Rajesh Kumarstate of Haryana Vs.
Dharamvir & Ors [1997] INSC 284 (12 March 1997)
M.K. MUKHERJEE, B.N. KIRPAL
ACT:
HEADNOTE:
WITH
CRIMINAL APPEAL NO.7 OF 1990
M.K. MUKHERJEE. J.
Dharamvir, a resident of Samalkha in the
District or Karnal, along with his three brother Shakti Singh, Subhas and
Suresh, and son Yudhvir was placed on trial before the Additional Sessions
Judge, Karnal for rioting, committing the murders of Yogesh, his father Dinesh,
and his grand- father Suraj Bhan, and attempting to commit the murder of his
brother Rajesh. The trial ended with an order of convictions recorded against
all of them under Sections 148, 302/149 (three counts) and 307/149 of the
Indian Panel Code and of sentences of rigorous imprisonment for six months,
imprisonment for life and a fine of Rs. 200/-, and rigorous imprisonment for
seven years and a fine of Rs. 200/- respectively and a direction that the
substantive sentences shall run concurrently. In appeal the High Court set
aside their convictions and sentences; and aggrieved thereby the State of
Haryana and the complainant Rajesh have filed these appeals.
The deceased Dinesh Chander was the younger
brother of Tulsi Ram, who is the father of accused Dharamvir, Shakti Singh,
Subhash and Lachhi Ram (since deceased). The families and Dinesh and Tulsi used
to live in adjacent houses, both or which open into a lane on the west. To the
adjacent east of the house of the accused is a shop with a common inner
boundary wall. Over that shop litigations were going on between the two
families and a few days before the incident, out of which these appeals stem, a
decree was passed in favour of deceased Suraj Bhan by the Additional District
Judge, karnal. In another suit filed by Tulsi Ram to evict Hari Krishna, the
tenant of that shop, he also got a decree and in execution thereof recovered
its possession on May 5, 1994 at or about 2 P.M., through the Court bailiff
(P.W.10).
According to the prosecution case on the same
day at or about 4.30 P.M. the five accused and lachhi Ram started demolishing
the inner boundary wall of the 'shop in order to make it a part of their own
house. On hearing the sound of pounding on the wall Yogesh went to the lane in
front of their house and asked the accused not a demolish the wall.
Immediately thereafter accused Dharamvir,
armed with a Lathu, and other four accused and lachhi Ram with knives came out
of the shop and started inflicting blows on Yogesh with their respective
weapons. On hearing the alarms raised by him when Rajesh (P.W.18), his father
Dinesh Chander, and his grand-father Suraj Bhan came forward to his rescue
Subhas, Lachhi Ram and Suresh, assaulted Rajesh with their knives. All the five
accused person and lachhi Ram also assaulted Dinesh Chander and Suraj Bhan
causing injuries on their persons. At that stage Dinesh Chander fired a shot
from his licensed gun, which hit Lachhi Ram. In the meantime Krishna Devi
(P.W.14), mother of Rajesh, had also reached the spot. Thereafter the five
accused persons ran away with their weapons. Though Yogesh had succumbed to his
injuries there, his body was taken to the local primary health Centre, where
injured Dinesh Chander, Suraj Bhan, and Lachhi Ram were removed for treatment.
Injured Rajesh however first went to Samalkha Police Station to lodge the FIR.
After recording the FIR, S.I. Borth Raj
(P.W.21) sent Rajesh to the health Centre for medical examination. he then went
to the spot, prepared a site plan, and seized blood stained earth and empty
cartridge (Ext. P.6) from there and a hammer (Ext. P.4) and a chisel (Ext. P.5)
from the shop.
Thereafter he went to the health centre at
Samalkha and held inquest on the dead body of deceased Yogesh. In the meantime
Suraj Bhan, Dinesh Chander and Lachhi Ram and been removed to Medical College
Hospital, Rohtak for better treatment.
Lachhi Ram, however, succumbed to his
injuries on the same evening and Suraj bhan on the following day. Dinesh
Chander continued to be treated in that hospital till be died on May 10, 1988.
During investigation accused Dharamvir and
Yudhvir were arrested on May 8, 1984 and the other three on May 10, 1984.
On may 11, 1984, while on police custody,
accused Shakti Singh made a disclosure statement, which resulted in discovery
of a blood stained knife. On completion of investigation Police submitted
chargesheet against the five accused-respondents and in due course the case was
committed to the court of sessions.
