Balbir And Others vs State
2022 Latest Caselaw 13972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 39
 

 
Case :- CRIMINAL APPEAL No. - 289 of 1989
 
Appellant :- Balbir And Others
 
Respondent :- State
 
Counsel for Appellant :- C.S. Sharma,Anurag Yadav,Arvind Kumar,Kuldeep Kumar Sharma,Mahendra Pratap
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

1. Heard Sri Mahendra Pratap Singh and Sri Anurag Yadav, learned counsel for the appellants and Sri Roopak Chaubey, learned A.G.A. for the State-respondents.

2. This appeal is directed against the judgment and order dated 31.01.1989 passed by the 9th Additional Sessions Judge, Meerut in Sessions Trial no.335 of 1983 under Sections 302/307/34 IPC arising out of Case Crime no.23 of 1983 Police Station-Pilana, District-Meerut. The appellants herein namely Balvir, Veersain, Virendra and Sunder @ Surendra have been convicted for the offence under Section 302 and 307 IPC and sentenced for life imprisonment. All the punishments are to run concurrently. The appellant no.1 Balbir had died and the appeal on his behalf has been abated.

3. The first information report of the incident was lodged by Ratan Singh @ Ratne s/o Shayam Singh resident of Village-Ogati, P.S-Pilana, District-Meerut, who got injured in the incident. As per the statement in the written report given by the informant Ratne, at around 10.00 a.m, he was sitting in his house when the appellant/accused started beating him with lathi, spear and palkati and chased away his cattle from the house. On his cries, Nawab s/o Ajab Singh and Ishwar s/o Birbal came and tried to save him and Ishwar got injured. It was stated by the informant in the written report that a dispute was going on with the accused persons over his 'gher' and for that reason, he was assaulted. The informant went to the police station to lodge the report along with the injured Ishwar and stated that the accused persons had attacked him with spear in his neck with an intention to kill him. On the said report filed on 07.02.1983 at about 12.35 p.m, the first information was lodged and Check report was prepared under Sections 307/323/452 IPC. The date and time of the incident indicated therein is 07.02.1983 at about 10.00 a.m. The distance of the police station from place of the incident shown is 9 kms. Four persons namely appellants herein have been named as accused in the written report.

4. With regard to the incident in question, a cross case namely Case Crime no.23A/1983 under Sections 147/148/149/307/324/452 IPC was lodged by the accused side.

5. In the incident in question, two people namely Mallu s/o Nawab Singh and Mahendra Singh s/o Zille Singh residents of the village ogati had died. The inquest of Mahendra Singh s/o Zille singh was conducted on 07.02.1983 at about 18.05 hours. The place where the inquest was conducted has been shown as a house of appellant Balvir s/o Nahar Singh. The information of the dead body had been given in the police station by appellant Virendra Kumar s/o Balvir Singh. The cause of death mentioned in the inquest report was the injuries sustained by him. Another deceased Mallu s/o Nawab Singh had died on the next day ie 08.02.1983 and on the report of his death on the said date at about 17.30 hours, the inquest was conducted on 08.02.1983 at about 18.30 hours and the place of the inquest has been shown as the road in front of the police station. The cause of death has been shown, because of the injuries sustained by the deceased. The inquest of Mallu s/o Nawab Singh contains the Case Crime no.23 of 1983 under Section 323/307 and 302 IPC whereas the inquest report of deceased Mahendra bears Case Crime no.23A/1983.

6. It may be noted here that P.W-5 Constable C.P. 954 Virendra Singh Police Station Pilana District Meerut stated on oath that on the report given by Ratan Singh, Investigating Officer went on the spot and he also accompanied him. The dead body of Mahendra was found on the spot and the inquest was conducted by the Investigating Officer. The body was sealed and handed over to him for the post mortem and he took it alongwith Constable Jagdish Singh. Till the body was in their possession, it remained sealed and was handed over to the doctor. In cross, P.W-5 stated that the body was lying in an open place in front of the house in question and whose house was it, was not known to him. He did not remember whether he had signed panchayatnama or not. P.W-6, Constable 571 Sherpal Singh P.S-Pilana stated that the report was lodged by Ratan Singh and he took injured Ratan Singh and Ishwar for medical examination to Pyarelal Sharma Hospital, Meerut. The dead body of Mallu came to the police station on 08.02.1983 and his inquest was conducted by the Investigating Officer. The body was sealed and handed over to him along with Dayaram Constable and they took it to Baghpat for the post mortem. Till the body remained in his possession, it was sealed and no one touched it. P.W-6 was not cross examined by the defence.

7. P.W-7, Jaswant Singh Tyagi, the Sub-Inspector posted in the police station Pilana deposed that the report was lodged by Ratan Singh in the police station and in relation to the cross case which was registered with regard to the said report he went to the place of the incident. The Station House Officer Kalyan Singh was conducting investigation of the case was also went to the spot. On the direction of Kalyan Singh, the inquest of deceased Mahendra Singh was conducted by P.W-7, who proved the inquest being in his handwriting and signature as Exhibit-Ka-2. The related papers to the inquest were also proved by P.W-7 as Exhibit Ka-3 and Exhibit Ka-4 being in his handwriting and signature. The body was sealed and sent for the postmortem. P.W-7 further stated that on the next day ie 08.02.1983, when he was present in the police station in the evening, Sri Bhram Singh Jat, resident of Thana Jani District Meerut brought the dead body of Mallu @ Mal Singh s/o Nawab Singh resident of village Ogati, Police station Pilana District Meerut in a Buggi. The body was kept at the gate of the police station and the inquest was prepared by him, which was proved by P.W-7 as Exhibit Ka-5 being in his handwriting and signature. The related papers to the inquest were proved as Exhibits Ka-6 and Ka-7 being in the handwriting and the signature of P.W-7, and that the dead body was sealed and sent for the postmortem. This witness was not cross examined by the defence.

8. P.W-8 Kalyan Singh, Station House Officer Pilana stated that he took investigation of the case, went to the place of incident, got the inquest prepared by J.S Tyagi, S.I, namely P.W-7. The blood stained and plain earth was collected from the spot, memo was prepared, proved as Exhibit Ka-8 being in his handwriting and signature. On the date of the examination of this witness, it is noted in his deposition that the case property was not available hence the examination could not continue. We may note that the examination in chief of P.W-8 was recorded on 14.03.1984 and his further examination was conducted on 07.12.1984 wherein it was noted that he was recalled and his statement was recorded. P.W-8 stated that the written report was given by Ratan Singh and the Check report was prepared by Munna Lal whose writing and signature were identified by P.W-8 and the Check report was proved as Exhibit Ka-9. The G.D entry rapat no.20 of the said report being in the handwriting and signature of Munna lal was proved with the original G.D brought in the Court and the carbon copy of the same was filed and marked as Exhibit Ka-10.

9. P.W-8 stated that dead body of Mallu was brought in the Police Station by one Bhram Singh and it was related to the case. The entry in that regard was made in G.D rapat no.18 on 08.02.1983 by the Head Moharrir Munna lal and the original G.D was brought in the Court. The carbon copy was proved and marked as Exhibit Ka-11, being in the handwriting of Munna lal. The memo of bloodstained and plain earth was proved as Exhibit Ka-8. The sealed packet containing bloodstained and plain earth was opened in the Court and the said material were exhibited as material Exhibit-1 and 2. P.W-8 stated that he had taken into possession lathis and two spares from the spot and the memo of the same was prepared and proved as Exhibit Ka-12 in his handwriting and signature. The said memo was enclosed in Case Crime no.23 of 1983. P.W-8 further stated that Section 302 IPC was added and G.D rapat no.16 was proved with the original GD brought in the Court being in the handwriting and signature of P.W-8, the carbon copy filed on record was proved as Exhibit Ka-13.

