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2019 DIGILAW 492 (ALL)

Kishan v. State of U. P.

2019-02-25

KARUNESH SINGH PAWAR, PRASHANT KUMAR

body2019
JUDGMENT : Karunesh Singh Pawar, J. 1. This is a criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment dated 28.01.1984 passed in Session Trial No. 415 of 1982 passed by Sri Krishna Kumar, Second Additional Sessions Judge, Unnao convicting and sentencing the appellants as under:- (i) Appellants namely Kishan alias Krishna Prasad, Manna and Bishambhar under Section 302/149 of IPC to life imprisonment, under Section 148 of IPC to two years rigorous imprisonment and under Section 323/149 of IPC to one year rigorous imprisonment. (ii) Appellants namely Darbari, Baldeo, Ram Phal, Chandrika, Ambika alias Munni Lal, Munna, Satti, Nanhkau and Maiku under Sections 302/149 of I.P.C. to life imprisonment, under Section 147 of I.P.C. to one year rigorous imprisonment and under Sections 323/149 of IPC to one year rigorous imprisonment. Sentences of all appellants were directed to run concurrently. During the pendency of this appeal, appellant Nos. 1, 2, 3, 4, 12 and 13 had died, therefore, their appeal stood abated. 2. Gist of the prosecution case is that on 12.07.1981 at around 5 P.M. one Ram Swaroop @ Ladku along with Moti came to the field of Jhauni Raidas to take Rs. 100/- which Ram Swaroop gave to him, and when Jhauni Raidas did not pay the said amount then both the persons i.e. Ram Swaroop and Moti came inside the Village and demanded money from the son of Jhauni Raidas namely Chandrika. Chandrika refused to give the money and started shouting that Ram Sarup and Moti are killing him. On his shouting the villagers namely Keshav Ahir with Kulhadi, Darbari Ahir with lathi, Bhikhan Ahir with lathi, Baldev Ahir with Lathi, Vishambar Ahir with gandasa, Manna Ahir with Kulhadi and Ramphal Ahir with lathi. Chandrika Raidas and Ambika Raidas with lathi, Munna Ahir with lathi, Chota Ahir with lathi, Satti Ahir with lathi, Nanhkau Ahir with lathi and Maiku Ahir with Lathi came at the door of Chandrika and started hitting brother of informant Ram Sarup and Moti with Lathi and Kulhadis and on their shouting another brother of informant Ganga Ram his nephew namely Maiku and his sister-in-law namely Ganga Dulari came to rescue of Ram Sarup and Moti and in this quarrel they were also beaten up. In the meantime, one Rajaram and Ramlal son of Pancham Dhanuk, and Devi Charan came to the spot of occurrence and exhorted Keshav and others then the accused fled from the spot. Ram Swaroop and Moti died on the spot. 3. Kishan Manna and Bishambar were charged under Section 148 of I.P.C. for forming an unlawful assembly. Rest of the accused were charged under Section 147 of I.P.C. for being members of said assemblies with an object to murder Ram Sarup and Moti. All the accused were charged under Section 302 read with Section 149 of IPC. All appellants were further charged under Section 313, 149 of IPC for causing injuries to Ganga Ram, Maiku and Smt. Ganga Dulari on the same date, time and place. They pleaded not guilty to the charges and claimed to be tried. 4. After completion of the case of the prosecution the learned Trial Court recorded the statement of the accused/appellants under Section 313 of CRPC. 5. After considering the evidence available on record and also hearing the learned counsel for the parties, learned trial court convicted and sentenced the appellants as aforesaid by the impugned judgment. The present appeal has been filed against the impugned judgment. 6. From the perusal of the record it appears that the first information report was lodged on 13.7.81 at about 5 A.M. and was registered as case crime No. 161(A) under Section 147/148/302 of IPC against the appellants and the police started investigation. Investigating Officer then prepared inquest report which is Ex. Ka-7 and Ka 10 and recovery memo which is Ex. Ka-15, 16, 17, 18, 19 and also prepared site plan which is Ex. Ka-20. Ex. Ka-22 and Ka-23 are the injury reports of Ganga Dulari wife of Ganga Ram (PW-4) brought by self at 3:35 PM on 15.07.1981 in the morning, but in case crime No. 167 under Section 393/452/323 of IPC and not in case crime 167(A). The site plan was also prepared which is Ex. Ka-20, Inquest report is Ex. Ka-7 and Ex. Ka-10, recovery memo which was also prepared by Investigating Officer which is Ex. Ka-15, 16, 17, 18, 19. Thereafter, the dead body of the deceased was sent to hospital along with relevant police papers for examination and PW-2 Dr. S.N. Shrivastava conducted the autopsy on the dead body of Ram Sarup and Moti which is Ex. Ka-4 and Ka-5. 