Ramesh Singh & Others vs State Of U.P.
2018 Latest Caselaw 2299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 9.8.2018
 
				    			      Delivered on 4.9.2018
 
Case :- CRIMINAL APPEAL No. - 2029 of 1983
 
Appellant :- Ramesh Singh & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.N.Saxena,A.K. Singh,A.K.Awasthi,Manish Tewari,V.S.Kushwaha
 
Counsel for Respondent :- D.G.A.,G.P.Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(By Om Prakash-VII, J.)

1. This criminal appeal has been preferred by accused appellants against judgment and order dated 30.8.1983 passed by District & Sessions Judge, Ghazipur in Session Trial No. 50 of 1983 (State vs. Ramesh Singh and others) convicting and sentencing appellants Ramesh Singh, Satyendra Singh, Jitendra Singh @ Dharmendra Singh, Rajwant Singh and Awadhesh Singh for the offence punishable under Sections 302 IPC read with Section 149 IPC for imprisonment for life, for the offence under Section 323 IPC read with Section 149 IPC for six months rigorous imprisonment and for the offence under Section 147 IPC for one year's rigorous imprisonment. All sentences have been directed to run concurrently.

2. Facts of case, in nutshell, as unfolded by informant Ram Bachan Singh son of Amar Deo Singh in the First Information Report (in short 'F.I.R.'), are that on 28.10.1982 at about 02:00 p.m. Ramesh Singh son of Ghanman Singh along with his associates, namely, Satyendra Singh, Awadhesh Singh, Jitendra Singh @ Dharmendra Singh, Rajwant Singh armed with lathi tried to have forcible possession over the land situated in front of his house. When informant objected, they started hurling abuses. In the meantime, Ram Vrat Singh, brother of informant and Barrister Singh, son of informant reached on the spot and when they forbade them for abusing, Rajwant Singh exhorted to kill. On his exhortation, Ramesh Singh, Jitendra Singh @ Dharmendra Singh, Awadhesh Singh and Satyendra Singh with common intention started beating with lathi and danda. On raising alarm, Murli Shyam Singh, Shiv Murat Singh and other villagers reached on the spot and witnessed the incident. Informant, his son Barrister Singh and his brother Ram Vrat Singh received several injuries caused by them. By chance, a doctor resident of Bihar reached on the spot and gave first aid to Ram Vrat Singh but after some time Ram Vrat Singh succumbed to his injuries. Dead body of Ram Vrat Singh, was brought to police station concerned on a cot for necessary action.

3. On the basis of the written report (Ext. ka-3) scribed by one Kameshwar Singh, chik First Information Report (Ext. Ka-5) was registered at Police Station concerned on 29.10.1982 at 12:30 a.m. mentioning all details as had been disclosed in Ext. Ka-3. G.D. entry Ext. Ka-6 was also made at the same time.

4. Investigation of the matter was taken into his hand by Narendra Prasad Tripathi, who was posted as Station Officer of police station concerned. He recorded statement of Ram Bachan Singh and injured Barrister Singh then and there. Head Moharrir Surya Deo Pandey prepared reports (Ext. Ka-7 and Ka-8) for medical examination and both injured were sent to P.H.C. Zamania. Dr. Vijay Pratap Narayan Singh examined Ram Bachan Singh at the same night at 03:00 a.m. and prepared injury report (Ext. Ka-1). Following injuries were found on the person of Ram Bachan Singh.

"(i) Lacerated wound 4 cm X 1 cm X scalp deep over occipital region of the scull 15 cm above the left ear. Soft blood clot present.

(ii) Contusion 7 cm X 2 cm over back of the trunk on right side in lower part. Colour red.

(iii) Abraded contusion 7 cm X 2 cm over outer surface of the right fore-arm near elbow. Colour red.

(iv) Contusion with swelling 14 cm X 8 cm over dorsum of the left foot. Colour red.

(v) Complains of pain in both palms and other parts of the body."

5. In the opinion of doctor, injuries were simple, caused by blunt object and were about half day old.

6. Injured Barrister Singh was examined at 03:15 a.m. at the same night. Injury report is Ext. Ka-2. Following injury was found on the body of Barrister Singh.

"Lacerated wound 2 cm X ¼ cm X .5 cm deep over middle of the fore-head. Soft blood clot present."

