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PETITIONER: HARISH KUMAR & ANR.

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       09/07/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (6)   193        1996 SCALE  (5)92

ACT:

HEADNOTE:

JUDGMENT:                  THE 9TH DAY OF JULY, 1996 Present:           Hon’ble Mr.Justice M.M. Punchhi           Hon’ble Mrs.Justice Sujata V.Manohar R.L. Kohli, Sr.Adv. and R.C.Kohli, Adv. with him for the appellants U.N. Bachawat, Sr.Adv., Uma Nath Singh and Amitabh Verma, Advs. with him for the Respondent.                       J U D G M E N T The following Judgment of the Court was delivered: Harish Kumar & Anr. V. State of M.P.                       J U D G M E N T Punchhi, J.      This appeal  under Section  329 of the Code of Criminal Procedure has  been preferred  by Harish Kumar, Advocate and his  brother,  Ram  Sharan,  as  of  right,  as  they  stand convicted for charges of murder and attempt to murder by the High Court  of Madhya  Pradesh vide  order dated  25.8.1986, setting aside the orders of the Court of Session, whereunder the aforesaid two appellants and three others were acquitted of all  the charges. Now the acquittal of those three others stands maintained  whereas  the  two  appellants  have  been convicted and sentenced as under: (i) Harish  Kumar under  Section 302  I.P.C. and  Ram Sharan under Section  302/34 I.P.C  for,  the  murder  of  Virendra Kumar. Both sentenced to life imprisonment. (ii)  Both   convicted  under   Section  307/34  I.P.C.  for individually attempting  to commit  murder of Chakodi, P.W.5 and sentenced to five years Rigorous Imprisonment.      Both sentence to run concurrently.      The parties involved are residents of village Madhogarh in the  State of  Madhya Pradesh. Both the courts below have found that  parties have formed factions, one represented by the complainant’s  side and  the other by the accused. It is

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the case  of the  prosecution that  at a  site some distance from  the   village,  the   appellant,  Harish   dumar,   in partnership with  one Ram  Gulam had  taken a  contract  for transportation of  sand and  bajri. In  the vicinity thereof were agricultural  lands of  Jagdish Prasad,  P.W.7.  It  is alleged that  on  the  morning  of  10.1.1982  when  Jagdish Prasad, P.W.7  went to  his fields, he found that a road had been made  by cutting  the boundary  life of  his field  for using it  as a  passage for  trucks. Incidentally, Ram Gulam and Harish  Kumar were  also there.  Jagdish  Prasad,  P.W.7 protested to  them for  the trespass  on his  land. At  that time, both  Harish Kumar and Ram Gulam threatened P.W.7 that if he  ever tried  to obstruct  their trucks from passing on that road,  he would  be shot  dead. It  is alleged that the matter was reported at the police station.      It transpires  that the  Patwari, on orders from higher officers, made  demarcation of  the site  on  17.1.1982.  It emerged that  the site  where the road was made was owned by one Ramsewak,  a  nephew  of  Ram  Gulam  and  that  Jagdish Prasad’s objection  to the  user of the road was without any basis.      In village Madhogarh, there is a busy lane/road running from north  to south,  touching perpendicularly  the highway between the towns of Satna and Rewa. Shortly before reaching the T-junction, there stands erected a stone gate from where a lane  bifurcates at  a  tanget,  touching  also  the  same highway. The appellants and their co-accused, who constitute a family by themselves, have their residential house in that lane, just  about in  the  middle  between  the  stone  gate towards south and the crossing towards the north.      The prosecution  case is  that at  about 4.30  p.m.  on 17.1.1982, Chakodi,  P.W.5 of the rival faction, was passing in that lane. All the five accused were there. The father of the appellants, Narayan Prasad, acquitted co-accused, caught hold of  the hands  of Chakodi,  P.W.5, and told him that he was indulging  in gundagardi (hooliganism) and that he would be set right by them. Harish Kumar, appellant, was then said to be  present and  armed with  a  rifle,  and  Ram  Sharan, appellant too,  with a  .12  bore  gun.  Others  were  empty handed. On being exhorted by Narayan Prasad to kill Chakodi, P.W.5, Harish Kumar fired his rifle at him even when Narayan Prasad was  holding the hands of Chakodi. Neither of the two was hurt  by the  fire as  both had  sat down instinctively. Freeing his  hands from the hands of Narayan Prasad, Chakodi started running away in the lane towards the north, when Ram Sharan fired  at him  from his  .12 bore gun. This time also the fire  missed. It  is alleged  that some  pellets of  the second fire  however hit  Manju Soni, Surendra Kumar, Indra, P.W.3 and  Jagdamba Bai,  P.W.4 (the  former  two  were  not examined at the trial). This is stated by the prosecution to be the  first incident.  Before its  actual happening Ganesh Prasad, P.W.1  was informed  by one  Ganesh Prasad Garg that some quarrel  was going  on in  front of the house of Harish Kumar, appellant.  He rushed  to the spot along with Narayan Prasad Tiwari,  P.W.11 and both claim to have seen the first occurrence in  its entirety  from the  point when  Chakodi’s hands were caught by Narayan Prasad, accused till the end.      Instead of retiring from the tension-ridden place after the first  incident, Ganesh Prasad, P.W.1 and Narayan Prasad Tiwari, P.W.11  both members of the rival faction sat at the close by  tea shop  of one  Ram Sajivan. Other people of the faction such  as Ramesh  Kuman Gautam,  P.W.2,  Chottey  Lal Garg, P.W.13,  Virendra Kumar  Pandey (deceased)  and others were also  seen in  the lane  collected near  the stone gate towards the  south. Allegedly  thereafter, the  five accused

