State of U.P. Vs. Mukunde Singh [1994] INSC 40 (18 January 1994)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 SCC (2) 191 JT 1994 (1) 109 1994 SCALE (1)95

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- Criminal Appeal Nos. 232 of 1983 and 233 of 1983 by the State and Criminal Appeal No. 373 of 1982 by the complainant are filed against the judgment of the Allahabad High Court in which the convictions awarded against the respondents-accused by the trial court have been set aside. All the 22 respondents-accused before us were From the Judgment and Order dated August 10, 1981 of the Allahabad High Court in Crl. A. No. 2559 of 1976 192 tried for offenses punishable under Sections 147, 148, 302/149, 307/149 and 201 IPC. It is alleged that all these accused formed into an unlawful assembly and committed the murder of three persons Dinesh Singh, Mahesh Singh and Sirmaur Singh on August 4, 1975 in Village Badera and also caused injuries to Ram Dayal, PW 1 and Ramesh Singh, PW 2 and removed the dead bodies from the place of occurrence to the house of Shiv Vir Singh, accused. The prosecution mainly relied on the evidence of PWs 1, 2, 3 and 5, the eyewitnesses and the trial court accepting their evidence convicted all the 22 accused persons under Sections 302/149 IPC and also for other offenses and sentenced them accordingly. The convicted accused preferred appeals to the High Court and the High Court acquitted all of them holding that some of the accused persons were also injured during the same occurrence and therefore they had the right of private defence and that they did not exceed the same in causing the death of the three deceased persons.

2. Learned counsel appearing for the State as well as the complainant appellant challenged the order of acquittal passed by the High Court on a number of grounds. It is submitted that the eyewitnesses are natural witnesses and that the presence of PWs 1 and 2, the injured witnesses at any rate cannot be disputed and the fact that three persons were killed by gunshot injuries as well as by the injuries inflicted with sharp-edged weapons, would go to show that the common object of the unlawful assembly was to commit the murder and that the trial court rightly convicted them and that the High Court in a cryptic manner acquitted all of them and that at any rate even if the accused had the right of self-defence they have clearly exceeded the same.

3. The case of the prosecution is as follows. All the accused persons, the deceased persons and the material witnesses belong to Village Badera and some of them are interrelated to each other. One Baijnath sold six Bighas of land situated at Village Sikrodi from the joint khata of PW and his brothers to one Narsinghde Singh and the sons of Man Singh. The said land, however, was not mutated in favour of the vendees till the occurrence. PW 1 filed an objection for issue of Bhumidhari Sanad in respect of the said land which was rejected by the Tehsildar. Ram Dayal, PW 1 filed an appeal which was dismissed and a further revision filed by him before the Commissioner was pending. However, Narasinghde Singh and the sons of Man Singh could not obtain possession of the land. A Panchayat was held at the instance of the villagers and it was decided that vendees would not cultivate the land and the same would be cultivated on Batai. It was accordingly cultivated for two years and in the third year the vendees cultivated a portion of the land and the remaining land was cultivated by PW 1 which was not liked by the vendees. On August 4, 1975 at about 9 a.m. when PW 1 was at his house and when his brother PW 2 also was there, all the accused came there and abused them saying that they would upturn the crop sown by PW 1.

