1 CRIMINAL APPEAL(DB) NO. 159 OF 2011 Against the judgment of conviction and sentence dated 22 nd December,2010passedbySriSrikantRoy,AdditionalSessions Judge,F.T.CourtNo.II,GiridihinSessionsTrialNo.434of 2004. 1.NanhuMahato@NanhuYadavsonofLateTeterMahto 2.LittuMahato@LituwaMahato@LittuYadavsonofLate LakhoMahato 3.NagoYadav@NagoMahtosonofLateHulashMahato,all residentsofVillageSimrabeda,P.S.Suriya,DistrictGiridih Appellants Vs. [ENTITY] Respondent FortheAppellants : Mr.[ENTITY],Advocate FortheRespondent : Mr.[ENTITY],APP PRESENT HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE RATNAKER BHENGRA Dated 17th May,2017 (Oral Judgment) Per [ENTITY],J:
1. ThisCriminal Appealhasbeenpreferredbythethreeappellants accused, who were convicted by Additional Sessions Judge cum Fast TrackCourtno.II,GiridihinSessionsTrialNo.434of2004.Theywere convicted for the offences punishable U/[SECTION], [SECTION] to be read with [SECTION] and [SECTION] of the [ACT]. Rigorous imprisonment for two years was awarded u/[SECTION] [ACT], rigorous imprisonmentforsevenyearsu/s450[ACT]andlifeimprisonmentforthe offence punishable u/s[SECTION]tobereadwith[SECTION][ACT]hasbeen imposedupontheseappellantsandnofinewasimposedbythelearned AdditionalSessionsJudgecumFastTrackCourtNo.II,Giridih.Allthe sentenceswereorderedtorunconcurrently.Thejudgmentofconviction andorderofsentenceisdated22ndDecember,2010.
2. Theincidenthastakenplaceon24thMay,2004atabout8a.m.The namesofthedeceasedare:
([ENTITY];
([ENTITY];
([ENTITY] Theincidenthastakenplaceinthehouseofthedeceased.The accusedpersonsalongwithothers,brokeopenthedoor,enteredintothe house of the deceased. The accused persons had come with deadly weaponslikeFarsa,Swordetc.Allthethreewerecutintotwopiecesand dead bodies were thrown under a tree opposite to the house of the deceased. First Information Report was filed on same day. All the aforesaidthreeaccusedpersonswerenamedintheFIRalongwithother coaccused.
3. The offence was registered at Bagodar (Saria ) Police Station District Giridih as Bagodar (Sariya) [CASE NUMBER]. Investigationwascarriedout.Statementofthewitnesseswererecorded includingtheeyewitnesses.PostMortemwasalsocarriedoutbyP.W.8 andchargesheetwasfiledandthecasewascommittedtothecourtof sessionsbeingS.T.Caseno.434of2004.
4. Evidences of twelve prosecution witnesses were recorded by AdditionalSessionsJudgecumFastTrackCourtno.II,Giridihandthe learnedtrialcourthasheldthatprosecutionhasprovedtheoffencesu/[SECTION]/s[SECTION][ACT]tobereadwithSection149[ACT] and the prosecution has also proved the offence committed by these appellants u/[SECTION] of the [ACT] beyond reasonable doubts and has convictedtheseappellantsmainlyfortheoffencepunishableu/s[SECTION]of theIndianPenalCodetobereadwithsection149thereofandsentenced themtoundergolifeimprisonmentandfurtherrigorousimprisonmentfor sevenyearsfortheoffenceu/s450[ACT]hasalsobeenimposed.Rigorous imprisonmentfortwoyearsfortheoffencepunishableu/[SECTION] also been imposed and all the sentences have been ordered to run concurrently.
[ENTITY]:
Counselfortheappellantshasarguedoutthecaseatlengthandhas read over the evidences of twelve prosecution witnesses and has submittedthat:
(a) Thesocalledeyewitnessesarenottheeyewitnessesofthe incident.