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cam out  from their  house when  Harish Kumar, appellant, as before, was  having a rifle, Ram Sharan as before a .12 bore gun and  the remaining  three accused  this line  (on  which there is some discrepancy) armed with kattas, i.e., country- made pistols. On the exhortation of accused, Narayan Prasad, Harish  Kumars  appellant,  allegedly  fired  a  rifle  shot towards Virendra Kumar Pandey which hit him on the left side of his  chest, whereupon  he fell  down. The five appellants then escaped  from the  place of  the  occurrence.  This  is termed to be the second incident.      Ganesh Prasad, P.W.1 and the aforementioned persons and some others brought Virendra Kumar to the road junction, and putting him in a truck took him to Satna for medical aid. On the way  however, Ganesh  Prasad, P.W.  1 got  down from the truck and  lodged the  First Information  Report  at  police station Kolgawa  at 6  p.m. The  investigation  was  set  in motion.      Virendra Kumar  in an injured condition was admitted in the government  hospital at  Satna. Thereat  Indra, Jagdamba Bai, Manju  Soni and  Surendra Kumar  were also  brought for medical aid  on account  of the  pellet injuries received by them. Virendra  Kumar was  given immediate medical attention by Dr.  N.K. Nema,  P,W.14. At  6.35  p.m.,  when  asked  in writing by  the concerned  police officer  whether  Virendra Kumar was  in a  position to  make  a  statement,  Dr.  Nema replied thereon in the affirmative. That document is Exhibit P.16. Immediately  thereafter, a  dying declaration  of  the deceased Exhibit  P.14 was  recorded by  Dr.Nema on a single sheet. It  is in  Hindi and  in a  question and answer form. When translated, it reads as follows : Q.1 : Your name? Ans.: Virendra. Q.2 : Father’s name? Ans.: Sunder Lal. Q.3 : Where do you come from? Ans.: Madhogarh, Q.4 : How did you receive this injury? Ans.: Nil Q.5 : Who hit you? Ans.: Harish Dwivedi hit me.       Narayan Secretary. (meaning Narayan Prasad accused who       is also konwn as Narayan Secretary).       Ram Sharan too.        Satish  was  carrying  395.  (description  of  a  the      firearm).       Ravi Shankar.       Ram  Sharan was  armed with  12 (meaning  type of  the           firearm). Q.6. : How did the dispute occur? Ans. : He had from the front and hit me.      Rattan Singh, Sarpanch of village Kripalpur, P.W.19 and Narayan Prasad  Tiwari, P.W.11 respectively signed the dying declaration as  witnesses to its recording in their presence by Dr.  N.K. Nema, P.W.14, who too signed the same being the one who  had recorded  it. The deceased, Virendra Kumar died at 8.45 p.m. the same day in the hospital.      We do not feel obliged to detail out the steps taken by the police  to cover  and complete the investigation. Yet it would require  to be mentioned that Narayan Prasad, accused, was taken  in custody  by the  police the  following day  on 18.1.1982. At  that time  he had some simple injuries on his person, which  when examined by Dr. R.B. Patel, D.W.2, three days later  on 21.1.1982,  were found  to be a bruise on the left chest,  a lacerated  wound on the temporal region, some tenderness on  the right  chest, right  thigh and  left  leg