7. In the opinion of doctor, injury was simple, caused by blunt object and was about half day old.

8. Injury reports were provided to the Investigating Officer at the same night at 03:30 a.m.. On the following morning i.e. 29.10.1982 at about 06:30 a.m. Investigating Officer completed formalities on the dead body of Ram Vrat Singh in Thana campus itself. He prepared inquest report (Ext. Ka-9), photo lash (Ext. ka-10), challan lash (Ext. Ka-11) and report for post mortem (Ext. Ka-12). Sealed body in a peace of cloth and preparing sample seal deputed constables Shri Nath Tiwari and Brij Mohan Pandey to take the dead body along with relevant papers for post-mortem to mortuary Ghazipur. After preparing fard supurdnama (Ext. Ka-13) returned the cot, on which dead body of deceased was carried. Recovered blood stained dhoti of deceased and sealing the same in a bundle prepared fard recovery Ext. Ka-14. On 29.10.1982 at 09:30 a.m. he reached at the place of occurrence. Interrogated Murli Shyam Singh and prepared site plan Ext. Ka-15.

9. Post-mortem on the dead body of deceased was conducted on 29.10.1982 at 01:00 p.m. Autopsy report is Ext. Ka-4. As per post mortem report scalp was lacerated, bone left side membranes congested. Brain congested. Right side heart full and left side empty. On examination following ante-mortem injuries were found.

"(i) Lacerated stitched wound left side of scalp 6 cm X ½ cm X scalp deep (after the removal of stitches). Margin lacerated, obliquely placed-under the scalp end bone and scull end bone matter and clotted blood the substance of brain matter. Tissues fractured seen. Left frontal and left parietal bone vertically placed.

(ii) Abrasion right shoulder region 2 cm X 1 cm, 2 cm X below and behind outer end of left clavicle.

(iii) Abrasion right groin 2 cm X 1 cm below right anterior, superior iliac spine."

10. In the opinion of doctor, death was caused due to head injury as a result of ante-mortem injuries.

11. After completing investigation, charge-sheet (Ext. ka-24) against five accused showing Awadhesh Singh as absconding was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court was committed to Court of sessions.

12. All accused / appellants appeared and charge under Sections 147, 302/149, 323 read with Section 149 IPC was framed in the trial court against them. All the accused denied the charges, pleaded not guilty and claimed their trial. They admitted marpeet but set-up a counter version. According to them, when Bisram Singh was filling-up the pit with soil on the land in front of his house, at about 02:00 p.m. Ram Vrat, Ram Bachan, Barrister, Shiv Murat Singh, Murli Shyam Singh and Kameshwar laced with 'lathi' and 'Gandasa' reached there and forbade to fill-up the pit. When Bisram Singh claimed his right over the land in question, Ram Vrat Singh and Murli Shyam exhorted to kill him. On their exhortation, Ram Bachan Singh, Barrister Singh, Shiv Murat Singh, Kameshwar Singh and Ram Vrat Singh started beating with 'lathi' and 'Gandasa'. Ramesh Singh, who was also filling-up the pit alongwith Bisram Singh made alarm and hearing the said alarm, Angad Singh, Sangram Singh and many other people reached on the spot and witnessed the incident and tried to pacify the matter. Bisram Singh also wielded lathi in his defence resulting in injuries to prosecution side. He got himself examined at Sadar Hospital, Ghazipur. Since accused were surrounded the way, he could not go police station concerned for lodging F.I.R. due to fear. F.I.R. (Ext. kha-6) in cross-version was lodged on 29.10.1982 at 9.45 p.m. at police station Kotwali, District Ghazipur, under which jurisdiction village concerned does not fall.

13. Trial proceeded and on behalf of prosecution, eight witnesses, namely, PW-1 Dr. Vijay Pratap Narayan Singh, who examined the injuries of Ram Bachan Singh and Barrister Singh, PW-2 Constable Shri Nath Tiwari, who took dead body of deceased for post mortem, PW-3 Ram Bachan Singh, injured - eye account witness, PW-4 Barrister Singh, injured - eye account witness, PW-5 Dr. S.K. Srivastava, who has conducted post mortem on the body of deceased Ram Vrat Singh and prepared autopsy report, PW-6 Murli Shyam Singh, eye account witness, PW-7 Shiv Murat Singh, eye account witness and PW-8 Sub-Inspector Narendra Pratap Tripathi, Investigating Officer who has proved the chargesheet and other papers, were examined.

