1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 91 of 1999 Reserved on : 23rd September, 2010 Date of Decision: 30th September,2010 State of Himachal Pradesh Appellant Versus Bhikham Ram and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Rajesh Mandhotra, Dy. Advocate General For the respondents: Mr.Rakesh Dhaulta, Advocate, vice Mr. D.N.Ronta, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 21.11.1993, accused were put to trial. In terms of judgment dated 12.11.1998 passed by learned Additional Sessions Judge, Mandi, H.P., in Criminal Case No.19 of 1994 titled as State of H.P. vs. Bhikham Ram and others, the accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 22.11.1993, FIR (Ext.PW-1/A) was registered with Police Whether the reporters of Local Papers are allowed to see the Judgment? 2 Station, Balh, under Section 302 read with Section 34, IPC. The said FIR was registered on the complaint lodged by Shri Raju (PW-1). As per the complaint, on 21.11.1993 at about 8.30 p.m. Raju noticed his brother Shri Narinder standing on the threshing floor on his house in Village Seri. Accused persons were using foul language against him. Accused persons were objecting to Narinder visiting their house at night and troubling accused Jogindra. After some time he saw the accused persons giving beatings to Narinder with sticks and fist blows. Accused Sadhu Ram gave blows with a chopper. He noticed Narinder lying flat on the floor and accused switch off the light and go inside their house. Raju himself was caught by accused Bhikham Ram and Sadhu Ram, but, somehow he managed to escape from their clutches and run away. Thereafter he went to the house of the Pradhan and UP-Pradhan of the area, who refused to interfere in the matter. The following morning dead body of Narinder was found lying in a pool of blood on the slab of the house of the accused. 3. With the registration of FIR, police commenced investigation. It so revealed that on 21.11.1993 at about 8 – 8.30 p.m. accused persons were using foul language against Narinder to which he objected. The accused persons dragged Narinder from his threshing floor where he was standing to the slab of their house, which is situated on the upper side of thrashing floor. There, all 3 the accused persons gave beatings with sticks, sharp edged weapon and fist blows. In the morning dead body of Narinder was found on the slab of the house owned by accused Ram Ditta. 4. Police commenced the investigation by preparing inquest report. Dead body was sent for post- mortem, which was carried out by Dr.J.N.Chauhan (PW- 18), who gave his report (Ext.PW-18/A). Blood stained sand and cement (Ext.P-2) was also recovered vide recovery memo (Ext.PW-4/B). Accused Sarla Devi was arrested and she made disclosure statement on 22.11.1993 (Ext.PW-12/B) in the presence of Shri Ravinder Rana (PW-12) and Het Ram (PW-13), which led to the recovery of the weapon of offence i.e. Chopper (Ext.P-26) from the nearby field. Photographs were taken on the spot. Blood stained clothes of accused alongwith blanket and pillows were taken into possession vide recovery memos Ext.PW-4/D, Ext.PW-4/E and Ext.PW-4/F in the presence of Dharam Chand, Shyam Lal (PW-4) and Sohan Lal. The articles were sent for chemical analysis and report Ext.PX obtained by the police. Spot map and field map was prepared at the spot and the statement of the witnesses recorded. 5. With the completion of investigation, challan was presented in the Court for trial. All the accused persons were charged for having committed an offence 4 punishable under Section 302 and 147 read with Section 149, Indian Penal Code and Section 148 of Indian Penal Code, to which they did not plead guilty and claimed trial. 6. In order to prove the charge the prosecution examined as many as 19 witnesses and statements of accused under Section 313, Criminal Procedure Code, 1973, were also recorded in which they took the following common defence:- “on 21.11.1993 at about 8.30 p.m., Sh. Narinder had trespassed into the premises of the accused persons and had been molesting the accused person Jogindera. Smt. Jogindera had resisted the advances of Sh.Narinder. Other accused persons had rushed to the rescue of Smt. Jogindera. Sh. Narinder was stated to be armed with a sword. He had inflicted multiple injuries with sword on the person of Ram Ditta, Sadhu, Sunku and Smt. Jogindera.” 7. In support of their defence, accused also examined four witnesses. 8. Court below acquitted the accused. Hence the present appeal. 