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2010 DIGILAW 437 (MP)

SIKANDAR KHAN s/o SHER ALI v. STATE OF M. P.

2010-04-15

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT : S. L. KOCHAR, J. 1. The appellants have preferred this appeal under section 374 of the Code of Criminal Procedure being aggrieved by the judgment dated 25-3-2005 passed by the learned Special Judge District Shajapur in Special Sessions Trial No. 36/2004 thereby finding the appellants guilty under sections 148, 302/149, 307/149, 323/149 of the Indian Penal Code and section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 (for short the Act) convicted and sentenced them each to suffer R.I. for two years, imprisonment for life with fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for three months, R.I. for five years with fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for three months (on two counts), R.I. for one year and imprisonment for life with fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for three months (on three counts), respectively. All the substantive jail sentences have been directed to run concurrently. 2. The prosecution case sans unnecessary detail, as placed before the trial Court is that on 26-1-2004 at 2.00 PM deceased Bane Singh, witnesses Dawat Singh, Hukum Singh and Rambabu were grazing goats and near to them Mod Singh (PW-5), Premraj and Majret were grazing their cattle. At that juncture, appellants reached over there and objected to graze the goats on the ground that the same were causing damage to their crop. Complainant-party told the appellants that they were grazing the goats on Kankad (barren land situated at the boundary of the village) and were not causing any damage to the crop. On this issue, appellants got enraged and started assaulting the complainant by Dharia and Farsi. Appellant No. 2 Nawab Khan was also having twelve bore gun and Dharia struck a Dharia blow on the head and chest of deceased Bene Singh. Appellant Peeru Khan and son Sikandar caused injuries by Farsi on the head of witness Dawat Singh whereas appellant Sikandar and Wazir Khan caused injuries to Hukum Singh and Rambabu by Farsi. On alarm being raised by these persons, Mod Singh, Majret and Premraj who were grazing cattle, reached on the spot on which the appellants fled away. While taking the injured persons to the Police Station in a tractor, Bane Singh died on the way. Mod Singh lodged the report Ex. On alarm being raised by these persons, Mod Singh, Majret and Premraj who were grazing cattle, reached on the spot on which the appellants fled away. While taking the injured persons to the Police Station in a tractor, Bane Singh died on the way. Mod Singh lodged the report Ex. P/3 in the Police Station, on the basis of which Sub-Inspector PW-15 Shri P. P. Singh registered Merg Ex. P/27, and after preparing inquest report Ex. P/26 sent the dead body for post-mortem examination and the same was conducted by PW-11 Dr. Prabhakar Anwekar. Post-mortem report and query reports are Ex.P/21 and P/22. PW-10 Dr. A. R. Hawariya medically examined Rambabu, Hukum Singh and Dawat Singh and gave MLC reports P/16 to P/18 as well as query reports Ex.P/19 and P/20. Investigating Officer PW-19 Shri Jitendra Dwivedi SDO (P) reached on the spot on 27-1-2004 and prepared spot map Ex.P/33 at the instance of witness Hindu Singh and also collected and seized blood stained and controlled earth and blood stained cap of Bane Singh through seizure memo Ex.P/14. The appellants were arrested and on their disclosure statements, weapons were seized. Seized articles were sent to the Forensic Since Laboratory for examination. After recording the statements of the witnesses, acquainted with the facts of the case, Investigating Officer filed the charge-sheet against the appellants for commission of the alleged offences punishable under sections 147, 148, 307, 302 read with section 149 of the Indian Penal Code as well as under section 3(1)(x) and 3(2)(v) of the Act. 3. Appellants refuted the charges and their defence was that they acted in right of private defence of property and person. In their defence they got proved the First Information Report Ex.D/5 lodged first in point of time, medical reports about injuries sustained in the same incident by appellants Peeru Khan and Wazir Khan vide Ex. D/6 and D/7 and X-Ray report Ex. D/8 of Peeru Khan. They have also placed reliance on the spot map submitted and got proved by the prosecution as Ex.P/33. Learned trial Court, after examining the prosecution and defence witnesses as well as hearing both the parties, finding the appellants guilty, convicted and sentenced them as mentioned hereinabove 4. We have heard learned counsel for the parties and also perused the entire record carefully. 