10. P.W-8, further stated that he had recorded statements of Bhram Singh on 08.02.1983 and Veersain in the lockup. The statement of witness Ishwar was recorded on 09.02.1983. The spot inspection of the site of the incident was conducted at the instance of the witness Ishwar and site plan was prepared, proved and marked as Exhibit Ka-14 in his handwriting and signature. The statement of informant Ratan Singh was recorded in the hospital, other accused persons namely Virendra, Balvir and Sunder were arrested and their statements were recorded. P.W-8 stated that after 22.02.1983, while the investigation was going, he was transferred and the investigation was handed over to S.I Rajendra Singh. The investigation conducted by S.I Rajendra Singh was proved by P.W-8 from the case diary and it was stated that the chargesheet was submitted by S.I Rajendra whose handwriting and signature were proved by P.W-8, which was exhibited as Exhibit Ka-'15'.

11. In cross, P.W-8 stated that the report of death of Mallu was lodged in the police station and apart from that no other report was registered. He conducted the investigation of death of Mallu on 08.02.1983 but no eye witness was met. The person who brought the dead body intimated him that deceased Mallu got injured in the incident which occurred on the previous day in the village in question. Bhram Singh whose statement was recorded was not the witness of the incident. He further stated that no report of death of Mahendra was lodged in the police station and Ratne did not give statement about the death. The statement about the death of Mahendra was given by Nawab Singh on 29.04.1983 which was transcribed by S.I Rajendra Singh. P.W-8 was further confronted about the statement of Nawab and also stated that one Atar Singh also made statement on 29.04.1983 about the death of Mahendra. P.W-8 further confronted with the previous statement of Nawab Singh (P.W-1) and Ratan Singh (informant P.W-2). P.W-8, lastly stated that a cross case was also registered about the incident and he had arrested the accused persons.

12. The memo of recovery of lathi and Ballam (spear) Exhibit Ka-'12' prepared by P.W-8 indicates that-

        1. One lathi in which an iron piece was tucked with a wire and    having bloodstain was recovered, which was stated to have been snatched from the informant Ratne to attack Mahendra. 
 
2. One lathi was recovered from the spot which was stated to be with the deceased Mahendra.
 
3. One long spear which was stated to be in the hands of injured Ishwar Singh.
 
4. One spear which was stated to be in the hands of Nawab Singh (P.W-1).
 
	These weapons were recovered from the spot by the Investigating Officer (P.W-8) with the above statements of witnesses Atar Singh s/o Birbal, Mahendra s/o Dheeraj Singh Jat, Virendra s/o Balvir Singh who had signed the same.
 

13. P.W-4 is Bhram Singh s/o Adimal resident of village-Nek, P.S Jani, District Meerut who stated that he was uncle of deceased Mallu and the sister of Mallu was married to his son Omvir. He stated that Mallu came to his house one day prior to his death and told that he got injured in the fight in the village and was complaining pain. He was treated in the village but could not recover and then while the deceased Mallu was being taken to Meerut for treatment, he had died on the way at around 4.00 p.m, the body was then brought to the police station. In cross, P.W-4 stated that all injuries on the person of deceased Mallu were internal, there was no mark of external injury. He was complaining pain and specifically of stomach.

14. P.W-9, Dr. H.P. Sharma deposed that he had examined injured Ratne and Ishwar who were brought by Constable CP 571 Sherpal Singh (P.W-6) to the hospital between 4.30-5.05 p.m on 07.02.1983. The injuries on the person of informant Ratne indicated in the injury report are quoted as under:

"1. Penetrating wound 2cm x 8.7cm x muscle deep on the right side front of neck, 2.5cm above the right sterno clavicular joint with the traumatic swelling 9cm x 5 cm all around the wound.

2. Lacerated wound 2cm x 0.5 cm x scalp deep on right side of head, 10 cm above the right ear.

3. Lacerated wound 4.4cm x 0.5cm x scalp deep on right side and back of skull, 11cm above and behind the right ear.

4. Lacerated wound 1cm x 0.5cm x scalp deep, 8 cm behind the right ear.

5. Abrasion 1.5cm x 1cm on the back surface of right forearm, below the elbow joint right side.

Injury nos.1, 2 and 3 kept under observation. Advised X-ray skull and head region. Others were simple caused by blunt object except injury no.1 which is caused by pointed object. Duration fresh."

15. P.W-9 deposed that injury nos.1, 2 and 3 were kept under observation and X-ray was advised. The rest of the injuries were simple. The injury no.2 could have been caused by a hard blunt object and injury no.1 from a pointed weapon like spear (Bhala). All injuries were fresh. The injury report was proved as Exhibit Ka-16 in his handwriting and signature and the thumb impression and identification mark of the injured (Ratne) in the injury report was also proved by the P.W-9. He stated that it was possible that those injuries could occur on 07.03.1983 at about 10.00 am. The injury nos. 1,2 and 3 could be fatal.

16. The injury report of injured Ishwar was proved by P.W-9 in his handwriting and signature as Exhibit Ka-17. The injuries found on the person of Ishwar noted therein are as under:

"1. Lacerated wound 3.5cm x 0.5cm x muscle deep on right side of forehead, 3cm above the lateral side of right eyebrow.

2. Complain of pain in left forearm and right elbow region, but no external mark of injury seen."

17. P.W-9 stated that there was no visible injury on the person of the injured and all injuries were simple, which could have been caused by a hard blunt object like lathi. They were fresh and could have been caused on 07.02.1983 at about 10.00 am. In cross, P.W-9 was confronted about the injuries of informant Ratne and he stated that the result of the X-ray was not brought before him. About injury of Ishwar, suggestion was given that it could occur due to fall of heavy hard blunt object.

18. P.W-10 is a doctor who had conducted the post-mortem of the dead body of deceased Mallu and Mahendra. He stated that the postmortem of Mallu was conducted on 09.02.1983 at about 04.00 p.m. The body was brought by Constables Sherpal and Pyarelal who had identified the same. The body was one day old. The condition of the dead body indicated in the report:-

"(i) Muscularity normal. Rigour mortis well formed in all over the body. No sign of decomposition."

19. The rigour mortis was present all over the body. The external injuries found on the person of Mallu as indicated in the postmortem report are as under:

"(i.) Multiple abrasion in dorsal surface of right elbow 3.0cm x 2 cm at the level of right elbow joint.

(ii.) Abrasion in back of right side of abdomen 2cm x 1cm, 25cm below the right inferior angle of scapula.

(iii.) Multiple abrasions in back of right gluteal region 2.5cm x 2 cm at the middle of right gluteal muscle.

(iv.) Multiple abrasions in left side of front of abdomen and inguinal region 10 cm x 7 cm, above the left inguinal region.

(v.) Multiple abrasions in dorsal surface of left elbow 4cm x 2 cm at the level of left elbow joint."

20. The internal injuries found on the person of Mallu as indicated in the postmortem report are as under:-

"(i) clotted dark colour blood in both nostril and lower face. Lungs congested.

(ii) Heart full of dark colour blood weight about 235 gm. Vessels contain dark colour blood.

(iii) Left lower abdomen congested. Left lower peritonium congested.

(iv) Abodominal cavity smeared with liquid material. Lower intestine ruptured. Large intestine contain faecal matter smeared with liquid. Gall bladder full. Pancreas smeared with yellow liquid.

The cause of death was:-

Death caused due to shock and hemorrhage and peritonitis due to ante mortem injuries."

