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PETITIONER:

RAJESH KUMARSTATE OF HARYANA

Vs.

RESPONDENT:

DHARAMVIR & ORS.

DATE OF JUDGMENT: 12/03/1997

BENCH:

M.K. MUKHERJEE, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRIMINAL APPEAL NO.7 OF 1990

J U D G M E N T

M.K. MUKHERJEE. J.

Dharamvir, a resident of Samalkha in the District or

Karnal, along with his three brother Shakti Singh, Subhas

and Suresh, and son Yudhvir was placed on trial before the

Additional Sessions Judge, Karnal for rioting, committing

the murders of Yogesh, his father Dinesh, and his grand-

father Suraj Bhan, and attempting to commit the murder of

his brother Rajesh. The trial ended with an order of

convictions recorded against all of them under Sections 148,

302/149 (three counts) and 307/149 of the Indian Panel Code

and of sentences of rigorous imprisonment for six months,

imprisonment for life and a fine of Rs. 200/-, and rigorous

imprisonment for seven years and a fine of Rs. 200/-

respectively and a direction that the substantive sentences

shall run concurrently. In appeal the High Court set aside

their convictions and sentences; and aggrieved thereby the

State of Haryana and the complainant Rajesh have filed these

appeals.

The deceased Dinesh Chander was the younger brother of

Tulsi Ram, who is the father of accused Dharamvir, Shakti

Singh, Subhash and Lachhi Ram (since deceased). The families

and Dinesh and Tulsi used to live in adjacent houses, both

or which open into a lane on the west. To the adjacent east

of the house of the accused is a shop with a common inner

boundary wall. Over that shop litigations were going on

between the two families and a few days before the incident,

out of which these appeals stem, a decree was passed in

favour of deceased Suraj Bhan by the Additional District

Judge, karnal. In another suit filed by Tulsi Ram to evict

Hari Krishna, the tenant of that shop, he also got a decree

and in execution thereof recovered its possession on May 5,

1994 at or about 2 P.M., through the Court bailiff (P.W.10).

According to the prosecution case on the same day at or

about 4.30 P.M. the five accused and lachhi Ram started

demolishing the inner boundary wall of the 'shop in order to

make it a part of their own house. On hearing the sound of

pounding on the wall Yogesh went to the lane in front of

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their house and asked the accused not a demolish the wall.

Immediately thereafter accused Dharamvir, armed with a

Lathu, and other four accused and lachhi Ram with knives

came out of the shop and started inflicting blows on Yogesh

with their respective weapons. On hearing the alarms raised

by him when Rajesh (P.W.18), his father Dinesh Chander, and

his grand-father Suraj Bhan came forward to his rescue

Subhas, Lachhi Ram and Suresh, assaulted Rajesh with their

knives. All the five accused person and lachhi Ram also

assaulted Dinesh Chander and Suraj Bhan causing injuries on

their persons. At that stage Dinesh Chander fired a shot

from his licensed gun, which hit Lachhi Ram. In the meantime

Krishna Devi (P.W.14), mother of Rajesh, had also reached

the spot. Thereafter the five accused persons ran away with

their weapons. Though Yogesh had succumbed to his injuries

there, his body was taken to the local primary health

Centre, where injured Dinesh Chander, Suraj Bhan, and Lachhi

Ram were removed for treatment. Injured Rajesh however first

went to Samalkha Police Station to lodge the FIR.

After recording the FIR, S.I. Borth Raj (P.W.21) sent

Rajesh to the health Centre for medical examination. he then

went to the spot, prepared a site plan, and seized blood

stained earth and empty cartridge (Ext. P.6) from there and

a hammer (Ext. P.4) and a chisel (Ext. P.5) from the shop.

Thereafter he went to the health centre at Samalkha and held

inquest on the dead body of deceased Yogesh. In the meantime

Suraj Bhan, Dinesh Chander and Lachhi Ram and been removed

to Medical College Hospital, Rohtak for better treatment.

