State of U.P. &
Ors. Vs. Preetam & Ors.
J U D G M E N T
present appeal is directed by the State of U.P. against the final order and judgment
dated 23rd March, 2004 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No. 577 of 1981 whereby the High Court allowed the criminal appeal
by setting aside the order of conviction recorded by the trial court against
may now briefly note the background facts, necessary for the adjudication of
the present matter. It is the case of the prosecution that on 20th August, 1977
at around 3.30 p.m., Gulab and his nephew Chhatrapal were grazing their cattle in
Dhadhai Haar. Preetam (hereinafter referred to as `respondent No.1'), who is a
collateral of the above two, came there and asked Chhatrapal and Gulab, as to
why they were grazing their cattle in his field. Chhatrapal and Gulab told him that
they were not grazing in his field. Respondent No. 1 then abused and started
beating them. Chhatrapal and Gulab retaliated and started beating Preetam. On an
alarm raised by respondent No. 1, his family members, who were present in the vicinity
doing work in their fields, namely Dilli, Tutti, Mukundi, Karan Singh, Balli, Katti,
Hari Singh, Baura, Thakurdas and Siya Brahims came running to his rescue. They were
armed with kulharis and lathis.
No. 1, Karan Singh (hereinafter referred to as `respondent No. 2') and Mukundi (hereinafter
referred to as `respondent No. 3') were armed with axes and Katti alias Hari Singh
(hereinafter referred to as `respondent No. 4') and Tutti alias Babu Lal (hereinafter
referred to as `respondent No. 5') were armed with lathis. On seeing them, Chhatrapal
and Gulab, due to the fear of the respondents, ran towards the village Abadi. They
were prevented from reaching their house by the respondents. They were encircled
in the field of Hirwa, which was in the Thakur Baba Har. In the field, they
were assaulted by respondent Nos. 1, 2 and 3 and seven other accused persons
with axes and lathis. On hearing the voice of Chhatrapal and Gulab, informant
(PW1) and his brother, Bahadur (PW2) rushed to save them. They were ploughing their
fields in the near by ground. On reaching the spot of the incident, they were also
assaulted. Some other witnesses also arrived at the spot of occurrence on hearing
the alarm raised by Punna, PW1 and Bahadur, PW2. They include his daughter Lachchi
and Sunkiya, wife of his brother Bahadur. After the assault, the respondents ran
away towards the village. Gulab and Chhatrapal were lying dead in a pool of
blood in the field of Hirwa. They had suffered axe and lathi injuries. Due to rain
and fear of the respondents, they did not go to the police station that day. The
FIR was lodged on 21st August, 1977 at 8.30 a.m. by Punna, PW1. The distance between
the police station and the place of occurrence was 5 miles.
the prosecution side, apart from the two deceased, Punna, PW1 suffered only
blunt object injuries. Bahadur, PW2 had suffered an incised wound 2 cm x 5 cm muscle
deep at the border of the right mandibular angle 4 cm, below right ear. These injuries
were medically examined by PW6, Dr. R.S. Mishra on 21st August, 1977 between
10.30 and 11.30 a.m. He had proved the injury reports of Punna and Bahadur. A
perusal of his statement shows that none of the injuries were grievous in nature.
No X-Ray report or any other 5supplementary reports were placed on record. The
injuries were apparently simple.
postmortem examination on the body of the two deceased, Gulab and Chhatrapal
was conducted by PW8, Dr. V.D. Mishra. In his report, he stated that there were
three incised wounds on the body of Chhatrapal, two of them being on head, one covered
right side face, lower part of the right ear and part of neck and the other on
the left side of head 12 cm above the left ear. In both the injuries underlying
bones were cut. The third injury was on buttock. In the opinion of the doctor, cause
of death was due to shock and hemorrhage as a result of injuries No. 1 and 2.
postmortem examination of deceased Gulab took place at 2.45 p.m. on 22nd August,
1977 and was conducted by PW8, Dr. V.D. Mishra. Three incised wounds were also
found in the body of Gulab, one on the upper side of head 10 cm above from left
ear, underlying 6bone was found cut and the second and third incised wounds
were on the left side head. The third injury was 2 cm above injury No. 2. The
doctor then stated that all three injuries were on his skull. The cause of
death was shock and hemorrhage due to the above injuries.
prosecution in support of its case examined five eye witnesses. PW1, Punna and
PW2 Bahadur both were injured witnesses. PW3, Kumari Pramod was daughter of
PW2. The fourth witness was Kunwar, PW4, he was declared hostile by the prosecution.
PW5, Thakur Das alias Munna too turned hostile and did not support the
prosecution case. The other witnesses are PW7, Ram Swaroop, the scribe of the
report, PW6, Dr. R.S. Mishra, who examined the injuries of the prosecution witnesses
and PW8, Dr. V.D. Mishra who performed the autopsy of dead bodies.
the other hand, respondents also sustained minor injuries. The injuries suffered
by them were of blunt object. Preetam Singh, respondent No. 1 suffered two
lacerated wounds, one on the left elbow joint and the other on the left side of
the segital suture. Other injuries were on the left ring finger at the level of
second phalangial joint and on the left shoulder joint. Hari Singh, respondent No.
