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2014 DIGILAW 849 (ALL)

Ram Manohar v. State of U. P.

2014-03-12

AMAR SARAN, VIJAY LAKSHMI

body2014
JUDGMENT 1. On the basis of a report of the C.J.M., that the appellant Ram Manohar had died, his appeal was ordered to be abated by an order dated 16.9.2013. Now the appeal preferred by Mahabal, Gonai, Gonahal, Vishram and Chandrajit survives. 2. This criminal appeal is directed against the judgment of the II Additional District and Sessions Judge, Gorakhpur dated 31.10.1984 convicting and sentencing the appellants to imprisonment for life under Section 302/149 I.P.C., for two years R.I. under Section 325/149 I.P.C., two year R.I. under Section 323/149 I.P.C. and one year R.I. under Section 147 I.P.C. in S.T. No.128 of 1982. 3. Briefly the prosecution case was that on 26.1.1981 at about 11: 30 a.m., the appellants were trying to make a drain on the 'sahan' in front of the house of the informant Tamesher for draining out the water discharged from their hand pump. When the informant opposed the making of the drain as he said that he used his bullocks for running a Kohlu (sugar crushing plant) at the spot and his work would be adversely affected an altercation took place between the parties. As a consequence the appellant Ram Manohar went to his house and brought out a 'pharsa' and the other appellants Mahbal S/o Aati, Gonai S/o Khudbud, Gunahal and Vishram S/o Ram Manohar and Chandrajit S/o Bam Bahadur came out with 'lathis' on which the family members of the deceased intervened whereupon the appellant Ram Manohar assaulted one Ram Daur s/o Tameshar on his head with a 'pharsa' and other family members of the informant. 4. The report of this incident was lodged by Tameshar P.W.-3 at Police Station Gulriha Bazar on 26.1.1981 at 11: 05 p.m. The case was registered in the presence of Ramnandan Thakur, Sub Inspector, who commenced the investigation. As the condition of the injured Ram Daur was serious, hence he was immediately sent to the Medical College. After recording the statement of the other injured namely, Tameshar and Nirmal, they were also sent for their medical examination. Tameshar was medically examined by P.W.-8 Dr. A. K. Srivastava on 26.1.1981 at about 3: 15 p.m. According to the doctor the description of his injuries were as follows: - (i). There is a contusion on the dorsal aspect of the left forearm on internal side upto left wrist joint, size 10.5 cm long x 5 cm. wide. Tameshar was medically examined by P.W.-8 Dr. A. K. Srivastava on 26.1.1981 at about 3: 15 p.m. According to the doctor the description of his injuries were as follows: - (i). There is a contusion on the dorsal aspect of the left forearm on internal side upto left wrist joint, size 10.5 cm long x 5 cm. wide. There is a pin point punctured wound 2 cm. from left wrist joint & blackening was present from that pin point punctured wound. (ii). There is a painful contusion on right elbow joint 1cm. X 1cm. (iii). There is continuous bleeding from right ear with 5cm x 5 cm. contusion around right ear. 4. Nirmal was medically examined by P.W.-8 Dr. A. K. Srivastava on 26.1.1981 at about 4: 30 p.m. and he had received following injuries: - (i). There is a contusion on forehead 4.5 cm. away from root of nose size 5.5 cm. vertical and 3 cm. wide. 5. Smt. Chandrwati was medically examined by P.W.-8 Dr. A. K. Srivastava on 26.1.1981 at about 4.40 p.m. and she had received the following injuries: - (i). There is a haematoma on the right side of scalp 10 cm. away from right mastoid process, size 6 cm x 6 cm.. (ii). There is a contusion on right forearm on Dorsal aspect left side 4.5 cm. away from right elbow joint size 6 cm. Long 4 cm. transverse. (iii).There is abrasion 4 cm. above and on medial side to medical malleolus on right leg, size 1 cm x 1 cm. 6. On perusing the supplementary X ray report of Tapeshar aged about 50 years, who was medically examined by Dr. A. K. Srivastava, the injuries nos. 1 and 2 were found grievous in nature as there was a fracture of the lower end of ulna and the right temporal and parietal bones and the doctor found the injuries received by Smt. Chandrawati to be grievous in nature as the X-ray report of the right forearm showed that there is a fracture of the shaft of the radius. 7.The post-mortem was conducted by Dr. I.A. Khan P.W.-6 on 28.1.1981 at 4: 15 P.M. on the body of deceased Ram Dhawan aged about 28 years revealed the following external injuries: - (i). Stitched wound over the scalp on left side of head. 10 stitches were present. (ii). Fracture of left part of the frontal bone. 7.The post-mortem was conducted by Dr. I.A. Khan P.W.