The accused pleaded not guilty to the charges
levelled against them when examined under Section 313 Cr.P.C: and accused
Subhash gave the following version of the incident :
"On the day of occurrence at about
3.00/4.00 P.M. Lachhi was in the process of breaking the wall of the shop of
make it a part of our house of the shop to make it a part of our house after
Shakti had taken possession of the shop in a legal manner. Rajesh and his
brother Yogesh after hearing the noise came outside our house while armed with
knives. They started knocking at our closed door but Lachhi did not bother in
spite of the fact that they had started abusing us and threatening us that
Rajesh and Dinesh were successful in breaking the door and I also came down
stairs after am myself with a knife because I had seen PWs Rajesh and Yogesh
armed with knives and in an aggressive mood both of them attacked Lachhi and me
and we defended ourselves. Lachhi caused injuries to Rajesh with the hand- pump
handle and was successful in throwing down his knife. When Lachhi was being
attacked by Yogesh I gave him a blow in his back.
Meanwhile Lachhi grappled with Yogesh and
dis-armed him and snatched his knife. Lachhi was much stronger than Yogesh.
Meanwhile Dinesh armed with a gun and Suraj Bhan armed with laths came there
and Suraj Bhan gave a lathi blows to Lachhi and me. I grappled with Suraj Bhan
and gave him knife blows in self defence. Meanwhile Dinesh fired shots one shot
hit Lachhi as he was re-loading his gun, Lachhi gave him blows but he was
successful in reloading the gun. He fired on more shot at Lachhi. When I was
grappling with Suraj Bhan, Dinesh fired a shot towards away to save my life
because lachhi had not got up and I was alone. I went to bonepat and got myself
treated there first from Dr. Romesh Batra and then got myself medically
examined also from the Civil Hospital, had witnessed the entire occurrence.
None of the other accused was present at the spot. They have been falsely
involved in the case Krishna was not present at the spot" The other four
accused denied their presence at the spot at the time of the incident and
accused Shakti claimed that at the material time he was with his lawyer at
Panipat.
In support of their respective cases the
prosecution examined twenty three witnesses and defence five.
After taking us through the entire evidence
and the impugned judgment Mr. Uma Datta, the learned counsel appearing for the
appellants, contended that the judgment of the High Court was patently wrong as
it was based on contradictory findings and misappreciation or principles of law
relating to the exercise of right of private defence. In refuting the above
contentions Mr. Kohil, the learned counsel appearing for the accused
respondents, on the other hand submitted that the order of acquittal passed in
their favour was based on proper appreciation of evidence and this court would
not be justified in interfering with the same, more so, as it was neither
vitiated any grave error of law nor old it cause serious miscarriage of
justice.
It is true that ordinarily this court does
not interfere with an acquittal recorded buy the High Court but if it is found
that the order of acquittal suffers from substantial errors of law and fact, it
becomes the duty of this Court to interfere with the same to redeem the course
of justice. Having carefully gone through the impugned judgment in the light of
the evidence soon record we find that this case essentially calls for such
interference.
In view of the respective cases of the
parties as detailed above, there is no room for doubt that in course of the
incident that took place on that fateful afternoon, Rajesh, his brother Yogesh,
their father Dinesh and grand- father Suraj Bhan as well as Lachhi Ram, brother
of accused Shakti Singh, sustained injuries. The parties however joined issue
as to the manner in which the occurrence took place and, for that matter, how
the victims sustained those injuries and all, except Rajesh, met with their
heath. To appreciate the steps of reasoning of the High Court for upsetting the
findings of the trial Court on the above issue it will be necessary to first
look into the evidence of the doctors, namely, Dr. K.L. Khuran (P.W.1), Dr.
Mahesh Prakash (P.W.2), Dr. O.P. Gogia (P.W.3), Dr. D.K. Sharma (P.W.5), and
Dr. Rajnesh Bhalla (P.W.6), who deposed about the injuries found on the above
five persons and as to the cause of death of four of them. Dr. K.L. Khurana (P.W.1)
examined Rajesh and found eight injuries on his person, including on e incised
wound and six lacerated wounds. Dr. Mahesh Prakash (P.W.2) held autospy on the
dead body of Yogesh and found two incised wounds and one abrasion, while Dr.
O.P. Gogia (P.W.3), who held autopsy on the dead body of Lachhi, found one
incised wound and five lacerated wounds, of which, he opined, the first was a
surgical wound and the others were caused by fire-arms. Dr. Rajesh Bhalla (P.W.