4 had suffered only an abrasion on the first phalanx of the right thumb. Karan Singh,
respondent No. 2 had a contusion vertically on the left side of the back and another
contusion horizontally at the level of the inferior angle of the left scapula,
abrasion circular in the radius of .5 cm on the outer aspect of the left shoulder
joint, contusion at the outer aspect of the left shoulder joint and lateral wound,
bone deep, on the right parietal protuberance. Injury No. 5 was on the vitalo
part of his person. Mukundi, respondent No. 3 had three contusions, on the
right shoulder joint, right side of mid neck and dorsal surface of the right
palm. Babu Lal, respondent No. 5 suffered one lacerated wound and a contusion. The
lacerated wound was skin deep at the level of the left temporo mandibular joint
and contusion with swelling on the dorsal surface of the first phalanx of left
thumb. All the injured respondents were examined on the same night, i.e., 20th August,
1977 between 9.00 p.m. and 10.15 p.m. All these injuries were suffered from a
Subsequently, the charge sheet was filed by the investigation officer, Bhagwan Singh,
PW9 and respondents were put on trial. The trial court vide its judgment dated 24th
February, 1981 convicted all the respondents as follows: " ORDER Accused
Preetam, Karan, Mukundi, Katti alias Hari Singh and Tutti alias Babu Lal are held
guilty of the offence punishable under Section 302 read with Section 149 IPC
for committing murder of Gulab and Chhatrapal. Accused Preetam and Mukundi are further
held guilty of the offence punishable under Section 307 IPC. Accused Karan
Singh, Tutti and Katti are further held guilty of the offence punishable under
Section 307 read with Section 149 IPC. The Preetam, Karan, Mukundi, Katti and
Tutti are also held guilty of the offence punishable under Section 323 read
with Section 149 IPC. In view of above, I award no sentence under Section 148
and 147 IPC. Accused Baura alias Drigpal, Siyaram, Thakkoo alias Thakurdas and Balli
alias Baladin are held not guilty of the offences with which they stand charged
and are acquitted. Their bail bonds are discharged.Accused Dillipat is dead and
the case against him abates. Sd/ (B.N. Misra) Addl. Sessions Judge, Hamirpur,
24.02.1981 SENTENCEI have heard the learned counsel for accused Preetam, Karan,
Mukundi, Katti alias Hari Singh and Tutti alias Babu Lal on the questions of
sentence. I have found all these five accused guilty of the offence punishable under
Section 302 read with Section 149 IPC. The only punishment provided for this offence
is death sentence or imprisonment for life. Hence, I award these five accused a
sentence of imprisonment for life. These accused shall undergo imprisonment for
life for the offence punishable under Section 302 read with Section 149 IPC.I
further award sentence of seven years R.I. to accused Preetam and Mukundi under
Section 307 IPC and two years R.I. to accused Karan Singh, Tutti and Katti
under Section 307 read with Section 149 IPC. 10 I further award sentence of six
months R.I. to accused Preetam, Karan Singh, Mukundi, Katti and Tutti under Section
323 read with Section 149 IPC. All the sentences shall run concurrently. All the
five accused be taken into custody to serve out the sentences awarded to them. The
bail bonds are cancelled. Sd/ (B.N. Misra) Addl. Sessions Judge, Hamirpur, 24.02.1981"
High Court, in appeal, vide its judgment and order dated 23rd March, 2004 set aside
the order of conviction recorded by the trial court and acquitted all the
respondents. Hence the present appeal is filed by the State before us.
have heard the learned counsel for both parties. The learned counsel appearing
on behalf of State, Mr. T.N. Singh submits that the High Court was not correct
in holding that respondents did not exceed the right of private defence. The injuries
suffered by respondents are not at all proportionate and reasonable as compared
to the injuries sustained by the deceased. He further submits that evidence of PW1
and PW2 clearly show that they had only `painas' in their hands when they had come
to rescue of the two deceased.
counsel further submits that the High Court was not right in holding that prosecution
had suppressed the genesis of the crime. The fact that two persons lost their lives
and two got injured clearly shows that the respondents even if they acted in
self defence, exceeded it. The High Court also did not give any valid reasons
for such assumptions. The injuries suffered by respondents were simple in nature
and were inflicted by some blunt object whereas on the other hand, they had mercilessly
attacked and killed two innocent persons with axes. The evidence of PW1 shows that
the respondents were the aggressors and hence cannot take the plea of self defence.