14. After closure of prosecution evidence, statement of accused appellants under Section 313 CrPC was recorded in which they denied prosecution case but relation between informant and injured has been admitted. They also stated that land situated in front of baithaka of informant Ram Bachan Singh belongs to appellants. Neither appellants formed an unlawful assembly nor caused injury to informant side. They were not bounding the land belonging to informant's side. Altercation between parties took place when informant's side created hindrance in peaceful possession of accused appellants over disputed land. Neither Ram Vrat Singh (deceased) die due to injuries caused by accused appellants nor they caused injuries to other injured. No exhortation was made by accused appellant Rajwant Singh. Ignorance was shown about injury report said to have been prepared in the matter in regard to prosecution witnesses as also about post mortem report of deceased Ram Vrat Singh. It was further stated that prosecution started due to enmity. Witness Murli Shyam was contesting election of Gram Pradhan to which appellants opposed and due to that reason appellants were falsely implicated in this case. It was also stated that appellants were filling-up pit of their land, informant's side came there and objected to do so. Deceased Ram Vrat Singh and Murli Shyam both exhorted to kill appellants, thereafter, informant's side started beating to Bisram Sigh and in exercise of right of private defence he (Bisram Singh) also wielded lathi.

15. In defence accused led evidence and examined as many as six witnesses i.e. DW-1 Dr. Bharat Singh, who examined injuries of Bisram Singh, DW-2 Dr. Ramesh Chandra Sahu, who proved alibi of Rajwant Singh, DW-3 Anirudh Singh, who proved that there was only one Shiv Murat Singh in the village, DW-4 Constable Dharm Pal Singh, who proved F.I.R. and G.D. of cross version, DW-5 Bisram Singh, who supported counter version of marpeet and DW-6 Vidya Sagar Singh, who said that land was let-out to Bisram Singh by Junior High School, Dhuska. They also filed/produced papers / documents in support of his case viz. injury report of Bisram Singh (Ext. Kha-1), entries on bed head ticket of Bisram Singh (Ext. Kha-2 to Kha-5), F.I.R. dated 29.10.1982 of cross-version at police station Ghazipur (Ext. Kha-6), note on the F.I.R. that case relates to police station Zamania (Ext. Kha-7), copy of G.D. of kotwali registering a case under Sections 147, 148, 323, 324 and 504 I.P.C. (Ext. Kha-8), revenue papers showing that Junior High School, Dhuska owns at least 19 bighas and 1 biswa land in village Dhuska and secondly prosecution witness were of the same family (Ext Kha-9 to Kha-21).

16. Trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellants beyond reasonable doubt and convicted and sentenced accused appellants, as mentioned above. Hence this appeal.

17. We have heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Anurag Shukla, learned counsel for appellants and Sri Rishi Chaddha, learned A.G.A. appearing for State at length.

18. Castigating the impugned judgment and order, learned Senior Counsel appearing for the appellants has submitted that appellants are innocent and have not committed present offence. Findings recorded by trial court in the impugned judgment and order are illegal and perverse. Infact informant's side were aggressor. They caused injuries to appellants' side and injuries found on the person of injured/deceased belonging to informant's side were caused by appellants' side in exercise of their right of private defence. At this juncture, learned counsel for appellants referred to cross F.I.R. as well as injury report and other documents. It was further submitted that origin and genesis of incident has been admitted by both parties. Prosecution witnesses have made false statement. Land in dispute was belonging to appellants' side and they were filling-up pit occurred due to flood as land was situated at bank of Karmnasa river. Referring to manner of incident, it was also submitted that it is a case of sudden fight. If prosecution case is taken into consideration then also no undue advantage has been taken by appellants and only injuries were caused which were necessary in the interest of private defence. It was next contended that if prosecution case is taken as true, then also at the most case comes under the purview of offence under Section 325 IPC. Only one single blow is said to have been caused on the head of deceased. Prosecution was not able to prove premeditation or any object to cause injury on the head of deceased. Referring to medical evidence, it was also submitted that injury found on the head (single injury) only is said to be fatal. Medical evidence does not support prosecution case. It was next contended that though in cross-version police submitted final report, yet appellants/ defence can prove facts of cross-version in their defence and same has been done. In the present matter, case set-up by appellants is more probable than the case of informant's side. Since land in dispute was belonging to appellants' side and they were filling-up pit, presence of appellants on the place of occurrence, prior to reaching of informant's side, is admitted to informant's side and then in that situation also defence case is more probable than informant's case. PW-6 and PW-7 are closely related to deceased, they were not present on the spot, they have made false statement before Court and due to that reason contradictions and omission have occurred in prosecution evidence. Specific role to each and every accused has not been assigned in F.I.R. nor was stated to Investigating Officer under Section 161 CrPC. For the first time, before Court specific role was assigned to accused appellants, which clearly comes under the purview of improvement. Thus, fact witnesses examined in the matter are not reliable witnesses and their testimony is not trustworthy. It was lastly submitted that impugned order suffers from infirmity and illegality warranting interference by this Court.