(b) Therearemajoromissionsandcontradictionsinthe depositionsofthewitnesses.
(C) Prosecution has failed to prove the offences beyond reasonabledoubts.
(d) Thereisagrossdiscrepancybetweentheocularevidenceand themedicalevidence.
(e) Thereisalsomurdercommittedbythedeceasedof[ENTITY],whowasapersonfromthesideoftheappellants accused.
(f) Theplaceofoccurrenceisdifferentthanwhatisnarratedby theeyewitnesses.
(g) Thewitnesses,uponwhom,heavyreliancehasbeenplaced bytheprosecutionarepartisanwitnessesastheyarethe relativesofthedeceased.
(h) Theoffenceofmurderhasbeencommittedbecauseofthe landdispute.
Thesearethemainargumentscanvassedbycounselfor theappellantsandhehasfurthersubmittedthattheaforesaidmajor discrepanciesintheevidencesoftheprosecutionwitnesseshavenot been properly appreciated by the learned trial court and the prosecution has failed to prove the offences committed by these appellantsbeyondreasonable doubtsandhence,thejudgmentof convictionandorderofsentencepassedbythelearnedtrialcourtin SessionsTrialno.434of2004deservestobequashedandsetaside.
6. [ENTITY]:
Counsel appearing for the State APP has submitted that the prosecution hasproved theoffenceofmurderofthedeceasedpersons beyond reasonable doubts. The case of the prosecution is based upon more than one eye witnesses and they have clearly narrated the role playedbytheappellantsaccusedincausingmurderofthedeceased.Itis further submitted by learned APP that the medical evidence is corroborativetotheocularevidence.Thewholeincidenthastakenplace inthehouseofthedeceasedandhence,eyewitnessesareboundtobe closerelativesofthedeceased,whoseevidencescannotbebrushedaside bythecourtonlyonthegroundofbeingcloserelatives.Ithasfurther beensubmittedbythelearnedAPPthatlookingtothecrossexamination ofP.Ws.4,6and7,nothingiscomingoutinfavouroftheseappellants accused.Theaccusedpersonshavebeenidentifiedbythesewitnesses.It isalsosubmittedbythelearnedA.P.P.thatinitiallysomefreefighthad takenplaceinthefieldthenthedeceasedcameatthe houseandthe accusedpersonscameatthehouseofthedeceased.Accusedpersonswere aggressiveandtheycamewithweaponandbrokeopenthedoorofthe houseofthedeceased.Thisshowspreplannedandwelldesignedaction onthepartoftheappellantsaccused.Thebenefitofsuddenprovocation cannotbegiventotheappellantsaccused.Infact,theseappellantscame slightly later on along with other coaccused, at the house of the deceased.Thesefactsreflectthatearlierincidentwasseparateinthefield andtheassaultinthehouseofthedeceasedwasanotherincident.These aspectsofthematterhasbeenproperlyappreciatedbythelearnedtrial courtandhence,thisappealmaynotbeentertainedbythisCourt.
7.FINDINGS:
Havingheardcounselforbothsidesandlookingtothe evidences onrecord,weseenoreasontoentertainthiscriminalappeal,mainlyfor thefollowingevidencesonrecord.
(i) Incident has taken place on 24th May, 2004 at about 8 a.m. These three appellants were named in the FIR along with other co-accused. The FIR is filed on the very same date. This is a triple murder case and the name of the deceased are:
(a) [ENTITY];
(b) [ENTITY]; and (C ) [ENTITY] Thereafter, investigation was carried out for the offences registered as Bagodar (Sariya) P.S. Case No. 111 of 2004 at Bagodar ( Sariya) Police Station, District-Giridih. Statements of the witnesses were recorded and ultimately, charge sheet was filed and the case was committed to the court of Additional Sessions Judge-FTC No. II, Giridih, where it was numbered as [CASE NUMBER].