21. P.W-10 stated that the deceased Mallu had died due to shock and hemorrhage and peritonitis which was the result of the injuries sustained by him. The injuries were sufficient for his death and the death could have been caused on 08.02.1983 at about 04.00 p.m. The postmortem report was proved as Exhibit Ka-18 in the handwriting and signature of P.W-10.

22. About deceased Mahendra Singh, P.W-10 stated that the dead body was brought on 08.02.1983 at about 4.00 p.m by Constables Virendra Singh and Jagdish Singh who had identified the dead body. The estimated time of death was about one day. The injuries found on the person of deceased Mahendra are :-

"(i) Multiple incised wounds of right side of head in area of 26 x 15 cm measuring from 7cm x 1cm x scalp deep of 3.0 cm x 0.5 cm x scalp deep above from the right ear.

(ii) Multiple incised wounds in all over the right side of face in area of 25cm x 12cm measuring from 3cm x 1cm x bone deep to 1cm x 0.5cm x muscle deep extending from right eyebrow to chin.

(iii) Multiple contusions in all over the face in area of 3.0cm x 1.0cm extending from both the ears to 2 cm below both eyes with fracture of mandible and both side of maxillary bone.

(iv) Contusion in right side of shoulder to right side of neck 20cm x 15cm extending from the tip of right shoulder joint.

(v) Multiple contusions in back of chest in area of 25 cm x 22cm below in the cervical membrane.

(vi) Multiple contusions in ventral surface of left arm 30cm x 6cm, 5cm below the left shoulder joint. "

23. On internal examination, right bone of the skull was found fractured and blood was collected in the brain membrane. The cause of death as indicated was shock and hemorrhage as a result of injuries sustained by the deceased. The possibility of death having been caused on 07.02.1983 at about 10.00 am was stated by P.W-10, Dr. T. Raj Sharma. The injuries were stated to be sufficient for causing death. The postmortem of deceased Mahendra was proved as Exhibit Ka-19, being in the handwriting and signature of P.W-10. He stated that injury no.1 could have been caused from the heavy cutting object and injury no.2 was the result of sharpedged weapon. The rest of the injuries could have been caused by hard blunt object.

24. In cross, about deceased Mallu, P.W-10 stated that there could be difference of 12.00 hours on both sides in his estimated time of death. He had denied that only simple abrasions could have been the cause of death. It was stated that his death was caused because of the infection in the abdominal wall which corresponds to the external injury no.4 mentioned in the postmortem report. His intestine was lacerated and faecal matter came out which resulted in infection in the abdominal wall. The suggestion given to P.W-10 that the injury no.4 could have been caused because of fall from a great height was specifically denied by him and he categorically stated that the intestine could not have been lacerated in such an event.

25. About the death of Mahendra, P.W-10, in cross, stated that there could be difference of 12.00 hours on both sides in his estimated time of death. He was then confronted about the presence of rigour mortis on his dead body. P.W-10 stated that injury no.1 was fatal and deceased could have become unconscious on sustaining the said injury and could not have walked.

26. There is a Court witness examined as C.W-1, the Investigating Officer namely Rajan Singh who had conducted the investigation after transfer of P.W-8 Kalyan Singh. He deposed that after transfer of P.W-8, the investigation was conducted by him and the statement of Nawab Singh (P.W-1) was recorded when the investigation was started by him on 29.04.1983. The chargesheet was proved by this witness being in his handwriting and signature as Exhibit Ka-15. C.W-1 was not cross examined by any one.

27. Amongst the witnesses of fact, P.W-1 Nawab Singh s/o Ajab Singh deposed that at the time of the incident, he was coming back from his field and was near the house of Khachedu. He saw the accused appellants Virendra, Surendra Veersain and Balvir entering into the house of Ratne carrying lathi, Palkati and spear (Bhala). They started beating Rtne and his cattle were untied. His son (P.W-1) Mal Singh @ Mallu also came there. Ishwar was present in the 'gher', which was of informant Ratne. He, (P.W-1) went to save Ishwar and Ratne who got injured through lathi and spear. Mallu also got injuries. The informant Rtne ran away from the spot. His cattle were thrown out by the appellants and they took possession of his 'gher'. P.W-1 stated that he went back to his house and Mallu came home and went to his relative. The injuries of Mallu were internal.

28. In his examination in chief, P.W-1, further stated that a case was going on between the appellants and informant Rtne about the 'gher' and that was a reason of Marpeet by the appellants. The appellants had enmity with P.W-1 and, therefore, his son was also beaten by them. In the meantime, Mahendra also came on the spot, got injured when intercepted and had died on the spot. The dead body of Mallu was brought by his uncle on the next day and P.W-1 was arrested and was in the police station at that time. He stated that the appellants had lodged the first information report against them.

29. P.W-1 further stated to the Court that the incident was of about 10.00 a.m. Amongst the appellants, Virendra was carrying lathi, Veersain Palkati, Balvir was having spear and Sunder was carrying lathi. In cross, P.W-1 was confronted about the murder case of his brother wherein the appellants Veersain, Balvir and Virendra were accused apart from three other persons. P.W-1, on confrontation, further stated that the case related to the house was between informant Ratne and Nahar Singh, who was father of appellant Veersain. Nahar Singh had died. The informant Rtne later won but on the day when the incident had occurred, the case was going on.

30. P.W-1 further stated that his house was about 200-250 paces from the house of Rtne and gave the orientation of the place between his house and the house of Rtne. He further deposed that his statement was not recorded by the Police at that time and only after he was released on bail, his statement under Section 161 Cr.P.C was recorded. P.W-1 further stated that he was coming from the field all alone at the time of the incident and clarified that he did not state that he was going to the field at that time. His son Mallu (deceased) was not with him. On this, P.W-1 was confronted as to his previous statement and stated as to why that written was not known to him. He had denied the suggestion that he did not witness the incident inside the house 'gher' and he saw the accused appellants outside the 'gher' while he was coming from his field. He was further confronted with his previous statement under Section 161 Cr.P.C in this regard. P.W-1 further stated that the accused appellants did not attack him and the incident occurred at about 20-25 minutes.

31. P.W-1 further stated that injured Ishwar was resident of another village Sakeda and went to the house of Rtne Singh (informant) to get a cow. On further confrontation, P.W-1 stated that 30-40 people were collected outside the place of the incident but no one entered inside because of fear. The accused appellants were inside the 'gher' (house) during the entire incident and no one made any effort to catch hold of them as they were carrying weapons. P.W-1 stated that he was scared from the appellants and was also afraid on the date of deposition. He further stated that he did not receive any summon or notice in the cross case and stated that a report was lodged against them and he was arrested and refuted that he had appeared before the CJM in the cross case. On further confrontation, P.W-1 had denied having seen any injury on the person of Virendra, Sukhviri, Balvir and Veersain and stated that Sukhviri w/o Balvir was not present on the spot. The suggestion that he was giving a wrong statement about the date and time of the incident and his narration was false had been refuted by P.W-1. He also denied that he, informant, Rtne and seven more people had entered in the house of Virendra carrying Ballam, Spear, Palkati and pistol and attacked appellants and Sukhviri and fired at appellant Virendra. P.W-1 categorically replied that they did not open fire and, as such, there was no question of pellet injuries on the cattle.

