{"id":143148,"date":"2008-08-29T00:00:00","date_gmt":"2008-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naresh-and-another-vs-state-of-haryana-on-29-august-2008"},"modified":"2017-04-09T01:29:23","modified_gmt":"2017-04-08T19:59:23","slug":"naresh-and-another-vs-state-of-haryana-on-29-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naresh-and-another-vs-state-of-haryana-on-29-august-2008","title":{"rendered":"Naresh And Another vs State Of Haryana on 29 August, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Naresh And Another vs State Of Haryana on 29 August, 2008<\/div>\n
Criminal Appeal No.486-DB of 1998                1\n\n      In the High Court of Punjab and Haryana at Chandigarh\n\n                            Criminal Appeal No.486-DB of 1998\n                            Date of decision: 29.8.2008\n\nNaresh and another\n                                             ......Appellants\n\n                        Versus\n\n\nState of Haryana\n                                              .......Respondent\n\n\nCORAM: HON'BLE MR.JUSTICE JASBIR SINGH\n        HON'BLE MRS. JUSTICE SABINA\n\n\nPresent:   Mr.M.S.Joshi, Advocate,\n           for the appellants.\n\n           Mr.S.S.Randhawa, Addl.A.G.Haryana.\n\n                ****\n\nJUDGMENT\n<\/pre>\n
SABINA, J.\n<\/p>\n
           Naresh Kumar and Krishan Gopal faced trial before the<\/p>\n
learned Additional Sessions Judge Faridabad for murdering Santosh<\/p>\n
Kumar, son of complainant Brij Bihari. Both the accused were found<\/p>\n
guilty of offence under Section 302 read with Section 34 IPC and<\/p>\n
were sentenced to undergo imprisonment for life and a fine of<\/p>\n
Rs.2,000\/- each.       They have challenged their conviction and<\/p>\n
sentence vide the present appeal.\n<\/p>\n
           Prosecution case was set in motion on the basis of the<\/p>\n
statement made by complainant Brij Bihari to SI Ram Kishan, Police<\/p>\n
Station Mujessar that he had been informed at about 8.30 A.M. that<\/p>\n
his son Santosh Kumar was lying murdered in the street. When the
\n Criminal Appeal No.486-DB of 1998                    2<\/span><\/p>\n
complainant reached the spot, he found that his son was lying dead<\/p>\n
in a pool of blood in the street in front of the house of Krishan Gopal.<\/p>\n
There were knife injuries on the neck and head of his son. One knife<\/p>\n
was also lying besides the dead body. He came to know that a day<\/p>\n
before a quarrel had taken place between Santosh Kumar and his<\/p>\n
friends Pardeep, Gopal and Mahesh.\n<\/p>\n
           On the basis of the statement of the complainant formal<\/p>\n
FIR No.7 dated 3.1.1996 was registered by the police of Police<\/p>\n
Station Mujessar under Section 302\/34 IPC.\n<\/p>\n
           The investigating Officer visited the spot and completed<\/p>\n
inquest proceedings on the dead body of Santosh Kumar and sent it<\/p>\n
for post mortem examination.\n<\/p>\n
           The post mortem examination was conducted by Dr.Renu<\/p>\n
Gambhir (PW-1) on 3.1.1996 at 2.20 p.m. and following injuries were<\/p>\n
found on the person of the deceased:-\n<\/p>\n
           1. Bone    deep incised wound 3″x 1\/2″ on left parieto<\/p>\n
              occipital region. 5 \u00bc” above left pinna.<\/p>\n<\/blockquote>\n
           2. Transverse stab wound 1 \u00bd”x 1\/2″ on right side of<\/p>\n
              back of chest. 2″ above base of neck.        On probing<\/p>\n
              depth was 8″ down and medically. On dissection under<\/p>\n
              lying major blood vessels were cut and going down<\/p>\n
              medially cutting upper lob of lung \u00be” wide and depth in<\/p>\n
              lung was 3″. Whole of pleural cavity was full of blood.<\/p>\n<\/blockquote>\n
           3. Incised wound muscle deep 3\/4″ x 1\/2″ on right<\/p>\n
              clavicular region 2″ below and medial to injury No.2.<\/p>\n<\/blockquote>\n
           4. Incised wound muscle deep 1″x1\/2″ on interior side of<\/p>\n
              chest 1 \u00bc” below injury No.3.\n<\/p><\/blockquote>\n
 Criminal Appeal No.486-DB of 1998                  3<\/span><\/p>\n