9. Undisputedly, as is also evident from the version of PW-1 and Inspector Hans Raj (PW-19) FIR in relation to the very same incident was registered by the accused persons against the complainant party. This FIR 5 was registered on the very same day of the incident i.e. 21.11.1993 at 11 p.m. whereas FIR in question was registered on 22.11.1993 at about 7.45 a.m. The investigation in the case was carried out by SI Prem Singh (PW-10) Inspector Gulzar Mohd. (PW-14) and PW-19. In Court they do not even mention the out come of the FIR lodged by the accused persons. They do not whisper about any joint investigation being carried out in the matter or explain the injuries on the body of the accused persons. 10. From the version of Smt. Chinta Devi (PW-2), Shri Khem Chand (DW-1), Dr.L.D.Vaidya (DW-2), Dr. Susham Dutta (DW-3), Dr. Harish Behal (DW-4) and Dr.D.K.Arora (DW-11) it is evident that accused, namely, Jogindra Devi (A-8), Sunku Ram (A-6), Ram Ditta (A-5) and Sadhu Ram (A-7) sustained serious injuries on their bodies. There were deep and incised wounds on their bodies and in fact Sunku Ram suffered an injury on his knee. It was a fracture, which could lead to disability. Some of the injuries could be inflicted only by a sharp edged weapon. 11. From the testimonies of PW-1, Smt. Bindra Devi (PW-15), PW-2 and Smt. Parwati (PW-5) it is also apparent that people of the village in large number had gathered and witnessed the incident, yet the Investigating Agency did not associate any independent person during 6 investigation nor has the prosecution examined any such person as a witness during trial. 12. In the evidence of PW-2 it has also come that the deceased had threatened to kill accused Ram Ditta. All this only renders the prosecution version to be doubtful and the defence of the accused to be plausible. 13. Out of 19 prosecution witnesses, apart from the close relatives and family members of the complainant, the other independent witnesses are Shyam Lal, (PW-4) Up-Pradhan of the area, Sh.Ravinder Rana (PW12), Pradhan of the area and Het Ram (PW-13). They are witnesses to the disclosure statement and recovery of the articles seized by the police. Importantly on material aspects these witnesses have not supported the prosecution at all. Prosecution has also not confronted these witnesses with their statements recorded under Section 161, Cr.P.C. 14. According to the Investigating Officer PW-19, with the registration of FIR he arrested accused Ram Ditta and Sadhu Ram on 23.11.1993, Phulan Devi, Bhikham Ram and Rita Devi on 30.11.1993. On 24.11.1993 accused Sadhu Ram had produced articles, which were recovered vide memo Ext.PW-4/D. Accused Smt. Jogindera had given her clothes which were recovered vide recovery memo Ext.PW-4/E and Ext.PW-4/F. According to PW-4 the police did take into possession blood stained 7 sand, cement (Ext.P-1), Sticks (Ext.P-2), blanket (Ext.P- 3), pillow (Ext.P-4), shirt (Ext.P-5), Salwar (Ext.P-6), shirt (Ext.P-7), vest (Ext.P-8) and pent (Ext.P-9) vide memo Ext.PW-4/A to Ext.PW-4/F. But, however, he clarifies that the police informed him that the said articles had been recovered from the accused persons and no recovery took place in his presence. This renders the prosecution version to be doubtful. 15. According to PW-14 he had also partly investigated the case and after interrogation accused Sarla Devi had made a disclosure statement (Ext.PW-12/B) in the presence of PW-12 and PW-13. Her statement led to the recovery of weapon of offence Ext.P-26. Now this version stands contradicted by PW-12 according to whom accused Sarla Devi and accused Ram Ditta never made any disclosure statement in his presence. Testimony of PW-13 is also to the same effect. The witnesses were cross-examined by the Public Prosecutor, but, however, nothing incriminating could came out. All this further renders the prosecution version to be doubtful. 16. It stands proved that on the day of occurrence of the incident one Mohan Lal a resident of the same village, was celebrating birthday of his grand-son. In the feast, the deceased Narinder had consumed liquor to this effect. Statement of PW-15 is evidently clear. It has also come on record that the deceased used to often molest the 8 women folk of the village. It has also come on record that on the date of incident heated arguments for over a period of one hour had taken place between the deceased and accused persons. It stands proved from the testimonies of PW-12, PW-5, PW-4, PW-1 and PW-15 that accused persons were repeatedly saying that deceased had entered their house with a sword and had molested accused Jogindera. This fact is also recorded in the FIR. PW-2, wife of the deceased admits that accused Jogindera is her real sister. PW-6 admits that parties are not only relatives but are immediate neighbours. 