Lachhi Ram, however, succumbed to his injuries on the same

evening and Suraj bhan on the following day. Dinesh Chander

continued to be treated in that hospital till be died on May

10, 1988.

During investigation accused Dharamvir and Yudhvir were

arrested on May 8, 1984 and the other three on May 10, 1984.

On may 11, 1984, while on police custody, accused Shakti

Singh made a disclosure statement, which resulted in

discovery of a blood stained knife. On completion of

investigation Police submitted chargesheet against the five

accused-respondents and in due course the case was committed

to the court of sessions.

The accused pleaded not guilty to the charges levelled

against them when examined under Section 313 Cr.P.C: and

accused Subhash gave the following version of the incident :

"On the day of occurrence at about

3.00/4.00 P.M. Lachhi was in the

process of breaking the wall of the

shop of make it a part of our house

of the shop to make it a part of

our house after Shakti had taken

possession of the shop in a legal

manner. Rajesh and his brother

Yogesh after hearing the noise came

outside our house while armed with

knives. They started knocking at

our closed door but Lachhi did not

bother in spite of the fact that

they had started abusing us and

threatening us that Rajesh and

Dinesh were successful in breaking

the door and I also came down

stairs after am myself with a knife

because I had seen PWs Rajesh and

Yogesh armed with knives and in an

aggressive mood both of them

attacked Lachhi and me and we

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defended ourselves. Lachhi caused

injuries to Rajesh with the hand-

pump handle and was successful in

throwing down his knife. When

Lachhi was being attacked by Yogesh

I gave him a blow in his back.

Meanwhile Lachhi grappled with

Yogesh and dis-armed him and

snatched his knife. Lachhi was much

stronger than Yogesh. Meanwhile

Dinesh armed with a gun and Suraj

Bhan armed with laths came there

and Suraj Bhan gave a lathi blows

to Lachhi and me. I grappled with

Suraj Bhan and gave him knife

blows in self defence. Meanwhile

Dinesh fired shots one shot hit

Lachhi as he was re-loading his

gun, Lachhi gave him blows but he

was successful in reloading the

gun. He fired on more shot at

Lachhi. When I was grappling with

Suraj Bhan, Dinesh fired a shot

towards away to save my life

because lachhi had not got up and I

was alone. I went to bonepat and

got myself treated there first from

Dr. Romesh Batra and then got

myself medically examined also from

the Civil Hospital, had witnessed

the entire occurrence. None of the

other accused was present at the

spot. They have been falsely

involved in the case Krishna was

not present at the spot"

The other four accused denied their presence at the

spot at the time of the incident and accused Shakti claimed

that at the material time he was with his lawyer at Panipat.

In support of their respective cases the prosecution

examined twenty three witnesses and defence five.

After taking us through the entire evidence and the

impugned judgment Mr. Uma Datta, the learned counsel

appearing for the appellants, contended that the judgment of

the High Court was patently wrong as it was based on

contradictory findings and misappreciation or principles of

law relating to the exercise of right of private defence. In

refuting the above contentions Mr. Kohil, the learned

counsel appearing for the accused respondents, on the other

hand submitted that the order of acquittal passed in their

favour was based on proper appreciation of evidence and this

court would not be justified in interfering with the same,

more so, as it was neither vitiated any grave error of law

nor old it cause serious miscarriage of justice.

It is true that ordinarily this court does not

interfere with an acquittal recorded buy the High Court but

if it is found that the order of acquittal suffers from

substantial errors of law and fact, it becomes the duty of

this Court to interfere with the same to redeem the course

of justice. Having carefully gone through the impugned

judgment in the light of the evidence soon record we find

that this case essentially calls for such interference.