\n<\/blockquote>\n
            5. Incised wound 3\/4″x1\/2″ transverse on back 1 \u00be”<\/p>\n
              below injury No.2. In was on right side, just lateral to<\/p>\n
              spine and muscle deep.\n<\/p><\/blockquote>\n
            6. Incised wound muscle deep on the back on right side<\/p>\n
              just lateral to thoracic spine transverse oval shape<\/p>\n
              muscle deep 2″ below injury No.5.\n<\/p><\/blockquote>\n
            All the other organs were healthy except for injuries as<\/p>\n
            described.<\/p><\/blockquote>\n
            In the opinion of the doctor, the cause of death was due<\/p>\n
to shock and haemorrhage caused to vital organs like lungs and<\/p>\n
injuries to major blood vessels of neck. All the injuries were ante<\/p>\n
mortem in nature and were sufficient to cause death. The duration<\/p>\n
between injuries and death was within few minutes and between<\/p>\n
death and post mortem was within 12 hours.\n<\/p>\n
            During investigation, statements of Pardeep Kumar<\/p>\n
Mahesh and Gopal were recorded by the Investigating Officer. After<\/p>\n
completion of investigation and necessary formalities, accused were<\/p>\n
sent up for trial. Charge against them was framed under Section 302<\/p>\n
read with Section 34 IPC on 6.6.1996 to which they pleaded not<\/p>\n
guilty and claimed trial.\n<\/p>\n
            The material witnesses examined by the prosecution at<\/p>\n
the trial were Dr.Renu Gambhir (PW-1), Mahesh (PW-4), Pardeep<\/p>\n
Kumar (PW-5), Gopal (PW-6) and Ram Kishan, SI (PW-8).<\/p>\n
            On the conclusion of prosecution evidence, accused<\/p>\n
Naresh, when examined under Section 313 Cr.P.C. in reply to<\/p>\n
questions No. 1 and 7 stated as under:-\n<\/p>\n
            “As a matter of fact Santosh deceased had entered in our
\n Criminal Appeal No.486-DB of 1998                     4<\/span><\/p>\n
           house and caused knife blows in the chest and back of<\/p>\n
           my father. My father had to retaliate in his self defence.<\/p>\n
           Gopal and Pardeep were accompanying Santosh at that<\/p>\n
           time.    I had come afterwards and on noticing me the<\/p>\n
           assailants ran away from there.”\n<\/p><\/blockquote>\n
           “Actually Pardeep Kumar (PW-5) and Gopal PW-6) were<\/p>\n
           the companions of the deceased                 and they had<\/p>\n
           accompanied the deceased at the time of attack upon my<\/p>\n
           father. So they have made false statements. Otherwise,<\/p>\n
           as a matter of fact both these witnesses were the<\/p>\n
           aggressors. I had come afterwards. I am innocent.”<\/p><\/blockquote>\n
           Accused Krishan Gopal, when examined under Section<\/p>\n
313 Cr.P.C. in reply to questions No. 1 and 7 stated as under:-<\/p>\n
           “As a matter of fact Santosh deceased had entered in my<\/p>\n
           house and caused me knife blows in my chest and back.<\/p>\n
           I had to retaliate in my self defence. Gopal and Pardeep<\/p>\n
           were accompanying Santosh at that time. My co-accused<\/p>\n
           Naresh had come afterwards and on noticing him the<\/p>\n
           assailants ran away from there.”\n<\/p><\/blockquote>\n
           “Actually Pardeep Kumar (PW-5) and Gopal(PW-6) were<\/p>\n
           the     companions   of   the   deceased       and   they   had<\/p>\n
           accompanied the deceased at the time of attack upon us.<\/p>\n
           So, they have made false statements. Otherwise, as a<\/p>\n
           matter of fact both these witnesses were the aggressors.<\/p>\n
           I had to retaliate in my private defence and my co-<\/p>\n
           accused Naresh had come afterwards. We are innocent.”<\/p><\/blockquote>\n
\n Criminal Appeal No.486-DB of 1998                    5<\/span><\/p>\n
           The learned trial Judge         did not accept the defence<\/p>\n
version but accepted the evidence led by the prosecution and held<\/p>\n
the appellants guilty of the said crime.\n<\/p>\n