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which were  opined to  be more  than 24  hours old.  The two appellants were  however arrested  about four weeks later on 11.2.1982 and  were sent  for medical  examination. Dr. B.B. Bhattacharya, D.W.1,  found one  pellet injury  on the right leg and  another one  on the  right forearm of Harish Kumar, appellant, and  one pellet  injury on  the left  leg of  Ram Sharan. The  stuck up  pellets thereafter  were  removed  by medical assistance provided during the investigation.      The appellants when put to trial had to face a swarm of evidence led  by the  prosecution with  regard to  both  the incidents. When  put the  prosecution case,  the  appellants raised the  plea of  right of  private defence of person and property suggesting  that only one incident took place, that the complainant’s  faction had  a grouse against the accused because the  decision in  the boundary  dispute had  gone in their favour  on the  day of  the occurrence,  which was the reason for  the complainant  party to  have come  in a large number to  attack the  accused and members of their families and that  not only  was the  father, Narayan  Prasad hit  by members of  the complainant party, but kattas in their hands were used too, causing injuries to both the appellants which compelled them to defend themselves in exercise of the right of private  defence of  person as well as property as it was apprehended that their house too would be put to fire.      The Court  of Session  in dealing  with each  and every aspect  of  the  matter  in  detail,  keeping  in  view  the instances of litigation pending and decided between the said factions replete  in testimony,  came to the conclusion that the prosecution witnesses were not trustworthy and reliable. It  also  viewed  that  the  dying  declaration  was  not  a trustworthy  document   because  firstly  it  was  vague  in content, not  conveying any  sense, and secondly, the Doctor had  nowhere   written  on  the  dying  declaration  itself, certifying that Virendra Kumar was in a fit position to make a statement.  The statement  of Dr. Nema that he had done so vide Exhibit  P-16 was not considered reliable. This broadly led to the acquittal of the accused persons.      On appeal  preferred by  the State of Madhya Pradesh, a different view  was taken  by the  High Court insofar as the two  appellants   were  concerned.   The  acquittal  of  the remaining three  co-accused was however maintained. The High Court  took  the  view  that  even  though  the  prosecution witnesses belonged  to one faction, their evidence could not be discarded altogether for two reasons, (i) the defence had not denied  and had  rather admitted  the  presence  of  the prosecution witnesses at the time of the occurrence and (ii) their version  at best  would require  a closer scrutiny and not total  discardence. Proceeding  on that  basis, the High Court approved  of their  evidence in establishing the guilt of the  two appellants,  taking corroboration from the dying declaration above-referred  to, holding  that  Dr.  Nema,  a responsible medical  officer was  not  expected  to  get  in league with  the faction  of the  prosecution witnesses  and that he  is expected  to have  performed  his  duties  in  a responsible manner,  having regard  to  the  situation  then existing. The  High Court further took the view that insofar as Virendra  Kumar was  concerned, he had specifically named Harish Kumar, appellant, to be the one who had fired at him, which established  the charges  of murder.  This is  how the conviction of the appellants has come to be recorded.      Learned counsel  for the  appellants stressed before us that there  was only  one occurrence, cause of which was the favourable demarcation of land by the Patwari, which angered the complainant  party and  hence hooliganism  was  indulged into by  them, to  the point  of hurting  Narayan Prasad the