In view of the respective cases of the parties as

detailed above, there is no room for doubt that in course of

the incident that took place on that fateful afternoon,

Rajesh, his brother Yogesh, their father Dinesh and grand-

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father Suraj Bhan as well as Lachhi Ram, brother of accused

Shakti Singh, sustained injuries. The parties however

joined issue as to the manner in which the occurrence took

place and, for that matter, how the victims sustained those

injuries and all, except Rajesh, met with their heath. To

appreciate the steps of reasoning of the High Court for

upsetting the findings of the trial Court on the above issue

it will be necessary to first look into the evidence of the

doctors, namely, Dr. K.L. Khuran (P.W.1), Dr. Mahesh Prakash

(P.W.2), Dr. O.P. Gogia (P.W.3), Dr. D.K. Sharma (P.W.5),

and Dr. Rajnesh Bhalla (P.W.6), who deposed about the

injuries found on the above five persons and as to the cause

of death of four of them. Dr. K.L. Khurana (P.W.1) examined

Rajesh and found eight injuries on his person, including on

e incised wound and six lacerated wounds. Dr. Mahesh Prakash

(P.W.2) held autospy on the dead body of Yogesh and found

two incised wounds and one abrasion, while Dr. O.P. Gogia

(P.W.3), who held autopsy on the dead body of Lachhi, found

one incised wound and five lacerated wounds, of which, he

opined, the first was a surgical wound and the others were

caused by fire-arms. Dr. Rajesh Bhalla (P.W. 6), who

examined Suraj Bhan on the night of the incident found seven

incised wounds on his person and Dr. D.k. Sharma (P.W.5),

who held post-mortem examination on his dead body on the

following day corroborated the evidence of P.W.6. Dr. Sharma

also held postmortem on the dead body of Dinesh Chand and

found stitched wound on his abdomen. The doctors, who held

the post-mortem examinations opined that the injuries found

on the persons of the four deceased were sufficient to cause

death in the ordinary course of nature.

Coming now to the manner in which the incident took

place, the prosecution reties on the evidence of Rajesh

(P.W.13) his and mother Krishna Devi (P.W.14), and the

defence on that of Smt. Bimlesh (P.W.4), wife of accused

Shakti Singh, in support of their respective versions. On a

detailed discussion of their evidence and correlating the

same with other evidence adduced by the parties the trial

court accepted the version of the prosecution in preference

to that of the defence.

In dealing with the above aspect of the matter the High

Court first made the following observations:-

"The parties ar however, at

variance about the place, and the

manner in which the occurrence took

place, as well as, about the

presence and participation of the

accused other than Subhash, and

their companion Lachhi Ram

deceased. According to the

prosecution story, besides Rajesh

Kumar, first informant witnessed

the occurrence that took place in

the lane in front of their house,

adjoining the house of the accused.

Taking into consideration all these

facts, as well as the time of the

occurrence and fact that after the

occurrence Rajesh Kumar P.W.2

lodged the report with the police

within half an hour of the

occurrence it is quite patent that

his presence and that of his

mother Smt. Krishna Devi (P.W.14)

at the spot at the time of the

occurrence is quote natural.

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Probable and convincing. Mere fact

that after the occurrence Smt.

Krishna Devi did not accompany the

injured or her deceased son to the

hospital, and instead preferred to

stay at her home possibly because

she would be under great shock on

seeing the ghastly sight, would

not be sufficient to upheld the

defence plea that her presence at

the spot at the time to the

occurrence is doubtful."

(emphasis supplied)

Thereafter the High Court passed the question as to

whether the accused acted bonafide in exercise of right of

private defence of their persons and property and observed

that to resolve the issue the place and the manner in which

the occurrence took place assumed considerable importance.

The High Court then discussed the relevant evidence and

answered the question in the following manner :-

"According to the testimony of S.I.

Bodh Raj, who went to the spot on

the evening of the occurrence,

blood was lifted by him from the

street, which, as per the report of

the Chemical Examiner, and, that of

the Serologist, was found stained

with human blood. No blood was

lifted from inside the shop in

dispute, where, according to

subhash accused, the complainant

party initially went in order to

stop the accused from dismantling

the house of the accused, the

complainant party attacked him and

his brother Lachhi Ram and the

latter inflicted injures to Rajesh

Kumar P.W. with the handle of hand

pump, and Subhash accused, who was

armed with a knife gave a blow with

the same to Yogesh ( deceased) on

his back. This tell the

circumstances does support the

ocular account given by Rajesh

Kumar and his mother Krishna Devi,

FIRs. that the entire occurrence

took place in the lane itself."

