IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1753 of 2001 (Old No. 21 of 1994) 1. Krishna Lal alias Kishan Lal S/o Sri Dukhi Ram 2. Shyam Lal S/o Shri Kishan Lal 3. Natwa alias Rajesh S/o Shri Kishan Lal All resident of Gandhi Gram, P.S. Kotwali, District Dehradun. ...…………. Appellants Versus The State ...…………. Respondent Mr. Lokendra Dobhal, learned counsel for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 20.12.1993, passed by learned First Additional Sessions Judge, Dehradun, in Sessions trial No. 121 of 1991, whereby accused / appellant Krishna Lal @ Kishan Lal, his sons Shyam Lal and Natwa @ Rajesh have been convicted under Section 302 / 34 of the Indian Penal Code, 1860 2 (hereinafter referred as I.P.C.). They are further convicted under Section 323 / 34 of I.P.C. Each one of the convicts has been directed to undergo imprisonment for life under Section 302 / 34 of I.P.C. and sentenced to simple imprisonment for a period of six months under Section 323 / 34 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 27.07.1991, at about 10:00 P.M., there had been a quarrel between accused / appellant Krishna Lal @ Kishan Lal and his sons Shyam Lal and Natwa @ Rajesh with complainant as to why Ram Ahorey (deceased), uncle of the complainant, has parked his bullock cart near the house of the accused / appellants. Thereafter, the quarrel took shape of violence and on exhortation of accused Krishna Lal @ Kishan Lal his sons accused Shyam Lal and Natwa @ Rajesh caused injuries on the person of Ram Ahorey with KHUKHARI (a sharp edged weapon). Injured Ram Ahorey fell down. Meanwhile, hearing the noise, witnesses Sheruddin @ Khairuddin (P.W. 4); Iqbal (P.W. 2) and others reached at the spot, but accused / appellants succeeded in fleeing from the scene of occurrence. Injured Ram Ahorey was taken by the witnesses to Doon Hospital where he died of the injuries suffered by him. On 28.07.1991, at about 00:10 hours, a first information report (Ext. A –1) of the incident was lodged by Ayodhya Prasad (P.W. 1), who is nephew of the deceased. Crime No. 437 of 1991 was registered with police station Kotwali Dehradun, and the investigation was 3 taken up by Sub Inspector R.K. Kannojia. On 28.07.1991, at about 10:10 hours, after taking the dead body into possession, police prepared inquest report (Ext. A –15) and also prepared other related papers, namely sketch of the dead body, police form No. 13 etc. (Ext. A –16 to Ext. A – 18). On the same day, the dead body was sent for postmortem examination. Dr. A Nagaich (C.W. 1) conducted the autopsy on the dead body of Ram Ahorey, at about 12:30 hours, on 28.07.1991, who prepared the postmortem examination report (Ext. C –1). The Medical Officer found four incised wounds as ante mortem injuries and he opined that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. After interrogating the witnesses and inspecting the spot, the Investigating Officer recovered the lantern in the light of which the witnesses witnessed the incident, and prepared the memorandum (Ext. A –2). On 29.07.1991, the Investigating Officer on pointing out of accused Natwa @ Rajesh recovered the knife used in the crime from his house, and prepared the recovery memo (Ext. A –4) of the same. The blood stained clothes and articles were sent for chemical analysis where it was found that on the blood stained soil and blood stained ‘Tehmat’, human blood was found. During investigation it was also found that apart from Ram Ahorey, witness Sheruddin @ Khairuddin also suffered injuries in the incident. Accused Krishna Lal @ Kishan Lal also appears to have suffered injuries in the incident. After completion of investigation, the Investigating Officer submitted charge sheet (Ext. A –6) against all the three accused / appellants, namely Krishna 4 Lal @ Kishan Lal and his two sons Shyam Lal and Natwa @ Rajesh. 4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. After hearing the parties, learned First Additional Sessions Judge, Dehradun, to whom the case appears to have been transferred, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C. and one punishable under Section 323 read with Section 34 of I.P.C. against the accused / appellants Krishna Lal @ Kishan Lal and Shyam Lal. A separate charge was framed against the accused / appellant Natwa @ Rajesh in respect of offence punishable under Section 302 of I.P.C. and one punishable under Section 323 read with Section 34 of I.P.C. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ayodhya Prasad (complainant); P.W. 2 Iqbal (declared hostile); P.W. 3 Ram Nath (declared hostile); P.W. 4 Sheruddin @ Khairuddin (eyewitness) and P.W. 5 Hith Lal (eyewitness). Dr. A. Nagaich was examined as Court Witness No. 1. When the prosecution evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. On behalf of the defence, D.W. 1 Dr. B.K. Oli and D.W. 2 Dr. B.C. Ramol were got examined, who proved injuries found on the person of Krishna Lal @ Kishan Lal (accused) and X-ray report showing fracture corresponding to the injuries suffered by him. 5 5) After hearing the parties, the trial court found accused / appellants Krishna Lal @ Kishan Lal and Shyam Lal guilty of charge of offence punishable under Section 302 / 34 of I.P.C. and also that of one punishable under Section 323 / 34 of I.P.C. The trial court further held accused / appellant Natwa @ Rajesh guilty of offence punishable under Section 302 and one punishable under Section 323 read with Section 34 of I.P.C. After hearing the parties on sentence, each one of the convicts is sentenced to imprisonment of life under Section 302 / 34 of I.P.C. and simple imprisonment for a period of six months under Section 323 read with Section 34 of I.P.C. Aggrieved by said judgment and order dated 20.12.1993, passed by learned First Additional Sessions Judge, Dehradun, in Sessions Trial No. 121 of 1991, this appeal was preferred by the convicts before the Allahabad High Court on 4th January 1994, where it was admitted on 05.01.1994. The appeal is received to this Court by transfer under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No 29 of 2000), for its disposal. 6) Before further discussion, we think it just and proper to mention here, the ante mortem injuries found on the person of deceased Ram Ahorey, which are mentioned in the autopsy report (Ext. C –1). The same are proved by Dr. A. Nagaich (C.W. 1). The ante mortem injuries found on the person of Ram Ahorey (deceased) as mentioned in Ext. C –1, are being reproduced below: 6 i) “Incised wound 4 cm X 1.5 cm X cavity deep, vertically placed on left side of abdomen 8 cm away from umbilicus and 18 cms below left nipple. On opening, direction of wound backward, downward and medially, underneath perforating peritoneum, omentam, stomach and lever lobe. Peritoneal cavity having 4 oz of blood with partly digested food material out of stomach perforation. ii) Incised wound 3 cm X 1 cm on the back of right side of chest 3 cm away from vertebral column at the level of thoracic 7 vertebra, direction of the wound forward, upward and laterally. Pleural cavity on right side full of 3 oz of blood mixed fluid. Pleura having rupture. iii) Incised wound 1.5 cm X 0.5 cm on left side of back 4 cm above angle of left scapula X bone deep directed backward and medially, vertically placed. iv) Incised wound 2 cm X 0.5 cm X muscle deep midline on the back at the level of T-12 vertebra. On opening ecchymosis present under the injuries noted above.” The Medical Officer, who conducted the postmortem examination opined that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. 7) The aforesaid report clearly shows homicidal death of Ram Ahorey on 27.07.1991. 7 8) In the incident in question there are other persons also found to have been injured. The injuries suffered by witness Sheruddin @ Khairuddin are recorded in Ext. A –2 prepared in the Doon Hospital, on 28.07.1991, at 12:05 A.M. The same are reproduced below: i) “Lacerated wound 4 cm X 4 cm on the left side of the head 10 cm above the left ear. ii) Multiple abrasion 25 cm X 3 cm on the back aspect left forearm. Both the injuries were simple in nature. P.W. 5 Hith Lal also appeared to be an injured witness and injury report (Ext. A –8) discloses following injuries on the person of said witness, which were recorded on 28.07.1991, at about 03:55 A.M. The same are being reproduced below: i) “Abrasion 4 cm X 3 cm on the left side of face 1.5 cm above angle of left mandible. ii) Abrasion 1.5 cm X 1.5 cm on the side of chest over middle of left clavier. iii) Abrasion 3 cm X 3 cm on the right side back over right scapula. iv) Traumatic swelling on left side of chest 4 cm X 4 cm, 14 cm below and left to injury noted above. v) Abrasion 2 cm X 0.5 cm on dorsum of left foot at root of little finger. All injuries except injury No. 4 were simple in nature and in respect of injury No. 4 X-ray was advised. 8 9) Now, we come to the injuries suffered by the accused Krishna Lal @ Kishan Lal in the incident, which are proved by Dr. B.K. Oli, who examined Krishna Lal @ Kishan Lal on 28.07.1991, at 12:35 hours, at Doon Hospital and prepared report (Ext. B –1). The injuries suffered by the accused Krishna Lal @ Kishan Lal are being reproduced below: i) “Lacerated wound 5 cm X 1 cm X bone deep on the left side of back of scalp. 9 cm above the left ear. ii) Lacerated wound 3 cm X 0.5 cm X bone deep on the right side of back of head (scalp). 6 cm above right ear. iii) Lacerated wound 1 cm X 0.5 cm on the front of right side of scalp, 11 cm above the right ear. iv) Lacerated wound 1 cm X 0.5 cm on the front of the left side of scalp, 11.5 cm above left ear. v) Lacerated wound 1 cm X 0.5 cm on the right ear on middle. vi) Lacerated wound 1 cm X 0.25 cm on the right side of face, skin deep, 4 cm outside right eye.. vii) Lacerated wound 1 cm X 6.25 cm on the right side of the face skin deep. 2 cm outside right eye. viii) Lacerated wound with traumatic swelling 7 cm X 5 cm on the back of right forearm 15 cm above right wrist joint. ” The Medical Officer kept injuries No. 1, 2, 3, 4 and 8 were under observation. 