Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 121 (ALL)

Shiv Mangal v. State of U. P.

2003-01-21

K.N.SINHA, M.C.JAIN

body2003
M. C. JAM, J. ( 1 ) HERE are two appellants, namely, Shiv Mangal and Dhunu Shiva Bhawan (real brothers) who have filed this appeal against the judgment and order dated 16. 7. 1981 passed by the then Sessions Judge. Banda in Sessions Trial No. 555 of 1980, convicting both of them under Section 302 I. P. C. with the sentence of life imprisonment. ( 2 ) THE incident took place on 11th October 1980 at about 1 P. M. in the field of Bhau Singh situated in Village Chaura, P. S. Pahari District Banda. The deceased was Prabhu Dayal, resident of the same village. The report of the incident was lodged by an eyewitness Ram Jeet (brother of the deceased) the same day at 4. 30 P. M. The distance of the Police Station from the place of occurrence was 4 Kms. ( 3 ) THE broad features of the case may be set forth. On the fateful day, the cattle of the deceased was grazing in the vacant land of the Gaon Sabha. His brother Ramjitcomplainant PW 1 with his wife Jahari and Prabhu Dayals wife Sukhia were cutting cattle fodder in the field of Bhau Singh situated towards east of the vacant land. The field of the appellant Shiv Mangal was adjacent to the west of the Parti (vacant) land in which he had stacked some grass. The two appellants were sitting near the well in the field of Shiv Pratap Singh. While grazing in the vacant land of Gaon Sabha, cattle of Prabhu Dayal sneaked into the field of Shiv Mangal and started eating grass stacked there. Shiv Mangal abused Prabhu Dayal who entreated that the cattle had eaten only dried grass and no damage had been caused. He thus implored Shiv Mangal not to abuse him. Without paying any heed, Shiv Mangal continued hurling abuses and called his brother Dhunu who was sitting at some distance from the well below a tree. Dhunu attacked Prabhu Dayal with a lathi from behind. Shiv Mangal also attacked him with lathi. Prabhu Dayal also had a lathi and tried to shield himself in vain. The two appellants inflicted injuries upon Prabhu Dayal who fell down. Sukhia and Jahari who were in the nearby field of Bhau Singh rushed up. The appellants fled towards the village. Dhunu attacked Prabhu Dayal with a lathi from behind. Shiv Mangal also attacked him with lathi. Prabhu Dayal also had a lathi and tried to shield himself in vain. The two appellants inflicted injuries upon Prabhu Dayal who fell down. Sukhia and Jahari who were in the nearby field of Bhau Singh rushed up. The appellants fled towards the village. Prabhu Dayal died on the spot as a result of the injuries sustained by him. Leaving the dead body in the care of his nephew Tirath who had by that time arrived, the complainant Ramjit PW 1 left with village watchman for the police Station. Reaching a mile ahead he met Natthu Prasad brother of his wife and got the report written by him. He lodged the same at the Police Station in consequence where of a case was registered and investigation undertaken by S. O. Jai Prakash PW 6. ( 4 ) POST mortem over the dead body of the deceased was conducted by Dr. S. D. S. Chauhan PW 2 on 12. 10. 1980 at 3. P. M. The deceased was 35 years of age and about one day had passed since he died. The following antemortem injuries were found on his person: 1. Lacerated wound 6 cm x 2 cm x bone on front of head horizontally 4-1/2 cm above left eyebrow. 2. Lacerated wound 5 cm x 1 cm x scalp, horizontally just in front of left in middle of scalp. 3. Abraded contusion 5 cm x 2 cm on back of left forearm, 4 cm above wrist with fracture of radius and ulna underneath. 4. Multiple contusions overlapping each other varying from 3 cm x 1 cm x 3 cm x 2 1/2 cm in area of 30 cm x 28 cm on left lateral side of chest and left on back upper one third. 5. Contusion 8 cm x 2 cm on the top of right shoulder. 6. Lacerated wound 3 cm x 1 cm x skin on outer aspect of left upper one third. 7. Contusion 4 cm x 1 1/3 cm on back of right leg upper one third. The cause of death was shock and haemorrhage with coma resulting from antemortem injuries. ( 5 ) THE appellant Dhunus presence at the time of occurrence is not admitted. The defence of Shiv Mangal as disclosed in his statement under Section 313 Cr. 7. Contusion 4 cm x 1 1/3 cm on back of right leg upper one third. The cause of death was shock and haemorrhage with coma resulting from antemortem injuries. ( 5 ) THE appellant Dhunus presence at the time of occurrence is not admitted. The defence of Shiv Mangal as disclosed in his statement under Section 313 Cr. P. C. was that Prabhu Dayal let loose his cattle in his field in which he had stacked grass. He asked Prabhu Dayal to remove the cattle but the latter declined. He then abused Prabhu Dayal. Prabhu Dayal was armed with Lathi and tried to assault him therewith. He himself too had a lathi and shielded himself therewith. Prabhu Dayal continued his attack on him. He simply used lathi in self defence to save his life. To be short, he claimed to have used lathi in self defence. ( 6 ) BESIDES the Doctor conducting the post mortem over the dead body of the deceased and formal witnesses including the Investigating Officer, the prosecution relied upon the testimony of eyewitnesses Ramjit PW 1, Smt. Jahari PW 3 and Sukhia