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PETITIONER: SURESH SINGH & ORS.

       Vs.

RESPONDENT: STATE OF  HARYANA

DATE OF JUDGMENT:       31/03/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

     The  appellants  Suresh Singh and Mohinder Singh  have been convicted under Section 302 IPC and have been sentenced to  undergo life imprisonment whereas the appellant  Chander Pal  has been convicted under Section 304 Part I IPC and has been sentenced to undergo rigorous imprisonment for 10 years by  the  High  Court  of  Punjab  &  Haryana.   These  three appellants  and  seven  others  were tried  by  the  learned Additional  Sessions  Judge,  Rewari   for  offences   under Sections  148/149/324/325/302/307 IPC, for having formed  an unlawful  assembly and committing murder of Mahipal as  well as  having injured Chand Ram, Chander Deep and Rajbir,  when they  came  to  rescue   Mahipal.   Learned  Sessions  Judge acquitted  four  of the accused persons of all  the  charges after  screening the prosecution evidence on a finding  that those  accused persons were not present at the spot but they were named later on to implicate as many persons as possible from  the  side  of the accused.  The  Sessions  Judge  also acquitted  rest  of  the six accused persons of  the  charge under  Section 307 read with Section 149 IPC, but  convicted them  under  Sections 148/302/323/324/325 read with  Section 149  IPC.  The convicted accused persons preferred an appeal to  the  High  court  and the High  Court  by  the  impugned judgment  acquitted  three more accused persons of  all  the charges  levelled  against  them and acquitted  the  present three  appellants of rest of the charges and convicted  only under  Section 302 and 304 Part I IPC, as already stated and hence the present appeal.

     The   prosecution  case  as   unfolded  in  the  first information  report  given  by PW5 is  that  while  deceased Mahipal  was  sitting  on  a cot in front of  his  house  on 13.9.89  at  5.30 P.M., all the accused persons  armed  with different deadly weapons arrived there and accused Rameshwar having given a lalkara that Mahipal should not be allowed to go, they gave different blows on different parts of the body of Mahipal.  Hearing the cries of Mahipal, when his brothers Chand  Ram, Chander Deep and Rajbir rushed to the spot, they were  also attacked and thereafter the accused persons  left the  scene  of  occurrence  when   the  villagers  had  been collected at the spot.  According to prosecution version the motive  behind  the  occurrence was that Rameshwar  was  the Sarpanch  of the village and on account of instigation  from

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Mahipal when several members of the Punchayat did not attend the  meeting, no meeting could be held on account of lack of quorum and it is on this score that Rameshwar and his people had a grudge against Mahipal and they avenged of the same by assaulting  him  on  the fateful day.  On the basis  of  the aforesaid  report  of PW5, the investigation  proceeded  and ultimately  charge-sheet  was  submitted   and  the  accused persons  stood  their  trial.    The  deceased  Mahipal  had sustained as many as 8 injuries on his person and the doctor PW17  who  conducted autopsy over the dead body opined  that the  death  was  due  to shock and haemorrhage  due  to  the injuries   which  were  ante-mortem  in  nature   and   were sufficient  to cause death in the ordinary course of nature. This  conclusion of the learned Sessions Judge based on  the evidence  of  PW17 has not been assailed in any  form.   The defence  put  forth by the accused persons was a  denial  of prosecution  allegation.  The accused persons had taken  the plea  that it is Mahipal, Chand Ram, Chander Deep and Rajbir who were armed with lathi and sharp edged weapons and caused injuries to accused Chander Pal, Mohinder Singh and Parbati, who in self defence of their person have caused the injuries on Mahipal, Chander Deep, Chand Ram and Rajbir.  The learned Sessions  Judge came to the conclusion that accused  Balbir, Ram  Kishan  and Ram Sarup were not present at the spot  and they  were named later on to falsely implicate them from the side  of  the accused.  He also came to the conclusion  that accused  Ram Sarup an aged man of 90 years, hardly steady on his  legs  cannot  be believed to have given jelly  blow  on Mahipal and, therefore, serious doubts exist on his presence at  the time of occurrence and as such acquitted them of all the  offences  charged with.  But notwithstanding  the  fact that  the eye witnesses PWs 5, 6 and 7 had made  improvement to their statements made before the Police under Section 161 Cr.P.C.,  the  learned  Judge was of the opinion  that  such improvements  do not go to the root of the prosecution story and  as such are of very minor nature and consequently,  the witnesses  can  be relied upon so far as they deposed  about the role played by the rest six accused persons.  With these conclusions  and having considered the evidence of the three eye  witnesses  and  the role ascribed by them  to  the  six accused  persons, the six accused persons were convicted  by him for the offences as already indicated.

