REPORTABL E

IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 506 OF 2006

State of U.P.                                         … Appellant (s)

VERSUS

Preetam & Ors.                                  …Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. The 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 the respondents.  

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2. We  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.

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3. Respondent 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  

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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.  

4. On  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  

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supplementary  reports  were  placed  on  record.  The  

injuries were apparently simple.  

5. The 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.  

6. The  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  

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bone 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.  

7. The 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.  

8. On  the  other  hand,  respondents  also  sustained  

minor  injuries.  The  injuries  suffered  by  them  were  of  

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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  

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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 blunt object.  

9. 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.

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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

SENTENCE

I 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.

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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”

10. The 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.  

11.We 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  

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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.

12.  Learned 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  

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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.  

13. On 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.

14. He 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  

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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.   

15. We  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  

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prosecution 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  

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using  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.  

16. The 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.  

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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  

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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.  

17. Coming 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.  

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18.In 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.  

19.We 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 acquitted.  

20.In  this  view  of  the  matter,  we  find  no  reason  to  

interfere  with  the judgment  of  the  High  Court.  The  

appeal is, therefore, dismissed.         

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……………………………..J.                                                [B.Sudershan Reddy]

……………………………..J.   [Surinder Singh Nijjar]

New Delhi March 31, 2011.

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