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father of the appellants, by inflicting on him four injuries and by  using their country-made pistols (kattas) in causing pellet injuries  to the  two appellants  and an apprehension that their  house would  be put  to fire, justifying them to employ their weapons in the right of private defence. In the alternative, it was urged that it could at best be said that the right of private defence, had been exceeded.      We have  carefully gone through the evidence led by the parties and  have also  taken  into  account  the  arguments addressed by respective counsel. We would, to begin with, go with the prosecution (though not positively holding so) that there  were  two  occurrences.  To  recount,  Ganesh  Prasad Sharma, P.W.1  was  informed  by  Ganesh  Prasad  Garg  (not examined by  the prosecution)  that there  was some  quarrel going on near the house of Harish Kumar, appellant. Then, he and Narayan  Prasad Tiwari,  P.W.11  and  Naresh  Garg  (not examined) went  to the place where the quarrel was going on. Both were  able to see Narayan Prasad, accused, holding both the hands  of Chakodi,  P.W.5, leading him to some distance, telling him  that he  was indulging  in hooliganism and that they would  deal with  him.  At  that  time,  Harish  Kumar, appellant, was having a .315 bore gun (sometime described as rifle in  the prosecution evidence), Ram Sharan was having a .12 bore  gun and the remaining three, i.e., Narayan Prasad, Satish and  Ravi Shankar  were empty  handed. While, Narayan Prasad was holding the hands of Chakodi, he exhorted his co- accused to  kill Chakodi  by firing. Harish Kumar appellant, is  said   to  have   fired  from   his  rifle   at  Chakodi instantaneously with  the intention  to kill  him.  At  that moment, both  Chakodi, P.W.5 and Narayan Prasad accused, are said to have sat down and saved themselves. It appears to us that this  conduct of  Harish Kumar  appellant, in  abruptly firing at  Chakodi, P.W.5,  without caring for the safety of his father  is a  conduct which  does. not stand the test of reason; all  the more  when no  injury on  Chakodi, P.W.5 or Narayan Prasad  was resulted.  It  is  further  allege  that having sat  on the  ground and  thereby saving  himself,  he extricated himself  and ran away whereafter Ram Sharan fired from his .12 bore gun towards him. This time also he was not injured.. Site  Plan, Exhibit P.26, prepared by the Patwari, P.W.16, goes  to show  that the  persons who were hit by the pellets of  the’ second  shot were  present in  the northern portion of  the lane  from which it could safely be inferred that Chakodi had run,if at all, towards the northern side so as to attract a fire being made in that direction. Now, when we advert  to the evidence of Ramesh Kumar Gautam, P.W.2, he says that  on hearing  of a shouting "killed" "killed". made by Chakodi,  P.W.5, the  latter on  the asking of the former had told him that the two appellants had fired at him in the manner abovestated,  P.W.2, further  says that  when Chakodi P.W.5, ran  away towards  his house, then he, Virendra Kumar deceased and  Chottey Lal  Garg came  and sat  near the  old stone gate  wherefrom they  saw  the  accused  coming  fully armed, i.e.,  both the  appellants in the manner aforestated and the  other three  accused with  kattas. This  would mean that when  Chakodi is  supposed to have run away towards the north, P.W.2  and his  companions including the deceased had walked from  the northern  side down  the lane  and to  have assembled at  the stone  sate after  passing in front of the house of  the accused. In this interval, the three acquitted accused are  suggested to have armed themselves with kattas. The need  to arm  themselves could only be felt if they were anticipating  further   trouble  at   the   hands   of   the complainant’s faction  in the form of a second occurrence in a bigger  way. The  High Court has viewed that the factum of