7. Ka-10, recovery memo which was also prepared by Investigating Officer which is Ex. Ka-15, 16, 17, 18, 19. Thereafter, the dead body of the deceased was sent to hospital along with relevant police papers for examination and PW-2 Dr. S.N. Shrivastava conducted the autopsy on the dead body of Ram Sarup and Moti which is Ex. Ka-4 and Ka-5. 7. From the accused side Chandrika (Appellant No. 8) has given a Tehrir at Police Station Achalganj at 19:10 on 12.07.1981 against the deceased Ram Swaroop, deceased Moti, Ganga Ram Pasi and Maiku Pasi. On the basis of said written report, case crime number 167, under Section 393/452/323 of I.P.C. was lodged and the first information report is Ex. Kha-5 and the G.D. entry of the same is Ex. Kha-1. The accused side have also sustained injuries which are Ex. Kha-6, 7 and 8. 8. In pursuant to the first information report Ex. Kha 5 lodged by the accused side, the charge-sheet against Ram Swaroop, Ganga Ram, Surphur Sik and Dhani Ram was filed which is Ex. Kha-3. 9. The postmortem report of deceased Moti was prepared by Autopsy Surgeon Dr. S.N. Shrivastawa (PW-2) who has found following ante-mortem injuries on the person of deceased Moti. (i) Lacerated wound 2" x 1" x cranial cavity deep on the right side scalp 2½" above the right ear. The brain matter is coming out of the wound. (ii) Lacerated wound 1½" x ½" on the top of the scalp 6" above the right ear. (iii) Lacerated wound 1" x ½" on the central part of the chest over the sternum bone. (iv) Lacerated wound ¾" x ¼" on the front of the right leg 8" below the right knee joint. (v) Contusion 5" x 1" on the upper part of abdomen 2½" below the iphisternum. (vi) Contusion 2" x 1" on the back part of left leg 5" the left knee joint. (vii) Incised wound 1" x ½" on the right part of right collar bone. (viii) Incised wound 1" x ½" on the left side neck 1½" above the middle part of left collar bone. (ix) Incised wound 1¼ " x ½" on the central part of neck 1" above the xiphisternum. (x) Incised wound 1" x ½" on the central part of neck ½" above the injury No. 9. Dr. (viii) Incised wound 1" x ½" on the left side neck 1½" above the middle part of left collar bone. (ix) Incised wound 1¼ " x ½" on the central part of neck 1" above the xiphisternum. (x) Incised wound 1" x ½" on the central part of neck ½" above the injury No. 9. Dr. S.N. Shrivastawa (PW-2) in his opinion confirmed that cause of death of deceased Moti was due to shock and hemmorrhage due to the above injuries. Dr. Shrivastawa (PW-2) also conducted the postmortem of another deceased i.e. Ram Swaroop and found following ante-mortem injuries:- (i) Incised wound 2" x ½" on the right side neck 1" above the outer 3rd of right collar bone. The under lying blood vessels are cut. (ii) Incised wound 1½" x ½" on the central part of neck 1½" above the xiphisternum. (iii) Incised wound 1" x ½" on the left side neck 1½" above the middle half of the left collar bone the under lying blood vessels are cut. (iv) Incised wound 1½" x 1½" on the back of neck at the level of 8th cervical vertebrae. (v) Incised wound 1" x ½" on the left side back at the level of 2nd thorasic vertebrae. (vi) Incised wound 1" x ½" on the left side back at the level of 2nd thorasic vertebrae and is ½" outer to the injury No. 5. (vii) Multiple contusion of different sizes involving whole of the back. (viii) Abraded contusion 5" x 1" on the back part of left thigh. (ix) Abrasion ½" x ½" on the top of left knee joint. (x) Contusion 2½" x 1" on the front of left shoulder joint. (xi) Incised wound 1" x 1" on the palm of right hand. Dr. Shrivastawa (PW-2) has opined that cause of death of deceased Ram Swaroop is due to shock and haemorrhage due to above injuries. The postmortem reports of both the deceased were prepared on 13.07.1981. Dr. S.N. Shrivastawa (PW-2) opined that cause of death was due to shook and haemorrhage as a result of ante mortem injuries. Cause of death of Moti and Ram Swaroop due to ante-mortem injuries has been proved by him in his deposition as PW-2. Hence, in view of this, we hold that death of Ram Swaroop and Moti is a homicidal death. 