8. The prosecution has examined 12 witnesses, P.W. 4, P.W. 6 are the eye witnesses. P.W. 7 is the informant, P.W. 8 is doctor, who has carried out the post-mortem examination on the bodies of the three deceased and P.W. 12 is the investigating officer.
9. We have perused the evidences of the prosecution witnesses including P.W. 4, who is the wife of P.W. 1. She has narrated the role played by this appellants-accused. We have also perused the cross examination of these prosecution witnesses. Looking to paragraph no. 2 of the deposition of P.W. 4 and her cross examination, nothing is found favourable to these appellants-accused. The examination-in-chief of P.W. 4 remains intact as it is, even during her cross examination, who has identified these three appellants-accused. Looking to the over all evidences of P.W. 4 to be read with the medical evidence given by P.W. 8 to be read with evidence given by Investigating Officer, P.W. 12 , she is a trustworthy and reliable witness.
10. We have also perused the evidence of P.W.6., who is the wife of [ENTITY]. She has also narrated that these appellants-accused were present and they have committed the assault upon the deceased. She has also identified these appellants-accused. We have also perused cross examination of P.W. 6 ,but, nothing has come out in favaour of these appellants-accused. On the contrary, though she is a villager and rustic witness and though she has given evidence after approximately 18 months, she has narrated the whole incident accurately. Looking to her deposition, she has narrated that all these appellants-accused were present and they assaulted the deceased. She has proved the date, time and place of occurrence. She has also narrated that these appellants were present and they have assaulted the deceased. It ought to be kept in mind that when several accused persons are assaulting several persons, two much mathematical narration is not required. We never expect from a rustic witness any photographic memory or photographic narration.
11. Looking to the deposition given by P.W. 7, it appears that she is the wife of deceased [ENTITY] and the mother of deceased [ENTITY]. She is the informant. She has given the fard-beyan on the very same date i.e. on 24th May, 2004 and these appellants-accused were named in the FIR. She has also narrated that these appellants were the assailants and they caused the murder of the deceased along with other co-accused. She has proved the FIR, which is marked as Ext.-2.
12. Looking to the medical evidence given by P.W. 8, Dr. [ENTITY], the injuries sustained by [ENTITY], as per most-mortem report, are as under:-
(I) Skull was cut in two half-fracture of skull bone, brain was also cut in two halves
(ii) Neck was cut, two third of the neck was cut-wound about 6"x3"x bone deep
(iii) Lacerated wound on right thigh-6"x3"
On dissection, the doctor has found, apart from above cut injuries, all the major blood vessels were cut and in posterior part only the skin and muscle were intact. He has opined that the injuries were caused by heavy instrument and the death was due to shock and haemorrhage. The report is Ext.-1
13. Looking to the injuries sustained by [ENTITY], as per post-mortem, are as under:-
(I) Skull fractured, wound on scalp-6"x3"xbone deep (ii) Brain was cut (iii) Cut wound at right hand-4"x3"x bone deep.
On dissection, he has found the skull bone fractured, brain cut in two halves, and injuries were caused by heavy sharp cutting instrument and the death was caused due to shock and haemorrhage. His report is Ext. 1/a.
14. Looking to the injuries sustained by [ENTITY] as per medical evidence, given by P.W. 8, are as under:-
(I) Compound fracture of right forearm, wound about 4"x3"x bone deep (ii) Cut wound on right side of face about 6"x3" (iii) Cut wound at neck-6"x3"xbone deep (iv) Fracture of leg below knee joint.
On dissection, he has found fracture of skull bone, brain lacerated, all the vessels cut and the injuries were antemortem in nature caused by sharp heavy cutting weapon and the cause of death was due to shock and haemorrhage. His report is Ext.1/b.