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Chakodi sitting  down and  escaping rifle shot injury at the hands of Harish Kumar, appellant, to be an exaggeration. Yet the High  Court convicted  Harish Kumar  for  offence  under Section 307/34 IPC. It appears to us that the High Court was wrong in  convicting  Harish  Kumar,  appellant  after  such finding but right in coming to that conclusion, but we would not stop  at that and go further to hold that the account of the first  occurrence has not been placed by the prosecution before the court in a true manner; more so on account of the statements of  Indra P.W.3,  Jagdamba  Bai  P.W.4,  Chakodi, P.W.5 and Sumitra Nandan P.W.6, father of Indra, P.W.3.      Now, according  to Indra, P.W 3, she was in the lane in order to  go to  buy some  bangles and when she got near the crossing (meaning  towards the north) she heard a shot fired at Chakodi P.W.5 whereafter she entered in somebody’s house. She claims  to have  been hurt  by the pellets of the second shot made  by Ram Sharan, when she was peeping to see things happening. Otherwise  she states  she never  come out of the house in which she had taken refuge. As it appears to us her statement is  unnatural does not inspire confidence, because if she  had entered  a house, it is difficult to conceive as to how  could she  have received a pellet injury-on her neck while peeping,  unless she  had exposed  that portion of her body for the pellet to hit hero which was next to impossible while peeping.  Her word  in that  regard of having seen the appellants first  is thus  not reliable.  Similarly,  P.W.4, Jagdamba Bai,  could not  say as  to who had fired the shot. She was declared hostile. On cross-examination by the public prosecutor, she  disclosed that  being weak of eye sight and having become  scared, she did not -see the shot being fired and by whom. Her evidence too in that regard is of no use to the prosecution.  Insofar as  P.W.5, Chakodi  is  concerned, when he  had taken  to heels  after the fire of Harish Kumar which firing  we view  with suspicion,  he has  no basis  to claim that he could see Ram Sharan firing the second shot at his back.  Sumitra Nandan  Garg, P.W.6, the father of Indra, P.W.2. claims  to be  present in  the lane  when Ram  Sharan appellant came  before him  at a  distance of 10 or 15 yards with a  .12 bore gun. The witness claimed that he shouted at Ran Sharan  not to  fire at him, but all the same Ram Sharan did fire  at him.  He claimed that i.e bent down a little to avoid the  fire. While  so, a boy told him that his daughter had been  injured by  a gun  shot.; Now,  he would  have  us believe that  a separate  gun shot was fired at him. This is not possible  otherwise we find he is connected with Chakodi P.W.,as a  brother in  relationship being  a collateral  and thus interested.  Such evidence  therefore does  not inspire confidence to  accept the  veracity of  the first occurrence and to  maintain conviction  on such  accusation against Ram Sharan, on  the unreliable  word of  Chakodi,P.W.5,  Sumitra Nandan Sarg,  P.W.S,  Indrawati,  P.W.3  and  Jagdamba  Bai, P.W.4. Their  evidence being  unacceptable and untrustworthy on the charge of murderous assault on Chakodi, would entitle Ram Sharan  appellant acquittal  for offence  under  Section 307/34 IPC  and sequelly  would Harish  Kumar appellant  too deserve acquittal  for offence  under Section 307/34 IPC. On recording such  verdict of  acquittal of both the appellants for offence  under Section 307/34 IPC, Ram Sharan appellant, also would be entitled to acquittal under Section 302/34 IPC on account  of the  murder of  Virendra Kumar  for the  same reasoning as  has been adopted by the High Court to maintain the acquittal  of the  other three accused, since he too had not done  any over  act towards  committing  the  murder  of Virender Kumar.  We therefore  order acquittal of Ram Sharan of all the charges.