10. The prosecution side has also received injuries which are Ex. Cause of death of Moti and Ram Swaroop due to ante-mortem injuries has been proved by him in his deposition as PW-2. Hence, in view of this, we hold that death of Ram Swaroop and Moti is a homicidal death. 10. The prosecution side has also received injuries which are Ex. K-22 and 23. The injury report of PW-4 was prepared by PW-6 on 15.07.1981 at 3:35 PM and he found following injuries on the person of PW-4. (i) Contusion 1 cm. x 2 cm. on the right scapular region middle. (ii) Contusion 3 cm. x 2 cm. x 3 cm. lateral to injury No. 1. (iii) Abraded contusion 6 cm. x 3 cm. just below the right elbow joint, posterior aspect fore-arm. (iv) Defused swelling 2 cm. x 2 cm dorsum of middle of right palm. (v) Abraded contusion 12 cm. x 2 cm. on the posterion aspect of left lower part of arm and upper part of left forearm. (vi) Lacerated wound 2 cm. x 5 cm. x scalp deep 12 cm above the left ear vertical in direction, margins incarcerated. (vii) Abraded contusion 4 cm x 2 cm on the outer side of left joint. (viii) Complaint of pain on back of neck, qluteal region but no injury pt. After careful perusal of aforesaid injuries, the Dr. B.N. Saxena has opined that all injuries are simple in nature and are caused by blunt object. Likewise he also examined Smt. Ganga Dulari (PW-4) and found the following simple injuries caused by blunt object:- (i) A lacerated wound 2 cm x 1 cm. muscle deep obliquely placed in the scalp slight right side 11 cm above the medial end of right eyebrow margin lacerated irregular and ragged edges. (ii) Contusion 3 cm x 1 cm obliquely placed just below the right thumb. Color blue. 11. Heard Sri Arun Sinha, learned counsel for appellant Nos. 10 and 11, Sri Amit Chaudhary, learned counsel for appellant No. 5, 6, 7, 8, 9 and also learned Additional Government Advocate for the State. 12. (ii) Contusion 3 cm x 1 cm obliquely placed just below the right thumb. Color blue. 11. Heard Sri Arun Sinha, learned counsel for appellant Nos. 10 and 11, Sri Amit Chaudhary, learned counsel for appellant No. 5, 6, 7, 8, 9 and also learned Additional Government Advocate for the State. 12. Learned counsel for the appellants have submitted that the first information report registered as Case Crime No. 167, under Section 393/452/323 of Indian Penal Code at Police Station Achalganj against the deceased and others was first lodged by them primarily on 12.07.1981 at about 19:10 hours and the first information report (Ex.-Ka-1) is not only delayed but concocted and ante time in which they have been falsely implicated. To support this submission, the attention of the Court has been drawn towards the inquest report (Ex. Ka-7 and Ex.-Ka-10) in which accused/appellant No. 6 Ram Phal is the inquest witness. Further submission is that the investigating officer conducted the inquest report in case crime No. 167 and he was not aware about the first information report No. 167A on 13.07.1981, in which the inquest was concluded at 8:30 AM. The submission is that Ram Phal was inquest witness in both the inquest reports and was also the accused in case crime No. 167-A and first information report in this respect was already in the knowledge of Investigating Officer by 8'O clock, whereas the inquest concluded at 8:30 AM on 13.07.1981 in Village Lalta Kheera which shows that the subsequent first information report lodged by the informant was not in existence by 8:30 AM, the time when the inquest was being concluded. 13. Learned counsel for the appellants further submits that the genesis of the occurrence or motive has not been proved by the prosecution as the story of sum of Rs. 100/- given by Ram Swaroop to Jauni Raidas has not been proved and when the prosecution has failed to prove the sole genesis of occurrence, the story of prosecution case regarding the complicity of the appellants, is also falsified. The other submission on behalf of appellants is that PW-3 and PW-4 are highly interested witnesses and they have made contrary statements which render their testimony untrustworthy. It has also been argued by learned counsel for the appellants that the prosecution has not been able to explain the injuries suffered by appellants side which is Ex. The other submission on behalf of appellants is that PW-3 and PW-4 are highly interested witnesses and they have made contrary statements which render their testimony untrustworthy. It has also been argued by learned counsel for the appellants that the prosecution has not been able to explain the injuries suffered by appellants side which is Ex. Kha-6, Kha7 and Kha-8 which show that the prosecution has suppressed the real facts of the case. It has also been contended by the counsel for the appellants that deceased Moti and Ram Swaroop were aggressors and history sheeters and also prosecution has failed to give any explanation towards the broken door of Chandrika and the goods lying on the floor and also could not explained why Ram Swaroop (deceased) and Moti (deceased) were at the place of Chandrika. 