           We have gone through the record of the case and heard<\/p>\n
learned counsel for the appellants as well as the learned State<\/p>\n
counsel.\n<\/p>\n
           This case is based on an eye witness account. Although<\/p>\n
the complainant had lodged the FIR on the basis of recovery of the<\/p>\n
dead body of his son but during investigation of the case the<\/p>\n
statements of the eye witnesses were recorded. Mahesh (PW-4) one<\/p>\n
of the eye witnesses of the occurrence did not support the<\/p>\n
prosecution case during trial.\n<\/p>\n
           Pardeep Kumar (PW-5) deposed that on 3.1.1996 at<\/p>\n
about 8.30 A.M. he was going to school along with Mahesh. Santosh<\/p>\n
and Gopal were coming from Durga Mandir Street.           When they<\/p>\n
reached near the house of Krishan Gopal, he caught hold of Gopal.<\/p>\n
Santosh tried to rescue him and as a result Krishan Gopal caught<\/p>\n
hold of Santosh from his neck. Naresh inflicted knife blows on the<\/p>\n
neck and head of Santosh and he died at the spot. PW-5 further<\/p>\n
deposed that before the said occurrence, on 2.1.1996 there was a<\/p>\n
jagran ceremony in Devi Durga Mandir. A quarrel had taken place<\/p>\n
between him, Naresh, Santosh and Leela. Naresh and Leeladhar<\/p>\n
were on their opposite side.     Gopal (PW-6) has corroborated the<\/p>\n
statement of PW-5.\n<\/p>\n
           Accused Krishan Gopal has taken the plea of self<\/p>\n
defence. The presence of Pardeep Kumar (PW-5) and Gopal (PW-6)<\/p>\n
at the spot is admitted. It has been further pleaded by the accused
\n Criminal Appeal No.486-DB of 1998                    6<\/span><\/p>\n
that co-accused Naresh had come to the spot later on.<\/p>\n
           It has been held by the Apex Court in Deo Narain v. The<\/p>\n
State of U.P.<\/a> 1973 CAR 72 (SC) as under:-\n<\/p>\n
           ” The right of private defence of the body commences as<\/p>\n
           soon as a reasonable apprehension of danger to the body<\/p>\n
           arises from an attempt or threat to commit the offence,<\/p>\n
           though the offence may not have been committed, and<\/p>\n
           such right continues so long as such apprehension of<\/p>\n
           danger to the body continues. The threat, however, must<\/p>\n
           reasonably give rise to the present and imminent, and not<\/p>\n
           remote or distant, danger. This right rests on the general<\/p>\n
           principle that where a crime is endeavoured to be<\/p>\n
           committed by force, it is lawful to repel that force in self<\/p>\n
           defence. “To say that the appellant could only claim the<\/p>\n
           right to use force after he had sustained a serious injury<\/p>\n
           by an aggressive wrongful assault is a complete<\/p>\n
           misunderstanding of the law embodied in the above<\/p>\n
           section.   The right of private defence is available for<\/p>\n
           protection against apprehended unlawful aggression and<\/p>\n
           not for punishing the aggressor for the offence committed<\/p>\n
           by him. It is a preventive and not punitive right.”<\/p>\n<\/blockquote>\n
                       “But while dealing with the appellant’s case<\/p>\n
           curiously enough the High Court has denied him the right<\/p>\n
           of private defence on the sole ground that he had given a<\/p>\n
           dangerous blow with considerable force with a spear on<\/p>\n
           the chest of the deceased though he himself had only<\/p>\n
           received a superficial lathi blow on his head. This view of
\n Criminal Appeal No.486-DB of 1998                     7<\/span><\/p>\n
            the High Court is not only unrealistic and unpractical but<\/p>\n
            also contrary to law and indeed even in conflict with its<\/p>\n
            own observation that in such cases the matter cannot be<\/p>\n
            weighed in scales of gold.”<\/p><\/blockquote>\n
            The Apex Court in the case of Gottipulla Venkata Siva<\/p>\n
Subbrayanam & Ors. v. The State of Andhra Pradesh & Anr.<\/a> 1970<\/p>\n