From his deposition, it is also clear that two deceased were chased by the
respondents and were beaten to death and, therefore, right of private defence
does not arise at all.
the other hand, Mr. Anis Ahmad Khan, learned counsel appearing on behalf of the
respondents submits that the FIR itself lays the foundation of self defence. PW1
has categorically stated in the FIR that the Chhatarpal and Gulab had first beaten
Preetam, i.e., respondent No.1 and on the alarm raised by him, other respondents
had come to save him.
further submits that in fact there is no credible evidence to show as to how the
original fight had started between Gulab and Chhatrapal on the one side and Preetam
on the other. According to the learned counsel, the High Court has correctly discarded
the evidence of the prosecution witnesses as the witnesses have successively made
improvements in the prosecution version. According to the learned counsel, the
place of occurrence is not the one suggested by the prosecution, but was the field
belonging to the respondents. The witnesses examined by the prosecution had been
working in their own field, a long distance away, which would have made it impossible
for them to witness the incident. He further submits that the prosecution has miserably
failed to explain the injuries suffered by the respondents. Learned counsel
further submitted that the prosecution had deliberately introduced a false witness
namely Kumari Pramod, PW3. She had been brought in merely to support the
version given by her father Bahadur, PW2.
have considered the submissions made by the learned counsel. On a thorough
reexamination of the evidence, the High Court discarded the evidence of each witness.
The High Court disbelieved the 14prosecution story as projected through PW1, Punna.
He had stated that Gulab and Chhatrapal had engaged in a "marpeet" with
Preetam in Dhadhai Haar. Both sides had assaulted each other. Gulab and Chhatrapal
had run towards the village. They were followed up to the field of Hirwa by the
respondents and were assaulted. This alleged incident in Dhadhai Haar was sought
to be proved by PW3, Kumari Pramod. However, the High Court disbelieved her evidence
on the ground that she was unlikely to be present at the scene of the incident.
Her name did not figure in the FIR. She had just supported her father and uncle
entirely. She had improved her version; which did not even tally with the version
given by the injured, when they were examined. Similarly, the High Court noticed
the prosecution version that Gulab and Chhatrapal have been assaulted by a number
of persons. They were supposed to have been assaulted by three of the
respondents, who were armed with axes. Others were sing lathis. But the postmortem
report shows that none of the deceased had suffered any injuries which could have
been caused by lathis. The High Court, therefore, concluded that the ocular
version has been contradicted by the medical evidence.
High Court, thereafter, notices that there seems to be no plausible explanation
about the delay in registration of the FIR. The conclusion reached by the High Court
is that there was a delay of 17 hours between the alleged occurrence and the
registration of the FIR. The only explanation given is that due to the fear of the
respondents, the family of the complainants kept sitting near the dead body. They
did not even call for a doctor or medical assistance. The High Court disbelieved
the sequence of events leading to the registration of the FIR. It is noticed
that according to PW1, the Chowkidar of the village had arrived at the spot soon
after the incident. Even his help was not taken for the registration of the FIR.
Noticing the technical terminology used in the FIR, the High Court has
expressed the opinion that it has not been scribed by the rustic villager
Punna. It was scribed by a professional, Ram Swaroop, PW7. It is further noticed
that even though PW3 was stated to be the only witness to prove as to how the
"marpeet" (fight) originated and where, yet her name was not
mentioned in the FIR. On the other hand, the two ladies (daughter of the
informant and wife of Bahadur, PW2) were withheld by the prosecution though
according to the FIR, they had witnessed the incident that took place in the
field of Hirwa. The prosecution also withheld Thakur Baba and Jageshwar, whose
names had also been mentioned in the FIR. The High Court, taking serious notice
of the manipulations and modulations doubted the authenticity of the version
given by PW3. It is noticed by the High Court that even the most independent and
important witness in the chain, PW4, Kunwar was in fact declared hostile by the
prosecution. Similarly, the last witness 17 namely, Thakur Das, PW5, who
completes the chain, was also declared hostile. From the above, it becomes evident
that the prosecution version was not proved beyond reasonable doubt.
to the defence version, the High Court has held that the incident might have
initially happened at Dhadhai Haar. At that time, the parties had been separated.
After sometime, the second incident occurred when the prosecution party tried to
graze their cattle in the field of Karan Singh, respondent No.2 forcibly. When
he objected, they started beating him up. On the alarm being raised by Karan Singh,
Preetam, Mukundi etc. came to the spot armed with axes. The High Court also disbelieved
the version given by PW1 that two deceased had run towards their village. This version
is disbelieved as the prosecution has failed to bring any evidence to show that
Hirwa's field falls on the way to the village.
such circumstances, the High Court has held that the respondents have established
their plea of self defence. The High Court ultimately concluded that the cumulative
effect of all the infirmities of the prosecution and the probabilities of the plea
of self defence renders the case put forward by the prosecution doubtful. In such
circumstances, the appeal of the respondents was allowed and they were acquitted.
are of the considered opinion that the conclusions reached by the High Court
can not be said to be either perverse or based on no evidence. The High Court has
recorded plausible as well as probable conclusion. The respondents were,
therefore, clearly entitled to the benefit of doubt and have been rightly
this view of the matter, we find no reason to interfere with the judgment of the
High Court. The appeal is, therefore, dismissed.
[Surinder Singh Nijjar]