
confirmed.
We, therefore, allow this appeal to the extent that the
conviction of Sunil Kumar and Ved Prakash are altered from
one under s. 302 read with s. 34 of the I.P.C. to that under
s. 304(1)/34 I.P.C. and they are sentenced to rigorous
imprisonment for seven years. Conviction and sentences under
s. 307/34, I.P.C. are maintained and sentences awarded have
already been directed to run concurrently. We allow the
appeal of Ram Karan as indicated by Brother Varadarajan, J.
VARADARAJAN, J. This Criminal Appeal by special leave
is directed against the judgment of a Division Bench of the
Allahabad High Court in Criminal Appeal No. 1144 of 1971,
whereby the learned Judges, while acquitting two appellants
Anil Kumar and Satish Kumar of the charges, altered the
conviction of Ram Karan, Sunil Kumar and Ved Prakash,
appellants in this Criminal Appeal, under s. 302 and 307,
both read with s. 149 I.P.C., into one under ss. 302 and 307
both read with s. 34 I.P.C. and confirmed the sentences of
imprisonment for life for each of the two counts of murder
of Prakash Chandra and Umesh Chandra and rigorous
imprisonment for four years for attempt to murder Dinesh
Chandra (P.W. 11) to run concurrently and set aside the
conviction of the appellant Ram Karan under s. 147 and the
other two appellants under s. 148 I.P.C.
The first appellant Ram Karan is the father of other
appellants Sunil Kumar and Ved Prakash and also of Anil
Kumar and Satish Kumar, who have been acquitted by the High
Court as well as of deceased Chhotey Lal. The learned
Sessions Judge who tried the case convicted Ram Karan and
all his four sons, Sunil Kumar, Anil Kumar, Ved Prakash and
Satish Kumar under s. 302 read with s. 149 I.P.C. (two
counts) and s. 307 read with s. 149 I.P.C. and sentenced
them to undergo imprisonment for life on each of the two
counts under s. 302 read with s. 149 I.P.C. and to
imprisonment for four years under s. 307 read with s. 149
I.P.C. He convicted Ram Karan under s. 147 and his aforesaid
four sons under s. 148 I.P.C. and sentenced Ram Karan to
undergo rigorous imprisonment
401
for one year and his sons to undergo rigorous imprisonment
for two years under s. 147 and s. 148 I.P.C. respectively.
The case of the prosecution was this:- The deceased
Prakash Chandra was the father of the deceased Umesh Chandra
and the injured witness Dinesh Chandra (P.W. 11) as well as
of Gyan Chand (P.W. 1). Prakash Chandra and his sons were
living in Seohara town, Bijnor district. The appellant Ram
Karan and his five sons including the deceased Chhotey Lal
were living in another house in the same town as the
neighbours of Prakash Chandra and his sons. Prakash Chandra
and his sons built a new house on a vacant land which
existed between these two houses about three years prior to
the occurrence in this case which has taken place at about
1.00 p.m. on 6.9.1970. The appellant Ram Karan and five
others filed Civil Suit No. 34 of 1967 in the court of the
Munsif, Nagina against Prakash Chandra and his brother Gopi
Chandra and one Krishna Devi, alleging that while
constructing the new house Prakash Chandra had encroached
upon a portion of their land. In that suit, Ram Karan got
Commissioners appointed by the court on five or six
occasions for taking measurements of the properties with the
object of proving his case of encroachment by Prakash
Chandra. But those Commissioners’ reports were set aside on
the objection raised by Prakash Chandra and the other
defendents. The last Advocate Commissioner Mr. Mathur (C.W.