6), who examined Suraj Bhan on the night of the incident found seven incised
wounds on his person and Dr. D.k. Sharma (P.W.5), who held post-mortem
examination on his dead body on the following day corroborated the evidence of
P.W.6. Dr. Sharma also held postmortem on the dead body of Dinesh Chand and
found stitched wound on his abdomen. The doctors, who held the post-mortem
examinations opined that the injuries found on the persons of the four deceased
were sufficient to cause death in the ordinary course of nature.
Coming now to the manner in which the
incident took place, the prosecution reties on the evidence of Rajesh (P.W.13)
his and mother Krishna Devi (P.W.14), and the defence on that of Smt. Bimlesh
(P.W.4), wife of accused Shakti Singh, in support of their respective versions.
On a detailed discussion of their evidence and correlating the same with other
evidence adduced by the parties the trial court accepted the version of the
prosecution in preference to that of the defence.
In dealing with the above aspect of the
matter the High Court first made the following observations:- "The parties
at however, at variance about the place, and the manner in which the occurrence
took place, as well as, about the presence and participation of the accused
other than Subhash, and their companion Lachhi Ram deceased. According to the
prosecution story, besides Rajesh Kumar, first informant witnessed the
occurrence that took place in the lane in front of their house, adjoining the
house of the accused.
Taking into consideration all these facts, as
well as the time of the occurrence and fact that after the occurrence Rajesh
Kumar P.W.2 lodged the report with the police within half an hour of the
occurrence it is quite patent that his presence and that of his mother Smt.
Krishna Devi (P.W.14) at the spot at the time of the occurrence is quote
natural.
Probable and convincing. Mere fact that after
the occurrence Smt.Krishna Devi did not accompany the injured or her deceased
son to the hospital, and instead preferred to stay at her home possibly because
she would be under great shock on seeing the ghastly sight, would not be
sufficient to upheld the defence plea that her presence at the spot at the time
to the occurrence is doubtful." (emphasis supplied) Thereafter the High
Court passed the question as to whether the accused acted bonafide in exercise
of right of private defence of their persons and property and observed that to
resolve the issue the place and the manner in which the occurrence took place
assumed considerable importance.
The High Court then discussed the relevant
evidence and answered the question in the following manner :- "According
to the testimony of S.I. Bodh Raj, who went to the spot on the evening of the
occurrence, blood was lifted by him from the street, which, as per the report
of the Chemical Examiner, and, that of the Serologist, was found stained with
human blood. No blood was lifted from inside the shop in dispute, where,
according to subhash accused, the complainant party initially went in order to
stop the accused from dismantling the house of the accused, the complainant
party attacked him and his brother Lachhi Ram and the latter inflicted injures
to Rajesh Kumar P.W. with the handle of hand pump, and Subhash accused, who was
armed with a knife gave a blow with the same to Yogesh ( deceased) on his back.
This tell the circumstances does support the ocular account given by Rajesh
Kumar and his mother Krishna Devi, FIRs. that the entire occurrence took place
in the lane itself." (emphasis supplied) On perusal of the record we notice
that the above quoted findings are based on proper appraisal of the evidence
and in agreement with the findings of the trial Court. Surprisingly however,
inspite of such findings recorded favour of the prosecution - which would have
necessarily led to the affirmance of the judgment of the trial court - the High
Court upset the same, accepting the plea of right Court upset the same,
accepting the plea of right of private defence of person and property raised by
the accused persons. In so doing, we are constrained to say, the High Court not
only contradicted those findings but also arrived at findings which are
patently wrong-both factually and legally.
Though the High Court found that Rajesh
(P.W.13) and his mother Krishan Devi (P.W.14) were reliable witnesses, (as the
earlier quoted passages indicate) it disbelieve their statements that Dinesh
came to the spot with his licensed gun and opened fire after he and his other
family members were assaulted. According to the High Court it was difficult to
believe that after the complainant party became aware that the accused party
started dismantling the common wall between the shop-in-dispute only Yogesh
would come put in the lane to dissuade the accused from carrying out their
aforesaid plan. On that premise, the High Court observed that it seemed quite
probable beside Yogesh his brother Rajesh, their father Dinesh and their
grand-father Suraj Bhan came to the spot together armed with deadly weapons.
The above observation runs counter to the
positive case made out by accused themselves, as noticed earlier, while
narrating the sequence of events. Subhash stated in his examination under
Section 313 Cr.P.C that when the fighting was going on between Rajesh and
Yogesh on the one hand and Lachhi Ram and him on the other Dinesh arrived at
the scene armed with a gun and Suraj Bhan with a lathi. Smt. Bimlesh (D.W.4)
was more specific on the point for she stated that in course of the scuffle
that was going on between Yogesh and lachhi, Yogesh fell down on the ground and
Suraj Bhan and Dinesh at once came out of their house, the former with a lathi
and the latter with a gun. The High Court was therefore not justified in making
out a third case based on surmise and conjecture.