15. Looking to the aforesaid injuries upon the bodies of the deceased, it appears that medical evidence is absolutely corroborative to the deposition given by P.W. 4 , P.W. 6 and P.W. 7. The weapon used were Farsa and Sword. Medical evidence also tallies the date and time of the murder i.e. on 24.05.2004 at about 8 a.m. As per medical evidence, injuries sustained by the deceased were sufficient, in ordinary course of nature, to cause death of the deceased.
16. We have also perused the evidence of P.W. 12, the Investigating Officer, who has proved the date of the offence, the time of the offence and the place of the occurrence. FIR was registered on the very same date and all the three appellants-accused were named in the FIR. Thus, there is no exaggeration in the case of the prosecution. From the very beginning, it is the case of the prosecution that appellants were the assailants and they caused murder of the three deceased, along with other accused persons. Thus, the evidence given by P.W. 12 is corroborative to the evidence given by other eye witnesses. Looking to the evidences on record, it appears that P.W. 4, P.W. 6 and P.W. 7 are trustworthy and reliable witnesses. Their evidences are getting enough corroboration by the medical evidence as well as by the Investigating Officer's evidence. Thus, the prosecution has proved the offences committed by these appellants under [SECTION] of the [ACT] and offence of murder of three deceased as well as offence under [SECTION] of the [ACT] beyond reasonable doubt.
17. Much has been argued out by the counsel for the appellants that the so called eye witnesses are partisan witnesses and they are the close relative of the deceased ,but, they are not helpful to the defence mainly for the following reasons:-
(a) The incident has taken place in the house of the deceased and therefore the witnesses are bound to be the relative of the deceased.
(b) Whenever the relative of the deceased are giving evidences, their evidences cannot be brushed aside by the Court per se.
18. In the case of [PRECEDENT], the Hon'ble Supreme Court in Para-20 held as follows:
"20. Another reason which the High Court advanced to repel the testimonyofsuchagoodnumberofprobablewitnessesisthattheyare allcloserelativesofthedeceasedandthatindependentwitnesseswere not examined by the prosecution The overinsistence on witnesses havingnorelationwiththevictimsoftenresultsincriminaljusticegoing awry.Whenanyincidenthappensinadwellinghouse,themostnatural witnesseswouldbetheinmatesofthathouse.Itisunpragmatictoignore suchnaturalwitnessesandinsistonoutsiderswhowouldnothaveeven seenanything.Ifthecourthasdiscernedfromtheevidenceorevenfrom the investigation records that some other independent person has witnessedanyeventconnectingtheincidentinquestion,thenthereisa justificationformakingadversecommentsagainstnonexaminationof suchapersonasaprosecutionwitness.Otherwise,merelyonsurmises thecourtshouldnotcastigatetheprosecutionfornotexaminingother personsofthelocalityasprosecutionwitnesses. Theprosecutioncanbe expectedtoexamineonlythosewhohavewitnessedtheeventsandnot thosewhohavenotseenitthoughtheneighbourhoodmaybereplete withotherresidentsalso."
(Emphasis Supplied)
19. In the case of [PRECEDENT], the Hon'ble Supreme court in Para- 29 & 38 held as follows:
"29. Itwasthencontendedthattheonlyeyewitness,PW6Sopanwas none other than the son of the deceased. He was, therefore, "highly interested"witnessandhisdepositionshould,therefore,bediscardedasit hasnotbeencorroboratedinmaterialparticularsbyotherwitnesses.We areunabletoupholdthecontention.Inourjudgment,awitnesswhoisa relativeofthedeceasedorvictimofacrimecannotbecharacterisedas "interested".Theterm"interested"postulatesthatthewitnesshassome directorindirect"interest"inhavingtheaccusedsomehowortheother convictedduetoanimusorforsomeotherobliquemotive.