32. The informant Ratne Singh was examined as P.W-2 who stated that on the date of the incident, at about 10.00 a.m, he was sitting in his 'gher' having 'hukka'. Ishwar resident of village Sakeda was sitting with him. The accused appellants Balvir, Veersain, Virendra and Surendra came there. Balvir was having spear in his hand, Veersain having Palkati, Virendra and Surendra were carrying lathis. The accused told him to come out of the 'gher' and untie his cattle. He (P.W-2) replied that 'gher' was owned by him and why would he untie the cattle. The appellants accused started marpeet, he, (P.W-2) got injured by lathi in his hands, and in neck by spear and three injuries were sustained by him in his head from palkati. The appellant accused untied his cattle. The injured Ishwar tried to save him. Nawab Singh and Mallu came on the spot. Ishwar and Mallu got injured and the injuries of Mallu were internal in his stomach. He took Ishwar to the police station and one Suresh Pal, a villager met on the way, who also accompanied them to the police station. The report was scribed by Suresh. P.W-2 stated that whatever was dictated by him was scribed by Suresh and the report was read over to him and then he put his thumb impression. The written report was read over to this witness who stated that it was the same report which was dictated by him. His thumb impression on the report was proved by P.W-2, it was marked as Exhibit Ka-1. In his examination in chief, P.W-2 further stated that a case was going on in relation to the 'gher' which was pending at the time of his deposition. The appellants accused thrown him out by doing marpeet and occupied the 'gher'. During the marpeet, Mahendra came to save him and when he intercepted the appellants attacked him. P,W-2 stated that he was sent for the medical examination from the police station and in the hospital, he came to know that Mahendra had died on the spot. Ishwar was also sent for the medical examination along with him. He later came to know that deceased Mallu went to the house of his sister and he had died there. In cross, P.W-2 stated that the case in relation to 'gher' was started with Nahar Singh who was father of the appellant Balvir who had died. The suggestion that the case was dismissed in default and later restored was denied by P.W-2. He further stated that the case was decided in his favour, but further was going on in the civil court, Baghpat.

33. P.W-2 further stated that he had left the spot of the incident as soon as he was hit by the spear. The blood oozed out from his wound, and when he was confronted as to whether blood fell on the ground, P.W-2 replied that he would have saved his life or see the blood. He stated that the fight took place about 20-25 minutes then he went to the police station. He was first hit by lathi and then palkati and spear, and then he ran away. P.W-2 further stated that he was sitting in his 'gher' under the 'Neem' tree before marpeet had started. His children were also in the 'gher'. His residential house was behind the 'gher' adjacent to it. P.W-2 further stated that his 'gher' and house were separate, he was residing at the back side and 'gher' was in the front. P.W-2 further clarified that he used to call 'gher' as 'gher' and not 'house'. On confrontation, P.W-2 stated that the report was dictated by him to mention 'gher' but if 'house' was mentioned therein, it would have been written by the scribe on his own. He further stated that he was interrogated in the police station on the same day though he was not fully conscious. He had mentioned to the Investigating Officer that he was sitting in his 'gher' and the Investigating Officer might have written as his 'house'. He further stated that normally house and 'gher' are one and if, 'house' was mentioned in his statement, he could not furnish any explanation.

34. He further stated that Ishwar, P.W-3 was sitting with him since before the incident. Nawab came when the incident had started and by that time he did not get injuries of palkati and spear. Ishwar came to buy a cow and they were sitting and having 'hukka'. Ishwar came about half an hour before Nawab reached at the spot. P.W-2 was further confronted about his statement before the police with regard to the presence of Nawab and Ishwar on the spot and also about the weapons in the hands of accused appellants. He was further confronted that when Nawab came Mallu was with him, who was son of Nawab. It was stated that the fact that Nawab came with Mallu was not mentioned by him in the report as he was disturbed. The said fact was also not disclosed to the Investigating Officer. P.W-2 stated that Ishwar was with him in the police station. He further stated that he slowly told the entire incident to scribe Suresh and he was not completely conscious to give the details about the presence of Nawab and Mallu as also that Mahendra also reached at the time of the incident.

35. P.W-2 further elaborated as to how that he and Ishwar came to the police station in Khachar buggi and bus which stopped in front of the police station. He reached at the police station with the support of Ishwar and Suresh. After getting down from the bus, the report was scribed by Suresh at the police station. He was sent to the doctor by the police and then he became unconscious. He did not talk to the doctor. P.W-2 further stated that neighbours did not come on the spot as all of them used to go to their fields around 9-10.00 a.m. Giving description of the place of the incident, P.W-2 stated that he was hit thrice by palkati in his head and fell down but got up. He did not fell down when he got injuries of spear rather ran away. He fell down after 5-7 paces of running away and Ishwar helped him to get up. The purpose of the visit of Ishwar was not indicated in the report though it was mentioned to the Investigating Officer. The suggestion that he alongwith eight persons entered in the house of Balvir with spear and katta and attacked Balvir and Sukhviri and opened fire at Virendra was categorically denied by P.W-2. He had denied that he was challaned under Section 307 and the case was going against him wherein summon or notice was received by him. He further stated that he, Ishwar and Nawab got bails. The suggestion that Ishwar and Nawab were his close aides and false case was registered by him was denied by P.W-2.

36. P.W-3 Ishwar s/o Birbal in his examination in chief stated that he went to meet Ratne (P.W-2) to buy a cow and he and Ratne were sitting and having 'hukka' when the incident had occurred at about 10.00 am. The accused appellants Balvir, Veersain and Virendra and Surendra came on the spot. Balvir was carrying spear, Veersain having Palkati, Virendra and Surendra were having lathis. They came to the house of Ratne where they were having 'hukka'. P.W-3 stated that they were sitting inside the house and then stated that they were outside but within the boundaries. The accused appellants started beating Ratne and when he tried to intervene he was also hit by palkati. Ratne (P.W-2) also got injured. The accused appellants untied cattle of Ratne and forcibly occupied his house stating that the house was their own. Other people also reached at the time of the incident. Amongst them, he (P.W-3) knew Nawab who came to save them. Amongst those persons, two got injured and he did not know their names. P.W-3 further stated that he and Ratne went to the police station. A boy met on the way who was known to Ratne, he also went with them to the police station. They went to Meerut from the police station for the medical examination. P.W-3, further stated that he had witnessed the incident. He and Ratne both narrated the incident to scribe Suresh as Ratne (P.W-2) was not in a position to speak much. He was speaking slowly. After the incident, he and Ratne (P.W-2) went to the police station through khachchar buggi and bus. The report was lodged by the Investigating Officer. He could not tell as to how much time they spent in the police station and stated that it could be half an hour. He then stated that Ratne (P.W-2) went to the police station on foot. His condition was getting worse but he was not unconscious.

37. P.W-3 further stated that his village was about one mile from the place of the incident and he did not know Ratne prior to the incident. Since he had purchased the Cow from Ratne and there were some issues left to settle, he went to meet him. He did not know the accused appellants before the incident. P.W-3 further stated that he was also named in the report lodged by the appellants and was arrested. When appellants got arrested he came to know their names. P.W-3 further stated that the police constable took him to the police station from the Meerut hospital by telling that there were some lacuna left in the report and when he reached at the police station he was put in the lock-up where he remained for about two days. The accused appellants were also in the lock up and their medical examination was done. He then came to know about their names.

38. On further confrontation, P.W-3 stated that he was interrogated by the Investigating Officer when he reached at the police station and the place where the incident had occurred was not shown to the Investigating Officer by him. He was confronted about his previous statement recorded by the police and stated that he did not tell that he and Nawab were talking at the door of Rishipal and as to why it was written was not known to him. P.W-3 then clarified that all accused/appellants came together, Virendra and Surendra attacked Ratne by lathi in the beginning and then Balvir hit him by Spear, Veersain then attacked by Ratne with Palkati in his head and that time the accused appellants who were carrying lathi were also assaulting him. He (P.W-3) was also attacked with lathi. Ratne bleeded in his head and neck. P.W-3 further stated that he got injuries in an effort to save Ratne. He further stated that he clearly disclosed the weapons in the hands of accused appellants and if that was not written by the Investigating Officer, he could not explain.