     The  High  Court in appeal, re-appreciated the  entire evidence  on  record  and came to the  conclusion  that  the motive  alleged  by the prosecution that Sarpanch  Rameshwar had  a grudge against Mahipal, as he was the instrumental in not  getting the quorum in the meeting of the Panchayat  has not  been  established by the prosecution and on  the  other hand the defence version as given by the accused Chander Pal in  his report to the Police at 7.30 P.M., hardly two  hours after  the  occurrence  appears  to  be  more  probable  and consequently  the  entire episode took place on  account  of annoyance  created by Mahipal in indulging in abusing  under the  influence  of  liquor.  Disagreeing  with  the  learned Sessions  Judge,  the  High  Court   came  to  the   further conclusion  that it was the bounden duty of the  prosecution witnesses  to  explain  the  injury on  the  person  of  the accused.   The  High Court also was of the opinion that  the occurrence  did  not  take place in front of  the  house  of Mahipal  as alleged by the prosecution but at a distance  of 110  feet from the said place when the deceased had given  a chase to accused Rameshwar.  But the High Court further came to  the conclusion that even if accused Rameshwar was  being chased  by Mahipal and it is that point of time he inflicted

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the  blows on the deceased, but they cannot claim a right of private  defence  of persons and exception 4 to Section  300 IPC  applies,  which  is  apparent from the  nature  of  the injuries  on the deceased.  The High Court on an analysis of the evidence also was of the view that in view of the sudden fight,  the provisions of Sections 148/149 or Section 34 IPC could  not  be  attracted.  Besides the  conviction  of  all accused under Sections 323,324 and 325 read with Section 149 is  not sustainable as the element of voluntariness is  lost in  case  of  sudden  fight.    Therefore,  the  High  Court acquitted  three  of the accused persons and  convicted  the three  appellants of the charge under Section 302 IPC so far as appellant Suresh and Mohinder are concerned and convicted the appellant Chander Pal under Section 304 Part I IPC.

     Mr.    U.R.   Lalit,  the   learned  Senior   Counsel, appearing for the appellants contended before us that on the basis  of  the evidence of the eye witnesses, major part  of the  prosecution  case  having been disbelieved,  both  with regard  to  the motive as well as the sequence of  event  as unfolded  through the witnesses and seven out of 10  accused persons having been acquitted, it would be unsafe to convict the  three appellants on their evidence.  Mr.  Lalit further contended that in view of the finding of the High Court that it  is  the accused Rameshwar, who was being chased  by  the deceased  Mahipal  and  at  that point  of  time  the  three appellants  had  inflicted  the blows on the  deceased,  the conclusion  that  the right of private defence will  not  be available is erroneous.  More so when each of the appellants have  been  stated  to  have  given one  blow  each  on  the deceased,  Mr.  Lalit also contended that even if the  court comes  to a conclusion that the accused appellants  exceeded their  right  of private defence by giving the blows on  the deceased  but taking into account the sequence of events  as accepted  by  the  High Court and taking  into  account  the number   of  blows  alleged  to   have  been  given  by  the appellants,  the  conviction can only be under  Section  304 Part  I, IPC and for such conviction, sentence should not be more than seven years in any event.

