Nankai And Others vs State Of U.P.
2019 Latest Caselaw 5045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 03.05.2019
 
Delivered on 27.5.2019
 

 
Court No. - 77
 

 
Case :- CRIMINAL APPEAL No. - 7906 of 2008
 

 
Appellant :- Nankai And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Kumar Verma
 
Counsel for Respondent :- Govt. Advocate,Harsh Narayan Singh,Prashant Kumar Singh
 

 
Hon'ble Aniruddha Singh,J.

1. Heard Sri Rahul Pandey, learned counsel for the appellants, Sri Harsh Narain Singh, learned counsel for the opposite party and Sri Mayank Mishra (B.H.), learned counsel appearing for the State.

2. This criminal appeal has been preferred under Section 374 (2) of Cr.P.C. by the appellants, namely, Nankai, Smt. Chaubi and Smt. Uma Devi against the judgment and order of conviction and sentence dated 21.10.2008 passed by the learned Additional Sessions Judge, Court No.2, Fatehpur in Sessions Trial No. 800 of 2006, arising out of Case Crime No. 160 of 2006, under Sections 304 (Part II) and 504 of I.P.C., Police Station Khaga, District Fatehpur whereby appellant no.1 Nankai was convicted and sentenced under Section 304 (Part II) of I.P.C. for ten years rigorous imprisonment along with a fine of Rs.10,000/-. In case of default of payment of fine, he shall further undergo six months additional imprisonment, and appellant nos.2 & 3, namely, Smt. Chaubi & Smt. Uma Devi were convicted and sentenced under Section 304 (Part II) of I.P.C. for five years rigorous imprisonment each and a fine of Rs.5,000/- each. In case of default of payment of fine, they shall further undergo three months additional imprisonment each. However, all the appellants were acquitted under Section 504 I.P.C.

3. In nutshell, the prosecution case is that F.I.R. (NCR) was lodged on 17.6.2006 at 8:30 A.M. by Ramu @ Ram Nath for the dispute over the land to the effect that when appellant Nankai was placing bricks over the land beside the hand-pamp, situated in front of the house of the complainant, the complainant stopped from placing bricks stating that the same would face problem in filling up the water from the hand-pamp whereupon the appellant Nankai excited and used filthy language upon the complainant. Accused Nankai further stated that since it is my own land hence he would place the bricks. When complainant opposed to do the same, the accused Nankai called other accused persons, namely, Smt. Chaubi, Smt. Uma Devi and Maikoo and they assaulted upon the complainant. The complainant received injuries on head. NCR (FIR) under Sections 323 & 504 I.P.C. was registered at Police Station Khaga, District Fatehpur. Later on complainant (Ramu @ Ram Nath) died. Hence Section 304 I.P.C. was substitute in place of Section 323 I.P.C.

4. A case was registered and after investigation charge-sheet was submitted against the appellants. Upon submission of charge-sheet, cognizance was taken and case was committed to the court of Sessions on 20.11.2006 and they denied the charges levelled against him and pleaded to be not guilty and claimed to be tried the case.

5. In order to prove its case, the prosecution examined P.W.1-Rakesh Kumar, P.W.2-Smt. Dharma Devi, P.W.3-Dr. A.K. Jaisal, P.W.-4 Kishori Lal (Chief Pharmacist), P.W.5- Dr. Vivek Nigam, P.W.6- Rajendra Prasad (Head Moharrir) and P.W.7-Amarnath Pandey (S.I.).

6. The statements of the accused were recorded under Section 313 I.P.C. They specifically stated that F.I.R. (NCR) was lodged ante timed. The accused Nankai further stated that when he was placing the bricks in his own field, Smt Dharma Devi and Ramu came armed with lathi and axe attempted to beat him. The father and mother of accused Nankai had come to intercede and saved him. In this incident, his mother received injuries and his father in his self defence given a lathi blow and case under Section 107/117 Cr..P.C. was registered against Ramu. Ramu was arrested by the Police personnel. He received injuries by fallen in the field and while beaten by the Police. He was the step-brother of the deceased (Ramu). Ramu was pressurizing his father to give land, hence quarrel was done and Ramu assaulted his father and he has been falsely implicated. Other accused persons, namely, Smt. Uma Devi stated in her statement under Section 313 Cr.P.C. that she was not present at the time of incident and she was inside her house and she was falsely implicated. Smt. Chaubi Devi in her statement under Section 313 Cr.P.C. has stated that she is the second wife of Maikoo. From the first wife, Ramu was born and mother of Ramu was died. Thereafter, Maikoo got second marriage with her. Ramu always used to fight with his father due to partition of land. She further stated that on the day of incident when her son Nankai was placing bricks on his own land then Ramu and Smt Dharma Devi came armed with lathi and axe and started to beat Nankai. She tried to save Nankai but she was assaulted by Ramu and in defence her husband wielded his stick (lathi). Ramu was arrested under Section 107/117 Cr.P.C. by the Police personnel. Ramu was beaten by the Police and he also fell down on bricks, hence he received several injuries and resultantly died.