19. In reply, learned AGA appearing for State supporting the impugned judgment and order has submitted that appellants' side were aggressor. They cannot take benefit of right of private defence. Findings recorded by trial court in impugned judgment and order are in accordance with law and evidence. Injury report of Bishram Singh is forged and fake document and injuries shown on the person of injured Bisram Singh were manufactured. Since cross F.I.R. was lodged at different police station on the basis of false facts, final report was submitted in the matter. It was next contended that fatal blow was caused on the head of deceased by appellants. Medical evidence fully supports prosecution case. Motive assigned against accused appellants has also been proved by prosecution beyond reasonable doubt. PW-3 and PW-4 are injured witnesses. PW-6 and PW-7 are neighboror. Incident was taken place in day hours. Presence of PW-6 and PW-7 on the spot at the time of incident cannot be doubted. They have admitted that they reached on the spot after hearing hue and cry. Though they come under pedigree of deceased, yet they are natural and probable witnesses. They cannot be placed in the category of interested witnesses. They are most reliable witnesses and their testimony is also supported by medical evidence. There in no infirmity or illegality in the impugned judgment and order warranting interference by this Court.

20. We have considered rival submissions made by learned counsel for parties and have perused entire record carefully.

21. Before proceeding to deal with submissions made by learned counsel for parties, we would like to out-line findings of trial court on material points in impugned judgment and order, which are as under:

(i) Prosecution was able to establish date, time and place of incident.

(ii) Appellants' side were illegally occupying land belonging to informant's side and when they were objected, injuries were caused by them upon informant's side in furtherance of common object of unlawful assembly.

(iii) Informant's side were not armed with any weapon at the place of occurrence.

(iv) Although altercation between parties regarding possession of disputed land took place before actual incident yet appellants' side were aggressor in the matter.

(v) Accused appellants have not acted in exercise of their right to self-defence.

(vi) Medical evidence fully supports prosecution case.

(vi) Injuries said to have been found on the body of Bisram Singh were manufactured. Appellants' side did not receive injury in the said incident.

(vii) Motive attributed, though severe in nature, yet was established by prosecution.

(viii) Pleas taken by appellants are not believable as they were aggressor in the matter.

(ix) Prosecution case clearly comes under Sections 302, 323 IPC. Appellants have formed unlawful assembly and present offence was committed by them in prosecution of common object of that unlawful assembly; findings recorded by trial court on this point is based on correct appreciation of evidence.

22. Both parties have come up before Court with cross versions. We would like to refer to legal propositions regarding right of private defence, medical evidence, contradiction, omission, discrepancies, laches, etc..

23. In a full Bench decision, this Court in the case of Rishi Kesh Singh vs. State, AIR (ALL) 1970-0-51, held in paragraph 79 that:

"The dictum of the majority of learned Judges of this Court in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. But, it may be elucidated that in a case in which any general exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully established his plea of the claimed exception, he will still be en-titled to an acquittal, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception), a reasonable consequential doubt is created in the mind of the Court as to whether the accused is really guilty of the offence with which he is charged.

In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows:- The majority decision in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused."

24. In Mohd. Khalil Chisti Vs. State of Rajasthan and others (2013)2 SCC 541, Court has held as under:

"30. In Lakshmi Singh v. State of Bihar, this Court held that: (SCC p. 400, para 12)

"12. ... It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence."

It is clear that:

"12. ... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. ... in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

''(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.'" (Lakshmi Singh case, SCC p. 401, para 12)

31. It is further clear that: (Lakshmi Singh case, SCC pp. 401-02, para 12)

"12. ... The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ... [However,] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, ... that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."

32. In Waman v. State of Maharashtra wherein one of us (P. Sathasivam, J.) reiterated the very same principles and held that: (SCC p. 306, para 36)

"36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.

34. In Raghubir Singh v. State of Rajasthan, the following conclusion in para 16 has been pressed into service: (SCC p. 241)

"16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act."

35. In Krishnan v. State of T.N., the following principles have been relied on: (SCC pp. 311-13, paras 15-17)

"15. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P., Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab).