5. Learned trial Court, after examining the prosecution and defence witnesses as well as hearing both the parties, finding the appellants guilty, convicted and sentenced them as mentioned hereinabove 4. We have heard learned counsel for the parties and also perused the entire record carefully. 5. Learned counsel for appellants has submitted that the learned trial Court has not appreciated the evidence on record in its proper perspective in regard to the place of incident and the injuries found on the persons of the appellants. Appellant Peeru Khan sustained grievous injuries and both the appellants did not sustain superficial injuries, but lacerated wounds on vital parts of the body which were bleeding, but the prosecution witnesses have not explained their injuries. He has also taken us through the statements of PW-8 Village Watch-man Waris Ali and Investigation Officer Jiterdra Dwivedi (PW-19) who has proved the spot map prepared at the earliest point of time after the incident and according to their statements, the incident occurred in the field in possession of the appellants wherein crop was also standing. It is also urged that the case of the appellants is squarely covered by the law of private defence of person and property. 6. On the other hand, learned counsel appearing for the State has supported the impugned judgment and finding arrived at by the learned trial Court and submitted that in view of the statement of PW-17 Revenue Inspector Laxminarayan Sharma and PW-18 Patwari Kamalakant, the incident occurred on a barren land (village Kankad) which was not the land of the appellants, therefore, the appellants cannot claim right of private defence of property and merely because of non-explanation of injuries on the persons of two appellants by the prosecution-eye-witness, they would not be entitled to get benefit of falling of their case within the provision of right of private defence of person. 7. Here, to decide the controversy in the instant case, it would be appropriate to extract below the provisions of sections 96 to 106 of the Indian Penal Code :- "96. Things done in private defence.- Nothing is an offence which is done in the exercise of the right of private defence. 97. Right to private defence of the body and of property. Things done in private defence.- Nothing is an offence which is done in the exercise of the right of private defence. 97. Right to private defence of the body and of property. - Every person has a right, subject to the restrictions contained in section 99 to defend.- First - His own body, and the body of any other person, against any offence affecting the human body. Secondly - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief of criminal trespass, or which is an attempt to commit theft, robbery mischief or criminal trespass. 98. Right of private defence against the act of a person of unsound mind, ect.- When an act, which would otherwise be a certain offence, is not that offence, by reason of the yough, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. 99. Acts against which there is no right of private defence.- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his offence, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of the office, though that direction may not be strictly justifiable by law. There is no right of private defence in case in which there is time to have recourse to the protection of the public authorities. Extent to which the fright may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 100. There is no right of private defence in case in which there is time to have recourse to the protection of the public authorities. Extent to which the fright may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 100. When the right of private defence of the body extends to causing death.- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :- First : Such an assault as may reasonable cause the apprehension that death will otherwise be the consequence of such assault ; Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly : An assault with the intention of committing rape; Fourthly : An assault with the intention of gratifying unnatural lust ; Fifthly : An assault with the intention of kidnapping or abducting; Sixthly : An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. 101. When such right extends to causing any harm other than death.- If the offence be nor of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death. 102. Commencement and continuance of the right of private defence of the body.- The right of private defence of the 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 may not have been committed; and it continues as long as such apprehension of danger to the body continues. 