PW 4. The prosecution case found favour with the trial judge who convicted and sentenced the accused appellants as stated hereinabove. It is in these circumstances, that the appeal has been filed by the Iwo convicted persons. ( 7 ) WE have heard learned Counsel for the appellants and learned A. G. A. Sri G. S. Bisaria from the side of State in opposition of the appeal. ( 8 ) THE first argument from the side of the appellants is that no independent witness has been examined in support of the prosecution case. True, Ram Jeet PW 1, Jahari PW 3 and Sukhiya PW 4 (eyewitnesses) are close relatives of the deceased but their evidence, which has been well tested through cross*-examination, cannot be thrown over board on the ground of relationship. It is to be pointed out that they were not chance witnesses. All of them were cutting fodder in the field of Bhanu Singh at the time of the incident. It was daytime and their presence for the purpose aforesaid was quite natural and probable. The field of Bhanu Singh is found depicted in the site plan prepared by the Investigating Officer where from the sight of the incident was clearly visible. All of them were cutting fodder in the field of Bhanu Singh at the time of the incident. It was daytime and their presence for the purpose aforesaid was quite natural and probable. The field of Bhanu Singh is found depicted in the site plan prepared by the Investigating Officer where from the sight of the incident was clearly visible. The report was prompt having been lodged by one of them, namely, Ram Jeet PW 1. Therefore, the criticism against the eyewitnesses is to be rejected. There could be no question of production of any other witness as none else had arrived at the spot during the incident. ( 9 ) IN fact, the happening is not even denied by the defence side as the appellant Shiv Mangal set up a plea of selfdefence. Therefore, it admits of no doubt that incident took place at the time and place alleged by the prosecution. ( 10 ) THE next argument of the learned Counsel for the appellants is that the root of the incident was the deceased himself who committed the initial mischief by letting loose his cattle in the field of appellant Shiv Mangal. The cattle allegedly ate away the grass stacked by Shiv Mangal in his field. The prosecution evidence was to the effect that the cattle of Prabhu Dayal deceased had strayed into the field of Shiv Mangal, though he had left them to graze in the vacant land of Gaon Sabha. Shiv Mangal allegedly started hurling abuses on Prabhu Dayal when his cattled strayed into his field. When the deceased asked Shiv Mangal not to hurl abuses on the plea that the cattle had only eaten away some dried grass and no damage had been caused to him, Shiv Mangal and Dhunu appellants launched attack on the deceased with lathi. This was precisely the prosecution case. Now the perusal of the site plan prepared by the Investigating Officer shows the existence of vacant land of Gaon Sabha in the eastern side adjacent to the field of Shiv Mangal appellant. It needs no debate that cattle do not behave like sensible and intelligent persons. Seemingly, lured by the stacked grass in the field of Shiv Mangal appellant, appellant the cattle of the deceased strayed over there without any role or coaxing of the deceased. It needs no debate that cattle do not behave like sensible and intelligent persons. Seemingly, lured by the stacked grass in the field of Shiv Mangal appellant, appellant the cattle of the deceased strayed over there without any role or coaxing of the deceased. Therefore, there can be no foundation for the argument that the deceased committed the initial mischief by letting loose his cattle into the field of Shiv Mangal appellant. The learned Counsel for the appellants cannot gain any point by such reasoning. ( 11 ) LEARNED Counsel for the appellants then persuaded us to accept that one of them, namely, Dhunu alias Shiv Bhau was not at all there and that the appellant Shiv Mangal plied lathi in selfdefence. It is not possible to accept this submission. We would do well to state the reasons for rejecting this argument. It is pertinent to point out that as per the post mortem report the deceased Prabhu Dayal was a young man aged about 35 years with stout body. The antemortem injuries sustained by him have been detailed earlier. It is well indicated that he had received two severe injuries on his head besides a number of other injuries inflicted on him by lathi blows. He had died instantaneously. There was also fracture of left side of frontal bone under injury No. 1 Membranes were congested on the left side and so was the brain. Having regard to the injuries sustained by the victim, it cannot be accepted that Shiv Mangal alone could be able to overpower him who himself was a young man of well built body of about 35 years. We are in judgment that Shiv Mangal alone could not have been able to cause him all the injuries sustained by him. It is crystal clear that more than one person was involved in inflicting injuries on the victim. Both the appellants are real brothers and their presence at their field at the time of the incident in daytime was quite natural. The absence pleaded by appellant Dhunu is without any basis. ( 12 ) SO far as the plea of selfdefence raised from