14. Lastly it has been submitted that the appellants have wrongly been charged under Section 149 as prosecution has failed to prove any unlawful assembly or prior meeting of the mind or having common object for commission of the offence which was within the knowledge of the appellants. In short, the submission is that the villagers went to save Chandrika on his call and deceased Moti and Ram Swaroop have been killed by them in their exercise of right of private defence of property and person. 15. Learned Additional Government Advocate has vehemently denied the submission made by the counsel for the appellants and he supported the case of the prosecution and submitted that learned trial court has rightly convicted the accused by the judgment impugned. 16. We have considered the submission advanced by the learned counsel for the parties and have perused the evidence available on record. First, we proceed to ascertain whether the genesis of the origin of occurrence has been proved by the prosecution. It is alleged by the prosecution that a sum of Rs. 100/- was given by Ram Swaroop to Jhauni Raidas and on the date of occurrence i.e. on 12.07.1981 he went along with Moti to the field of Jhauni Raidas at about 03:00 PM and demanded his money from Jhauni Raidas which he refused to pay. 17. PW-3 in his examination-in-chief says that when Ram Swaroop and Moti were demanding money from Jhauni at his field he was in the market and this fact was told to him by PW-4 (his sister in law). 17. PW-3 in his examination-in-chief says that when Ram Swaroop and Moti were demanding money from Jhauni at his field he was in the market and this fact was told to him by PW-4 (his sister in law). Hence, he is not an eye witness to this incident. 18. Perusal of the statement of PW-3 who in para 10 of the statement has deposed that there is no witness of transaction of Rs. 100/- between Ram Swaroop and Jhauni Raidas. He further states that he does not remember when the money was given to Jhauni Raidas, then he says that in the month of "Jeth/Asadh" Jhauni Raidas purchased a plot and some money was falling short that is why Jhauni demanded money from Ram Swaroop. On the contrary, Ganga Dulari (PW-4) the injured eye witness and wife of Ganga Ram states in her deposition that Jhauni took Rs. 100/- around 8'O clock at her house in front of her, from Ram Swaroop. This deposition is in contradiction to the statement of PW-3, who said that there was no witness of the transaction. It also appears from the perusal of the record that the prosecution has not produced any sale deed or its witness to prove the purchase of plot as stated by PW-3. 19. Ganga Dulari (PW-4) further states that at around 4/4:30 PM on the day of occurrence she saw Ram Swaroop and Moti demanding money from Jhauni Raidas on the field of Jhauni which he refused to pay. This statement of PW-4 is highly improbable as in her deposition she has stated that her house is 60-70 steps away from the field of Jhauni Raidas where Jhauni Raidas, Moti and Ram Swaroop were talking. From 60-70 steps away, the PW-4 possibly could not have heard any exchange of words between Ram Swaroop, Moti and Jhauni Raidas. Hence, it is not appropriate to rely on her statement and as such her statement is a pure lie and liable to be discarded. 20. Hon'ble Supreme Court in the case of Luxmi Singh and Others vs. State of Bihar, 1976 (4) SCC 394 where also the genesis and the origin of occurrence was in serious doubt held as under:- "17. Finally we might stress even on the risk of repetition, that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery............ Finally we might stress even on the risk of repetition, that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery............ This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case." 21. In this case also we have noticed from the evidence on record that deceased Ram Swoop and Moti were aggressors. The evidence of PW-3 and PW-4 read with the evidence of PW-5 as stated herein above, clearly show that both the deceased were present in the house of Chandrika for demanding money. The evidence of PW-5 further shows that an axe near the body of Ram Swoop and lathi near the body of Moti were found and door of the kothari of Chandrika's house was cut and its kundi was broken and twisted. Ex. Kha-5, the FIR lodged by accused Chandrika against the deceased corroborates this fact. It is also not disputed that the deceased Ram Swoop was a history sheeter and is wanted in several criminal cases. We refer to evidences of PW-3, PW-4 and PW-5 in this respect. 22. Accused Ramphal witness of inquest in both the cases of deceased Moti and Ram Swoop, according to the evidence and his own statement, he knew about the FIR in this case which shows that there was no FIR till 8:30 AM i.e. by the time the inquest report (Ex. K-10) was completed. 23. Since, the prosecution could not prove the origin and genesis of the occurrence and from the evidence, it has been proved that deceased Moti and Ram Swoop were aggressors which probabilise the defence version that the villagers in exercise of their right of private defence may have killed Ram Swoop and Moti to save Chandrika (accused). K-10) was completed. 23. Since, the prosecution could not prove the origin and genesis of the occurrence and from the evidence, it has been proved that deceased Moti and Ram Swoop were aggressors which probabilise the defence version that the villagers in exercise of their right of private defence may have killed Ram Swoop and Moti to save Chandrika (accused). Accordingly, in peculiar facts and circumstances, of this case, we hold that deceased Moti and Ram Swoop could have been killed by the villagers in exercise of their right of private defence available under Section 100 clause firstly and secondly read with Section 103 of IPC and they had that right against the intruders Ram Swoop and Moti who tried to apply force for extortion of money. Since, the exact role played by each one of the accused has not been brought on record it will be difficult to hold anyone of them guilty for exercising a right of private defence. 24. In view of the above, we hold that the prosecution has not been able to prove the genesis and origin of the occurrence and thus has not presented the true version. 25. Now, once the story of Rs. 100/- set up by the prosecution is not proved, we come to analyze whether the appellants/accused persons could have been charged under Section 149 of Indian Penal Code or not. Section 149 of Indian Penal Code is reproduced herein as under:- 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. To establish the membership of the accused-appellants of an unlawful assembly, it has to be shown that the incriminating act was done by the appellants to accomplish the common object of unlawful assembly on the first part or it must be within the knowledge of the other members as one likely to be committed in prosecution of the common object. 26. 26. Now, the question is when the origin and genesis of occurrence could not be proved by prosecution, what was deceased Ram Swoop and Moti were doing at the house of Chandrika. 27. We proceed to appreciate the evidence of PW-1 S.I. Ram Prasad who has deposed that Ram Swoop (deceased) was history sheeter, several cases under the Gangster's Act and dacoity were lodged against him. PW-3 the complainant has also deposed that Ram Swoop was accused in cases of dacoity, road rage and gangsters, but was not convicted in any of them. Likewise, PW-4 has also deposed that Ram Swoop was accused in 2-1 cases of gangsters. PW-5 S.I. Ram Deen Chawdhary has deposed that Ram Swoop and Ganga Ram are the history sheeters. PW-3 has further deposed that when he returned from the market at about 5/5:30 PM then PW-4 told her that "maar peet" is taking place at the door of Jhauni then he approached at Jhauni's door behind her sister-in-law i.e. PW-4 then he saw the accused persons were hitting Ram Swoop and Moti. He has further deposed that he went at the place of occurrence un-armed and he heard Chandrika shouting for help. PW-4 has also confirmed the statement of PW-3 that Chandrika was shouting for help and accused persons came there to save him then he informed PW-3. Later on, she says that while standing at her door she heard the noise of Chandrika, several persons were shouting, therefore, she could not recognize as to whose voice was this. She even could not tell as to who has caused injury to her, whereas, S.I. Ram Deen Chawdhary, P.S. Majhla, District Hardoi (PW-5) has deposed on oath that he has recovered one kulhadi near the body of Ram Swoop and one lathi near the dead body of Moti and has examined the house of Chandrika, kundi of kothari was broken and twisted and the doors of northern kothari were broken and all these he has mentioned in Naksha Nazri. 