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2002 DIGILAW 431 (MP)

Barelal Sahu v. State of M. P.

2002-04-18

S.P.KHARE

body2002
Judgment ( 1. ) APPELLANT Barelal has been convicted under Section 304 (Part-II), IPC and sentenced to rigorous imprisonment for ten years. ( 2. ) THE bone of contention is a house in village Kunwarpura. Kallu was owner of this house. He died on 21-4-1990, Dhania is his widow and Jaikunwar is his daughter. They are entitled to inherit this house. Deceased Lallu was son of Jaikunwar. Appellant Barelal is brother of Kallu. He claimed that Kallu before his death had executed a Will in respect of this house in favour of Ramesh son of Barelal. After the death of Kallu this house was locked. In the incident which took place on 13-6-1990 Lallu died. He was shot dead by appellant Barelal. There were injuries on the persons of both the sides. Sumer is father of the deceased. He sustained two incised wounds on his head. Brijkishore is brother of the deceased. There were three minor injuries on his body. On the other hand Barelal had five injuries including an incised wound on his head. His son Ashok also had five injuries out of which one was lacerated wound on his head. Mahesh is also son of Barelal and he had two minor injuries. ( 3. ) THE prosecution case is that after the death of Kallu the house in dispute was in possession of his heirs and his daughter Jaikunwar had put a lock on it as she lives in Bijour, a nearby village. Barelal has no right or title in the house of his brother Kallu. He put another lock on this house. This came to the knowledge of Brijkishore a day before the incident. On 13-6-1990 Jaikunwar, her husband Sumer and their two sons Lallu and Brijkishore came to village Kunwarpura in a bullock-cart. They asked Barelal to give them the key of the lock which he had put on this house. He refused to give the key. Sumer started opening the lock without the key. Then the fight ensued. Barelal and his sons attacked Sumer and his sons. Sumer sustained head injury by an axe. Lallu came to the rescue of his father Sumer and then Barelal opened fire from his gun resulting in the death of Lallu on the spot. ( 4. ) ACCUSED Barelal and his two sons pleaded not guilty. Then the fight ensued. Barelal and his sons attacked Sumer and his sons. Sumer sustained head injury by an axe. Lallu came to the rescue of his father Sumer and then Barelal opened fire from his gun resulting in the death of Lallu on the spot. ( 4. ) ACCUSED Barelal and his two sons pleaded not guilty. Their defence is that accused Barelal acted in self-defence of the properly and person. According to them, the house was in their actual possession after the death of Kallu on the basis of the Will executed by him in favour of Ramesh son of Barelal; Sumer and his sons were the aggressors; they caused injuries to Barelal and his sons and therefore accused Barelal acted in self-defence in firing at Lallu. ( 5. ) THE Trial Court after appreciation of the evidence on record held that the house in dispute was in possession of the daughter of Kallu on the date of incident; Barelal or his son Ramesh were neither the owners nor in settled possession of the house; they were attempting to commit trespass on this house by putting another lock on it; it was an illegal act on their part and, therefore, Sumer was within his rights in trying to open this lock; Barelal and his sons had no right of private defence of property; they were the aggressors in causing injuries to Sumer and his son Brijkishore and the subsequent act of accused Barelal in causing gun-shot injuries to Lallu resulting in his instantaneous death cannot be said to be in exercise of the right of private defence of person. ( 6. ) IN this appeal it is not disputed that Lallu died on account of the gun shot injuries caused by the appellant. It is reiterated that he acted in defence of property and person. ( 7. ) THE point for determination in this appeal is whether appellant Barelal was justified in firing at Lallu and that was in exercise of the right of private defence of property and person. ( 8. ) THE crucial question is who was in possession of the house in dispute on the date of incident. The case of Barelal that the house was bequeathed by Kallu to his son Ramesh does not appear to be true. The Will has not been formally proved as required by law. ( 8. ) THE crucial question is who was in possession of the house in dispute on the date of incident. The case of Barelal that the house was bequeathed by Kallu to his son Ramesh does not appear to be true. The Will has not been formally proved as required by law. Its execution by Kallu and its attestation by the witnesses in his presence is not proved. Therefore, this Will is to be excluded from consideration. Kallu had left behind his daughter and his widow and, therefore, it is highly improbable that he would make bequest of his house in favour of his nephew Ramesh. Jaikunwar (P. W. 8} has deposed that she had put a lock in the house of her father on the 13th day of his death and went to village Bijour. Brijkishore (P. W. 10) has sworn that his mother had locked the house and when a day before the incident he came to Kunwarpura he saw the lock of Barelal on this house. He asked Barelal to give key of the house but he refused to give the key. He made a complaint to the Sarpanch of the village and he asked him to come next day with his parents. On the other hand the defence is that the house was in possession of Ramesh son of Barelal and Sumer could not break open the lock and the proper remedy for him was to pursue legal course of action to get the lock of Barelal removed. This defence plea is not acceptable. Barelal had not started living