the side of the appellants is concerned, learned Counsel for the appellants tried to draw support from the statements of the eyewitnesses. The absence pleaded by appellant Dhunu is without any basis. ( 12 ) SO far as the plea of selfdefence raised from the side of the appellants is concerned, learned Counsel for the appellants tried to draw support from the statements of the eyewitnesses. It has been pointed out that Ram Jeet PW 1 stated that Prabhu Dayal also had a lathi which he made use of in selfdefence. The statement of Jahari PW 3 has also been referred to that her Jeth also wielded lathi in self defence. We however, find that the theory of selfdefence raised by the appellants does not stand a deeper probe. It is an undisputed fact that none of the appellants received any injury on his person. The mere fact that Prabhu Dayal also had a lathi would not mean that he had launched the attack. Keeping of lathi by villagers while grazing cattle is not unusual in rural way of life. The factum that none of the appellants received even a scratch is sufficient to dislodge the theory of selfdefence. The statements of eyewitnesses referred to above have to be interpreted in a logical manner. The use of lathi by Prabhu Dayal only meant an attempt on his part to ward off the lathi blows being rained on him by the two appellants. True, the right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence might not have been committed and such a right continues so long as the apprehension of danger to the body continues. However, the threat must be real and not fanciful. It must reasonably give rise to the danger present and imminent. Remote or distant danger cannot be employed as an excuse to raise the plea of selfdefence. In the case at hand there was no present or imminent danger of grievous hurt to the two accused by Prabhu Dayal who was not able to inflict even a scratch on their body. Despite entreating of the victim, the appellant Shiv Mangal continued to be aggressive by hurling abuses whereafter both the appellants rained lathi blows on him Rather the victim unsuccessfully tried to defend himself from the blows of lathi being inflicted on him with full force by the two appellants without least justification. Despite entreating of the victim, the appellant Shiv Mangal continued to be aggressive by hurling abuses whereafter both the appellants rained lathi blows on him Rather the victim unsuccessfully tried to defend himself from the blows of lathi being inflicted on him with full force by the two appellants without least justification. Both of them acted in concert, sharing the common intention of one another. We, therefore, reject the plea of selfdenfence raised by the appellants. ( 13 ) THE fact, however remains that the incident was not preplanned. It occurred all of a sudden when the cattle of Prabhu Dayal strayed into the field of Shiv Mangal and ate some dried grass stacked there. It made the two appellants to lose their cool. It is common knowledge that persons of such rural background are very much attached to their articles and possessions. A start was made by hurling abuses on the victim and despite his imploring the appellants got in the worst provocation raining lathi blows on him. Examined in this proper perspective, we are of the view that the offence was committed by them whilst deprived of the power of self control by grave and sudden provocation as a sequel to the sneaking of the cattle of Prabhu Dayal in their field. Every body is supposed to know the natural and probable consequences of his act. Having regard to the injuries inflicted on the person of the deceased, we are of the view that the two appellants would be imputed the intention of causing such bodily injuries to him as were likely to cause his death. Therefore, the case is covered under Part 1 of Section 304 I. P. C. The ends of justice would be met by awarding five years rigorous imprisonment to each of the two appellants and to pay a fine of Rs. 20,000/- or to undergo two years further rigorous imprisonment in default of payment of same. It would also be proper to pay a sum of Rs. 30,000/- to PW 4 Smt. Sukhiya, wife of the deceased out the amount of fine, if realised. The remaining amount of fine Rs. 10,000/- shall go the State exchequer. Our final order is as below The appeal succeeds and is partly allowed. It would also be proper to pay a sum of Rs. 30,000/- to PW 4 Smt. Sukhiya, wife of the deceased out the amount of fine, if realised. The remaining amount of fine Rs. 10,000/- shall go the State exchequer. Our final order is as below The appeal succeeds and is partly allowed. The conviction of the appellants Shiv Mangal and Dhunu alias Shiv Bhawan is converted from Section 302 I. P. C. to Part 1 of Section 304 I. P. C. read with section 34, IPC. The sentence of life imprisonment awarded to each of them is also; reduced to sentence of five years, rigorous imprisonment with a fine of Rs. 20,000/- each or to undergo two years further rigorous imprison-ment in default of payment of fine. Out of the amount of total fine of Rs. 40,000/, if realised a sum of Rs. 30,000/- shall be paid as compensation to PW 4 Smt. Sukhia, wife of the deceased. The remaining amount of Rs. 10,000/- shall go the State exchequer. Appeal disposed of accordingly. . .