PETITIONER: SURESH SINGH & ORS. Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 31/03/1999 BENCH: G.B.Pattanaik, M.B.Shah JUDGMENT:
PATTANAIK,J.
The appellants Suresh Singh and Mohinder Singh have
been convicted under Section 302 IPC and have been sentenced
to undergo life imprisonment whereas the appellant Chander
Pal has been convicted under Section 304 Part I IPC and has
been sentenced to undergo rigorous imprisonment for 10 years
by the High Court of Punjab & Haryana. These three
appellants and seven others were tried by the learned
Additional Sessions Judge, Rewari for offences under
Sections 148/149/324/325/302/307 IPC, for having formed an
unlawful assembly and committing murder of Mahipal as well
as having injured Chand Ram, Chander Deep and Rajbir, when
they came to rescue Mahipal. Learned Sessions Judge
acquitted four of the accused persons of all the charges
after screening the prosecution evidence on a finding that
those accused persons were not present at the spot but they
were named later on to implicate as many persons as possible
from the side of the accused. The Sessions Judge also
acquitted rest of the six accused persons of the charge
under Section 307 read with Section 149 IPC, but convicted
them under Sections 148/302/323/324/325 read with Section
149 IPC. The convicted accused persons preferred an appeal
to the High court and the High Court by the impugned
judgment acquitted three more accused persons of all the
charges levelled against them and acquitted the present
three appellants of rest of the charges and convicted only
under Section 302 and 304 Part I IPC, as already stated and
hence the present appeal.
The prosecution case as unfolded in the first
information report given by PW5 is that while deceased
Mahipal was sitting on a cot in front of his house on
13.9.89 at 5.30 P.M., all the accused persons armed with
different deadly weapons arrived there and accused Rameshwar
having given a lalkara that Mahipal should not be allowed to
go, they gave different blows on different parts of the body
of Mahipal. Hearing the cries of Mahipal, when his brothers
Chand Ram, Chander Deep and Rajbir rushed to the spot, they
were also attacked and thereafter the accused persons left
the scene of occurrence when the villagers had been
collected at the spot. According to prosecution version the
motive behind the occurrence was that Rameshwar was the
Sarpanch of the village and on account of instigation from
Mahipal when several members of the Punchayat did not attend
the meeting, no meeting could be held on account of lack of
quorum and it is on this score that Rameshwar and his people
had a grudge against Mahipal and they avenged of the same by
assaulting him on the fateful day. On the basis of the
aforesaid report of PW5, the investigation proceeded and
ultimately charge-sheet was submitted and the accused
persons stood their trial. The deceased Mahipal had
sustained as many as 8 injuries on his person and the doctor
PW17 who conducted autopsy over the dead body opined that
the death was due to shock and haemorrhage due to the
injuries which were ante-mortem in nature and were
sufficient to cause death in the ordinary course of nature.
This conclusion of the learned Sessions Judge based on the
evidence of PW17 has not been assailed in any form. The
defence put forth by the accused persons was a denial of
prosecution allegation. The accused persons had taken the
plea that it is Mahipal, Chand Ram, Chander Deep and Rajbir
who were armed with lathi and sharp edged weapons and caused
injuries to accused Chander Pal, Mohinder Singh and Parbati,
who in self defence of their person have caused the injuries
on Mahipal, Chander Deep, Chand Ram and Rajbir. The learned
Sessions Judge came to the conclusion that accused Balbir,
Ram Kishan and Ram Sarup were not present at the spot and
they were named later on to falsely implicate them from the
side of the accused. He also came to the conclusion that
accused Ram Sarup an aged man of 90 years, hardly steady on
his legs cannot be believed to have given jelly blow on
Mahipal and, therefore, serious doubts exist on his presence
at the time of occurrence and as such acquitted them of all
the offences charged with. But notwithstanding the fact
that the eye witnesses PWs 5, 6 and 7 had made improvement
to their statements made before the Police under Section 161
Cr.P.C., the learned Judge was of the opinion that such
improvements do not go to the root of the prosecution story
and as such are of very minor nature and consequently, the
witnesses can be relied upon so far as they deposed about
the role played by the rest six accused persons. With these
conclusions and having considered the evidence of the three
eye witnesses and the role ascribed by them to the six
accused persons, the six accused persons were convicted by
him for the offences as already indicated.
The High Court in appeal, re-appreciated the entire
evidence on record and came to the conclusion that the
motive alleged by the prosecution that Sarpanch Rameshwar
had a grudge against Mahipal, as he was the instrumental in
not getting the quorum in the meeting of the Panchayat has
not been established by the prosecution and on the other
hand the defence version as given by the accused Chander Pal
in his report to the Police at 7.30 P.M., hardly two hours
after the occurrence appears to be more probable and
consequently the entire episode took place on account of
annoyance created by Mahipal in indulging in abusing under
the influence of liquor. Disagreeing with the learned
Sessions Judge, the High Court came to the further
conclusion that it was the bounden duty of the prosecution
witnesses to explain the injury on the person of the
accused. The High Court also was of the opinion that the
occurrence did not take place in front of the house of
Mahipal as alleged by the prosecution but at a distance of
110 feet from the said place when the deceased had given a
chase to accused Rameshwar. But the High Court further came
to the conclusion that even if accused Rameshwar was being
chased by Mahipal and it is that point of time he inflicted
the blows on the deceased, but they cannot claim a right of
private defence of persons and exception 4 to Section 300
IPC applies, which is apparent from the nature of the
injuries on the deceased. The High Court on an analysis of
the evidence also was of the view that in view of the sudden
fight, the provisions of Sections 148/149 or Section 34 IPC
could not be attracted. Besides the conviction of all
accused under Sections 323,324 and 325 read with Section 149
is not sustainable as the element of voluntariness is lost
in case of sudden fight. Therefore, the High Court
acquitted three of the accused persons and convicted the
three appellants of the charge under Section 302 IPC so far
as appellant Suresh and Mohinder are concerned and convicted
the appellant Chander Pal under Section 304 Part I IPC.