1) visited the spot on 6.9.1970, accompanied by Mr. Zafar
Hussain (C.W. 2) who appeared for Prakash Chandra and
another and Mr. Mahesh Chand (C.W. 3) who appeared for Ram
Karan. After the completion of the survey work at about
12.30 p.m. all the three lawyers were standing and talking
in front of Ram Karan’s baithak at about 1.00 p.m. Then
Prakash Chandra and Umesh Chandra came there to talk with
the Commissioner. Ram Karan, who was present there along
with his five sons, did not like that interference of
Prakash Chandra and Umesh Chandra with the Commissioner. He
stated that he has spent thousands of rupees for taking out
the commissions and that the reports of the Commissioners
were set aside on the objection of Prakash Chandra. So
saying, he instigated his sons to kill Prakash Chandra and
his sons. Thereupon, Chhotey Lal and Ved Prakash attacked
Prakash Chandra with knives while Sunil Kumar, Anil Kumar
and Satish attacked Umesh Chandra with knives. On seeing
Dinesh Chandra (P.W. 11) who rushed meanwhile from the
eastern side to help his father and brother, Ram Karan
instigated his sons to attack him and caught hold of him by
402
his waist, and all his five sons attacked him and inflicted
injuries. Then P.W. 11 took out a knife from his pent pocket
and wielded it against Ram Karan and Chhotey Lal in self-
defence and they sustained injuries. P.W. 11 received
injuries and fell down. Gyan Chandra (P.W. 1), who was
seeing the occurrence, ran to his house along with some
others and bolted the door when Sunil Kumar, Anil Kumar and
Satish chased him for attacking him. Abdul Wahid, P.W. 10,
and others who were witnessing the occurrence raised an
alarm, and Ram Karan and his sons ran away.
Gyan Chand, (P.W. 1) came out of his house sometime
later and found his father Prakash Chandra and brother Umesh
Chandra dead and Dinesh Chandra (P.W. 11) lying with
injuries. He prepared the report, Ex. Ka. 3 and proceeded in
a jeep with his brother Dinesh Chandra (P.W. 11), to Seohara
Police Station situate about half a mile away and handed
over that report at 1.30 p.m. Dinesh Chandra (P.W. 11) was
taken to Dhampur hospital after he was given first aid by a
Doctor on the way. He was examined at the Dhampur hospital
by Dr. Bagchi, P.W. 3 who found on his person an abrasion
and nine incised wounds of which injury No. 7 on the right
side of the chest through which blood and air were coming
out was serious and the rest were simple.
The dead bodies of Prakash Chandra and Umesh Chandra
which were found lying in front of their house where blood
also was found, were later sent for autopsy. Ram Karan and
Chhotey Lal went to the Government hospital, Bijnor where
they were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15
p.m. respectively on 6.9.1970. P.W. 2 found one punctured
wound and four incised wounds on Chhotey Lal and three
incised wounds on Ram Karan. The injuries on both of them
were fresh and those on Ram Karan were simple while injury
No. 1 on Chhotey Lal, namely, a punctured wound which was
lung-deep and anterior to the left nipple, was grievous and
the rest were simple. The injuries on both could, in the
opinion of P.W. 2, have been caused by knife. P.W. 2 issued
the wound certificates Ex. Ka. 12 and Ka. 13. Ram Karan’s
report was lodged at the Police Station at 10.30 p.m. on
6.9.1970. Chhotey Lal died in the District hospital, Bijnor
on 10.9.1970.
Dr. Zuber conducted autopsy on the bodies of Prakash
Chandra and Umesh Chandra on 7.9.1970 and found nine
antemortem, injuries, of which six were incised wounds, on
the body of Prakash Chandra and six antemortem incised
wounds on the body
403
of Umesh Chandra and he opined that the death of both of
them was due to shock and haemorrhage resulting from the
incised injuries. Ex. Ka. 1 and Ka. 2 are the postmortem
certificates relating to Prakash Chandra and Umesh Chandra
issued by Dr. Zuber who was examined as P.W. 1 in the
Committing Magistrate’s Court (Ex. Ka. 37). Dr. Dua (C.W. 4)
conducted autopsy on the body of Chhotey Lal on 11.9.1970
and found an abrasion and five incised wounds which were
sufficient in the ordinary course of nature to cause death.