17. Pradhan and Up-Pradhan of the area, PW-12 and PW-4, respectively, have categorically deposed that on another occasion deceased Narinder had trespassed into the house of the sister of his uncle and molested their daughter. The deceased used to molest women folk under the influence of liquor and it had become risky for young girls to step out of their houses in his presence. Importantly, in the evening of 21.11.1993 PW-1 himself visited PW-12 and informed him that the deceased had entered into the house of accused Jogindera and molested her under the influence of liquor. At that time deceased Narinder was armed with sword. 18. PW-1 also admits that the accused persons were proclaiming that Narinder had been visiting their house in odd hours. They were also accusing him of 9 molestation. He could not deny with certainty as to whether his brother had actually misbehaved in this manner or not. Even PW-2 admits that accused Jogindera had been using foul language against the deceased. To this effect version of PW-3, PW-5, PW-6, PW-7, PW-15 and PW-16 is also same. 19. It is the case of the prosecution that while the deceased Narinder was standing on his threshing floor the accused caught him and dragged him to the slab of their house where they attacked him with a sharp edged weapon, sticks and fist blows. To prove the same reliance is placed on the oral testimonies of the other independent witnesses who allegedly witnessed the occurrence of the incident. In this regard, testimonies of PW-1, PW-2, PW-3, PW-5, PW-6, PW-7, PW-15 and PW-16 need to be examined. They are close relatives and the complainant is also alleged to be an assailant, hence their testimonies need to be examined with circumspection. According to PW-5, PW-6, PW-7, PW-15 and PW-16 the accused dragged the deceased and brought him to the slab of their house. Now this version stands contradicted by PW-1. According to whom at about 8.30 p.m. from his room he heard some conversation going on in between the deceased and accused Bhikham Ram and others. Both the parties were shouting at each other. His brother was on the slab of the accused persons. PW-1 is the complainant. 10 He was the first one to have witnessed the incident. Had it been there he would have got this fact recorded in the FIR. Other independent witnesses have also lent credence to this fact as PW-1 had informed them that the deceased had trespassed into the house of accused persons with an intention of molesting accused. 20. According to all the spot witnesses, they had seen accused giving beatings with sticks and sharp edged weapon to the deceased, which went on for some time and then accused persons switched off the light and went into their house. What happened thereafter is not disclosed by them. 21. Now PW-1 saw deceased lying flat on the slab of the accused Ram Ditta. He managed to escape. He went to the house of Pradhan Ravinder Kumar and Up- Pradhan Lala Ram, who did not do anything. He came back home. In the morning he saw his brother lying dead. Then he got the report lodged with the police. This is a very unnatural conduct on the part of the brother, father, mother, sister, aunt, uncle and widow of the deceased. Had they witnessed the accused giving beatings to the accused they would have definitely taken some action in getting Narinder back and get him medical aid. No explanation is forth coming as to why they allowed the body of deceased to lie in the open for more than 12 hours. They saw the deceased receiving blows with a 11 chopper and yet remained silent. In this back ground version of the spot witnesses appears to be doubtful. In fact they admit that on the slab hay was stacked and whole of the roof was not visible from their house. All this only renders the presence of PW-15, PW-16, PW-5 and PW-3 on the spot to be doubtful. They ordinarily do not live in the village or in the house of the complainant party. There was no occasion for them to be present in the village. Their version thus appears to be false. 22. PW-2 admits that at the time of occurrence of the alleged crime large number of people from the village had gathered at the spot. None has been examined in the Court. It is not the case of the prosecution that of their own or on the asking of the complainant the villagers had tried to intervene but were prevented by the accused party from doing so. Surprisingly, no villager came forward to intervene or render medical assistance to the deceased. 