39. The suggestion that he was close aid of Ratne and, therefore, was making a wrong statement was denied by P.W-3. The suggestion that he, Ratne and Nawab along with 9 other persons barged into the house of Balvir carrying lathi, spear and country made pistol (katta) and attacked Balvir, Sukhviri and Virendra was categorically denied by P.W-3. He stated that it was wrong that fire was opened and Virendra sustained pellet injuries. Lastly, P.W-3 stated that their case was not going on but he got bail on the report lodged by Virendra.

40. On completion of the prosecution evidence, the accused appellants were examined under Section 313 Cr.P.C. The appellant Balvir on a question put to him about the dispute of 'gher' of Ratan Singh, had replied that the 'gher' with regard to which dispute was going on was his own and not of Ratne. He has further denied all incriminating circumstances put to him and stated that the witnesses deposed against him because of the enmity and the case was lodged for the same reason. In further explanation, appellant Balvir stated that Ratan Singh alongwith eight persons entered in his house and attacked him, his wife and son and when he tried to save himself, Ratne got injured. The appellant Veersain had refuted the question that the evidence was there that a case about 'gher' of Ratan Singh was going on at the time of the incident and stated that the said case was not about his 'gher', may be of some one else. All other incriminating circumstances were denied by appellant Veersain and he stated that he was implicated because of enmity. Lastly, giving explanation about the said incident he stated that Ratan Singh entered in his house and attacked them. The injuries were sustained by Ratne when accused appellants exercise their right of private defence. Similarly, the appellant Virendra also denied the dispute about the 'gher' and stated in the same manner that they were falsely implicated because of enmity. He lastly stated that his father, mother and grand father were at home and his mother was cooking food while his father and grand father were having food, Ratan Singh alongwith eight other persons then entered in the house and beaten them. He and his uncle were coming back from their field and they were also attacked. The informant side sustained injuries when they exercised the right of private defence. The appellant Sunder @ Surendra also denied the dispute about the 'gher' and stated that the criminal case was lodged against them because of enmity. No other explanation has been given by the appellant Surendra.

41. The defence had produced two witnesses; Dr. Girish Chandra Malhotra, the Medical Officer posted in the P.L Sharma Hospital, Meerut to prove the injuries of appellants Balvir, Virendra, Veersain and Sukhviri. D.W-1 had proved the injury reports being in his handwriting and signature as Exhibit Kha-1, Kha-2, Kha-3 and Kha-4; respectively. About the injuries, he stated that appellant Virendra was kept under observation and he was admitted by him, but he did not remember as to whether X-ray was done. About Veersain, the injuries were explained to have been caused by hard blunt object and X-ray was advised. About the injuries of Balvir and Veersain, he stated that they must have been caused by hard blunt object, X-ray was advised. About the injury of Sukhviri, D.W-1 stated that she was complaining of pain in her leg and narrated some gynecological problem and as such she was referred to the Mahila hospital for investigation. D.W-1 had proved that all injured were brought to the hospital by the police personnel namely Constable 1528 Amar Singh.

42. In cross, D.W-1 stated that except injury no.6 of Balvir all other injuries sustained by the accused appellants and injured Sukhviri were simple. He did not examine X-ray of Balvir. The suggestion that the injuries could have been planted was not categorically denied by D.W-1 rather he stated that the injured if was ready to bear pain he could have got those injuries planted. Lastly, on confrontation, D.W-1 stated that the original register was not before him and it was weeded out with respect to which the report of the Chief Medical Superintendent of the hospital concerned was filed before the Court wherein he had proved the signature of the said officer. It may be noted that the injured persons were not present in the Court on the date of his deposition.

43. Placing the statements of the prosecution witnesses, the documentary material on record, it was argued by the learned counsel for the appellants that in the cross case, the Court is required to determine as to who was the aggressor. The evidence in the cross case have to be examined independently. He further submits that the injuries of the accused side were not explained by the prosecution witnesses rather P.W-1, Nawab when confronted about the injuries of the accused side, simply denied by saying that he did not see those injuries and also denied the presence of Sukhviri on the spot. The accused appellants, however, proved the injuries on their side by bringing the doctor (D.W-1) in the witness box. The testimony of D.W-1 could not be shaken by the prosecution. It is, thus, proved that in the incident in question, the accused side also sustained injuries. The denial or non explanation of injuries of the accused side would cast an adverse inference against the informant side. This fact shows that the prosecution had not come out with clean hands and the genesis of the incident had been deliberately suppressed. It is vehemently argued that in fact the informant Ratne alongwith the two other witnesses (P.W-1 and P.W-3) and other persons carrying weapons had reached at the house of appellant Balvir and beaten him, his wife Sukhviri and son Virendra. When appellants had exercised their right of defence, the informant side sustained injuries. It is submitted that even the inquest report of Mahendra Singh who had died in the incident show that his body was found at the house of appellant Balvir. The inquest report was proved by P.W-7 who stated that he conducted the postmortem of the dead body of Mahendra on the spot. This fact is evident from the version of defence that the informant side attacked them and when the appellants had exercised their right of defence, the injuries were sustained by the informant side. The place of occurrence had been shifted by the witnesses from the house of Balvir to the house of Ratne and then his 'gher'. With the change of the place of occurrence, the entire parameters of aggressor would change. The genesis and origin of the incident had been suppressed by the prosecution and, therefore, the version of prosecution witnesses is liable to be discarded.

44. It was urged that in fact, as explained by appellant Virendra, he was coming from the field along with his uncle Veersain, brother of Balvir and when they saw that the informant side were beating Balvir, his wife and father of Balvir, they intervened and exercised their right of private defence. The retaliation by son and brother of Balvir, at the worst, can be said to be in exceeding their right of private defence. The burden of proof on the prosecution that the appellants were 'aggressor' of the crime was not discharged. At the worst, the offence, if any committed by the appellants even if proved, the same cannot exceed the provisions of Section 304 Part II. Four members of the family of appellants got injured.

45. It is argued that the police witnesses proved that the first information report was also lodged by the appellant sides. D.W-2, Head Constable Munna lal was produced in evidence, as noted above by the trial court and proved the check report Exhibit Ka-5 and G.D entry of the report lodged by the appellant as Exhibit 'Kha-5' and 'Kha-6'. The copy of the written report Exhibit 'Kha-5' lodged by the appellants registered as Case Crime no.23A /83 from the record has been placed before the Court to argue that the written report was lodged by Virendra wherein it was stated that informant Ratan Singh, P.W-1-Nawab, deceased Mallu, P.W-3-Ishwar, deceased Mahendra Singh s/o Zille Singh along with other named persons came to the house of the informant therein and started beating his parents and also opened fire. Hearing the sounds of fire, informant Virendra and Veersain, were coming back from their field reached at the place of the incident. They were attacked by fire arms carried by one Suresh and Mallu. The informant Virendra sustained pellet injuries and when he entered in the house, Ratne and Mahendra hit him by lathi and after snatching lathi of Ratne, he hit Ratne and Ishwar and Mahendra who was beaten and fell near Neem tree. His uncle Veersain attacked Ishwar with Palkati and Ratne, Ishwar and Nawab then ran away but others on the informant side remained on the spot. They lifted Mahendra from near the the neem tree and left him at the door of their house. At that time, Mahendra was alive. The persons on the informant side kept on beating them, (the accused side) till they left with no cartridge. The cattle on the spot also sustained pellet injuries. Placing the first information report and the injury reports of four injured persons from the accused side, it is, thus, vehemently argued by the learned counsel for the appellants that the trial court had erred in holding the appellants as 'aggressor' ignoring the fact that the prosecution witnesses had suppressed the origin and genesis of the incident and did not explain the injuries of the accused side. The conviction of the appellants under Section 302 and 307 IPC, independently, is, thus, liable to be set aside.