     Mr.   Prem Malhotra, learned counsel appearing for the respondent  on the other hand contended that it is no  doubt true  that six of the accused persons have been acquitted by now  but  their acquittal is on account of benefit of  doubt having  been  given and the testimony of the  eye  witnesses cannot  be totally ignored on that score, particularly  when the  witnesses  themselves  are injured.  According  to  Mr. Malhotra,  the injuries on the accused persons are such that even  if the prosecution has offered no explanation for  the same, the prosecution case will not fall on that score.  Mr. Malhortra  further  submitted that in view of  the  positive role  ascribed to these appellants, the High Court was fully justified  in  convicting them of the charges under  Section 302  so  far as the first two appellants are  concerned  and Section  304  Part  I,  so far as  the  third  appellant  is concerned and there is no infirmity in the same.

     Having considered the rival submissions at the bar and having  scrutinised the impugned Judgment of the High  Court and  the findings recorded thereon, there is ample force  in the  submission of Mr.  Lalit, appearing for the appellants. It  was  possible  for  the prosecution to  argue  that  the conviction  can be sustained on the evidence which have  not been  relied upon by the High Court but such a step has  not been  taken and Mr.  Malhotra has not advanced any  argument

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on  that score.  But at the same time, we cannot lose  sight of the fact that some of the findings arrived at by the High Court  on  the face of it, is wholly unsustainable.  But  we are  not  examining the same in depth as there has  been  no appeal against the acquittal recorded by the High Court even as  against the appellants of all other charges.  This being the position, we have ourselves examined the evidence of the eye  witnesses to find out whether the role ascribed by them to  these  three  appellants of having given  blows  on  the deceased  can at all be accepted or the entire evidence  has to  be  discarded  as  contended   by  Mr.   Lalit.   Having scrutinised  the  same with utmost care and bearing in  mind the  medical evidence as unfolded through the doctor who has conducted  the  post-mortem examination on the dead body  of the  deceased  Mahipal, which in our view  corroborates  the ocular  statements of the three eye witnesses, we are unable to  persuade  ourselves to agree with the submission of  Mr. Lalit   that  the  entire   evidence  should  be   discarded notwithstanding  the fact that the role ascribed as  against other  accused  persons have not believed and seven  accused persons  have been acquitted and even the motive alleged  by them  has  not  been believed.  In our  considered  opinion, therefore,  the  ocular  statement  of  the  eye   witnesses ascribing  a particular role to the appellants in the matter of  giving blows on the deceased by different weapons can be accepted  and we find no infirmity in the impugned  Judgment of  the  High  Court in accepting the same.   The  question, further remains for consideration is whether the accused can claim  a right of private defence of person when their  case has been believed by the High Court that while Rameshwar was being  chased by Mahipal, the appellants who happened to  be related  to  Rameshwar,  came  to the spot  on  hearing  the Hullah,  gave the three blows in question.  In  appreciating this  contention  one thing must be borne in mind  that  the theory  of chasing may not have much significance in view of the  distance  between the house of Mahipal and the  accused persons,  which  is  hardly 56 paces, but all the  same  the positive  finding of the High Court that the occurrence  did not  take place in front of the house of Mahipal as  alleged by  the  prosecution witnesses cannot be lost sight of.   As has been stated earlier, the injuries found on the person of the  accused persons were not that serious though the injury on  Mohinder  was an incised wound and could not  have  been lost sight of by the prosecution witnesses.  However for non explanation  of such injuries on accused persons the  entire prosecution case cannot be thrown out.  The deceased, on the other  hand  had  five incised wounds on his person  on  the front  to parietal, temporal and tempro occipital region  of the skull and two abrasions and a bruise.  Even if we accept the  finding  of the High Court that the accused  appellants assaulted  the  deceased while being chased by the  deceased Mahipal  but  in  consideration  of   the  injuries  on  the deceased,  the  conclusion is inescapable that  the  accused persons exceeded their right of private defence while giving the  blows on the deceased.  Having taken into consideration of all the aforesaid circumstances and the infirmities noted earlier,  we  are of the opinion that the conviction of  the appellants  Suresh and Mohinder under Section 302 IPC cannot be  sustained.   We, accordingly, acquit them of the  charge under Section 302 IPC and instead convict them under Section 304  Part  I ,IPC.  The conviction of the accused  appellant Chander  Pal under Section 304 Part I is maintained and  for such conviction, we sentence all of

     them to undergo rigorous imprisonment for seven years.

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This appeal is allowed to the extent indicated above.