16. In Sekar v. State this Court observed: (SCC p. 355b-d)

''A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.'

17. The above legal position was reiterated in Rizan v. State of Chhattisgarh. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus: (SCC pp. 670-71, para 13)

''13. ... Under Section 105 of the Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ... The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea."

25. In Darshan Singh Vs. State of Punjab & Another (2010) 2 SCC 333, Court has held in paragraph 58 as under:

"58. The following principles emerge on scrutiny ...............

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

26. In Abdul Sayeed vs. State of M.P., 2010 (10) SCC 259, Court has held as under.

"30. In Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution's case and unless reasonably explained it is sufficient to discredit the entire case.

31. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was held as follows:- "The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject." [Emphasis added]

32. Drawing on Bhagirath's case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56).

33. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, this Court observed, "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." [Emphasis added]

34. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.

35. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re- iterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

36. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

27. From the above decisions, legal propositions, if summarized, are that if general exception under I.P.C. is pleaded by an accused and evidence is adduced to support such a plea but such evidence fails to satisfy the Court affirmatively, he will still be entitled to an acquittal, if, upon consideration of the evidence as a whole, a reasonable consequential doubt is created in the mind of Court. Cases in which accused did not plead but circumstance shows that right of private defence was legitimately exercised, it is open to Court to consider such a plea. Further, where prosecution fails to explain injuries on the accused, which are grievous in nature and have been sustained in the course of same occurrence, it follows that prosecution witnesses are lying on a most material point and their statement is untrue and injuries probablise plea of appellants and prosecution has suppressed origin and genesis of occurrence. Omission on the part of prosecution to explain injuries, grievous in nature, on the person of accused assumes much greater importance where evidence consists of interested or inimical witnesses. In such a situation, Court looks at the prosecution case with a little suspicion. Plea of right of private defence cannot be based on surmises and speculations. Where eyewitness account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. Opinion given by a medical witness need not be the last word on the subject and shall be tested by the Court. Unless oral (ocular) evidence is totally irreconcilable with medical evidence, it has primacy. Where medical evidence totally improbablise ocular version, that can be taken to be a factor to effect credibility of prosecution version.

28. In the present matter, as is evident from record, prosecution case is that on 28.10.1982 at 02:00 p.m. appellants armed with lathi were illegally occupying land belonging to informant's side and when Ram Bachan forbade them to do so, accused-appellants started beating to informant, his brother and son. Injuries were caused to Ram Vrat Singh at his head and person and also to informant and his son Barrister Singh. Ram Vrat Singh (deceased) was given first aid treatment by a doctor in village concerned but he died. Taking dead body of deceased at P.S. Zamaniya, informant and his companion lodged F.I.R. in the night at about 12:30 a.m. on 29.10.1982 against present appellants for the offence under Sections 147, 323, 302 and 504 I.P.C.. It is also prosecution case that appellants were bounding the land belonging to informant's side with bamboos. PW-3 and PW-4 both claimed themselves to have received injuries in the same incident. PW-6 and PW-7 claimed their presence at the place of occurrence at the time of incident after hearing hue and cry. It is also prosecution case that initially altercation took place between both parties. Total time of incident is said to be about 8-10 minutes.

29. Defence version is that while they were filling-up pits in their land taking soil from pond, informant's side armed with lathi and gandasa objected and started beating to appellants' side in which Ramesh Singh and Bisram Singh, father of appellants Satyendra Singh, Awadhesh Singh and Jitendra Singh @ Dharmendra Singh received injuries. Defence case is also that since informant's side, Ram Vrat Singh, Ram Bachan Singh, Barrister Singh, Shiv Murat Singh, Murli Shyam Singh and Kameshwar Singh were aggressor, appellants' side acted in right of self-defence and due to that reason injuries also caused to informant's side. It is also defence case that since Ram Vrat Singh died due to injuries occurred in the said incident, informant's side had sorrounded path, appellants did not go to police station Zamania to lodge F.I.R. immediately but proceeded to district Headquarters and stayed in night at Sherpur. F.I.R. was lodged at police station Kotwali Ghazipur. Medical examination of Bisram Singh was also done at district hospital Ghazipur. It is also evident that after medical examination Bisram Singh alongwith injury report had gone to lodge F.I.R. at police station Kotwali District Ghazipur. Injury report relating to Bisram Singh shows that injuries were simple in nature, though after lodging F.I.R. Bisram Singh returned to district hospital and was admitted and remained there for a long time. At one point of time Bisram Singh admitted that he himself had caused injuries to Ram Bachan Singh, Ram Vrat Singh (deceased) and Barrister Singh in exercise of his right of private defence. Defence case is also that accused-appellant Rajwant Singh was not present on the spot as he was in hospital at P.H.C. Koraon, District Allahabad. Thus, alibi was pleaded in regard to appellant Rajwant Singh.