46. Learned AGA, on the other hand, submits that the first information report lodged by the appellants side was a result of afterthought and moreover, the narration of the incident in the written report given by appellant Virendra is unbelievable. No mark of any fire arm injury was found on the person of any of the accused appellants nor any traces of opening fire arm could be found on the spot. The fact that there was a dispute between the appellants and informant Ratne about the occupation of 'gher' was admitted. The case was going on in the Court and as per the version of the informant (Ratne), appellants came to the 'gher' wherein he was sitting along with Ishwar and asked him to get out. The cattle tied in the 'gher' were belonging to Ratne which were untied and chased away. On the resistance put forth by the informant Ratne (P.W-2) he was beaten and he (P.W-2) proved that he and Ishwar had fled from the seen of the occurrence whereas other persons were present. The presence of Nawab (P.W-1), and two deceased persons Mallu and Mahendra on the spot was admitted with the cross examination of the prosecution witnesses as also the version of appellant Virendra in the written report of the cross case namely Crime no.23A/83. Two innocent persons who had no concern with the dispute between the appellants and informant had died in the incident. The fact that one person namely Mahendra Singh had died on the spot was proved whereas another deceased Mallu had died on the very next day as a result of the injuries sustained by him, which was proved by the version of the postmortem doctor P.W-10. From the fact that 'gher' was in occupation of Ratne (P.W-2) and his cattle were tied there, it is proved that the appellants were 'aggressor' as they thrown him out, chased away his cattle and occupied the 'gher', case of which going on in the Court. It is proved from the statement of informant Ratne (P.W-2) that he had won the case and the appeal filed by the appellants was pending in the Civil Court. Two injured persons namely Ratne and Ishwar had entered in the witness box and proved their side of the story, narration of the incident. For one moment, even if it is accepted without admitting that informant Ratne (P.W-2) had falsely implicated the appellants because of their enmity, there was no reason of their false implication by injured Ishwar, examined as P.W-3. This witnesses had categorically stated that he did not know the accused persons prior to the incident and even was not aware of their names till they all were locked up in the police station and the report was lodged against the accused persons. The reason of presence of P.W-3 was also proved by both the informant (P.W-2) and P.W-3 himself. The statement of P.W-1, Nawab also cannot be discarded for the mere suggestion of his enmity with the appellants because of the murder of his brother. In the facts and circumstances of the case where two persons on the informant side had died, two got injured, one of them (Ratne) received grievous injuries, which could be fatal, the contention of the learned counsel for the appellants that it was a case of exceeding the right of the private defence on the part of the appellant is unacceptable. No infirmity could be found in the decision of the trial Court. The appeal is liable to be dismissed, as such.

47. Having heard the learned counsels for the parties and perused the record.

48. At the outset, it is relevant to note that from the narration in the FIR and cross-case lodged by the appellants, the written report of which was proved in this case, the date, time and place of the incident is admitted to the parties. There remains no dispute as to the reason of the fight, which is proved to be the dispute related to the 'gher' which was in occupation of informant Ratne at the time of the incident. The appellant Balvir in his examination under Section 313 Cr.P.C while replying to question no.1 though stated that the dispute was going on with regard to his 'gher' and it was not the 'gher' of Ratne but did not deny the content of Question no.1 which was specific to the extent that the prosecution evidence disclosed that the informant Ratan Singh was sitting in the 'ghar'/'gher' on the date of the incident, the case which was going on between the appellants and Ratan Singh. The relevant is as to what was the version of the appellant Balvir on the said statement of the prosecution. The appellant Balvir did not deny the said statement rather replied that the case was going with regard to his 'gher' and not about the 'gher' of Ratne. From this testimony of Balvir, it is proved that the informant Ratne was sitting in the property '(Ghar)' or '(Gher)' with respect to which the dispute was going on between the parties. The site plan prepared by the Investigating Officer and the statement of informant Ratne (P.W-2) shows that the house of Ratne was behind the house of Balvir and 'gher' wherein the incident had occurred was in the front. The informant Ratne categorically proved the location of his house and 'gher' and stated that he was sitting under the 'Neem' tree in the 'gher' which is also shown in the site plan. The place of tying of cattle has also been indicated in the site plan. The informant Ratne (P.W-2) or P.W-3, Ishwar who categorically stated that they were sitting in the 'gher' of Ratne with respect to which dispute was pending the Court with the appellant were not confronted on this issue. There is some inconsistency in the statement of P.W-2 Ratne, P.W-3 Ishwar about the place where they were sitting. According to P.W-2, Ratan Singh, it was 'gher' whereas P.W-3, Ishwar mentioned it as 'house' of Ratne where cattle were tied. This contradiction is minor in nature and has further been explained with the statement of P.W-3 that they were sitting outside the house but within the boundary wall. The fact that informant Ratne and Ishwar were sitting together was proved by these witnesses and the reason for the presence of P.W-3, Ishwar on the spot was also categorically narrated to which no controversy suggestion could be given by the defence. P.W-3, Ishwar had categorically stated that the accused persons entered in the 'gher'/house where they were sitting and confronted with Ratne and untied his cattle. They forcibly occupied the 'house' of Ratne, which was 'gher' as explained by P.W-2, Ratne. There is no reason before us to doubt the categorical and consistent version of P.W-3, Ishwar, who is an independent witness and who also got injured in the incident in question. The discrepancy about 'house' and 'gher' as coming in the statements of the prosecution witnesses were highlighted by the appellants counsel to argue that the place of the incident was changed by the prosecution, but we do not find much substance in this submission as no inconsistency could be found about the place of the incident in the version of P.W-2 and P.W-3, Atleast, it was proved that they were sitting in an open place covered by the boundaries. The place of the incident as 'house' and 'gher' was though differently mentioned by the informant (P.W-2) Ratne and P.W-3 Ishwar but there is no inconsistency in their version that they were sitting together at the place which was the front portion of the house of Ratne which was mentioned as 'gher'. The place of the incident as indicated in the site plan by the Investigating Officer is an open place where the incident had occurred which stood proved from the statements of the prosecution witnesses.

49. About the injuries of the appellants/accused side, suffice it to say that most of the injuries were simple in nature and further only one witness P.W-1, Nawab Singh was confronted about the injuries on the accused side. He categorically stated that he had not seen those injuries. No adverse inference can be drawn on this statement. Other two witnesses namely Ratne and Ishwar were not confronted about the injuries of the accused persons. In the written report lodged by the appellant Virendra, it was mentioned that Ratne and Ishwar were carrying lathis and hit the accused side, and the appellants snatched their lathis and beaten them and others on their side. No explanation could be offered by the learned counsel for the appellants as to why informant Ratne and injured Ishwar were not confronted with the injuries of the accused side. The suggestion that the informant along with other witnesses and several other persons entered in the house of appellant Balvir was categorically denied by three witnesses. As regards the plea of non-explanation of the injuries of the accused appellants, the consistent view is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injuries and on the failure of the prosecution to do so the prosecution case should be disbelieved. It was held in case of Takhaji Hiraji vs Thakore Kubersing Chamansing and others reported in (2001) 6 SCC 145 that before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions:

(i) that the injury on the person of the accused, was of a serious nature;

(ii) that such injuries must have been caused at the time of the occurrence in question.