9 10) From the above injuries read with the statements of the eyewitnesses P.W. 1 Ayodhya Prasad, P.W. 4 Sheruddin @ Khairuddin and P.W. 5 Hith Lal, we find that the prosecution has successfully proved that after Ram Ahorey (deceased) parked his bullock cart near the house of Krishna Lal @ Kishan Lal (accused / appellant No. 1) a quarrel took place on 27.07.1991, at 10:00 P.M., near the house of Ram Ahorey where the accused Krishna Lal @ Kishan Lal and his two sons accused Natwa @ Rajesh and accused Shyam Lal had gone to object as to why Ram Ahorey has parked his bullock cart near their house. It is also proved on the record that quarrel took place between the parties due to said reason and injuries were caused on both the sides. Even the witnesses P.W. 4 Sheruddin @ Khairuddin and P.W. 5 Hith Lal also suffers the injuries. The defence has come up with a case that the accused had acted only in private defence. In the first information report, Ayodhya Prasad (P.W. 1) has admitted that injuries were caused on the person of Krishna Lal @ Kishan Lal and his sons (both are accused / appellants) but the same was done in private defence. On the other hand, learned counsel for the accused / appellants argued before us that it was the accused / appellants who acted in defence. As such, from the evidence on record and the injuries mentioned above, it is clear that there has been a fight between the deceased and eyewitnesses on one hand and accused / appellant Krishna Lal @ Kishan Lal and his sons on the other. Each party states that they have acted in private defence. The injuries suffered by accused Krishna Lal @ Kishan Lal on his head, which includes as many as 10 seven lacerated wounds (mostly on head) and the injury No. 8 which corresponds to a fracture caused in the right hand of Krishna Lal @ Kishan Lal, does indicate that it cannot be ruled out that his son Natwa @ Rajesh might have acted in private defence to save his father while inflicting injury on the person of Ram Ahorey. No doubt, right of private defence does not extend to inflicting the injury more than it is necessary for the purpose of defence as provided under Section 99 of the Indian Penal Code. The incised injuries as mentioned in the ante mortem injury in autopsy report (Ext. C –1) shows that as many as four incised injuries were caused to the person of Ram Ahorey (deceased) by accused Natwa on exhortation of his father accused Krishna Lal @ Kishan Lal. The number of incised injuries suffered by the deceased clearly show that the accused have exceeded their right of private defence in causing death of Ram Ahorey. However, causing injuries on the person of P.W. 4 Sheruddin @ Khairuddin and P.W. 5 Hith Lal, does appear to be beyond the limits of private defence, and as such, it cannot be said that accused are guilty of offence punishable under Section 323 read with Section 34 of I.P.C. 11) As far as commission of murder of Ram Ahorey is concerned, for the reasons as discussed above, we are of the view that the act on the part of the accused / appellants comes under Exception II of Section 300 of I.P.C. which provides that culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence on person or property exceeds the power given to him by law and causes the death of person against whom he 11 is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. That being the case, the offence committed by accused comes under one punishable under Section 304 (Part I) of I.P.C. read with Section 34 of I.P.C. 12) Having reassessed the entire evidence on record and after considering the submissions of learned counsel for the parties, in the above circumstances, this appeal deserves to be allowed partly. The accused / appellants, namely Krishna Lal @ Kishan Lal and Shyam Lal are held guilty of the offence punishable under Section 304 (Part I) read with Section 34 of I.P.C. Natwa @ Rajesh is held guilty of offence punishable under Section 304 (Part I) of I.P.C. They are entitled to be acquitted of the charge of offence punishable under Section 302 / 34 of I.P.C. Further, they are also entitled to be acquitted of the charge of offence punishable under Section 323 read with Section 34 of I.P.C. Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the trial court in respect of the three accused / appellants, namely Krishna Lal @ Kishan Lal, Shyam Lal and Natwa @ Rajesh so far as it relates to the offence punishable under Section 302 / 34 and one punishable under Section 323 / 34 of I.P.C., are set aside. They are acquitted of said charge. But, accused / appellants Krishna Lal @ Kishan Lal and Shyam Lal are convicted under Section 304 (Part I) of I.P.C. read with Section 34 of I.P.C. and accused / appellant Natwa @ Rajesh is convicted under Section 304 (Part I) of I.P.C. for committing culpable homicide not amounting to murder of Ram Ahorey. 12 Having considered the circumstances of the case and after hearing learned counsel for the parties, we hereby sentence accused / appellant Natwa @ Rajesh to rigorous imprisonment for a period of ten years and each of the remaining two, namely accused / appellants Krishna Lal @ Kishan Lal and Shyam Lal, to rigorous imprisonment for a period of seven years. All the three accused / appellants are on bail. Their bail is hereby cancelled. With this modification the appeal stands disposed of. The Registry is directed to send the lower court record back to the trial court to make the accused / appellants (convicts) serve out the sentence as modified by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. July 29, 2008. H. Negi