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2010 DIGILAW 786 (MP)

Ziledar Singh v. State of M. P.

2010-08-05

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
JUDGMENT Shrivastava, J. -- 1. The judgment passed in this criminal appeal shall also govern the disposal of connected Criminal Revision No.60/2000 filed by complainant Kumher Singh praying to set aside the acquittal of respondents No.1 and 2, namely, Kriparam and Dashrath of connected criminal revision with a payer that these two respondents alongwith respondent No.3 Ziledar Singh of connected criminal revision be convicted under section 302 of IPC and they be sentenced with an adeq~ate sentence. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 22.11.1999 passed by learned Fourth Additional Sessions Judge, Morena in Session Trial No.20/1985 convicting appellant under section 304 Part I of IPC and thereby sentencing him to suffer seven years' rigorous imprisonment with fine of Rs.3,000/-, in default of there of to suffer further rigorous imprisonment of one year, this appeal has been prepared by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 3. In brief the case of prosecution is that 13-14 days prior to 17.3.1984 the unmarried daughter of Babusingh conceived from Surendra who is the son of complainant Kumher Singh, as a result of which, the family members of the complainant party and that of accused persons were having enmity. Surendra on account of fear absconded from the village, but arrived at the village 15 days prior to the date of incident. The incident took place on the festival of Holi. On that date Phoolan Singh (hereinafter referred to as the deceased) in order to offer prayer and to offer vermilion powder on the idol of Hanuman ji went to the temple where the accused persons were standing and were searching Surendra, but he was not found, as a result of which, all the accused persons encircled the deceased and scolded on him that if Surendra Singh is seen by them, he (Surendra) may face dire consequences. The persons who were present in the temple intervened and in between the deceased got a chance to escape, as a result of which, he ran away from that place. The persons who were present in the temple intervened and in between the deceased got a chance to escape, as a result of which, he ran away from that place. The deceased informed the complainant Kumher Singh about the incident which occurred at the temple, as a result of which, these two persons and some other family members and the inhabitants of the village tried to get the matter solved, but the respondents of connected criminal revision and appellant of this appeal Ziledar did not agree and started hurling abuses. Thereafter, at 1:00 p.m. when the deceased after evacuating was coming back from the field, appellant Ziledar with 12 bore gun, Kriparam and Dashrath respondents of connected criminal revision with farsa and barchhi Ramkumar and Babusingh having lathis came out from their house and encircled the deceased. When the complainant Kumher Singh and Gulab Singh tried to save deceased Phoolan Singh nearby the house of Nihal Singh appellant Ziledar fired the gun shot which struck his chest and thereafter caused a gun shot fire on the leg of the complainant. The deceased fell down and died on the spot. Respondent of connected criminal revision Dashrath dealt a blow of barchhi from lathi side on his head. In between to rescue Gulab S ngh, the members of complainant side namely Jagdish, Rajendra, Keshav, Shrikrishna, Ajabsingh, Shyamsingh and Surendra Singh arrived and on seeing the incident in order to save Gulab Singh complainant and deceased Phoolan Singh wielded lathi and farsa and also snatched the gun of the appellant Ziledar Singh. The matter was reported by complainant in Police Station Ambah at 4:30 p.m. on the date of incident. 4. On the basis of the first information report, which was lodged on the date of incident at 4:30 p.m., a case was registered against the accused persons. The investigating agency prepared the spot map; seized the ordinary and blood stained earth from the place of occurrence and sent the dead body for post -mortem examination after preparing inquest report. In furtherance to the investigation, the investigating agency arrested the accused persons and on the basis of disclosure statement leading to recovery of the weapons, which were used in commission of the offence, were seized and they were sent for chemical examination. 5. In furtherance to the investigation, the investigating agency arrested the accused persons and on the basis of disclosure statement leading to recovery of the weapons, which were used in commission of the offence, were seized and they were sent for chemical examination. 5. After the invstigation was over, a charge-sheet was submitted in the committal Court, which committed the case to the Court of Sessions and from where it was received by the trial Court for the trial. Accused Ramkumar @ Rajkumar was tried in Juvenile Court. Accused Babusingh is the deceased of connected Criminal Appeal No.629/1999 and, hence, appellant Ziledar Singh and respondents of connected criminal revision, namely, Kriparam and Dashrath were tried. 6. The learned trial Judge on the basis of the allegations made in the charge-sheet, framed charges against the accused persons for the offences punishable under sections 148, 302 in the alternative 302/149 and also under section 324/34 of IPC, which they denied and requested for the trial. 