The prosecution’s case rests mainly on the evidence of
Gyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and Dinesh
Chandra (P.W. 11). As stated earlier P.Ws 1 and 11 are the
sons of deceased Prakash Chandra and brothers of the other
deceased Umesh Chandra. P.W. 11 had received injuries during
the occurrence and P.W. 1 is the witness who had lodged the
First Information Report (Ex. K. 3) in the Seohara Police
Station at the earliest opportunity at 1.30 p.m. soon after
the occurrence which had taken place at about 1.00 p.m.
These three witnesses were put forward as eyewitnesses and
they have deposed in support of the case of the prosecution.
The accused put forward their version of the case.
According to the accused, after the Commissioner (C.W. 1)
finished his work and went to the house of the appellant Ram
Karan, Prakash Chandra and his sons Umesh Chandra and Dinesh
Chandra (P.W. 11) came to the baithak of Ram Karan and
attacked Ram Karan and deceased Chhotey Lal with knives and
thereupon they grappled with those three persons and wrested
the knives from them and attacked them in self-defence. The
accused examined D.W. 1 on their behalf. The court examined
the Commissioner and the counsel of the parties in the civil
suit as C. Ws. 1 to 3 and the Doctor who conducted autopsy
on the body of Chhotey Lal as C.W. 4.
The evidence of C.W. 1 is that after he completed
taking measurements he went along with Ram Karan’s counsel
Mr. Mahesh Chandra (C.W. 3) to the baithak of Ram Karan’s
house, that both of them came out of the house 8 or 10
minutes later, that when he advanced from the door of the
baithak he saw a person lying injured on the pavement of the
road and another injured person standing there, that a third
person came and struck the injured person who was standing,
and that he and C.W. 3 left the place thereafter. The
evidence of C.W. 3 is that he and C.W. 1 who had gone to the
baithak of Ram Karan’s house after C.W. 1 had
404
taken the measurements, came out of the baithak 5 or 7
minutes later, and saw Chhotey Lal grappling with a young
man, that in the course of grappling Chhotey Lal fell down
bleeding, that Chhotey Lal managed to get up and snatched
the weapon of the assailant and struck him with it, that
Prakash Chandra came to the rescue of the young man and
Chhotey Lal struck him with the same weapon and both the
young-man and Prakash Chandra fell down after receiving
injuries from Chhotey Lal, and that on account of the
incident he went away along with C.W. 1. C.W. 3 has added
that soon after he went and sat in the baithak of Ram
Karan’s house, Zafar Hussain (C.W. 2) came and said
something to C.W. 1 from beyond the door of the baithak. The
evidence of Zafar Hussain (C.W. 2) is that after
measurements had been taken C. Ws. 1 and 3 went to the
baithak of Ram Karan’s house while he sat in the verandah of
the old haveli of Prakash Chandra, that he and Prakash
Chandra’s son, who is now no more, thereafter went near the
Commissioner (C.W 1) and he told C.W. 1 that he may hear
what Prakash Chandra wanted to say, that after saying so he
got back for meeting another person while Prakash Chandra
and his son remained there, that after reaching the verandah
of Prakash Chandra he went away with Mehboob Ali who was
waiting for him to Mehboob Ali’s house and that no quarrel
took place when he was present there though when he was
returning to the verandah of Prakash Chandra’s house he
heard some hot words being exchanged near the baithak of Ram
Karan’s house.
The learned Sessions Judge has observed in his judgment
that the evidence of C.Ws. 1 to 3 is contradictory,
unnatural and not truthful. He found that P.W. 1’s report
(Ka. 3) was lodged in the Police Station at 1.30 p.m. soon
after the occurrence had taken place at about 1.00 p.m. and
that there has been no attempt at concoction in this case.
He rejected the contention that Abdul Wahid, (P.W. 10) had
any reason to depose falsely against the appellant Ved
Prakash and found his evidence to be reliable. He observed
that though Prakash Chandra had been working as an Engineer
in a sugar mill at Seohara and P.W. 10 was employed in the
engineering department, P.W. 10 was actually working under
one Bachcha Lal and is an independent witness. P.W. 1 has
stated in his evidence that Prakash Chandra, Umesh Chandra
and Ram Karan did not have any weapon at the time of the
occurrence. The evidence of the injured witness P.W. 11 is
that when he returned home from Moradabad at about 12.30
p.m. on the day of occurrence
405
he saw his father Prakash Chandra and brother Umesh Chandra
lying in a pool of blood and that on seeing him Ram Karan
shouted that he also should be killed and caught hold of him
by his waist and that he was attacked with knives by the
accused persons including Ram Karan and he wielded in self-
defence the knife which he had purchased on that day for his
work.