103. 103. When the right of private defence of property extends to causing death.- The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of an other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerates, namely.- First Robbery; Secondly : House-breaking by night; Thirdly : Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly : Then mischief, or house trespass, under such circumstances. 104. When such right extends to causing any harm other than death.- If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death. 105. Commencement and continuance of the right of private defence of property.- The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues. 106. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues. 106. Right of private defence against deadly assault when there is risk of harm to innocent person.- If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. 8. It is well settled legal position that burden on accused is not as onerous as lies on the prosecution. The prosecution is required to prove its case beyond reasonable doubt whereas the accused can prove its defence by preponderance of probability. Plea of right of private defence of person and property can be proved by adducing oral and documentary evidence in defence or from the prosecution evidence itself, but cannot be based on merely speculation or conjectures or surmises. It is also trite law that the accused can plead more than, alternatively, one defence. See : Krishnanan vs. State of Tamil Nadu, (2007)1 SCC (Cri.) 437, State of U.P. vs. Banne alias Baijnath and others, (2009)2 SCC (Cri.) 260, Rampati and others vs. State of Haryana, (2009)3 SCC (Cri.) 488. 9. In the light of the aforesaid legal provisions and Supreme Court pronouncements, which are binding on us as per Article 141 of the Constitution of India, now we proceed to examine the evidence available on record of this case. 10. First of all, we would deal with medical evidence adduced by both the parties. PW-11 Dr. Anwekar proved the post-mortem examination report of deceased Bane Singh vide Ex. P/21 and found four incised injuries on head, left side of face, chest and on right leg. On internal examination, underneath injury No. 1 on head there was fracture of skull bone and damage to brain membrane and tissues. In his opinion, injuries were homicidal in nature and deceased Bane Singh died because of shock and haemorrhage due to injury No. 1 on head. On internal examination, underneath injury No. 1 on head there was fracture of skull bone and damage to brain membrane and tissues. In his opinion, injuries were homicidal in nature and deceased Bane Singh died because of shock and haemorrhage due to injury No. 1 on head. He also opined in para 9 of his deposition that the injuries No. 2 and 4 were simple in nature and injury No. 3 was grievous in nature. 11. PW-6 Rambabu, PW-7 Dawat Singh and PW-13 Hukum Singh sustained following injuries. Rambabu : 1. Lacerated wound, bleeding on left fore-arm one-third caused within 24 hours by hard and blunt object. Advised X-Ray examination. Dawat Singh : 1. Lacerated wound, bleeding on left fronto parietal region 2. Lacerated wound on mid parietal region caused by hard and blunt object within 24 hours and advised X-ray examination. Hakam Singh : 1. Incised wound bleeding obliquely transverse on left check caused by sharp edged weapon. 2. Incised wound bleeding on left side mandible caused by sharp edged object. 3. Left lower incisor attached bleeding. Duration of the injuries was within 24 hours and advised X-ray examination. 12. It would be apposite to mention hereinbelow the injuries sustained by the appellants :- Peeru Khan : 1. Incised wound on left arm above elbow lateral side. Caused by sharp object. 2. Contusion on left forearm on middle anterior side, caused by hard and blunt object. 3. Contusion on left hand near index finger, caused by hard and blunt object. He was advised for X-ray examination. Vazir Khan : 1. Lacerated wound on scalp left parietal region 2. Lacerated wound on scalp front parietal region left side 3. Abrasion on back of left knee. 4. Abrasion on back of left lumber region. He was advised for X-ray examination. 13. We have examined all the four eye-witnesses namely PW-5 Mod Sing, PW-6 Rambabu, PW-7 Dawat Singh and PW-13 Hukum Singh and found that they have not explained the injuries found on the persons of the appellants. Abrasion on back of left knee. 4. Abrasion on back of left lumber region. He was advised for X-ray examination. 