-6 on 28.1.1981 at 4: 15 P.M. on the body of deceased Ram Dhawan aged about 28 years revealed the following external injuries: - (i). Stitched wound over the scalp on left side of head. 10 stitches were present. (ii). Fracture of left part of the frontal bone. (iii). Brain matter peeping out through a slit in the wound. The cause of death was haemorrhage and shock due to head injury. 8. P.W.-7 Mukhtar Singh has deposed that the FIR was lodged in his presence and that the check F.I.R. was prepared by Constable Mohan Ram and Ram Nath, who also made other G.D. entries. Initially the case was investigated by Ramanand Thakur, Sub-Inspector. After the death of the deceased on 28.1.1981 the case was converted to one under Section 302 I.P.C. By then this witness had taken over charge of the investigation and conducted the inquest. 9. The informant P.W.-3 Tameshar deposed that his house was facing east and he used to install his Kolhu at his 'sahan' every year. The houses of the deceased and the appellants, namely Ram Manohar and Asharfi were adjoining. There was a drain between the houses and the water from the house of Ram Manohar used to flow from that drain. Ram Manohar installed a hand pump in his house and he wanted to discharge the water from the said drain which used to pass on the land of the informant. The informant further stated that his land was at a higher level and he had not put any mud on it at that time to prevent Ram Manohar from draining the water into his pond. He further stated that he had blocked the exit about 5 to 6 months earlier. Thereafter Ram Manohar tried to dig a drain, upon which the informant had raised objections and there was a hot exchange of words and Ram Manohar went to his home along-with his Kudal and immediately, thereafter, Ram Manohar came back carrying a pharsa in his hand, along with the other co-accused, namely Mahabal, Gonai, Chandrajit, Vishram and Gonahal, who were armed with 'lathis'. Thereafter the accused persons started fighting with the family members of the informant. The deceased Ram Daur, Nirmala and Smt. Chadrawati intervened in the said quarrel. Smt. Chandrawati was assaulted by Gonai, Mahabal and Chandrajit. Thereafter the accused persons started fighting with the family members of the informant. The deceased Ram Daur, Nirmala and Smt. Chadrawati intervened in the said quarrel. Smt. Chandrawati was assaulted by Gonai, Mahabal and Chandrajit. Nirmal was assaulted by Chandrajit and Ram Daur was assaulted by Ram Manohar with a 'pharsa.' After being hit by the 'pharsa' Ram Daur covered his wound with a muffler and ran towards the Khalihan of Jangali where he fell down and became unconscious. The accused persons had chased Ram Daur. On the alarm and intervention of the witnesses the accused persons ran away. In his examination in chief he has not made any mention of the injuries of accused Chandrajit and Gonai which were proved by D.W.-4 Dr. S. M. Shukla and the injuries of Gonahal who was medically examined by Dr. I. P. Singh on 27.1.1981. In his cross examination he has also denied that the accused persons had received any injury from the side of prosecution by any weapon. He also denied any illegal blocking of the exit of water. 10. P.W.-2 Ashrafi Lal and P.W.-4 Buddhu reiterated the same case as Tameshar (P.W.-3). They have both denied the presence of any injuries on the accused persons. 11. We have heard Mohd. Shoyab Khan, learned counsel for appellant no.6 and Sri B. K. Tripathi, learned counsel for appellant nos. 2 to 5 and Sri Arvind Tiwari, learned A.G.A. for the State. 12. It has been contended by the learned counsel for the appellants that the deceased Ram Daur had intervened in the incident and he was only assaulted by appellant Ram Manohar after a fight broke out between the parties. He further contended that there was no common intention or common object with the appellants for committing any crime. In this regard he placed reliance on the judgments of the Apex Court in Kuldip Yadav Ors. Versus State of Bihar JT 2011 (4) SC, Shaji & Ors. Versus State of Kerala (2011) 5 SCC 423 and Bharat Soni and Ors. Versus State of Chhatisgarh 2012 (12) SCC 657 . He further contended that in this case no explanation was offered of the injuries received by three persons on the side of the accused namely Gonahal, Smt. Chandrawati and Gonai and the said injuries were denied by the prosecution witnesses. They have also denied having assaulted any of the accused persons. Versus State of Chhatisgarh 2012 (12) SCC 657 . He further contended that in this case no explanation was offered of the injuries received by three persons on the side of the accused namely Gonahal, Smt. Chandrawati and Gonai and the said injuries were denied by the prosecution witnesses. They have also denied having assaulted any of the accused persons. It was further argued that it was the fault of the prosecution who blocked the exit of the water from the existing drain as was clearly indicated in the site plan of the Investigating Officer which had resulted in the sudden quarrel breaking out between the parties. He further submits that the deceased has suffered only a single injury caused by the accused Ram Manohar who has died and his appeal has abated. 