28. A perusal of Ex. 28. A perusal of Ex. Ka-5 the first information report lodged by Chandrika shows that deceased Ram Swoop and Moti came to his house at 4'O clock then he went into the kothari and locked it from inside, thereafter, both Ram Swoop and Moti cut the door of kothri by kulhari and torn the kundi and pulled Chandrika from kothri to the angan and started demanding money for drinking liquor and meeting litigation expenses which he refused to pay then they started beating him and searching the money inside the house and threw away the household goods and he and her sister Bhagwati Devi shouted and upon their shouting several villagers came and exhorted deceased Moti and Ram Swoop and saved Chandrika. In this exercise, Ram Swoop and Moti died on the spot. 29. A careful perusal of the above evidences proves that Ram Swoop was history sheeter and there is sustained evidence of prosecution witness as referred above in this regard and several cases of dacoity etc. were pending at the time of incident against him. PW-3 and PW-4 have deposed that they heard Chandrika shouting for help. 30. It is the case of defence that on the call of Chandrika villagers came there to rescue him and due to interference of villagers life of Chandrika and his sisters were saved. PW-5 Ram Deen Chawdhary has examined the house of Chandrika and has found that his door was broken and kundi was torn and twisted which support the version of first information report by the accused Ex. Kha-5 that the deceased Ram Swoop and Moti and others came to committed dacoity at the house of Chandrika and were killed by the villagers in exercise of the right of private defence. 31. The prosecution has failed to show that there was any unlawful assembly or there was prior meeting of accused and also there was any common object for commission of offence or such common object was within the knowledge of the appellants. On the contrary, the evidence of PW-3 and PW-4 supports the first information report Ex. Kha-5 as both of them have deposed that Chandrika was shouting for help. Further Ram Deen Chaudhary (PW-5) after inspection have supported the contents of the first information report by the accused side Ex. Kha-5. 32. The right of private defence has been defined under Section 96 of Indian Penal Code. Kha-5 as both of them have deposed that Chandrika was shouting for help. Further Ram Deen Chaudhary (PW-5) after inspection have supported the contents of the first information report by the accused side Ex. Kha-5. 32. The right of private defence has been defined under Section 96 of Indian Penal Code. Section 97 of the Code provides that every person has a right to defend his body and the body of other persons and the property of himself or of any other person subject to restrictions contained in Section 99 of the Code. Section 97 of IPC is reproduced as under:- "97. Right of 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 or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." Section 100 provides when the right of private defence and the body extends to causing death. Section 100 of the Code is reproduced as under:- "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 reasonably 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." 33. 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." 33. A careful perusal of Section 100 reveals that the right of private defence of body, subject to restrictions mentioned in Section 99 extends to even voluntarily causing of death or any other harm to the assailants if the offence which occasions the exercise of the right under any of the descriptions mentioned in Section 100. 