13. We have examined all the four eye-witnesses namely PW-5 Mod Sing, PW-6 Rambabu, PW-7 Dawat Singh and PW-13 Hukum Singh and found that they have not explained the injuries found on the persons of the appellants. In the facts and circumstances of this case, in our considered view, non-explanation of injuries found on the persons of both these appellants would be fatal, because the incident occurred in broad day light and there is no dispute that the appellants Vazir Khan and Peeru Khan sustained lacerated wounds on head, therefore, there must be bleeding from their wounds and appellant Peeru Khan sustained one incised injury on left arm and two contusions. The incised wound must also be bleeding and the same could not have remained unnoticed by these witnesses. Appellant Peeru Khan also sustained fracture of humerus bone of left hand, a grievous injury. Non-explanation of injuries sustained by the accused persons in the same incident by the prosecution witnesses has been considered in a celebrated decision passed by the Apex Court in the case of Laxmi Singh vs. State of Bihar, AIR 1976 SC 2263 , wherein it is held as under :- "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable; 3. that in case, there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." 14. Section 100 (clause secondly) of the Indian Penal Code is giving right to the accused up to the extent of causing death when he (the accused) has reasonable apprehension of sustaining grievous hurt at the hands of the opposite party. Section 100 (clause secondly) of the Indian Penal Code is giving right to the accused up to the extent of causing death when he (the accused) has reasonable apprehension of sustaining grievous hurt at the hands of the opposite party. It is clear from the wordings of this section that sustaining of injury/injuries by the accused is not necessary and mere reasonable apprehension is sufficient to act in right of private defence of person of his own or any other person. It is also settled legal position that right of private defence of person cannot be weighed in golden scale and appreciation of evidence must be done on the basis of preponderance of probability. 15. The statements of the aforesaid four eye-witnesses are replete with omission, contradictions and embellishment, but in the facts and circumstances of the case, we do not deem it necessary to deal with these infirmities keeping in view the aforementioned factual situation of non-explanation of injuries found on the persons of two appellants which clearly shows that the witnesses have not and Babu Khan who is the member of their family as stated by Chowkidar. He also found blood on the embankment and one blood stained cap in the field of Babu Khan. Shri Dwivedi has given detailed description in the spot map and in his statement para 2. We have perused the spot map Ex. P/33. On the basis of the statements of PW-8 Watchman Waris Ali and Investigating Officer PW-19 Shri Dwivedi who was a senior Police Officer that the place of incident was the embankment and the field Nawab Khan and Babu Khan and Tuar-crop was standing in their field and adjacent to the said field owned by Kunwar Ali gram-crop was standing. Both these important official witnesses of the prosecution have not been declared hostile on this aspect and cross-examined by the prosecution, therefore, the prosecution is bound by their statements and the same cannot be side-lined while appreciating the evidence on record. The Supreme Court has considered this aspect specifically in the cases of Mukhtiar Ahmed Ansari vs. State (NCT Delhi), (2005)5 SCC 258, Kunju Mohd vs. State of Kerala, (2004)9 SCC 193 and Rajaram vs. State of Rajasthan, (2005)5 SCC 272 and held that if accused wants to rely on such evidence, he is entitled to get benefit of the same. 16. 16. Learned trial Court has not discussed and considered in its proper perspective the evidence of Watchman and Investigating Officer regarding the place of incident, existence of come before the Court with clean hands and they have suppressed the very genesis of the prosecution case. 17. Now, we would consider the evidence with regard to the place of incident and presence of crop in the field. PW-8 Waris Ali, Village-Chowkidar has proved the seizure of blood stained and controlled earth as well as blood stained cap of the deceased from the spot vide seizure memo Ex. P/14 and deposed in para 2 that these articles were seized from the field of appellant Nawab Khan and his family member Babu Khan. He has also stated that in the field Tuar-Crop was standing as well as between the villages Jhandakheda and Borsali there was no barren land and the land situated on this place was given to Watchman Laadkunwarbai who was cultivating the said land. PW-19 Investigating Officer Shri Jitendra Dwivedi