13. Learned A.G.A., on the other hand, argued that the persons from the side of accused were aggressors as the incident had taken place on the land of the complainant. Over the same dispute a quarrel had also taken place 4 to 5 months earlier and the appellants could have approached the authorities. In their 313 Cr.P.C. statements the accused persons have not pleaded any right of private defence and have denied being present at the place of incident and appellant Ram Manohar claimed that he was present at the republic day function in the school where he was a teacher. 14.We have to first examine whether the appellants were the aggressors in this incident or not? The site plan (Exhibit Ka-5) in this case is very revelatory. The site plan clearly shows that an old drain was passing over the disputed land and the Investigating Officer has also made an entry to this effect. In his 161 Cr.P.C. statement P.W.-3 Tameshar had told the I.O. That the drain used to flow from that point. Though in Court he denied having made any such statement to the I.O. We find that the 'Kolhu' has been situated adjacent to the drain. We also notice that there was substantial land of the deceased and the informant at the spot. P.W.-3 Tameshar himself admitted that the 'Kolhu' used to be placed each year on the said land, and at that time it was not functioning. He also admitted having blocked the drain 5 or 6 months later. We also notice that there was substantial land of the deceased and the informant at the spot. P.W.-3 Tameshar himself admitted that the 'Kolhu' used to be placed each year on the said land, and at that time it was not functioning. He also admitted having blocked the drain 5 or 6 months later. At the time of incident it appeared that the appellant was trying to unblock the drain. If that be the case then it cannot be said that it was only the appellant's side who were acting in a high handed manner. As the exit of the water had been blocked due to which objections were raised by the accused. It should be noted that the informant himself deposed in his examination in chief that his land was at a higher level and he had not blocked the exit of water. But this was contradicted by his subsequent admission in his cross-examination, which suggests the mala fide determination of the prosecution side in blocking the exit of water discharged by the appellants. We are of the view that the appellants appear to be trying to remove the obstructions to the flow of the hand pump water from the drain on the fateful day, which had earlier been blocked by the complainant party and which must have proved a great nuisance to them. This was objected to by the complainant party. Then the incident appears to have taken place in which both sides received injuries. 15. No doubt it is alleged that the appellant Ram Manohar had gone to his house and brought a 'pharsa'. But we find that he gave only a single blow to the deceased. So far as the other accused Mahabal, Gonai, Vishram and Chadrajit are concerned they are said to have only participated in the fight which took place between the parties, and are not specifically imputed with causing any injury to the deceased. There no specification in the evidence as to the particular injury to the prosecution injured caused by these accused persons. So far as the injuries sustained by the three appellants namely Gonahal, Chandrajit and Gonai are concerned, we find that the accused Gonahal was medically examined by DW 3 Dr. I.P. Singh, M.O. Gorakhpur, District hospital on 28.1.1981. Gonahal was found to have a lacerated wound, of size 3½ cm. x ½ Cm. So far as the injuries sustained by the three appellants namely Gonahal, Chandrajit and Gonai are concerned, we find that the accused Gonahal was medically examined by DW 3 Dr. I.P. Singh, M.O. Gorakhpur, District hospital on 28.1.1981. Gonahal was found to have a lacerated wound, of size 3½ cm. x ½ Cm. on his scalp and two other injuries caused by blunt object. 15. The accused Chandrajit was medically examined by Dr. S. M. Shukla, D.W.-4 on 27.1.1981 at the District Hospital, Gorakhpur and as many as 5 injuries have been seen on his person. Injury No.4 was an incised wound, 2cm. x ½ cm. x scalp deep on the right side of the head, ½ cm. above the right eye. Injury No.5 was a lacerated wound 2½ cm. x ¼ cm. scalp deep on the right of the head. 16. The accused Gonai was medically examined by by Dr. S. M. Shukla, D.W.