34. In the present case, it can safely be said that clause first is attracted so as to give the accused right of private defence of their body. Section 103 provides when the right of private defence of property shall extend to causing death. Section 103 is reproduced as under:- "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 any 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 enumerated, 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 - Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." 35. Now we proceed to examine on the basis of the evidence available on record whether the accused persons had the right under Section 100 in clause first and secondly read with Section 103 of IPC. 36. That after the prosecution has failed to prove the origin and genesis of the occurrence, as held supra, we notice, it is also failed to justify as to what deceased Ram Swoop and Moti were doing at the house of Chandrika (accused). 36. That after the prosecution has failed to prove the origin and genesis of the occurrence, as held supra, we notice, it is also failed to justify as to what deceased Ram Swoop and Moti were doing at the house of Chandrika (accused). We have noticed the fact that vide Ex.-Kha-5 FIR in this matter was lodged firstly at the instance of Chandrika (accused) promptly at 19:10 hours on the same day i.e. 12.07.1981 whereas the occurrence is of about 4 PM on the same day registered as case crime No. 167. On the other hand, the FIR by the informant Ex. K-1 was lodged on the next day i.e. on 13.07.1981 at about 5 AM registered as case crime No. 167-A after much delay. 37. In the FIR lodged by Chandrika (Case Crime No. 167) deceased Ram Swoop and Moti were accused along with others and this FIR was lodged for committing robbery under Section 393 read with Section 452, 323 of IPC alleging that the deceased Ram Swoop and Moti came to his house and demanded a sum of Rs. 500/- from his father for drinking liquor and meeting litigation expenses and when he refused then both the deceased came inside the house, therefore, he locked himself inside the khotari and thereafter they cut down the door of the khotari by axe and took off the kundi and pulled Chandrika in the angan and started demanding Rs. 500/-. Upon refusing, they started beating him and threw the household goods and upon this Chandrika and his sister Bhagwati Devi raised an alarm then the villagers came to rescue him. PW-3, PW-4 and PW-5 have deposed that the deceased Ram Swaroop was history sheeter and was facing cases of dacoity, road rage and cases under Gangsters Act. 38. It is admitted case of the prosecution that Chandrika was shouting for help. PW-3 and PW-4 in their statements have deposed that Chandrika was shouting for help. The statement of PW-5 (Investigating Officer), PW-3 and PW-4 further proved that the deceased Ram Swaroop, and Ganga Ram (husband of PW-4), were history sheeter and were wanted in several criminal cases including dacoity. It is also admitted case of prosecution that Ram Swaroop and Moti went inside the Village to Chandrika's place. The statement of PW-5 (Investigating Officer), PW-3 and PW-4 further proved that the deceased Ram Swaroop, and Ganga Ram (husband of PW-4), were history sheeter and were wanted in several criminal cases including dacoity. It is also admitted case of prosecution that Ram Swaroop and Moti went inside the Village to Chandrika's place. PW-5 (Investigating Officer) in his statement has further deposed that he found one axe near the body of Ram Swaroop and one lathi near the body of Moti. PW-5 has also deposed that kundi of kothari of Chandrika's house was broken and twisted and doors of northern kothari were torn/broken. This fact is also corroborated by Ex. Kha-5 the FIR lodged by the accused Chandrika. This probabilise the defence version that both the deceased came Chandrika's house to commit dacoity and after he raised alarm the villagers exercising their right of private defence, property as well as life might have killed them. The antecedents of the deceased Ram Swaroop show that he was hard core criminal. Moti was accompanying him. This has been admitted by the prosecution. It is also the case of the prosecution that they came inside the Village to Chandrika's House to demand their due money. As long as the said demand to be recovered forcibly, it will have an effect of extortion of money by using criminal force. The visit of the deceased Ram Swaroop and Moti cannot be considered to be in casual manner and normally