7. After hearing learned counsel for the appellants as well as District Government Counsel (Criminal), the impugned judgment and order was passed. Hence this appeal.

8. Learned counsel for the appellants submitted that dispute between the parties is admitted. Deceased (Ramu) was step brother of the appellant no.1-Nankai and to get possession over the land, the deceased assaulted the appellants and in defence Maikoo used stick (lathi). There is no legal evidence against the appellants. The impugned judgment was passed against law and fact. There is no independent witness against the appellants. The order of conviction was passed on the basis of FI.R. (NCR) lodged by the deceased himself.

9. Learned A.G.A. opposed and submitted that there is sufficient evidence against the appellants to convict them and there is no illegality in the impugned order passed by the court below.

10. I have considered rival submissions made by the learned counsel for the appellants and learned A.G.A. for the State and gone through entire record.

11. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against the accused-appellants beyond reasonable doubt or not.

12. Word 'proved' is defined under Section 3 of Evidence Act as under:

"Proved".-A fact is said to be proved when, after considering the matters before it, the Court after either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

13. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.

14. It is very relevant in this case that NCR was written by the deceased (Ramu) himself. For ready reference, it is quoted below as verbal in Hindi :

lwpuk twckuh oknh

oknh us twckuh lwpuk fn;k fd esjs njokts ds lkeus gS.M ikbi yxk gSA gS.M ikbi ds cxy ls uudkbZ la[;k u0 27 bZV dk pVVk yxkus yxk ftls yxkus ds fy, eSus jksdk vkSj dgk ikuh vkfn Hkjus es ijs'kkuh gksxh ftl ij uudkbZ us eq>s Hkn~nh&2 xkfy;ka nsrs gq, dgk lkys ;g txg esjh gS eS bZV dk pVVk yxkmxk tc eSus yxkus dk fojks/k fd;k rks eq>s cqjh rjg ls ekjus yxk vkSj vius ?kj okyh dks Hkh [kkxk Q0 ds mDr yksxks dks cqyk fy;k tks ykBh M.Mk ysdj vk;s vkSj ekjk ihVk ftlls esjs flj es dkQh pksVs vk;h gS fjiksVZ fy[kkus vk;k gWwA esjh fjiksVZ fy[k dj dkuwuh dk;Zokgh djus dh d`ik dh tk;sA tks cksyk fy[kk x;kA i

fu0 v0 viBuh;

16-6-06

15. Ramu had died later on and the averments made in the F.I.R. (NCR) is related to his death, hence it amounts to be dying declaration under Section 32 of the Evidence Act.

16. It is pertinent to mention here that the deceased was died due to injuries sustained by him. According to injury report, the deceased has received following injuries, which are quoted below for ready reference :

"1. Lacerated wound 3 cm. X 1 cm. X on scull deep of left side head triangular in shape and horizontal in posterior of head 12 cm. above from left ear pinna and blood-clot was present.

2. Lacerated wound 1.5 cm. X 1 cm. on scull bone from left side head from 5 cm. above of left ear and blood clot was present.

3. Contusion 2 cm. X 2 cm. above 7 cm. from outside of left had of elbow. Injury was found blue.

4. Contusion 4 cm. X 2 cm. left buttock and horizontal in shape from pelvic bone just below of iliac-crest. Injury was found blue."

17. According to postmortem report, the deceased has received following ante-mortem injuries, which are quoted below:

"1. lacerated wound (infected) 2.5 cm. X 2 cm. X bone on head 10 cm. above from left ear and below wound bones were broken. Scull and membranes were ruptured. Blood-clot was present.

2. Lacerated wound (infected) cm. X 1.5 cm. bone 6 cm. above from left ear.

3. Lacerated wound 1 cm. X 1 cm. bone on right side of finger.

4. Abrasion 5 cm. X 3 cm. on the back of left side of chest."

18. Cause of death was found due to coma as a result of ante-mortem head injuries. Hence, it is very clear that the deceased was died due to injuries received in the incident.

19. From perusal of the injuries report and postmortem report, it is very clear that two injuries were received on head and that was fatal to cause his death.

20. P.W.1- Rakesh Kumar, who is the son of deceased (Ramu), is the eye witness of the incident. He clearly stated about the incident stating that on 16.6.2006 at 5:00 P.M., his father was assaulted by Maikoo and Smt. Uma Devi by lathi-dandas. Information was given to the Police on 17.6.2006 by his father (deceased). His father was admitted at Allahabad in Happy Nursing Home and later on died. First time, he was referred from the said hospital to go to Lucknow but due to financial crisis he was unable to go to Lucknow. Meanwhile, he died. After the death, information about death of his father was given to the Police by him and that was proved by P.W.1 which is Ext. Ka-1. First treatment was given in District Hospital at Hardo (Khaga).

21. P.W.2-Dharma Devi, wife of the deceased, has clearly stated the same version alleging that she was assaulted by the appellants. First treatment was given to deceased in District Hospital at Hardo (Khaga) and the deceased was discharged from there to go to better hospital at Lucknow but he died.