-4 on 27.81 at 3.30pm at District hospital, Gorakhpur. He had also received five injuries which were abrasion and contusions and an incised wound. Injury No.1, which was an abrasion with a granular tissue formation 1 1/2 cm x 1/2 cm on left side of face, 1 cm outer to left eye. This injury could cannot described as superficial in nature and an explanation regarding this injury was required. It should be kept in mind that apart from the injury caused to the deceased, the injured persons on the side of the prosecution namely Tameshar, Nirmala, Smt. Chandrawati have received a total of only six injuries. No doubt there are one or two serious injuries sustained by the prosecution injured, but the author of the said injuries could not be identified. Hence on the basis of the above comparison of injuries and absence of admission or explanation of injuries of the accused by the prosecution, which cannot be described as so superficial or disproportionately less than the prosecution injuries that they call for no explanation, it cannot be affirmatively held that the appellants were the aggressors in this offence. Secondly the absence of admission or explanation injuries of the injuries of the accused by the prosecution further suggests that the prosecution has not come out with the true and complete facts of the origin of this case. Secondly the absence of admission or explanation injuries of the injuries of the accused by the prosecution further suggests that the prosecution has not come out with the true and complete facts of the origin of this case. So far as the absence of plea of self defence by the appellant, and their claim of presence elsewhere as in the 313 Cr.P.C. statement of Ram Manohar, that he was attending the republic day school function as he was a teacher, it may be mentioned that this does not estop the accused from pleading the right of private defence on the basis of the evidence on record which may have been led by the prosecution or the defence. The onus on the prosecution to prove its case beyond reasonable doubt never shifts. The accused on the other hand are only expected to support their plea of private defence on a mere preponderance of probability. We think that in the background of the unreasonable attitude adopted by the prosecution in preventing the exit of their hand pump water through the pre-existing drain which had been wrongly blocked by the prosecution side, causing of non superficial injuries to the accused persons which call for an explanation from the prosecution side, and which have not been explained as a fact, we are of the view of that the defence has been able to establish its plea of right of private defence, by a preponderance of probabilities. 17. We also think that the learned counsel for the appellants has rightly placed reliance on the judgments in the cases of Kuldip Yadav & Ors. and Shaji Ors. and Bharat Soni & Ors. (Supra) wherein it has been observed that the accused cannot be held guilty of sharing a common intention or object of committing murder of the deceased, when an incident is the outcome of a sudden fight, in which the deceased appears to have intervened and to have received a single fatal blow by a pharsa causing is death, which was plied by the appellant Ram Manohar, who has admittedly expired and his appeal has abated. It can therefore not be inferred that the appellants were sharing a common object of committing the murder of the deceased in the said incident. It can therefore not be inferred that the appellants were sharing a common object of committing the murder of the deceased in the said incident. As the appellants are to be made vicariously liable a crime, there must be affirmative evidence for arriving at a finding that the murder was committed in prosecution of the common object of the assembly or such that the members of the assembly knew to be likely to be committed in prosecution of the common object of the assembly. Material to satisfy this test, does not appear to be available on record in the present case. The gap between 'may' have shared the common object and 'must' have shared the common object to commit the murder in prosecution of the common object remains on the fact and circumstances of this case. We can also not lose sight of the fact that almost 34 years expired since the incident. 18. In view of the above we are of the view that the prosecution has not succeeded in establish the case against the accused beyond reasonable doubt. The judgment of the trial Judge convicting and and sentencing the appellants as above therefore deserves to be set aside. The appellant are acquitted of the charges against them. The appellants are on bail. They need not surrender to their bail. Their bail bonds are cancelled and sureties are discharged. Let the judgment and record of this appeal be forwarded to the Court below at the earliest for compliance. The appeal is allowed.