Another consideration that influenced the
High Court to accept the defence plea on right of private defence was the
testimony of Satbir Singh (D.W.3), who was examined by the accused to prove
that on the day following the occurrence one of the leaves of the outer door of
their house was missing. The High Court, however, did not discuss his evidence
and, were are sure that if the High Court had done so, it would have agreed
with the finding of the trial court that he wan a procured witness.
From his testimony we get that he is a
resident of Sonepat and there he runs a photo studio. On May 6, 1984 one Mool
Shankar approached him at Sonepat and took him to the house of accused at
Samalkha. There he took photographs (Ext.DC,DE and DH) of the outer door of the
house, one leaf of which he round broken, and of a hand pump with its handle
missing. In cross-examination he stated that his studio was situated at Bohana
road, Sonepat and in between the bus stand of Sonepat and his studio thee were
about 20-25 other photo studios on that road. He further stated that Mool
Shankar was not known to him from before lastly, he stated there were
photographers in Samalkha also. Having regard to the undisputed fact that
Sonepat is at a distance of about 40 kilometers from Samalkha and that there
were photographers in Samalkha, it seems strange that the services of Satbir
Singh, who was not known to the accused were requisitioned. When the evidence
of D.W.3 is considered in the light of the evidence of S.I. Bodh Raj (P.W.21),
S.I. Piara Ram (P.W.19) and Sat Prakash (P.W.12), who was witness to the
seizure of the articles by P.W.21 and P.W.19, it becomes crystal clear that the
story of the breaking of the door was contrived by the accused later on the
build up a defence. All these witnesses categorically replied, when cross
examined on this aspect, that they did not notice any leaf of the outer door of
the house broken when they went there in the evening of may 5, 1984. The
comment of the High Court that their such reply was evasive is wholly
unjustified for if they had not seen any mark of violence on the door, the only
answer they could have given to that question was that they did not notice any
such mark.
With its assumptive view that all the accused
came together armed with deadly weapons and implicit reliance on the evidence
of D.W.3, the High Court then drew the following inference :- "This aspect
of the case probabilities that defence plea that the complainant party went
armed and tried to break open the outer door of the house of the accused party.
Thereafter, the accused party retaliated and attacked the complainant party.
This aspect of the case would indicate that
the complainant party was the initial aggressor and the accused party in order
to retaliate came out in the lane and attacked the complainant party after the
latter had damaged the outer door of the house of the accused." (emphasis
supplied) In view of our preceding discussing the conclusions drawn by the High
Court that the complainant party tried to break open the outer door of the
house of the accused party must be said to be factually untenable; and the
discussion to follow will demonstrate that on the above factual conclusions the
accused persons were not legally entitled to the right of private defence.
Section 96 of the Indian Penal Code provides
that nothing is an offence which is done on the exercise of the right of
private defence and the fascicle of Sections 97 to 106 thereof lays down the
extent and limitation of such right. From a plain reading of the above Sections
it is manifest that such a right can be exercised only to repel unlawful
aggression- and not to retaliate. To put it differently, the right is one of
defence and not of requital or reprisal. Such being the nature of right, the
High Court could not have exonerated the accused persons of the charges
levelled against them by bestowing them the right to retaliate and attack the
complainant party.
We reach the same conclusion through a
different route- even if we proceed on the assumption that the finding of the
High Court that the accused party came out in the lane and attacked the
complainant party after the latter had damaged the outer door of their house is
a proper one. The offence that was committed by the complainant party by
causing such damage would amount to 'mischief' within the meaning of Section
425 of the Indian Penal Code and, thereby, in view of Section 105 of the Indian
Penal Code the accused would have been entitled to exercise their right of
private defence on property so long as the complainant party continued in the
commission of the mischief. In other words, after the damage was done, the
accused had no right of private defence of property, which necessarily means
that when they attacked the complainant party i n the lane they were the
aggressors. Consequently, it was the complainant party- and not the accused-
who was entitled to exercise the right of private defence of their persons; and
their act of gunning down Lachhi after four of them were assaulted by the
accused party with deadly weapons would not be an offence in view of Sections
96 to 100 of the Indian Penal Code. In drawing this conclusion we have drawn
sustenance from the following finding of the High Court which, in our view, is
based on correct appraisal of the evidence:
"However, from the evidence on the
record it is quite apparent that Lachhi, companion of the accused, was shot
after he and Subhash accused had allegedly inflicted injuries to Yogesh
(deceased) and Rajesh P.W. by that time both Dinesh Chander and Suraj Bhan had
already received injuries at the hands of the accused party. The sequence of
events clearly shows that Lachhi deceased received firearm injuries at the fag
and, when Yogesh, Rajesh Kumar and Dinesh Chander, and Suraj Bhan had already
received injuries on their person at the hands of the accused party".