SDO (P) who had reached on the spot on the same day in the night, but could not prepare the map because of night hours and after issuing direction to constable Kanhaiyalal to protect the place of incident, again reached on the next day i.e. on 27-1-2004 and seized the blood stained and controlled earth as well as cap from the spot and found Tuar Crop standing in the field of the appellant Nawab Khan. He also found blood stains in the said field. He has proved seizure memo Ex.P/14. Shri Dwivedi has also prepared the spot map Ex.P/33 and stated specifically that the place of incident was the embankment situated between the fields of appellant Nawab Khan stated that the land situated at Survey No. 639, was recorded in the name of Salamuddin and Babu Khan s/o Ayyub Khan and the same was purchased by Nawab Khan s/o Sher Ali and surrounding to the land bearing this Survey No. 639, there was no Government land. He has also specifically stated that surrounding to the land bearing Survey No. 639, the land of family members of Nawab Khan was situated. He has also specifically stated that surrounding to the land bearing Survey No. 639, the land of family members of Nawab Khan was situated. In view of specific statement of Patwari Kamlakant Dubey as well as Revenue Inspector PW-17 Shri Laxminarayan Sharma, it is clear that the place of incident was the land bearing Survey No. 639 owned and in possession of appellant Nawab Khan and his family members. 18. That apart, the entries in revenue records are not decisive for proving actual possession. See : Rampati and others vs. State of Haryana, (2009)3 SCC (Cri) 488. In this view of the matter, simply on the basis of the statements of Revenue Inspector Shri Sharma, it cannot be said that the land of Survey No. 639 was a barren land. One thing is clear from the statement of Shri Sharma and Patwari Shri Kamlakant Dubey that this land was owned and in possession of appellant Nawab Khan and his family member. 19. In view of specific statements of PW-8 Watchman Waris Ali, PW-19 SDO(P) Sheri Jitendra Dwivedi, Revenue Inspector Shri Sharma and Patwari Kamlakant Dubey, it is amply proved that the incident occurred in the field of appellants and Tuar-crop, seizure of blood stained earth and cap as well as spot map Ex.P/33 and mainly placed reliance on the testimony of PW-17 Laxminarayan, Revenue Inspector who reached on the spot on 9-2-2004, much after the date of incident along with PW-18 Patwari Kamlakant Dubey and prepared the memorandum of spot Ex. P/29. According to this memorandum, the land bearing Survey No. 639 recorded in the name of Salamuddin and Babu Khan s/o Ayyub Khan was barron land and submitted the report Ex. P/30 to the Additional Tehsildar. In cross-examination, he has specifically stated that he had not contacted with any eye-witness and he had not found any sign of quarrel on the place of incident which was shown to him by Patwari. He has also stated that if Patwari had taken him to incorrect place of incident, he cannot say any thing on this aspect. He has also stated that surrounding to the place of incident. Tuar-crop was standing and he had not prepared the damage Panchnama of Tuar-crop and that between villages Borsali and Jhandakheda (boundaries of both villages) there was no Government land and adjacent to the boundary agricultural land was present and the same were not barren. He has also stated that surrounding to the place of incident. Tuar-crop was standing and he had not prepared the damage Panchnama of Tuar-crop and that between villages Borsali and Jhandakheda (boundaries of both villages) there was no Government land and adjacent to the boundary agricultural land was present and the same were not barren. 20. PW-18 Kamlakaant Dubey has deposed that the place of incident was pointed out to him by Chowkidar Elkar Singh and he prepared memorandum Ex. P/31 and the trace map Ex.P/32 as well as five years land record-entry. In cross-examination, he has crop was standing in the field. Therefore, the appellants had the right of private defence of their property as defined in sections 97 and 103 of the Indian Penal Code. 21. Resultantly, in the wake of aforesaid discussion, this appeal is allowed. Conviction and sentences of the appellants as passed by the trial Court, are hereby set aside. Appellants No. 3 Peeru Khan and No. 5 Saiyed Khan are on bail. Their bail and surety bonds stand discharged. Learned trial Court is directed to release appellants No. 1 Sikandar Khan, No. 2 Nawab Khan and No. 4 Wazir Khan forthwith unless required in connection with any other criminal case. 22. Let a copy of this judgment be sent to the trial Court along with its record for immediate compliance.