38. Fromtheabovecaselaw, itisclearthatacloserelativecannotbe characterisedasan"interested"witness.Heisa"natural"witness.His evidence,however,mustbescrutinisedcarefully.Ifonsuchscrutiny,his evidence is found to be intrinsically reliable, inherently probable and whollytrustworthy,convictioncanbebasedonthe"sole"testimonyof suchwitness.Closerelationshipofwitnesswiththedeceasedorvictimis nogroundtorejecthisevidence.Onthecontrary,closerelativeofthe deceasedwouldnormallybemostreluctanttosparetherealculpritand falselyimplicateaninnocentone."
(Emphasis Supplied)
20. In the case of [PRECEDENT], the Hon'ble Supreme Court in Para-24 and 33 held as follows:
"24.Anothercontentionraisedonbehalfoftheappellantaccusedisthat onlyfamilymembersofthedeceasedwereexaminedaswitnessesand theybeinginterestedwitnessescannotbereliedupon.Furthermore,the prosecutiondidnotexamineanyindependentwitnessesand,therefore, theprosecutionhasfailedtoestablishitscasebeyondreasonabledoubt. Thisargumentisagainwithoutmuchsubstance.Firstly,[ENTITY] inlawinexaminingfamilymembers,oranyotherperson,aswitnesses. More often than not, in such cases involving family members of both sides,itisamemberofthefamilyorafriendwhocomestorescuethe injured. Those alone are the people who take the risk of sustaining injuriesbyjumpingintosuchaquarrelandtryingtodefusethecrisis. Besides,whenthestatementofwitnesses,whoarerelatives,orareparties knowntotheaffectedparty,iscredible,reliable,trustworthy,admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reasonfortheCourttorejectsuchevidencemerelyonthegroundthat thewitnesswasafamilymemberoraninterestedwitnessoraperson knowntotheaffectedparty.
33.Thecourtcanconvictanaccusedonthestatementofasolewitness, evenifhewasarelativeofthedeceasedandthus,aninterestedparty. Theconditionprecedenttosuchanorderisthatthestatementofsuch witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statementofthewitnessistrustworthy,cogentandcorroboratedbyother evidence produced by the prosecution, oral or documentary, then the courtwouldnotfallinerroroflawinrelyinguponthestatementofsuch witness.Itisonlywhenthecourtsfindthatthesingleeyewitnessisa whollyunreliablewitnessthathistestimonyisdiscardedintotoandno amountofcorroborationcancureitsdefect."
(Emphasis Supplied) 21 In the case of [PRECEDENT], the Hon'ble Supreme Court in Para-14 held as follows:
"14. ThisCourthasrepeatedlyheldthataneyewitnessversioncannot bediscardedbythecourtmerelyonthegroundthatsucheyewitness happened to be a relation or friend of the deceased. The concept of interestedwitnessessentiallymustcarrywithittheelementofunfairness andundue intentiontofalselyimplicatethe accused. It isonly when theseelementsarepresent,andstatementofthewitnessisunworthyof credencethatthecourtwouldexaminethepossibilityofdiscardingsuch statements. Butwherethepresenceoftheeyewitnessesisprovedtobe natural and their statements are nothing but truthful disclosure of actualfactsleadingtotheoccurrenceandtheoccurrenceitself,itwillnot bepermissibleforthecourttodiscardthestatementsofsuchrelatedor friendlywitness."
(Emphasis Supplied)
22. In the case of [PRECEDENT], the Hon'ble Supreme Court in Para-21 and 22 held as follows:
"21. [ENTITY],learnedcounselfortheappellantsubmittedthat since most of the prosecution witnesses are related to the deceased persons,thesamecannotbereliedon.Weareunabletoacceptthesaid contention.