50. The observations made in para '17' of the report is as under:-

"17......Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."

51. It is well settled that merely because the prosecution has not explained injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case especially when the same has been supported by the eyewitnesses including injured ones as well, and their evidence is corroborated by medical evidence as well as objective findings of the Investigating Officer. [Reference: In Amar Malla and others vs State of Tripura reported in 2002 (7) SCC 91].

52. In Hare Krishna Singh and others vs State of Bihar reported in AIR 1988 SC 863 it was observed that if the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any resonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with the definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.

53. In Bishna alias Bhiswadeb Mahato and others reported in (2005) 12 SCC 657 it was noted that no law in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe.

54. In Ramlagan Singh and others vs State of Bihar reported in AIR 1972 SC 2593 it was noted that though the argument was made therein that the injuries of the accused persons have not been explained by the prosecution witness but no question was put to any of the prosecution witness to explain the injuries on the persons of the accused and that the non mention of the injuries on the person of the accused in the prosecution evidence would not justify interference in the decisions of the trial Court and the High Court.

55. In the instant case also, injuries of the appellants were sought to be proved by production of the defence witness (D.W-1) but the prosecution witnesses namely Ratan Singh (P.W-2) and Ishwar (P.W-3), who were present since the beginning of the incident as per own stand of the appellants, were not confronted with the injuries of any of the accused persons.

56. The suggestion to them that they had entered in the house of Balvir and committed marpeet was vague and not specific, which could be taken to hold that the prosecution did not explain injuries on the person of the accused despite being confronted. In fact, there was no occasion for the witnesses (P.W-2 and P.W-3) to explain the injuries of the accused persons and the prosecution evidence, as such, cannot be thrown on the ground that no satisfactory explanation was given by the prosecution witnesses to the injuries of the accused persons.

57. Further, P.W-1, Nawab Singh when confronted had categorically stated that he had not seen the injuries on the person of any of the accused namely Virendra, Sukhviri, Balvir and Veersain and the said statement cannot be said to be suppression or denial on the part of the prosecution witness considering the nature of injuries of the accused stated in the report prepared by D.W-1.

58. The contention of the learned counsel for the appellants that since the injuries of the appellant/accused side were not explained by the prosecution witnesses an adverse inference has to be drawn against the prosecution is, thus, liable to be rejected. The contention that the statement of the prosecution witnesses became suspicious as they did not explain the injuries of the accused side cannot be accepted as the accused persons though proved the injury reports but could not prove that the injuries mentioned therein were sustained by them during the course of the occurrence. Mere fact that the accused persons went to the hospital alongwith a police constable and their injuries were examined on the same day, it cannot be assumed that they sustained injuries in the same occurrence. The injury reports, however, could not be proved by bringing the original register of examination of the accused side on the same day . Moreover, the categorical version of the prosecution witness about the manner in which they had sustained injuries cannot be disbelieved, for the alleged non explanation of injuries of the accused side as it is not mandatory in every case that injuries of accused side are necessary to be explained.

59. Two person namely Mahendra and Mallu had died having sustained injuries in the incident in question which is proved from the admitted presence of these two persons on the spot. Mahendra had died on the spot whereas Mallu who got injured died on the next day. The presence of Mahendra and Mallu having not been indicated in the first information lodged by the informant Ratne would not be of much relevance, in as much as, in his deposition informant Ratne had clarified that he was injured and could speak with difficulty and in the said situation he did not remember to mention the names of other persons on the spot. The injured Ishwar who was with him at the police station, his name was mentioned in the report. Further the informant P.W-2, Ratne explained that he and Ishwar ran away from the spot after being hit and while he was admitted in the hospital, he came to know about the death of Mahendra on the same day and Mallu on the next day. It is, thus, evident that when informant (P.W-2) Ratne was hit by spear, he and Ishwar ran away. In the Marpeet, two persons got seriously injured, one of them had died on the spot. In the written report proved as Exhibit 'Kha-5', lodged by Virendra, he admitted that he had beaten Mahendra from the lathi who fell down near the 'Neem' tree but stated that he was alive till then. Mallu was beaten by Veersain which was also proved from the statement of appellant Virendra in the first information report Exhibit Kha-5. The presence of Mahendra and Mallu on the spot and having sustained injuries in the occurrence was, thus, proved. The injuries of Mallu were internal and the postmortem indicates that his intestine was lacerated (broken), as a result of which, he got infection and swelling in the 'abdominal wall' which was the main cause of death of Mallu. The contention of the defence that no visible injury was found on this person (Mallu) who could even go to his sister's house after the incident would be of no relevance as he had died on the very next day and P.W-4, Brahma Singh had proved that the deceased Mallu was complaining pain in the stomach which could not be treated in the village and while they were taking him Meerut he had died. From the statement of the postmortem doctor and description in the postmortem report about the time of death of Mahendra and the time when Mallu had sustained injuries, the version of the prosecution witnesses that Mahendra and Mallu were present and the statement of P.W-1 that they sustained injuries in the occurrence stood proved. The nature of injuries as explained in the medical examination co-relates to the weapons assigned to the appellants.

60. Nawab (P.W-1) and Ishwar (P.W-3) cannot be said to be chance witnesses rather they are independent witnesses. There is no reason to disbelieve them. From the turn of events as is evident from the record the version of the accused side that the informant along with the witnesses and two deceased and other villagers had attacked the appellants is unbelievable. The witnesses have proved that the accused persons committed marpeet and killed Mahendra on the spot and untied cattle of Ratne and occupied the ''gher'.

61. The contention of the learned counsel for the appellants that it was a case of retaliation by son and brother of appellant Balvir, his when they say that Balvir, his wife and Nahar Singh (grand father) were being beaten by the informant side could not be proved by the defence by bringing any cogent evidence. With the proof of mere the version in the first information report and the injury reports of the appellant side, it cannot be said that the appellants have succeeded in proving their case of exercise of right of private defence. In the facts and circumstances, the appellants are proved to be 'aggressor' who had entered at the place which was in the possession of the informant Ratne (P.W-2) and where he (P.W-2) was sitting alongwith P.W-3, Ishwar, asked him to get out and when he (P.W-2) retaliated they beaten him and untied his cattle. P.W-3, Ishwar very fairly stated that he sustained injuries when he tried to intercept.

62. On the plea of right of private defence, learned counsel for the appellants has placed reliance upon the judgment of the Apex Court in Sukumaran vs State represented by the Inspector of Police reported in (2019) 15 SCC 117 to submit that the right of private defence not only to the defence of one's own body against any offence affecting the human body but also to defend the body of any other person. The right also embraces the protection of property, whether one's own or another person's against certain specified offences, namely, theft, robbery, mischief and criminal trespass.

63. Reliance is placed on the decision in Bhagwan Swarop vs State of M.P reported in (1992) 2 SCC 406 to submit that whether in fact the injuries actually caused were simple or grievous is of no consequence so far as the claim of right of private defence by the accused. It was placed that in the said case, father of the accused was being given lathi blows by the complainant party and it was at that time the gun shot was fired by the accused to save his father from further blows. It was, thus, held therein that it has to be kept in mind that father was being given lathi blows and in such a situation son could reasonably apprehend danger to the life of his father and his act of firing a gun shot at that point of time in defence of his father, is justified. It is argued that the plea set up by the appellants of exercise of right of private defence has to be accepted as it was proved by the defence that the appellants Virendra and Veersain had attacked the informant side by snatching the weapons in the hands of the persons on the informant side, when their fathers namely appellants Balvir and Nahar Singh; respectively were being given lathi blows by the complainant side. It is argued that the fact that one person had died in the incident and other had received fatal injuries cannot be a reason to deny the appellants of the right of private defence, as gravity of injuries sustained by the informant side would be of no relevance.