7. In order to prove the charges, prosecution thereafter examined as many as seven witnesses and placed Ex.P-1 to Ex.P-15 the documents on record. The defence of appellant is of false implication and in support of his defence he examined Lt.Col. S.K. Gulati as DW1 and also examined himself as DW2. 8. The learned trial Judge on the basis of the evidence placed on record, came to hold that charges are not proved against Kriparam and Dashrath, as a result of which, acquitted them from all the charges, but found that although the present appellant fired the gun on the deceased, but it was fired in exercise of right of his self defence, however, he exceeded his right of private defence, as a result of which, convicted him under section 304 part I of IPC and sentenced to suffer imprisonment as mentioned hereinabove. 9. In this manner, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence passed by learned trial Court. 10. This Court directed to hear the Criminal Appeal No.629/1999 alongwith the present appeal analogously alongwith Criminal Revision No.60/2000 which has been filed by the complainant of that case, namely, Kumher Singh making a prayer to convict this appellant under section 302 of IPC and also the other acquitted persons and to pass suitable sentenc. 11. 10. This Court directed to hear the Criminal Appeal No.629/1999 alongwith the present appeal analogously alongwith Criminal Revision No.60/2000 which has been filed by the complainant of that case, namely, Kumher Singh making a prayer to convict this appellant under section 302 of IPC and also the other acquitted persons and to pass suitable sentenc. 11. The State of Madhya Pradesh has not assailed the judgment of acquittal of Kriparam and Dashrath as well as did not assail the acquittal of appellant under section 302 IPC and convicting him by holding that he has exceeded his right of private defence and, hence, convicted him under section 304 part I of IPC, however, complainant Kumher Singh has filed connected Criminal Revision No.6012000 assailing the aquittal of Kriparam and Dashrath and also assailing the judgment of learned trial Court convicting the present appelant under section 304 part I of IPC. According to learned counsel for the complainant, all these accused persons should have been convicted under sections 302/149, 147 and 148 of IPC and they should have been sentenced accordingly. 12. The contention of Shri Gupta, learned counsel for the appellant, is that in the same incident the mother of appellant Rameshwari and his real uncle Babusingh sustained umpteen injuries and they were killed by the complainant party and the present appellant also sustained injuries on his person. It has been put forth by him that because after committing murder of his mother Rameshwari and uncle Babusingh and setting the tire to his home, when the members of the complainant party (who are the appellants in connected Criminal Appeal No.629/1999) armed with deadly weapons were coming towards him to kill and if at that juncture he fired his licensee gun on the person of the deceased, he has acted in exercise of his right of self defence to save his own life. In support of his defence, learned counsel has placed reliance on the two decisions of Supreme Court, Bhagwan Swaroop v. State of Madhya Pradesh [1992(1) Vidhi Bhasvar 241= AIR 1992 SC 675 ], and State of U.P. v. Gajey Singh and anoter [(2009)3 SCC (Cri.) 1412]. By inviting our attention to the decision of Supreme Court Lakshmi Singh and others etc. v. State of Bihar [ AIR 1976 SC 2263 ], it has been submitted that appellant himself received injuries which are proved by defence witness Lt.Col. By inviting our attention to the decision of Supreme Court Lakshmi Singh and others etc. v. State of Bihar [ AIR 1976 SC 2263 ], it has been submitted that appellant himself received injuries which are proved by defence witness Lt.Col. S.K. Gulati, who at the relevant time was doctor in military. 13. On the other hand, Shri P.N. Gupta, Public Prosecutor for the respondent-State, argued in support of the impugned judgment. Shri Madhukar Kulshreshtha, Advocate, also pressed the revision application filed by the complainant. 14. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 15. On going through the FIR of the present case Ex.P-1, we find that the complainant has tried to conceal the genesis of the occurrence because if the correct facts would have been stated in the FIR, he and other members of the complainant party who are the appellants in the connected appt al would have been exposed and it would have been proved that after killing Babusingh and Rameshwari (deceased persons of connected Criminal Appeal No.629/ 1999) and setting up his house to tire the members of the complainant party who are the accused persons in the connected Criminal Appeal No.629/1999 were rushing towards the appellant carrying the deadly weapons to kill him. In the FIR lodged in cross-case by Kriparam as well as looking to the specific evidence of appellant as DW2 in this case, it reveals that in order to save his own life by exercising right of private defence this appellant has oused the gun shot fire. The FIR of the cross-case has been placed on record as Ex.05, which was marked as Ex.P-13 in the cross-case. In the FIR (Ex.P-1) of the present case complainant Kumher Singh has not shown that why the appellant had fired, but in the FIR (Ex.D5) which was markd as Ex.P-13 in the cross-case, it has been specifically mentioned that in order to save the life the gun was fired by this appellant. 