22. This Court has repeatedly held that the version of aneyewitness cannot be discarded by the court merely on the ground that such eyewitnesshappenedtobearelativeorfriendofthedeceased.Itisalso statedthatwherethepresenceoftheeyewitnessesisprovedtobenatural andtheirstatementsarenothingbuttruthfuldisclosureofactualfacts leading to the occurrence, it will not be permissible for the court to discard the statement of such related or friendly witnesses. To put it clear,[ENTITY]inlawonexaminingfamilymembersoranyother personaswitnesses.Infact,incasesinvolvingfamilymembersofboth sides,itisamemberofthefamilyorafriendwhocomestorescuethe injured.Ifthestatementofwitnesses,whoarerelativesorknowntothe parties affected is credible, reliable, trustworthy and corroborated by otherwitnesses,therewouldhardlybeanyreasonforthecourttoreject such evidence merely on the ground that the witness was a family memberoraninterestedwitnessorapersonknowntotheaffectedparty orfriend,etc."
(Emphasis Supplied) (c ) The evidences of the relative of the deceased has to be evaluated by the Court with all circumspection and nothing beyond that. Even the close relative can be the eye witnesses, there is no ban or bar under the [ACT] and cross examination is the weapon at the hands of the accused side. Looking to cross examination of P.W. 4 , P.W. 6 and P.W. 7, nothing has come out in favour of these appellants accused. The examination-in-chief of these witnesses has remained intact as it is. Looking to over all evidences of P.W. 4, P.W. 6 and P.W. 7 to be read with evidence of P.W. 8 and to be read with evidence given by the Investigating Officer, P.W. 12, these witnesses are reliable witnesses and thus, they are trustworthy witnesses.
23. Counsel for the appellants has submitted that only two accused persons are named in the FIR ,but, this is factually incorrect, looking to the FIR, which is Ext.-2. Counsel for the appellants has submitted that there was land dispute and because of this one [ENTITY] has also been murdered by these deceased. Looking to the evidences on record, it appears that the incident has taken place in two parts. Initially, there was some dispute in the field and thereafter the deceased came at the house and they were followed by these three appellants along with other accused persons with deadly weapons in their hand. These appellants- accused along with other accused persons broke open the door of the house of the three deceased. They assaulted them with deadly weapon like farsa, sword etc. in the house of the deceased. All the three deceased were given blows by deadly weapons so severely that they expired on the spot.
24. Much has been argued out by counsel for the appellants about the so called self defence. Self defence is double edged sword. If plea of self defence is taken by defence counsel, the burden of proof is upon defence and not upon prosecution. If appellants are taking the plea of self defence, they are proving their presence at the place of occurrence with weapons.
25. It has been held by Hon'ble the Supreme Court in the case of [PRECEDENT] at Paragraph nos. 50 and 51 as follows:
"50.Thepleaofprivatedefencehasbeenbroughtupbytheappellants. Forthispleatosucceedintotality,itmustbeprovedthatthereexisteda right to private defence in favour of the accused, and that this right extendedtocausingdeath.Hence,ifthecourtweretorejectthisplea, therearetwopossiblewaysinwhichthismaybedone.Ononehand,it maybeheldthatthereexistedarighttoprivatedefenceofthebody. However,moreharmthannecessarywascausedor,alternatively,this rightdidnotextendtocausingdeath.Sucharulingmayresultinthe application of [SECTION], which states that culpable homicideisnotmurderiftheoffender,intheexerciseingoodfaithofthe rightofprivatedefenceofpersonorproperty,exceedsthepowergivento him by law and causes the death of the person against whom he is exercisingsuchrightofdefencewithoutpremeditation,andwithoutany intentionofdoingmoreharmthanisnecessaryforthepurposeofsuch defence.Theothersituationiswhere,onappreciationoffacts,theright ofprivatedefenceisheldnottoexistatall.
51. The present case would fall inthe latter category as facts clearly establish a common object to orchestrate an armed attack of such a seriousnaturethat,evenifthecommonobjectitselfwasnottocause death,theaccusedcanbesaidtohavebeenpossessedoftheknowledge that the offence of murder/culpable homicide would be committed in prosecution of this common object, and such a common object is irreconcilablewiththerightofprivatedefence."