The learned Sessions Judge accepted the evidence of
P.Ws. 1, 10 and 11 and commented upon Ram Karan and Chhotey
Lal going to the hospital at Bijnor without arranging for a
report being given at the Police Station at Seohara in time
and held that the accused were the aggressors and that
Dinesh Chandra (P.W. 11) caused injuries to Ram Karan and
the deceased Chhotey Lal in the exercise of the right of
private defence. Accordingly he found the accused guilty and
convicted them and sentenced them as mentioned above.
The High Court also rejected the defence theory that
Chhotey Lal was attacked by three persons armed with knife,
chura and khukhri having regard to the fact that he had only
one lung deep punctured wound and the other four wounds were
only skin deep and of very minor dimensions.
The learned Judges of the High Court found that the
name of Anil Kumar is not mentioned in the First Information
Report (Ex. Ka. 3) but instead the name of one Virendra is
mentioned and that it appears from the evidence of P.W. 1
that Virendra is the name of Prakash Chandra’s brother. They
found that in the statement of P.W. 11 recorded as dying
declaration, Sushil Kumar is mentioned instead of Satish
Kumar. In these circumstances the learned Judges found that
there is reasonable doubt regarding the participation of the
accused Anil Kumar and Satish Kumar and they gave the
benefit of that doubt to those two appellants before them
and acquitted them. In other respects, the learned Judges
accepted the evidence of P.Ws. 1, 10 and 11 regarding the
occurrence and rejected the defence version and held the
appellants guilty under s. 302 read with s. 34 in respect of
the murder of Prakash Chandra and Umesh Chandra and under s.
307 read with s. 34 in respect of Dinesh Chandra, (P.W. 11)
and convicted them accordingly and sentenced them to undergo
imprisonment for life under s. 302 read with s. 34 I.P.C.
and rigorous imprisonment for four years under s. 307 read
with s. 34 I.P.C.
406
We perused the records and the judgments of the learned
Sessions Judge and of the learned Judges of the High Court
and heard the arguments of Mr. R.L. Kohli, Senior Advocate
who appeared for the appellants and of Mr. D.P. Uniyal,
Senior Advocate who appeared for the respondent-State of
U.P. We were taken through the evidence of P.Ws. 1, 10 and
11. The learned Sessions Judge has observed in his judgment
that the evidence of the three lawyers C.Ws. 1 to 3 is
contradictory, unnatural and not truthful and that if they
had given honest evidence it would have been easier for the
court to conclude which side was the aggressor. This
observation of the learned Sessions Judge appears to be too
sweeping and not correct at least with reference to C.W. 2
who has professed ignorance about the actual occurrence in
the case and has stated that he left after asking C.W. 1
from outside the baithak of Ram Karan’s house to hear what
Prakash Chandra who had gone with him and his deceased son
wanted to tell him because another person Mehboob Ali with
whom he later went to his house was waiting for him in the
verandah of Prakash Chandra’s house. The evidence of C.W. 2
that no quarrel took place when he was present there though
when he was returning to the verandah of Prakash Chandra’s
house he heard some hot words being exchanged near the
baithak of Ram Karan’s house, is, in a way, corroborated by
the evidence of P.W. 1. P.W. 1 has stated that when exchange
of hot words started the Commissioner and Vakils of the
parties moved from there to the road and that just when Ram
Karan’s Vakil had gone a short distance from Ram Karan’s
house, Ram Karan and others stated that “they have got our
thousands of rupees spent over litigation. We have become
tired of getting commissions issued. Kill them today so that
the trouble may be ended for ever. At that time all the five
sons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar,
Sunil Kumar and Anil Kumar were present, and when Ram Karan
said so all five sons whipped out knives and started
assulting…..”. This portion of the evidence of P.W. 1 is
to the effect that the lawyers C.Ws. 1-3 were not present at
the time of the actual assault on the deceased Prakash
Chandra and Umesh Chandra as a well as on P.W. 11. Even P.W.