30. Now, Court proceeds to deal with submissions raised by learned counsel for parties in light of above factual background and also the findings recorded by trial court in the impugned judgment and order.

31. As is evident from evidence adduced by both parties, place of occurrence in the present matter shown by both parties is in front of house of accused-appellant Ramesh Singh and informant both, which is also clear from site plan prepared in the matter. Date and time of incident is also admitted to both parties. They have also admitted that before actual incident of marpeet an altercation took place between the parties in regard to possession over disputed land. Parties have also admitted their presence at place of occurrence at the time of incident. In evidence led by parties during trial, it has also come that they were not real owner of disputed land. From site plan prepared in the matter, it is also evident that disputed land was lying within coverage area of Karmnasha river and in rainy season comes under flood area. It has also come in evidence of parties that villagers used to occupy land after receding of water. Informant's side was also not able to show any documentary evidence regarding ownership over the disputed land. Appellants' side tried to prove legal possession over the disputed land by examining manager of school concerned but no document has been filed in support thereof. Thus it emerges that both sides claimed their verbal right over disputed land. If F.I.R. lodged in the matter is taken into consideration, it is an admitted case of informant's side that all appellants were present at the place of occurrence. If version of cross F.I.R. is taken into consideration then presence of Ram Bachan Sigh, Ram Vrat Singh (deceased), Barrister Singh, Shiv Murat Singh and Murli Shyam Singh at the time of occurrence on the spot is admitted. Origin of incident more or less stated by both parties in their version is the same. If versions taken by both parties are scrutinized in consonance with finding of trial court, it emerges that appellants were aggressor. Injuries found on the person of Bisram Singh belonging to appellants' side are manufactured. Trial court while arriving at this conclusion has analyzed prosecution evidence as well as defence evidence and has specifically discussed that although PW-6 has admitted in his cross-examination that he has heard that Bisram Singh had also received injuries from appellants' side but has observed that PW-6 at another point of time has also admitted that in fact Bisram Singh was not present on the spot at the time of incident. Finding recorded by trial court on this point is based on correct appreciation of evidence.

32. Deceased Ram Vrat Singh died due to injuries sustained by him on his head in village concerned itself. His dead body was taken to police station and thereafter F.I.R. was lodged. Prosecution case is that none of the person belonging to informant's side was armed with any weapon at the time of occurrence on the spot. If findings recorded by trial court on the issue of aggressiveness, injuries said to have been caused to Bisram Singh, injury report prepared at district hospital Ghazipur as also cross F.I.R. are taken into consideration, certainly place of occurrence was situated within territorial jurisdiction of police station Zamaniya and F.I.R. on behalf of informant's side was lodged at same police station within few hours of incident. Injured were also examined just after registering the case on same day. In cross version F.I.R. was lodged on next day evening at different police station beyond territorial jurisdiction. It is true that F.I.R. of any incident can be lodged at any police station within or beyond territorial jurisdiction but it is surprising that no effort was made to lodge F.I.R. at police station Zamania on the same day by accused appellants. Explanation given by accused appellants that informant's side had surrounded the way is not appealable. If such was the situation, how Bisram Singh proceeded to district Headquarters. Circumstance shown by accused appellants in their evidence is a cooked-up story. As far as injuries said to have been sustained by Bisram Singh is concerned, trial court has disbelieved this fact on the ground that person belonging to informant's side present on the spot were unarmed. PW-3, PW-6 and PW-7 have clearly stated that Ram Bachan Singh, Ram Vrat Singh (deceased) and Barrister Singh were not having any weapon in the incident but PW-4 Barrister Singh examined before court on oath in cross-examination at one point of time has admitted that Ram Bachan Singh was having lathi in his hand. Although trial court while analyzing evidence did not take into account statement of PW-4 Barrister Singh on this fact yet statement of PW-4 alone on this point is not sufficient to set-aside the findings recorded by trial court, especially when injuries of Bisram Singh are found manufactured. PW-3, PW-4, PW-6 and PW-7 have clearly and consistently stated that no injury was caused by them to appellants' side. Hence, we are of the view that both sides were quarreling at the place of occurrence regarding possession over disputed land. Findings recorded by trial court that appellants' side were aggressor is based on correct appreciation of evidence and need no interference. Trial court has analyzed evidence in right perspective, as F.I.R. was lodged in the matter immediately within few hours at police station concerned having jurisdiction in the matter. Injuries of PW-3 and PW-4 were also examined on the basis of chitthi majroobi of police station concerned. Besides, F.I.R. in cross version was lodged on the next date at different police station, as has been discussed here-in-above. Injured Bisram Singh was medically examined at district hospital Ghazipur and all injuries found upon him were simple in nature. After medical examination, he had gone to police station concerned for lodging F.I.R. Had he actually received serious injuries, he would not have traveled from the place of occurrence to district headquarter in the night nor would have gone to lodge F.I.R. from hospital concerned to police station concerned. Suggestion made by informant's side about injuries said to have been received by Bisram Singh has substance. Trial court has rightly observed that injury report prepared in respect of injured Bisram Singh is fake and fictitious. He did not receive any injury in this incident and injuries are manufactured. Treatment as indoor patient of Bisram Singh was not due to injuries sustained by him in this incident. Thus, finding of trial court that appellants' side were aggressor, in our view, is also correct and based on evidence available on record.