Soon thereafter Jhaman Singh, Shiv Pal Singh, two deceased persons Sirmaur Singh and Mahesh Singh and other villagers came there and the two deceased persons told the accused that they were the first 193 to disobey the decision of the Panchayat. However, at that time no fight took place. At about 12 noon on the same day while PWs 1 and 2 and the three deceased persons were going to lodge a report at Police Station Ajitmal regarding the aforesaid incident and had reached near the house of Chlotey Singh in Village Pareda, all the accused forming into an unlawful assembly came there. Mukunde Singh, accused was armed with a gun, Shiv Vir Singh, was armed with a rifle, Hanumant Singh, and Badan Singh, were armed with Kantas and Ashok Kumar Singh, was armed with a spear and the remaining accused were armed with lathis. They surrounded the deceased persons and the PWs. On the alarm raised by them PWs 3 and 5 and some others also came there. Badan Singh, accused instigated the remaining accused to assault them and Shiv Vir Singh and Mukuunde Singh, accused fired from their respective weapons and the remaining accused wielded the weapons with which they were armed as a result of which the three deceased persons received firearm injuries and also spear and kanta injuries and died on the spot. PW 1 received gunshot injuries and PW 2 received blunt weapon injuries. PW 5 gave a report at the police station on the same day. The case was registered and the investigation was taken up. Inquests were field over the dead bodies and the same were sent for postmortem. The doctor, who conducted the postmortem on all the three dead bodies, found gunshot as well as punctured Wounds which could have been caused by sharp-edged weapons. On PW 1, the doctor found two gunshot injuries and on PW 2 the doctor found two contusions and three lacerated Wounds which could be caused by blunt weapon. All the accused pleaded not guilty. However, Shiv Vir Singh and Hanumant Singh and some other accused persons set up counter version and pleaded that on the day of occurrence at about 9 a.m. when these accused persons were sitting on the Gonda of Shiv Vir Singh, accused in Village Badera, the deceased persons and others came there armed with lathis, ballams and country-made pistols and attacked them and that Mahesh Singh, deceased fired from his country- made pistol and they continued to advance. Shiv Vir Singh, accused fired in self-defence and that they also went to the police station to lodge a complaint. It may be mentioned at this stage that DW 1 Dr Mittal examined the accused Hanumant Singh, Brij Mohan, Ramesh Singh, Vidya Ram and Yadhunath Singh and found some abrasions, contusions and lacerated wounds on them.

4. The High Court observed that the eyewitnesses have not furnished any explanation regarding the injuries found on the accused persons and that they also received the injuries during the same incident in which the deceased persons also received fatal injuries and that the finding of the trial court that the accused might have received injuries elsewhere or the same might have been self-inflicted, is wholly untenable. Then the High Court proceeded to state that as the injuries on the accused have not been explained by the eyewitnesses the version given by them cannot implicitly be believed and that the accused acted only in exercise of self-defence and were entitled to the benefit of the section, cannot be ruled out.

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5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted.

Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right of self-defence, ought to have proceeded to consider whether they have exceeded the same.

In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have been self-inflicted.

All the injuries on the accused are such which could not have been self-inflicted. But at the same time they are all simple injuries which were not caused by deadly weapons.

That being the case, even giving benefit to the accused that they had the right of self-defence, we have to necessarily examine whether they have exceeded the same.

6. According to the eyewitnesses Shiv Vir Singh and Mukunde Singh, accused had firearms and they indiscriminately shot at the prosecution party as a result of which three persons died and PW 1 also received gunshot injuries. Then Hanumant Singh, Badan Singh and Ashok Kumar Singh, accused, who were armed with kantas and spear also inflicted injuries with these deadly weapons on the three deceased persons though they were also shot down by Shiv Vir Singh and Mukunde Singh, accused. The medical evidence clearly shows that the gunshot injuries and the punctured wounds inflicted by the assailants resulted in death. Some of the punctured wounds also were on the vital parts. Under these circumstances, we are clearly of the view that these five accused who attacked the three deceased persons and killed them certainly exceeded the right of self-defence.

So far as other accused are concerned, allegation against them is omnibus namely that all of them were armed with lathis and participated in the occurrence. But we do not find any lathi injuries on the three deceased persons as well as on PW 1. Only some simple injuries which could have been caused by blunt weapons were found on PW 2. Therefore there is not sufficient material to come to the conclusion that those 17 accused also participated in the occurrence.

Therefore their acquittal has to be confirmed.

7. Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officer's Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused.

It may be 195 mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage.

At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him.

He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned.

8. For the above-stated reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years' RI. The acquittal of the remaining accused is confirmed.

9. Accordingly the appeals are allowed to the extent indicated above as against Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused and dismissed as against the remaining accused.

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