CAR 105 (SC) has held that right of private defence of a person and<\/p>\n
property is recognized in all free, civilized, democratic societies within<\/p>\n
certain reasonable limits.       Those limits are dictated by two<\/p>\n
consideration: (1) that the same right was claimed by all other<\/p>\n
members of the society and (2) that it was the State which generally<\/p>\n
undertakes the responsibility for the maintenance of law and order.<\/p>\n
The citizens, as a general rule, are neither expected to run away for<\/p>\n
safety when faced with graver imminent danger to their person or<\/p>\n
property as a result of unlawful aggression, nor were they expected,<\/p>\n
by use of force, to right the wrongs done to them or to punish the<\/p>\n
wrongdoer for commission of offences. The right of private defence<\/p>\n
serves a social purpose and there was nothing more degrading to the<\/p>\n
human spirit then to run away in face of peril.           This right was<\/p>\n
basically preventive and not punitive.\n<\/p>\n
            In the case of Kanshi Ram v. State of M.P.2001 (4) RCR<\/p>\n
556, the Apex Court has held that the plea of self defence could be<\/p>\n
taken in cross examination of prosecution witnesses or in the<\/p>\n
statement of the accused under Section 313 Cr.P.C.or by adducing<\/p>\n
evidence if the accused had failed to specifically took the plea of right<\/p>\n
of private defence even then it could be taken on the basis of
\n Criminal Appeal No.486-DB of 1998                    8<\/span><\/p>\n
evidence on record.\n<\/p>\n
           Adverting to the facts of the present case the occurrence<\/p>\n
had admittedly taken place in the house of the accused. This leads<\/p>\n
to the inference that the deceased along with Pardeep Kumar (PW-5)<\/p>\n
and Gopal (PW-6) had gone to the house of the accused on the<\/p>\n
alleged day of occurrence. Pardeep Kumar (PW-5), in his cross-<\/p>\n
examination has admitted that a jagran had been arranged by the<\/p>\n
appellants in front of their house and a quarrel had taken place at<\/p>\n
6.30 p.m. On 2.1.1996 Gopal had gone to attend the jagran first of all<\/p>\n
and, thereafter, he had gone along with Santosh and Naresh. Gopal<\/p>\n
(PW-6) has, however denied his presence at the jagran.            Thus,<\/p>\n
admittedly a jagran had been organised by the appellants in front of<\/p>\n
their house on 2.1.1996.\n<\/p>\n
           Investigating   Officer   S.I.Ram Kishan (PW-8), in his<\/p>\n
cross-examination,    has deposed      that    it had come during<\/p>\n
investigation that some altercation had taken place at the time of<\/p>\n
jagran on 2.1.1996. This lends support to the statement of Om Wati<\/p>\n
(DW-3) that there was a jagran at their residence on 2.1.1996 in<\/p>\n
which some altercation between the deceased and Pws had taken<\/p>\n
place. Apparently due to this reason the deceased along with Pws<\/p>\n
came present in the house of the appellants on the next day.<\/p>\n
           Appellant Krishan Gopal has taken the plea that he was<\/p>\n
inflicted injuries by Santosh and, thereafter, he had retaliated in self<\/p>\n
defence. Pardeep Kumar (PW-5), in his cross-examination, has<\/p>\n
admitted that it was correct that he was facing a trial in the cross<\/p>\n
case under Section 452\/326\/34 IPC in the Court along with Mahesh<\/p>\n
and Gopal.    The Investigating Officer also deposed in his cross-
\n Criminal Appeal No.486-DB of 1998                      9<\/span><\/p>\n
examination that Krishan Gopal was also having knife injuries and his<\/p>\n
statement was also recorded by him in the hospital on the same day.<\/p>\n
Although the exact nature of injuries suffered by him have not been<\/p>\n
proved on record but there is sufficient material on record which<\/p>\n
leads to the inference that the deceased had come to the spot along<\/p>\n
with Pws and had inflicted injuries on the person of Krishan Gopal,<\/p>\n
who, in self defence, inflicted injuries on the person of Santosh. From<\/p>\n
these facts, it is established that injuries had been inflicted on the<\/p>\n