33. As regards plea of alibi in respect of appellant Rajwant Singh is concerned, appellant Rajwant Singh has claimed himself under treatment as indoor patient at P.H.C. Koraon, District Allahabad but doctor examined on behalf of defence has clearly stated that he was admitted in hospital by one Mishra. Trial court while analyzing plea raised in this regard has observed that it appears unnatural and believable that appellant Rajwant Singh was admitted in hospital on temporary address without showing permanent address. Trial court has also disbelieved plea of alibi on the ground that brother of appellant was present in Koraon but he did not go to admit his brother. Hence, in our view findings recorded by trial court on this issue is also not interferable and same is based on correct appreciation of evidence.

34. So far as improvement, omission or laches on the part of Investigating Officer are concerned, since date, time and place of occurrence as well as presence of both parties on the spot is admitted to them, contradictions or omission elucidated in the prosecution evidence become immaterial.

35. In this matter if prosecution evidence is taken into consideration to establish actual role played by each and every accused appellants, nothing has been mentioned in F.I.R. specifying individual role to each accused. As has been discussed above, when PW-3, PW-4, PW-6 and PW-7 during trial were confronted by defence with statement recorded under Section 161 CrPC it has come that specific role played by each and every accused separately has not been stated by these witnesses. Presence of accused-appellants at place of occurrence is established, they were armed with lathi having five in number, forming an unlawful assembly occupying the land belonging to informant's side and on exhortation of appellant Rajwant Singh other accused-appellants caused injuries to deceased Ram Vrat Singh, injured Ram Bachan Singh and Barrister Singh. PW-3, PW-4, PW-6 and PW-7 have specified during trial that injuries sustained by deceased Ram Vrat Singh were caused by appellants Awadhesh Singh and Ramesh Singh, injuries to Ram Bachan Singh were caused by appellant Satyendra Singh and Jitendra Singh @ Dharmendra Singh, injury to Barrister Singh was caused by appellant Awadhesh Singh, role of exhortation has been specified to accused-appellant Rajwant Singh. Statements of all these four fact witnesses, mentioned above, on this point are clear and consistent. Non-specification of role of accused appellants in F.I.R. or in the statement under Section 161 CrPC will not render statement made by PW-3, PW-4, PW-6 and PW-7 during trial unbelievable as their statements find support with medical evidence also. Presence of PW-3, PW-4, PW-6 and PW-7 on the spot at the time of occurrence is natural and probable, especially when PW-3 and PW-4 are injured witnesses, houses of PW-6 and PW-7 are situated within same vicinity, incident took place in day hours. Hence, in our view, trial court has rightly held that all accused appellants have participated in commission of present offence. Accused-appellant Rajwant Singh has played role by making exhortation and other accused-appellants played role by causing injuries. Since all accused-appellants were armed with lathi and forming an unlawful assembly present incident was committed in prosecution of common object of that unlawful assembly, trial court has rightly framed charge under Section 147 I.P.C. against all accused-appellants to which prosecution has proved its case beyond reasonable doubt and conviction and sentence to all accused-appellants under Section 147 I.P.C. is based on correct appreciation of evidence and requires no interference by this Court. So far as charge against accused-appellants for the offence under Section 323/149 I.P.C. is concerned, two persons Ram Bachan Singh and Barrister Singh are said to have received injuries in the said incident and it has also been proved by prosecution from its evidence that injuries found on the body of Ram Bachan Singh and Barrister Singh were simple in nature but they were caused voluntarily by accused-appellants in furtherance of common object of unlawful assembly formed by them. Thus conviction and sentence for the offence under Section 323/149 I.P.C. imposed upon accused-appellants is also based on correct appreciation of evidence and does not require interference by this Court.