10 has stated in his evidence that “when he reached near
dharmshala at about 12.45 p.m. he heard the shouts of Ram
Karan from his house situate at a distance of 30 paces, that
when he reached the end of the road he was in a position to
see the house of Ram Karan, that on hearing the shouts he
proceeded towards the place from where they came and stood
near
407
the wall and found three Vakils present and also Prakash
Chandra and Umesh Chandra, that as soon as he reached the
place, the Vakils left the place, that Ram Karan then stated
that he got the Commissioner appointed 5 or 6 times and
spent several thousands of rupees and he should be killed
and that when Ram Karan said so his sons Chhotey Lal and Ved
Prakash began to attack Prakash Chandra with knives, that
Sunil Kumar and Ram Karan’s other sons began to assault
Umesh Chandra with knives, that during the marpit Prakash
Chandra and Umesh Chandra fell down after receiving
injuries, that thereafter Dinesh Chandra, son of Prakash
Chandra came from the eastern direction, and on seeing him
Ram Karan shouted that he should also be done to death, and
he caught hold of Dinesh Chandra by his waist, and that all
the four boys and deceased Chhotey Lal began to assault
Dinesh Chandra with knives, and Dinesh Chandra wielded his
knife in self-defence and caused injuries to Ram Karan and
Chhotey Lal and thereafter fell down and became
unconscious….”. This portion of the evidence of P.W. 10
also shows that C.Ws. 1 to 3 left the place soon after
exchange of hot words began between the two sides.
Therefore, I am of the opinion that there is no reason to
reject the evidence of C.W. 2 that no quarrel took place
when he was present near about the scene of occurrence. In
the circumstances of the case, it is very probable that
before serious trouble started from the exchange of hot
words, C.Ws. 1 to 3. the Commissioner and the counsel for
both the parties in the civil suit, left the place and were
not present at the time of the actual occurrence as stated
by P.Ws. 1 and 10.
Mr. R.L. Kohli drew our attention to some portions of
the judgment of the learned Judges of the High Court and
submitted that the observation of the learned Judges that
from the side of the defence it was not suggested to any
witness that Abdul Wahid (P.W. 10) was a different man and
that he has been introduced because the real Abdul Wahid was
not prepared to support the prosecution case is incorrect.
The learned counsel further submitted that the observation
of the learned Judges that the presence of Gyan Chand (P.W.
1) at the time of the occurrence does not appear to have
been challenged by the defence is also not correct. This
criticism of the learned counsel for the appellants appears
to be well-founded, for I find that a suggestion has been
made to P.W. 10 in cross-examination and he has admitted
that there is also
408
another person named Wahid son of Abdul Rehman in his
mohalla and that that person was an accused in a rioting
case. And in the cross-examination of P.W. 1 it has been
clearly suggested that he was not present at the spot and
that he prepared the report Ex. Ka. 3 afterwards with some
consultation. P.W. 1 has no doubt denied that suggestion and
stated that he was present at the spot and that he himself
wrote the report Ex. Ka. 3 before he came out of the house
by opening the door. The learned Judges have stated in their
judgment that after Ram Karan stated that he has spent
thousands of rupees on commissions and every time the report
of the Commissioner was set aside on the objection of
Prakash Chandra and he instigated his sons to kill Prakash
Chandra and Umesh Chandra, all the five sons of Ram Karan
started giving knife blows to Prakash Chandra and Umesh
Chandra and both of them fell down. This portion of the
judgment of the learned Judges is to the effect that all the
five sons of Ram Karan including the deceased Chhotey Lal
attacked the deceased Prakash Chandra and Umesh Chandra
whereas it is the case of the prosecution as brought out in
the evidence of P.W. 1 that after Ram Karan instigated his
sons to open the attack only Chhotey Lal and Ved Prakash
attacked Prakash Chandra with knives and only Sunil Kumar.