(EmphasisSupplied)
26. IthasbeenheldbyHon'bleTheSupremeCourtinthecaseof [PRECEDENT],reportedin(2010)2SCC333atparagraphno.58 asunder:
"58. The following principles emerge on scrutiny of the following judgments:
(i)Selfpreservationisthebasichumaninstinctandisdulyrecognisedby thecriminaljurisprudenceofallcivilisedcountries.Allfree,democratic and civilised countries recognise the right of private defence within certainreasonablelimits.
(ii)Therightofprivatedefenceisavailableonlytoonewhoissuddenly confrontedwiththenecessityofavertinganimpendingdangerandnotof selfcreation.
(iii)Amerereasonableapprehensionisenoughtoputtherightofself defence into operation. In other words, it is not necessary that there shouldbeanactualcommissionoftheoffenceinordertogiverisetothe rightofprivatedefence.Itisenoughiftheaccusedapprehendedthatsuch anoffenceiscontemplatedanditislikelytobecommittediftherightof privatedefenceisnotexercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defencestepbystepwithanyarithmeticalexactitude.
(vi) In private defence the force used by the accused ought not to be whollydisproportionateormuchgreaterthannecessaryforprotectionof thepersonorproperty.
(vii)Itiswellsettledthateveniftheaccuseddoesnotpleadselfdefence, itisopentoconsidersuchapleaifthesamearisesfromthematerialon record.
(viii)Theaccusedneednotprove the existence oftheright ofprivate defencebeyondreasonabledoubt.
(ix)ThePenalCodeconferstherightofprivatedefenceonlywhenthat unlawfulorwrongfulactisanoffence.
(x)Apersonwhoisinimminentandreasonabledangeroflosinghislife orlimbmayinexerciseofselfdefenceinflictanyharmevenextendingto deathonhisassailanteitherwhentheassaultisattemptedordirectly threatened."
(Emphasis Supplied)
27. IthasbeenheldbyHon'bletheSupremeCourtinthecaseof Arjunv. State of Maharashtra reported in [PRECEDENT] in paragraph Nos. 23,24&26whichareasunder:
"23. Itisfortheaccusedclaimingtherightofprivatedefencetoplace necessarymaterialonrecordeitherbyhimselfadducingpositiveevidence or by eliciting necessary facts from the witnesses examined for the prosecution,ifapleaofprivatedefenceisraised.(MunshiRamv.Delhi Admn.,StateofGujaratv.BaiFatima,[ENTITY],[PRECEDENT])
24. Apleaofrightofprivatedefencecannotbebasedonsurmisesand speculation. While considering whether the right of private defence is availabletoanaccused,itisnotrelevantwhetherhemayhaveachance toinflictsevereandmortalinjuryontheaggressor.Inordertofindout whethertherightofprivatedefenceisavailabletoanaccused,theentire incidentmustbeexaminedwithcareandviewedinitspropersetting.
26. [SECTION] lays down the limits of the right of private defence. Sections96and98givearightofprivatedefenceagainstcertainoffences andacts.TherightgivenunderSections96to98and100to106is controlledbySection99.Topleaarightofprivatedefenceextendingto voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that eitherdeathorgrievoushurtwouldbecausedtohim."
(Emphasis supplied)
28. IthasbeenheldbyHon'beltheSupremecourtinthecaseof Manjeet Singhv.StateofH.P.,reportedin(2014)5SCC697atparagraphno.18as under:
"18. UnderSection96[ACT],"Nothingisanoffencewhichisdoneinthe exerciseoftherightofprivatedefence".Rightofprivatedefenceofthe bodyandofpropertyhasbeenenumeratedunderSection97[ACT],subject totherestrictionscontainedinSection99[ACT].Asperthesaidsection everypersonhasarighttodefend:
"First. Hisownbody,andthebodyofanyotherperson,againstany offenceaffectingthehumanbody;
Secondly. Theproperty,whethermovableorimmovable,ofhimselforof anyotherperson,againstanyactwhichisanoffencefallingunderthe definitionoftheft,robbery,mischieforcriminaltrespass,orwhichisan attempttocommittheft,robbery,mischieforcriminaltrespass."