in this house. He had simply put his lock by removing the lock of Jaikunwar (P. W. 18 ). Barelal cannot be said to have acquired possession of the house. Brijkishore (P. W. 10) came to know about the lock of Barelal on a day prior to the date of incident. He protested and asked Barelal to give him the key of the lock. Thus there was no giving up or acquiescence on the part of Jaikunwar and her sons. They still had the corpus and animus, the two elements constituting the possession. Barelal cannot be said to have been in settled possession of the house on the date of incident. He protested and asked Barelal to give him the key of the lock. Thus there was no giving up or acquiescence on the part of Jaikunwar and her sons. They still had the corpus and animus, the two elements constituting the possession. Barelal cannot be said to have been in settled possession of the house on the date of incident. It was necessary for him to give key of the house to the legal heirs of Kallu and establish the alleged Will in favour of his son Ramesh in the Court and then to have possession of the house through due process of law. ( 9. ) IN order to find out whether the right of private defence was available to an accused, the entire incident should be seen in its proper setting. Right of private defence cannot be claimed against an act which is itself in exercise of the right of private defence. An aggressor cannot plead self-defence. The right to defend cannot include the right to offend. Section 97, IPC confers on every person right to defend his property against any act which is an offence of criminal trespass or an attempt to commit such offence. A rightful owner is entitled to throw out physically a trespasser or one trying to infringe his right. In Kashmiri Lal v. State of Punjab ( AIR 1997 SC 393 ) it has been held by the Supreme Court that strictly speaking the right of private defence under the Indian Penal Code is entirely a preventive measure provided to a person or party, who is unlawfully attacked by another person or party, to dispel such attack. But there is no such right of private defence avialable under the Code against an attack which is in itself an offence. The law does not confer a right of self-defence on a person who invites an attack on himself by his own attack on another. The principle of right of self-defence cannot legitimately be utilised as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat. ( 10. The principle of right of self-defence cannot legitimately be utilised as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat. ( 10. ) IN the present case, as already stated, the house in dispute became the property of Jaikunwar and her mother after the death of Kallu, they put a lock in it and that means they were in lawful possession of that house. Barelal was not justified in removing that lock in the absence of the legal heirs and putting his own lock. Jaikunwars son protested. Jaikunwar and her husband came and asked Barelal to give the key and on his refusal they tried to open the lock. At that point fight ensued. Viewed in its proper setting Barelal and his sons were first to mount the attack on the other side and thus they were the aggressors. Sumer sustained injuries and when his son Lallu came to his rescue he was shot dead. Sumer and his sons were acting in private defence of their property and person. Barelal and his sons also sustained injuries. But the act of Barelal and his sons could not be said to be defensive. It was offensive and aggressive. The act of Barelal to bring his gun and shoot his nephew from a close range cannot be said to be in exercise of the right of private defence. ( 11. ) BEFORE closing it must be observed that the Trial Court ought to have tried both the cross-cases separately and given separate judgments. When on the same incident cases and counter cases are filed, each case has to be tried separately and the evidence recorded in one case cannot be the basis for judgment in another case. Each case has to be decided on the evidence recorded in it. In Nathi Lal v. State of U. P. , 1990 SCC (Cr.) 638 the Supreme Court has observed :- "we think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. In Nathi Lal v. State of U. P. , 1990 SCC (Cr.) 638 the Supreme Court has observed :- "we think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other. " Recently the Supreme Court in Sudhir v. State of M. P. , 2001 (2) M. P. H. T. 359 = AIR 2001 SC 826 - (2001) 2 SCC 688 , referring to the earlier decision mentioned above has held that it is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same Court by pronouncing judgments on the same day. This should be done even if one counter case is not exclusively triable by the Court of Session and such a case can be committed to the Court of Session under Section 323, Cr. PC. In the present case there was no prejudice to the appellant in the decision of both the cases by one judgment by the Trial Court and there has been no failure of justice on that count and therefore the said irregularity is curable under Section 465, Cr. PC. The objection, if any, on this count should have been raised before the Trial Court. ( 12. ) THE conviction of appellant Barelal under Section 304 (Part II), IPC is unassailable. PC. The objection, if any, on this count should have been raised before the Trial Court. ( 12. ) THE conviction of appellant Barelal under Section 304 (Part II), IPC is unassailable. However, keeping in view all the facts and circumstances of the case especially the age of the appellant being 67 years, the substantive sentence of rigorous imprisonment for ten years is reduced to seven years. With this modification in the sentence, the appeal is dismissed.