Mr. U.R. Lalit, the learned Senior Counsel,
appearing for the appellants contended before us that on the
basis of the evidence of the eye witnesses, major part of
the prosecution case having been disbelieved, both with
regard to the motive as well as the sequence of event as
unfolded through the witnesses and seven out of 10 accused
persons having been acquitted, it would be unsafe to convict
the three appellants on their evidence. Mr. Lalit further
contended that in view of the finding of the High Court that
it is the accused Rameshwar, who was being chased by the
deceased Mahipal and at that point of time the three
appellants had inflicted the blows on the deceased, the
conclusion that the right of private defence will not be
available is erroneous. More so when each of the appellants
have been stated to have given one blow each on the
deceased, Mr. Lalit also contended that even if the court
comes to a conclusion that the accused appellants exceeded
their right of private defence by giving the blows on the
deceased but taking into account the sequence of events as
accepted by the High Court and taking into account the
number of blows alleged to have been given by the
appellants, the conviction can only be under Section 304
Part I, IPC and for such conviction, sentence should not be
more than seven years in any event.
Mr. Prem Malhotra, learned counsel appearing for the
respondent on the other hand contended that it is no doubt
true that six of the accused persons have been acquitted by
now but their acquittal is on account of benefit of doubt
having been given and the testimony of the eye witnesses
cannot be totally ignored on that score, particularly when
the witnesses themselves are injured. According to Mr.
Malhotra, the injuries on the accused persons are such that
even if the prosecution has offered no explanation for the
same, the prosecution case will not fall on that score. Mr.
Malhortra further submitted that in view of the positive
role ascribed to these appellants, the High Court was fully
justified in convicting them of the charges under Section
302 so far as the first two appellants are concerned and
Section 304 Part I, so far as the third appellant is
concerned and there is no infirmity in the same.
Having considered the rival submissions at the bar and
having scrutinised the impugned Judgment of the High Court
and the findings recorded thereon, there is ample force in
the submission of Mr. Lalit, appearing for the appellants.
It was possible for the prosecution to argue that the
conviction can be sustained on the evidence which have not
been relied upon by the High Court but such a step has not
been taken and Mr. Malhotra has not advanced any argument
on that score. But at the same time, we cannot lose sight
of the fact that some of the findings arrived at by the High
Court on the face of it, is wholly unsustainable. But we
are not examining the same in depth as there has been no
appeal against the acquittal recorded by the High Court even
as against the appellants of all other charges. This being
the position, we have ourselves examined the evidence of the
eye witnesses to find out whether the role ascribed by them
to these three appellants of having given blows on the
deceased can at all be accepted or the entire evidence has
to be discarded as contended by Mr. Lalit. Having
scrutinised the same with utmost care and bearing in mind
the medical evidence as unfolded through the doctor who has
conducted the post-mortem examination on the dead body of
the deceased Mahipal, which in our view corroborates the
ocular statements of the three eye witnesses, we are unable
to persuade ourselves to agree with the submission of Mr.
Lalit that the entire evidence should be discarded
notwithstanding the fact that the role ascribed as against
other accused persons have not believed and seven accused
persons have been acquitted and even the motive alleged by
them has not been believed. In our considered opinion,
therefore, the ocular statement of the eye witnesses
ascribing a particular role to the appellants in the matter
of giving blows on the deceased by different weapons can be
accepted and we find no infirmity in the impugned Judgment
of the High Court in accepting the same. The question,
further remains for consideration is whether the accused can
claim a right of private defence of person when their case
has been believed by the High Court that while Rameshwar was
being chased by Mahipal, the appellants who happened to be
related to Rameshwar, came to the spot on hearing the
Hullah, gave the three blows in question. In appreciating
this contention one thing must be borne in mind that the
theory of chasing may not have much significance in view of
the distance between the house of Mahipal and the accused
persons, which is hardly 56 paces, but all the same the
positive finding of the High Court that the occurrence did
not take place in front of the house of Mahipal as alleged
by the prosecution witnesses cannot be lost sight of. As
has been stated earlier, the injuries found on the person of
the accused persons were not that serious though the injury
on Mohinder was an incised wound and could not have been
lost sight of by the prosecution witnesses. However for non
explanation of such injuries on accused persons the entire
prosecution case cannot be thrown out. The deceased, on the
other hand had five incised wounds on his person on the
front to parietal, temporal and tempro occipital region of
the skull and two abrasions and a bruise. Even if we accept
the finding of the High Court that the accused appellants
assaulted the deceased while being chased by the deceased
Mahipal but in consideration of the injuries on the
deceased, the conclusion is inescapable that the accused
persons exceeded their right of private defence while giving
the blows on the deceased. Having taken into consideration
of all the aforesaid circumstances and the infirmities noted
earlier, we are of the opinion that the conviction of the
appellants Suresh and Mohinder under Section 302 IPC cannot
be sustained. We, accordingly, acquit them of the charge
under Section 302 IPC and instead convict them under Section
304 Part I ,IPC. The conviction of the accused appellant
Chander Pal under Section 304 Part I is maintained and for
such conviction, we sentence all of
them to undergo rigorous imprisonment for seven years.
This appeal is allowed to the extent indicated above.