Section102[ACT]dealswithcommencementandcontinuanceoftheright ofprivatedefenceofthebodyasfollows:
"102. Commencement and continuance of the right of privatedefenceofthebody. Therightofprivatedefenceofthebody commencesassoonasareasonableapprehensionofdangertothebody arisesfromanattemptorthreattocommittheoffencethoughtheoffence may not have been committed; and it continues as long as such apprehensionofdangertothebodycontinues."
Theextentandlimitations oftherightofprivatedefenceisprescribed under [SECTION] [ACT]. Such a right can be exercised only to defendtheunlawfulactionandnottoretaliate."
(Emphasis supplied)
29. We have carefully gone through the self defence and the FIR for the death of [ENTITY] which is Ext. A and the evidences of the prosecution witnesses and the defence witnesses. These appellants have miserably failed in proving self defence. Nothing has been proved which is essential for the self defence. Bare assertion of the self defence is not the evidence at all even if they speak for it thousand times, especially for want of evidences. There is no evidence on record which proves that how and where and at what time [ENTITY] was murdered. In fact, self defence is not at all favourable for these appellants because it appears that the earlier incident has taken place in the field and thereafter these three deceased, namely, (a) [ENTITY]) [ENTITY] and (c ) [ENTITY] came at their house and thereafter these three appellants along with other accused came with deadly weapons at their hands , at the residence of aforesaid three deceased and broke open the door of the house of the deceased. These facts have been proved by all the prosecution witnesses examined in [CASE NUMBER]. Meaning thereby too, the availability of the self defence is over in the field itself. Moreover, grave and sudden provocation was also over in the field itself. Now what remains, aggressive part of the appellants, who came later on with other additional co-accused that too, with deadly weapons in their hands. They were so much aggressive that they broke open the door of the house of the deceased which was bolted from inside. Once the aforesaid three deceased were bolted in their own house, no self defence was available to the appellants in the room, when there was no grave and sudden provocation was available with these appellants-accused. Not a single defence is available to these appellants-accused, especially when they came later on with deadly weapons and broke open the house of the deceased. These evidences have been properly appreciated by the learned trial court.
30. In view of aforesaid evidences on record, the prosecution has proved the murder of three deceased, committed by these three appellants- accused beyond reasonable doubt, by deadly weapons in their hands and by breaking open the house of the deceased. Looking to the quantum of the punishment awarded by the learned trial court, we see no reason to alter the quantum of punishment, as they have been adequately punished u/[SECTION] [ACT] with two years R.I. , R.I. for seven years u/[SECTION] [ACT] and looking to the minimum sentence awarded u/[SECTION] to be read with [SECTION] [ACT] thereof. Thus, there is no error committed by the trial court in convicting and punishing these appellants-accused. Hence, there is no substance in this criminal appeal and the same is ,therefore, dismissed.
31. The order of suspension of sentence passed in favour of appellant no. 3 [ENTITY] is hereby cancelld. The bail bond is also cancelled and we hereby direct the [ENTITY], who is appellant no. 3 in this criminal appeal, to surrender forthwith. Rest of two appellants-accused are in jail, as submitted by APP as well as counsel for the appellants and they will serve out the sentences as per order passed by the trial court. [ENTITY] will serve the sentence as per the order of the trial court and he will immediately surrender and if he is not surrendering immediately, he will be arrested by the police.
32. Copy of this order will be sent to the trial court as well as to the D.G.P. and to the I.G. Prison.
33. This criminal appeal is, hereby, dismissed.
([ENTITY],J.) ([ENTITY],J.) Jharkhand High Court, Ranchi Dated 17th May, 2017 [ENTITY]