person of appellant Krishan Gopal by deceased Santosh and a cross<\/p>\n
case was also registered against his friends accompanying him<\/p>\n
i.e.,Mahesh (PW-4), Pardeep Kumar (PW-5) and Gopal (PW-6) .<\/p>\n
            Deceased Santosh is also not having a clean record.<\/p>\n
Ashok Kumar HC (DW-1) has deposed that FIR No.160 dated<\/p>\n
29.6.1995 had been registered against Santosh under Section 307<\/p>\n
IPC and Section 25 of the Arms Act at Police Station Mujessar.<\/p>\n
Challan was also presented in the said case. However, the case<\/p>\n
could not reach its logical end on account of death of Santosh. Desh<\/p>\n
Raj, Constable (DW-2) has deposed that FIR Nos. 523, 525, 561 and<\/p>\n
568   dated    23.8.1995,    30.8.1995,    11.9.1995       and   15.9.1995<\/p>\n
respectively had been registered against deceased Santosh.            The<\/p>\n
first three FIRs were under Section 379 IPC and fourth one was<\/p>\n
under Section 25 of the Arms Act. The Investigating Officer has also<\/p>\n
deposed in his cross examination that there were some cases<\/p>\n
regarding molestation of girls against the deceased. Complainant<\/p>\n
also deposed in his cross-examination that one criminal case was<\/p>\n
pending against his son. Thus, it is evident that the deceased was<\/p>\n
not a law abiding citizen but was indulging in criminal activities.
\n Criminal Appeal No.486-DB of 1998                 10<\/span><\/p>\n
             Pardeep Kumar (PW-5), in his cross-examination, has<\/p>\n
deposed that he was arrested on 10.1.1996 and, thereafter, his<\/p>\n
statement was recorded by the police.          However, the public<\/p>\n
prosecutor, after going through the file, stated that there was no<\/p>\n
statement of the said witness. A perusal of the record, on the other<\/p>\n
hand, reveals that the statement of Pardeep Kumar (PW-5) was<\/p>\n
recorded by the Investigating Officer on 12.1.1996. Gopal (PW-6)<\/p>\n
has deposed that his statement was recorded by the police on<\/p>\n
18.1.1996.     However, the public prosecutor has stated that the<\/p>\n
statement of the said witness, as per the police record, was recorded<\/p>\n
on 20.1.1996.      A perusal of the record also reveals that the<\/p>\n
statement of Gopal (PW-6) was recorded on 20.1.1996.<\/p>\n
             In the present case, the occurrence had taken place on<\/p>\n
3.1.1996, whereas, the statements of the eye witnesses were<\/p>\n
recorded after a long delay. A cross case was also initiated against<\/p>\n
the said Pws. In these circumstances, it would not be safe to rely on<\/p>\n
the testimony of Pardeep Kumar (PW-5) and Gopal (PW-6) with<\/p>\n
regard to manner of occurrence. The possibility that they have not<\/p>\n
given true manner of occurrence cannot be ruled out. An altercation<\/p>\n
had also taken place between both the parties a day before the<\/p>\n
occurrence. As such, the plea of self defence taken by the accused<\/p>\n
gains significance and is rather borne out from the evidence on<\/p>\n
record. Deceased Santosh, who was indulging in criminal activities,<\/p>\n
had come to the house of the appellants and had inflicted injuries on<\/p>\n
the person of appellant Krishan Gopal, who in retaliation, inflicted<\/p>\n
injuries on the person of deceased Santosh in self defence. There is<\/p>\n
nothing on record to suggest that appellant Krishan Gopal had
\n Criminal Appeal No.486-DB of 1998                 11<\/span><\/p>\n
exceeded the right of self defence.\n<\/p>\n
           Consequently, this appeal is accepted and the appellants<\/p>\n
are hereby acquitted of the charge framed against them.<\/p>\n
                                                 (SABINA)
\n                                                  JUDGE<\/p>\n
                                              (JASBIR SINGH)
\n                                                 JUDGE
\nAugust 29, 2008
\nanita\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Naresh And Another vs State Of Haryana on 29 August, 2008 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. 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