23. PW-7, PW-6 and PW-3 do not even whisper about the presence of PW-1 at the spot and the version of PW-2 that accused persons had forcibly taken away her husband to the slab of their house is not supported by PW-1 who even according to PW-2 had witnessed the incident along with her. It is not the case of the prosecution that the village was not accessible by road, did not have medical facility or that the police station was far away. The matter could have been reported to the police 12 promptly just as the accused had done so. The defence taken by the accused is highly probable and plausible. 24. There is no dispute that Narinder died. It cannot be said with certainty that he died due to beatings given by the accused persons. Be that as it may be, it is quite likely they acted in their right of private defence. Four persons were seriously injured. There were deep incised wounds on their bodies. The genesis of the incident is certainly not attributable to them. While carrying sword the deceased trespassed into their house and attempted to molest accused Jogindera. He had no right to be in the house of the accused. 25. It is a settled law that right of private defence commences as soon as reasonable apprehension of the danger to the body arises. The danger must be imminent, present and real. The right does not extend to inflicting of more harm than what is necessary to inflict for the purposes of defence. The right would be justified if the assault caused reasonable apprehension of death or grievous hurt to the person exercising such right. 26. The Apex Court in Yogendra Morarji v. State of Gujarat, (1980) 2 SCC 218 has held as under:- “15. As pointed out by the Court in Dahyabhai v. State of Gujarat AIR 1964 SC 1563, under Sec. 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of 13 which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3. Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances. 16. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973. 14 17. Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Sec. 299 of the Code (See Dahyabhai v. State of Gujarat (ibid), State of U. P. v. Ram Swarup (1975) 1 SCR 409, Pratap v. State of U. P. (1976) 2 SCC 798).” 27. The position stands reiterated in Radhe vs. State of Chhattisgarh, 2008 Crl. L. J. 3520 and Arun vs. State of Maharashtra, 2009 Crl. L.J. 2065, wherein it is held that in order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. 28. Considering the material in its entirety, it cannot be said that the accused were the aggressor party. Undoubtedly, heated arguments had taken place between 15 the accused and the deceased. Such exchange continued for more than one hour and even after 9.00 p.m. The accused received injuries, which the police has not been able to explain. PW-1 has not come forward to explain how they received injuries. Examination of on looking villagers, being independent witnesses, would have definitely elicited the complete truth. In the absence of any material to the contrary, it cannot be said with certainty that accused were the aggressor party. 29. In relation to the very same incident the accused persons had got an FIR registered against the complainant prior in point of time. According to accused persons, complainant and deceased Narinder who was having a sword in his hand had attacked them. There was enough material on record to prove that deceased Narinder, under the influence of liquor, had trespassed into the house of the accused with an intention of molesting accused Jogindera, who in fact was his real sister-in-law. Accused persons were attacked and had suffered serious injuries and had, therefore, acted in their right of private defence. From the record, it could not be said that all the accused persons had formed an unlawful assembly with a common object of murdering the deceased. Prosecution had failed to prove that the deceased was in fact dragged by the accused persons. 16 30. Accused persons may have retaliated to ward off the blows given by the deceased. From the evidence on record as discussed hereinabove, we are of the considered view that the accused were attacked by the complainant party and they acted in their self-defence. Therefore, they cannot be held guilty of the charged offence. 31. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. September 30, 2010 (Sanjay Karol) (C) Judge.