36. So far as offence under Section 302 I.P.C. read with Section 149 I.P.C. is concerned, post-mortem report reveals that one injury was found on the head of deceased which resulted into his death during treatment within few hours of incident. This fact is also supported by PW-1 Dr. V.P.N. Singh. It is admitted case of prosecution that no second or third blow was caused on the head of deceased meaning thereby deceased died due to injuries caused by only one lathi blow. Learned Senior Advocate has placed reliance on a decision of Apex Court in Shri Kishan and others vs. State of U.P., AIR 1972 SC 2056 wherein Apex Court has converted charge under Section 302 IPC read with Section 34 IPC into Section 325 IPC read with Section 34 IPC on the ground that injuries were caused by lathis only and it was not clear as to who gave fatal blow.

37. Before analyzing role assigned to each and every appellants in the present matter in light of discussions made here-in-above, we find necessary to quote settled legal position on this issue. In Gurumukh Singh vs. State of Haryana, (2009) 15 SCC 635, Court altered conviction under Section 302 I.P.C. into 304 (part-II) I.P.C. in the facts and circumstances where occurrence had taken place on the spur of movement and only one single lathi blow was inflicted. There was no intention or premeditation in the mind of appellant to inflict such injuries to deceased as were likely to cause death in ordinary course of nature. In Baijnath vs. State of Uttar Pradesh, (2008) 11 SCC 738, Apex Court in a single lathi blow case which resulted death of a person confirmed conviction and sentence of accused held under Section 304 (part-I) I.P.C..

38. If law laid down in Shri Kishan case (supra), Gurumukh Singh case (supra) and Baijnath case (supra) are compared with the facts and evidence of present matter, it emerges that in the present matter prosecution was able to prove that fatal blow was caused by Ramesh Singh on the head of deceased. Joint liability in furtherance of common object of unlawful assembly has also been proved in the matter. Hence, in our view, submission raised by learned Senior Advocate appearing for appellants to this extent that offence under Section 302 IPC is not made out against appellants has force and same is liable to be accepted. Finding arrived at by trial court on this issue is not sustainable. Since single blow was caused on the head of deceased resulting into his death, in our considered opinion, present case falls under definition of Section 304 (Part-I) IPC, as bodily injuries caused to deceased was likely to cause death and deceased died within few hours of receiving said injuries.

39. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

40. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

41. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.

42. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed and also the fact that conviction of appellants is liable to be converted from Section 302 IPC to Section 304(Part-I) IPC, we find that sentence of ten years rigorous imprisonment for the offence under Section 304 (Part-I) IPC and a fine of Rupees Five Thousand each shall be adequate upon accused-appellants and same will also be proportionate to gravity of offence.

43. In light of foregoing discussions, appeal is liable to be allowed in part. Conviction and sentence imposed upon accused appellants vide impugned judgment and order dated 30.8.1983 under Section 302 IPC read with Section 149 IPC is liable to be altered and modified, as mentioned above. However, conviction and sentence imposed upon accused appellants vide impugned judgment and order on other counts are affirmed.

44. Accordingly, criminal appeal is allowed in part and conviction and sentence imposed upon accused appellants vide impugned judgment and order dated 30.8.1983 for the offence under Section 302 IPC read with Section 149 IPC is altered and modified and accused appellants are convicted and sentenced for the offence under Section 304 (Part-I) IPC for ten years rigorous imprisonment and fine of Rupees Five Thousand each. In case of default in payment of fine, accused appellants shall also undergo six months additional imprisonment. However, conviction and sentence imposed upon accused appellants vide impugned judgment and order on other counts are affirmed. All sentences shall run concurrently. They are on bail, their bail bonds are cancelled. They are directed to surrender before Court concerned immediately, who shall take them into custody and send them in jail for serving-out remaining sentence. In case they fail to surrender, as directed above, Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.

45. Copy of this judgment alongwith lower court record be sent forthwith to Sessions Judge, Ghazipur for compliance and a compliance report be sent to this Court.

Order date: 04.09.2018

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