visit. The shouting of Chandrika and his sister coupled with the conduct of Chandrika to promptly lodge the FIR in this case (Ex. Kha-5) are consistent with their innocence. The whole circumstances depicts and probabilise the defence version that two deceased came armed with verbally demanding money from Chandrika and upon raising alarm by him villagers came and rescued Chandrika. The fact that injuries sustained by Chandrika, Sri Krishna, Jauni (who was 60 years old) Ex. Kh-7, 6 and 8 respectively show that the force was applied by the deceased corroborated by the fact that the Chandrika shouted and his door was found cut by the Investigating Officer. Coupled with the antecedents of the deceased, the possibility of dacoity and extortion cannot be ruled out. Kh-7, 6 and 8 respectively show that the force was applied by the deceased corroborated by the fact that the Chandrika shouted and his door was found cut by the Investigating Officer. Coupled with the antecedents of the deceased, the possibility of dacoity and extortion cannot be ruled out. The Supreme Court in case reported 1989 Supplementary 1 SCC 399 reviewed and reassessed the evidence while noticing the antecedents of the deceased Kashi Nath held that the accused clearly had a right of private defence against the intruders who tried to extort the money by force. The relevant part of the said judgment is reproduced as under:- "But even if we confine ourselves to the demand for cash, so long as it was sought to be recovered forcibly, the effect of the demand in law will be the same, namely, extortion of money by the use of criminal force. We are, therefore, unable to agree that the demand for cash alone would not justify retaliation, if any, by the inmates of the flat. The visit of the deceased cannot, therefore, be considered to be an innocent or normal one. The shouts of Bachav, Bachav, Chor, Chor by the inmates of the flat and the conduct of accused 5 to send for the police without loss of time are consistent with innocence and not guilt. The totality of circumstances probabilise the defence version that the two deceased who were under the influence of alcohol came armed to the flat and forcibly demanded money from the inmates. As a result thereof there was a commotion with the inmates calling for help. In the course of the incident whatever came handy including chilli powder was used by the inmates to protect themselves. The find of locks of hair belonging to one or the other accused near the body of one of the deceased would show that the intruders had pulled the inmates by the hair. Having regard to the antecedents of both the deceased, the possibility of their being armed with knives cannot be ruled out. The use of chilli powder also shows that the inmates were trying to ward off the intruders. That was a perfectly defensive action. The find of bloodstained articles from the flat is only natural and so also it is natural to find the clothes of the inmates stained with blood. The use of chilli powder also shows that the inmates were trying to ward off the intruders. That was a perfectly defensive action. The find of bloodstained articles from the flat is only natural and so also it is natural to find the clothes of the inmates stained with blood. In these circumstances we feel that the High Court erred in holding that two innocent persons were done to death merely because they went to collect the dues. The inmates clearly had a right of private defence against the intruders who tried to extract money by force." 39. Thus, in absence of any evidence in order to attract Section 149 of the code of Civil Procedure, we are of the view that the accused persons have wrongly been charged under Section 149 and have failed to show that incriminating act was done by them to accomplish the common object of unlawful assembly. Neither it has been shown that it was within the knowledge of other members as one likely to be committed in prosecution of common object. 40. On the basis of discussions made above, we find material illegality and irregularity in the judgment of conviction and order of sentence dated 28.01.1984 passed by the court below in Session Trial No. 415 of 1982 under Section 147, 148, 302 read with Section 149 and 323 of IPC and the same is hereby set aside. The appeal succeeds and is allowed accordingly. The appellant is acquitted from the charges levelled against him.