(emphasis suppled) Before we conclude our
discussion on the above aspect it would be necessary to refer to the statement
made by accused Subhash in his examination under Section 313 Cr.
P.C. (quoted earlier), wherein he stated that
on being attacked by Rajesh and Yogesh he assaulted Yogesh and Suraj Bhan. In
support of his statement he examined Dr. Ramesh Batra (D.W.1) and Dr. N.K.
Verma (D.W.5), D.W.1 testified that on May 5, 1984 at 11 P.M. he examined
Subhash in his clinic at Sonepat and found a lacerated wound 3 cms. x 1cms over
the left paroetal region and he stitched that wound.
The other doctor (D.W.5), who claimed to have
examined Subhash on the following day (May 6, 1984) at 6.45 P.M., deposed that
he (Subhash) had one stitched wound over the left parental bone, a bruise over
the front of the right knee, abrasion on the right shoulder, sub-conjunctival
haemorrhage over the middle part of the left eye and swelling over the left
eyebrow. According to D.W.5 all the injuries that he found on the person of
Subhash were caused by blunt weapon. Apart from the fact that the evidence of
the two doctors vary regarding the number of injuries found on the person of
Subhash, the injuries could not have been caused in the manner alleged by him,
namely, attack by knives by Rajesh and Yogesh in which case we would have
expected incised wounds. Indeed, D.W.4, who gave the defence version of the
incident, did not state in her examination of having seen subhash being
attacked by Rajesh and Yogesh much less with knives and in cross examination
she categorically stated that Subhash did not receive any injury with the knife
and that he received 3/4 injuries with lathis. All these facts and
circumstances not only militate against the defence versions but also persuade
us to hold that the claim of Subhash that he sustained injuries in the incident
owing to assault by Rajesh and Yogesh with knives is unfounded.
That brings us to the question whether the
High Court was justified in accepting the plea of alibi raised by accused
Shakti Singh. As already noticed all the accused except Subhash took the plea
to alibi but only Shakti Singh led evidence to substantiate it. According to
him he had gone with the bailiff Dina Nath (P.W.10) to Panipat after the
possession of the shop had been delivered to him to consult Shri H.K. Singal,
Advocate about the other pending case ant to inform him that the possession had
been taken and that he was with Shri H.K. Singal till 5 P.M. on May 5, 1984.
Therefore, he stated, he could not have been present at the time of occurrence,
as alleged by the prosecution. In support of his contention he examined Shri
Singal (D.W.2).
He deposed that his office timing in summer
were from 4.30 P.M. TO 8.00 P.M., and his office used to be opened by his clerk
at 4.00 P.M. On the day Shakti Singh took possession of a shop at Samalkha in
the begining of may 1984 he came to his office and informed him about it. He
lastly stated that Shakti Singh left his office at about 5.00 P.M. Though D.W.2
claimed to be the Advocate of Shakti Singh in the litigation, no
contemporaneous document was produced by Shakti Singh or D.W.2 in support
thereof or to prove the plea of alibi. In absence thereof it is difficult to
believe that D.W.2, would be remembering who met him, on which date and at what
time. It is trite that a plea of alibi must be proved with absolute certainly
so as to completely excluded the presence of the person concerned at the time
when and the place where the incident took place. Judged in that context we are
in complete agreement with the trial Court that the testimony of D.W.2, for
what it is worth, does not substantiate the plea of alibi raised on behalf of
the accused Shakti Singh.
On the conclusions as above we unhesitatingly
hold that the prosecution has been able to prove the charges levelled against
the accused beyond all reasonable doubt. We, therefore, allow these appeals,
set aside the judgment of the High Court and restore that of the trial court.
The five accused-respondents, namely, Dharamvir, Shakti Singh, Suresh, Subhash
and Yudhvir, who are on bail, shall now surrender to their respective bail
bonds to serve out the sentence imposed upon them by the trial Court.
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