Anil Kumar and Satish Kumar attacked Umesh Chandra with
knives. It is unfortunate that these inaccuracies have crept
into the judgment of the learned Judges of the High Court.
But on an overall consideration of the entire material on
record and the evidence in the case in the light of the
arguments of the learned counsel for the parties I am of the
opinion that the appreciation of the evidence of P.Ws. 1, 10
and 11 by the learned Sessions Judge and the learned Judges
of the High Court in so far as the appellants Sunil Kumar
and Ved Prakash are concerned is correct and that the
evidence of P.Ws. 1 and 10 proves beyond reasonable doubt
that these two appellants Sunil Kumar and Ved Prakash
attacked the deceased Prakash Chandra and Umesh Chandra with
knives as a result of which both of them, who had no weapons
died on the spot, and the evidence of P.Ws. 10 and 11 proves
satisfactorily and beyond any reasonable doubt that these
two appellants attacked P.W. 11 with knives with such
intention that if he had died as a result of the injuries
sustained by him they would be guilty of murder in
furtherance of their common intention to murder. The dead
bodies of Prakash Chandra and Umesh Chandra and blood were
found in front of the house of both the
409
deceased and P.W. 11. Both the deceased had no weapons and
they had been attacked before P.W. 11 arrived and wield his
knife against Ram Karan and Chhotey Lal. The main occurrence
had taken place in front of the house of both the deceased
and P.W. 11. Before the trial court it was not submitted
that the attack by the accused persons on both the deceased
Prakash Chandra and Umesh Chandra and P.W. 11 was without
any pre-meditation in a sudden fight in the heat of passion
upon a sudden quarrel. Nor is it a case in which it could be
said that the offenders had not taken undue advantage or had
not acted in a cruel or unusual manner. No such argument was
put forward even before the High Court to bring the main
occurrence under s. 304 (Part I) I.P.C. Since I have found
that the occurrence has taken place in front of the house of
the two deceased and P.W. 11 in this case and that the
accused persons were the aggressors neither Exception 2 nor
Exception 4 to s. 300 I.P.C. would apply to the facts of
this case and the offence cannot be brought under s. 304
(Part I) I.P.C. In these circumstances, I agree with the
learned Sessions Judge that the appellants Sunil Kumar and
Ved Prakash were the aggressors and find that they have been
rightly convicted under s. 302 read with s. 34 I.P.C. for
the offence of murder of those two persons and under s. 307
read with s. 34 I.P.C. with reference to P.W. 11. But I am
of the opinion, having regard to the age of appellant Ram
Karan, who was about 70 years old at the time of the
occurrence that there is a reasonable doubt as to whether he
would have caught hold of the young man Dinesh Chandra (P.W.
11) by his waist and whether he would have asked all his
sons to attack and kill Prakash Chandra and his son. I
therefore, give the benefit of this reasonable doubt to the
appellant Ram Karan and set aside his conviction under s.
302 read with s.34 (two counts) and under s. 307 read with
s. 34 and acquit him and direct him to be set at liberty
forthwith if he is in custody and his presence is not
required in connection with any other case. In other
respects I dismiss the criminal appeal and confirm the
conviction of Sunil Kumar and Ved Prakash and the sentences
awarded to them.
In accordance with the opinion of the majority, the
appeal is allowed to the extent that the conviction of Ram
Karan under s. 302 read with s. 34 (two counts) and under s.
307 read with s. 34 of the Indian Penal Code is set aside
and he is acquitted and that convictions of the appellants,
Sunil Kumar and Ved Prakash, are
410
altered from one under s. 302/34, I.P.C. to that under s.
304(1)/34, IPC and they are sentenced to rigorous
imprisonment for seven years. Conviction and sentences under
section 307/34, I.P.C. are maintained and sentences awarded
have already been directed to run concurrently.
S.R. Appeal partly allowed.
411