16. In the present case the prosecution as examined eye-witnesses Kumher Singh (PW 1), Gulab Singh (DW2) and Rajendra (PW 4). On going through the cross-examination para 9 of eye-witness Gulab Singh (PW2), we find that the distance between the deceased and the appellant was only 1- 2 ft. 16. In the present case the prosecution as examined eye-witnesses Kumher Singh (PW 1), Gulab Singh (DW2) and Rajendra (PW 4). On going through the cross-examination para 9 of eye-witness Gulab Singh (PW2), we find that the distance between the deceased and the appellant was only 1- 2 ft. and this witness was at a distance of 5-6 ft., another eye-wi tness Kumher Singh was at a distance of 8-10 ft. from to appellant. Deceased Phoolan was carrying lathi, Kumer Singh PW 1 and this witness were also having lathi, hence, we can infer that after killing two persons who are the mother and uncle of tis appellant when the members of the complainant party rushed towards him by carrying deadly weapons with them, rightly an apprehension carved out in his mind that he might also be killed and, therefore, if at that point of time he fired the gun, according to us, he fired the gun in exercise of his right of private defence. 17. In the decision Bhagwan Swaroop (supra), placed reliance by learned counsel for the appellant, the appellant of that case was not even touched by the accused persons of that case and his father was only beaten and on seeing this, the appellant of that appeal brought the gun from inside and fired it on the deceased, in those circumstances it was held by the Supreme Court that the appellant fired the gun in order to save the life of his father. In the present case, appellant already saw the members of the complainant party after killing his own mother and uncle rushed towards him carrying deadly weapons and therefore, rightly a reasonable apprehension was carved out in his mind that he might also be killed. We have already scanned the testimony of PW2. who has admitted that the eye-witnesses of this case who are the accused persons of the connected criminal appeal were carrying deadly weapons and were nearby this appellant. The Supreme Court in Gajey Singh (supra), in paras 29 and 30 has held as under: "29. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the Court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the Court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no straitjacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not? 30. In the present case, the circumstances indicate that Gajey Singh was assaulted on head by a sharp edged weapon "balkati" causirig a bone deep injury. As per the defence version there were four assailants who had come well prepared to assault at the door of their own house. In such a situation the accused persons could have a reasonable apprehension of death or at least of grievous hurt. It was a case of single gun shot which was not repeated. Therefore, it cannot be said that the accused persons had exceeded their right of private defence in any manner." On going through the abovesaid paragraphs we find that appellant of that case after receiving the injuries on his head, a reasonable apprehension occurred in his mind that the complainant party who were four in numbers may cause death to him or at least grievous hurt and, hence, he fired the gun shot in exercise of right of his private defence. In the present case also the appellant sustained umpteen injuries including the injuries on his face which have been proved by Lt.Col. S.K. Gulati and which is EX.D-20. 18. The appellant was a member of armed force and during those days he came on leave to enjoy Holi festival. According to the evidence of appellant (DW2) after the incident he went to Etawah from where he boarded a train and straightway went to his unit at Chandigarh and got himself examined by Lt.Col. Dr. S.K. Gulati (PW1). 18. The appellant was a member of armed force and during those days he came on leave to enjoy Holi festival. According to the evidence of appellant (DW2) after the incident he went to Etawah from where he boarded a train and straightway went to his unit at Chandigarh and got himself examined by Lt.Col. Dr. S.K. Gulati (PW1). In this view of the matter, we are of the view that looking to the facts and circumstances, reasonable apprehension occurred in the mind of the appellant that after killing his mother and uncle and further that his house was also put to fire, he would also be killed and if at that juncture he caused the gun shot fire, according to us, in exercise of right of his private defence he fired the gun. 19. If we visualize sections 96, 97 and 100 of the Penal Code in broader spectrum, we find that it is not necessary that an accused should have sustained injuries and then only it can be inferred that he was having apprehension that he may be killed. According to us, if looking to the facts and circumstances and the evidence placed on record, it can be gathered that reasonable apprehension carved out in the mind of the accused that he would be killed and in order to save his own life if he fired the gun, according to us, he did not exceed his right of private detence and indeed he rightly exercised his right of private defence. In the present case the appellant sustained injuries which is proved by Lt.Col. Dr. S.K. Gulati, since after the incident when he resumed his duty at his regiment, there he was examined by Lt.Col. S.K. Gulati who proved the medical report Ex.P-10 of the appellant. 20. For the reasons stated hereinabove this appeal stands allowed. The judgment of conviction and order of sentence convicting appellant under section 304 Part I of IPC is set aside and he is acquitted from all the charges. For the same reasons connected Criminal Revision No.60/2000 filed by complainant is found to be bereft of any substance and the same is hereby dismissed.