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    Now coming  to the  second occurrence, the sole accused who caused the sole injury to the deceased was Harish Kumar, appellant. On his behalf capital was made as to the injuries on the  person of his father, on himself and his brother Ram Sharan to  countermand and  contend that  he had  a right of private defence  of person  as well  as property.  The  High Court has  leaned sufficiently  on the  dying declaration as the corroborative  material to  the factional  nature of the prosecution evidence. We need not emphasize herein the value of a  dying declaration,  which is  well understood and well appreciated in  legal annals.  Here, the deceased, according to  Dr.   Nema,  when   giving  the  dying  declaration  was surrounded by  very many  people and  police personnel.  Dr. Nema had  asked the  policemen to  remove the crowd, but the policemen were  unable to  do so.  The crowd kept present in the room  when he  went near  the  deceased  to  record  his statement. According  to him,  when he  was talking  to  the deceased, those  persons kept  talking to Virendra Kumar too and to each other. Dr. Nema frankly admitted that earlier to the instant  case he  never had  an opportunity  to record a dying declaration of any patient. Before recording the dying declaration however,  he had  given to the patient sometimes earlier, a  Himosil Morphia  injection,. The  effect of  the same necessarily  would have  brought the  patient  to  some stupor.  In  spite  of  his  delicate  condition  and  grave surroundings, he  was able  to say categorically to Dr. Nema that it was Harish Kumar, who had hit him fatally. The dying declaration therefore  would  at  test  fix  the  appellant, Harish Kumar, as the author of the fatal injury, but that by itself is not a corroborative factor to establish the murder charge, having  regard to  the plea  taken by  Harish Kumar. When  the  prosecution  witnesses  say  that  Harish  Kumar, appellant, is  responsible for  the killing  of the deceased and the  deceased in his dying declaration states similarly, that only  establishes that  unless the plea of self-defence of person  and property  set up by the appellant gets proved on the  test of  probabilities, the  prosecution case  shall stand proved  provided it  stands on  its own.  So the dying declaration is  not the tilting factor as viewed by the High Court because the same does not by itself walk over the plea of self-defence  set up by the appellant, Harish Kumar. That would have to be viewed on its own merit.      The injuries  on Narayan Prasad, were simple in nature. The prosecution  has not  owned them.  The  High  Court  has opined that  these could  have been caused because of a fall or striking  against a  hard or  pointed substance. The fact remains that  these injuries  were found  on the  person  of Narayan  Prasad   when  arrested   a  day   later  than  the occurrence. He  was medically  examined late  though,  after three  days.  Besides,  it  is  contended  that  the  pellet injuries received by the appellant as well as by Ram Sharan, co-accused, were  the result  of the assault mounted on them because many  members of  the complainant  party had carried and  used   kattas.  Our  view  with  regard  to  these  two suggestions on careful consideration is that the injuries on the father are superficial in nature and could not have been the result  of a  deliberate attack  on him.  The situs of a particular injury  is not  the sole  basis to  see whether a friendly hand  could have  caused it  or not.  The nature of injury too can speak prominently. If the father had received injuries at  that juncture  when the two appellants had also received pellet  injuries, then  we would  have expected had the appellants too to have surrendered themselves along with their father.  Their pellet  wounds at  that time would have been fresh,  and the totality If circumstances could perhaps

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have  given  a  probable  picture  in  their  favour.  Here, apparently, the  injuries of  the father  were  flung  as  a defence suggestion  on the  next day  of the  occurrence but when  that   did  not   ignite  the   imagination   of   the investigation, then  the arrest  of the  appellants and  the treatment was  designedly delayed by viewing something else. Thus, on  account of  the  presence  of  injuries  alone  on Narayan Prasad, Harish Kumar and Ram Sharan, accused, we are not prepared  to probabilise their defence in these peculiar facts and circumstances.      That is  not however  the end  of  the  road.  We  have recorded our  views with  regard to the first occurrence. We may add  to those  that some  incident between  the  parties definitely happened  but we  stand deprived  of  a  truthful account of  the same.  So figuratively  there  was  a  first occurrence which  led to the second one. Some unpleasantness had occurred  earlier wherefor  some of  the members  of the complainant party  had  kept  being  there  and  others  had started assembling  in the  lane in  which the  house of the appellants lay.  As members of a faction, it is difficult to believe that they would have come there un-armed and less in numbers and  be there  for no  cause, all  the more  knowing fully well  that amongst  the  appellants  were  2  licensed weapon holders. It is alleged by the prosecution that it was Harish Kumar,  accompanied  by  his  companions,  who  first stepped forward  towards the complainant party, present near the stone  gate. Here  then was direct confrontation. In the circumstances therefore, the possibility cannot be ruled out that  Harish  Kumar,  becoming  apprehensive  of  danger  to himself and  his family  members chose  to be  defensive  in becoming offensive,  because of  the  first  incident;  with having the  requisite intention  to cause  the murder of any particular person.  He therefore fired but only once and the fire was  not repeated.  There was no indiscriminate firing. His act would therefore, be termed as one in exercise of the right  of   private  defence  of  person  entitling  him  to acquittal. It is so ordered.      As a  result, the  appeal of  both  the  appellants  is allowed. They are acquitted of all the charges. The judgment and order  of the  High Court  is set aside and the order of the Court of Session is restored.