64. To deal with this submission, we may note that the right of private defence claimed by the appellants flows from Section 105 of the Evidence Act. The nature and extent of the burden that the accused has to be discharge under Section 105 of the Evidence Act has been considered by the Apex Court in Vijayee Singh and others vs State of U.P. reported in (1990) 3 SCC 190. It is accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifted. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.

65. It was observed therein that Section 105 of the Evidence Act, to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence of circumstances bringing the case within any of the General Exception mentioned therein is upon the accused. The Section futher lays down that the Court shall presume nonexistence of circumstances bringing the case within exception.

66. It was further held that it is well settled that "this burden" which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case beyond reasonable doubts. It is also well settled that the accused need not set up a specific plea of his offence and adduce evidence. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of the plea directly or rely on the prosecution case itself. He can indirectly introduce such circumstances by way of cross examination and also rely on the probabilities and other circumstances. Then the initial presumption against the accused regarding the nonexistence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises, the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. It was, thus, observed in para 33:-

"33.....The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly."

67. In Darshan Singh vs State of Punjab and another reported in (2010) 2 SCC 333 it was held that the law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.

68. The observations in an earlier decision of the Apex Court in State of Madhya Pradesh v. Ramesh reported in (2005) 9 SCC 705 were noted therein in para '52' as under:-

"52. In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this court observed "every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."

69. The principles to deal with the plea of right of private defence as stated therein are as under:-

"58. The following principles emerge on scrutiny of the following judgments:

(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."
 

70. In the instant case, a plea of private defence has been raised on the basis of the statement in the FIR lodged by the accused side as also the evidence of the doctor examined as D.W-1 to assert that the father of appellants Virendra and Surendra namely Balvir who was aged about 60 years at the time of the incident had received serious injuries as he was assaulted by the accused persons by lathis. The appellant Virendra s/o Balvir and Veersain brother of Balvir were coming from their field and when they saw the appellant Balvir having been assaulted by lathis, they apprehending danger to his life, had snatched lathis from the hands of informant Ratne, deceased Mahendra and beaten all present on the informant side. It was also asserted from the contents of the written report lodged by the appellant Virendra and the statement of the doctor, D.W-1 that not only Balvir but wife of Balvir namely Sukhviri, Nahar Singh, grandfather of Virendra (father of Veersain and Balvir) were also attacked by the informant side. The appellants Virendra and Veersain being sons having reasonably apprehended danger to the life of their father had reacted. In light of the said fact, the nature of the injuries caused to the appellant side, whether simple or grievous is of no consequence. At the worst, on the evidence before the Court, it could only be concluded that the appellants had exceeded the right of private defence when two persons in the incident had died, though one of them had died on the next day. The contention is that the offence committed by the appellants, if proved, would be punishable under Section 304 Part II IPC and cannot go beyond that.

71. To deal with this contention, we may record that there is no evidence of injury to Nahar Singh, father of appellants Balvir and Veersain. The injuries of Sukhviri wife of Balvir, as per own statement of the doctor (D.W-1), could have been caused ordinarily. Those injuries cannot be attributed to the informant side in all probabilities. Moreover, P.W-1, Nawab Singh, when confronted had categorically stated that Sukhviri w/o Balvir was not present on the spot.

72. As regards injuries of appellant Balvir, we may record that the defence has not been able to introduce such circumstances by way of cross-examination which would displace the initial presumption against the appellants regarding the non existence of the circumstances in favour of their plea of private defence. The suggestion given to three witnesses namely Nawab Singh P.W-1, Ratan Singh (P.W-2) and Ishwar (P.W-3) was that all three of them along with other 7-8 persons had entered in the house of the appellants carrying weapons such as Lathi, Ballam, Spear, Palkati and pistol and beaten all of them and opened fires at Virendra. As noted above, this suggestion was categorically denied by all three witnesses. There is no evidence of firing at the place of the incident. The spot of the incident was inspected by the Investigating Officer who did not collect any evidence in this regard nor any suggestion had been given to the Investigating Officer by the defence of the flaw in the investigation in not collecting the evidence of firing. Moreover, from the evidence of the prosecution witnesses, it was proved that the appellants were 'aggressors' and they had actually entered in the ''gher', which was in the possession of informant Ratne at the time of the incident where his cattle were tied. They had attacked the informant side and two persons had died in the incident, one on the spot and another on the next day.

73. In this scenario, even the preponderance of probabilities is not in favour of the plea of the appellants of exercise of right of private defence. No doubt much less a reasonable doubt arises in the mind of the Court so as to grant benefit of it to the accused. The plea of the learned counsel for the appellants about exercise of right of private defence, or exceeding the right of private defence, therefore, is liable to be turned out.

74. Lastly, reliance placed on the decision of the Apex Court in Chunthuram vs State of Chhattisgarh reported in (2020) 10 SCC 733 to argue by the learned counsel for the appellants that when two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to their innocence the view favourable to the accused should be adopted.

75. In view of the discussion in the foregoing paragraphs, no benefit can be derived by the learned counsel for the appellants from the above decision.

76. Considering the evidence of the instant case cumulatively, we find that the appellants were rightly convicted for the offence under Sections 302 and 307 IPC, for the act of killing two persons and causing grievous injuries to informant Ratne which could be fatal.

77. However, the charge under Section 302/307 was framed with Section 34 but trial court did not convict the appellants by taking aid of Section 34 IPC. On this aspect, we may note that all the appellants came together at the place where informant was sitting, they threatened him and when he retaliated he was beaten mercilessly. His life could be saved because he fled away from the place of incident. The conviction of appellants under Section 307 IPC causing serious injury to informant Ratne was indicative of their common intention to beat him and in furtherance of their common intention, they had beaten him mercilessly. The charge under Section 307 IPC read with 34 is, thus, proved for the injuries caused to informant Ratne.

78. As regard other injured Ishwar, he got injured while he had tried to save Ratne. The common intention of the appellants to cause injuries to Ishwar and murder of other two persons namely Mahendra and Mallu proved to have been developed on the spot. It is, thus, proved that the appellants had committed the murder of Mahendra and Mallu in furtherance of their common intention and the offence under Section 302 IPC read with 34 is, thus, proved. Ishwar, P.W-3 had sustained injuries on his forehead but it is evident from the records that appellants had attacked both Ishwar and Ratne with the knowledge that in case any of them had died, they would be guilty of murder. The charge under Section 307 IPC read with Section 34 IPC for the offence of injuries caused to Ishwar is, thus, proved. The prosecution had, thus, established its case by producing cogent evidence beyond all reasonable doubts.

79. No infirmity can be found in the order of the trial court in convicting and sentencing the accused persons. No interference as such is required. The appeal is liable to be dismissed.

80. The judgment and order dated 31.01.1989 passed by the 9th Additional Sessions Judge, Meerut in Sessions Trial no.335 of 1983 under Sections 302/307/34 IPC arising out of Case Crime no.23 of 1983 Police Station-Pilana, District-Meerut is hereby affirmed, subject to the modification to the above extent.

81. The appeal is dismissed, accordingly.

82. The appellant no.2-Veersain is in jail.

83. The appellant no.3 (Virendra) and no.4 (Sunder @ Surendra) are on bail. They shall be arrested and sent to jail to serve out the remaining sentence.

84. Certify this judgment to the court below immediately for necessary action.

85. The trial court record be sent back immediately.

 
Order Date :-30.09.2022
 
Harshita
 

 
		      (Subhash Chandra Sharma,J.)	            (Mrs. Sunita Agarwal,J.)