22. Statements of P.W.1 and P.W.2 was corroborated by P.W.3, who proved the injuries report and clearly stated that on 18.6.2006 he found four injuries and proved injuries report. He stated that these injuries might be received by fallen. Other witnesses proved other related documents . P.W. 5-Dr. Vivek Nigam has proved the postmortem report and injury report of the deceased.

23. From perusal of the record, it transpires that accused Nankai in the statement under Section 313 Cr.P.C. during cross-examination, the main defence taken by him is that injury was caused in self/private defence of person and property. It is also admitted that the deceased was the step brother of the appellant Nankai. Hence, question is whether the acts done by the appellant Nankai were covered under the right of self/ private defence of person or property or not.

24. In this context, it will be proper to mention Sections 99, 100 and 103 I.P.C., which are reproduced as under:

"Section 99. Acts against which there is no right of private defence.- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1.-A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the reason doing the act is acting by such direction, or unless some person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 100. When the right of private defence of the body extends to causing death.- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death, or of any other harm to the appellant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

First.- Such an assault may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly.- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly.- An assault with the intention of committing rape;

Fourthly.- An assault with the intention of gratifying unnatural lust;

Fifthly.- An assault with the intention of kidnapping or abducting;

Sixthly.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities of his release.

Seventhly.- An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Section 103. When the right of private defence of property extends to causing death.- The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-door, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-

First.-Robbery;

Secondly.- House-breaking by night;

Thirdly.- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly.- Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

25. In this context, it will also be relevant to mention Section 105 of the Evidence Act, which is reproduced as under:

Section 105. Burden of proving that case of accused comes within exception.- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

26. In the case of Raizan vs. State of Chattisgarh, reported in AIR. 2003 SC 976, the Hon'ble Supreme Court has held as under :

"Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the cast 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 material on record."

27. From perusal of the above sections, it is very clear that the injury caused by appellant Nankai on the head of the deceased was neither covered under Sections 100 and 103 I.P.C. nor it was covered under the proviso of Section 99 I.P.C.

28. According to opinion of the doctor, fracture was found on the head of the deceased and that was not possible by fallen on bricks as the same has clearly been stated by the Doctor in his statement given before the court. Hence, it is very clear from the evidence on record produced before the trial court by the prosecution that head injury was caused by the appellants.

29. Two appellants, namely, Smt. Chaubi and Smt. Uma Devi are ladies. One of them had taken a plea that she was not present at the time of incident. In these circumstances while observing the nature of injury received by the deceased on head and caused by the appellants, it is very clear that this injury was caused by appellant Nankai on the body of the deceased and resultantly the deceased died.

30. From perusal of the injuries of the appellants and evidence on record, it clearly shows that it does not cover under Sections 101 and 103 I.P.C. The burden lies upon the accused under Section 105 of the Evidence Act to prove his injury. The accused has clearly failed to discharge his burden in self defence as provided under Section 105 of the Evidence Act.

31. From perusal of the record, it appears that two ladies, namely, Smt. Chaubi and Smt. Uma Devi were convicted with the help of Section 304 (Part II) of I.P.C. but it is also clear from the perusal of the record that common intention of both ladies was not to kill the deceased. Neither they had any knowledge to kill the deceased nor there was any common intention. Hence offence levelled against appellants- Smt. Chaubi and Smt. Uma Devi is not covered under Section 304 (Part II) I.P.C. but maximum it covers under Section 323 I.P.C.

32. From perusal of the record, it also appears that both the accused, namely, Smt. Chaubi and Smt. Uma Devi have serve out the sentences about ten months (291 days) during trail and during the pendency of this appeal .

33. In the opinion of this Court, this Court finds that the incident is of the year 2006; thirteen years period have already elapsed, ends of justice would not be served in sending two accused ladies to jail at this juncture. Ends of justice would be served if they are sentenced to the period already undergone under Section 323 I.P.C.

34. So far as appeal of appellant Nankai is concerned, This Court finds no illegality in the impugned judgment and order dated 21.10.2008 passed by the learned Additional Sessions Judge, Court No.2, Fatehpur.

35. The view taken by the court below on the point of conviction as well as on the point of sentence against appellant Nankai is a plausible view. Hence no interference is called for in the present appeal because the maximum lenient view has already been taken by the court.

36. In the above backdrop, the appeal is partly allowed against appellants, Smt. Chaubi and Smt. Uma Devi and they are sentenced to the period already udergone. The judgment and order dated 21.10.2008 passed by the learned Additional Sessions Judge, Court No.2, Fatehpur is set aside only against two appellants.

37. The appeal of appellant-Nankai is dismissed. Conviction and the sentence awarded by the trial court under Section 304 (Part II) I.P.C. is confirmed.

38. The appellant-Nankai is on bail. The learned Chief Judicial Magistrate, Fatehpur is directed to take him into custody and lodge him in jail immediately to serve out the remaining sentences.

39. Copy of this order along with lower court record be transmitted to the court concerned immediately for information and necessary compliance. Compliance report be submitted within one month, which shall be kept on record.

Order Date :- 27.5.2019

OP