(emphasis supplied)

On perusal of the record we notice that the above

quoted findings are base don proper appraisal of the

evidence and in agreement with the findings of the trial

Court. Surprisingly however, inspite of such findings

recorded favour of the prosecution - which would have

necessarily led to the affirmance of the judgment of the

trial court - the High Court upset the same, accepting the

plea of right Court upset the same, accepting the plea of

right of private defence of person and property raised by

the accused persons. In so doing, we are constrained to say,

the High Court not only contradicted those findings but also

arrived at findings which are patently wrong-both factually

and legally.

Though the High Court found that Rajesh (P.W.13) and

his mother Krishan Devi (P.W.14) were reliable witnesses,

(as the earlier quoted passages indicate) it disbelieve

their statements that Dinesh came to the spot with his

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licensed gun and opened fire after he and his other family

members were assaulted. According to the High Court it was

difficult to believe that after the complainant party became

aware that the accused party started dismantling the common

wall between the shop-in-dispute only Yogesh would come put

in the lane to dissuade the accused from carrying out their

aforesaid plan. On that premise, the High Court observed

that it seemed quite probable beside Yogesh his brother

Rajesh, their father Dinesh and their grand-father Suraj

Bhan came to the spot together armed with deadly weapons.

The above observation runs counter to the positive case made

out by accused themselves, as noticed earlier, while

narrating the sequence of events. Subhash stated in his

examination under Section 313 Cr.P.C that when the fighting

was going on between Rajesh and Yogesh on the one hand and

Lachhi Ram and him on the other Dinesh arrived at the scene

armed with a gun and Suraj Bhan with a lathi. Smt. Bimlesh

(D.W.4) was more specific on the point for she stated that

in course of the scuffle that was going on between Yogesh

and lachhi, Yogesh fell down on the ground and Suraj Bhan

and Dinesh at once came out of their house, the former with

a lathi and the latter with a gun. The High Court was

therefore not justified in making out a third case based on

surmise and conjecture.

Another consideration that influenced the High Court to

accept the defence plea on right of private defence was the

testimony of Satbir Singh (D.W.3), who was examined by the

accused to prove that on the day following the occurrence

one of the leaves of the outer door of their house was

missing. The High Court, however, did not discuss his

evidence and, were are sure that if the High Court had done

so, it would have agreed with the finding of the trial court

that he wan a procured witness.

From his testimony we get that he is a resident of

Sonepat and there he runs a photo studio. On May 6, 1984 one

Mool Shankar approached him at Sonepat and took him to the

house of accused at Samalkha. There he took photographs

(Ext.DC,DE and DH) of the outer door of the house, one leaf

of which he round broken, and of a hand pump with its handle

missing. In cross-examination he stated that his studio was

situated at Bohana road, Sonepat and in between the bus

stand of Sonepat and his studio thee were about 20-25 other

photo studios on that road. He further stated that Mool

Shankar was not known to him from before lastly, he stated

there were photographers in Samalkha also. Having regard to

the undisputed fact that Sonepat is at a distance of about

40 kilometers from Samalkha and that there were

photographers in Samalkha, it seems strange that the

services of Satbir Singh, who was not known to the accused

were requisitioned. When the evidence of D.W.3 is considered

in the light of the evidence of S.I. Bodh Raj (P.W.21), S.I.

Piara Ram (P.W.19) and Sat Prakash (P.W.12), who was witness

to the seizure of the articles by P.W.21 and P.W.19, it

becomes crystal clear that the story of the breaking of the

door was contrived by the accused later on the build up a

defence. All these witnesses categorically replied, when

cross examined on this aspect, that they did not notice any

leaf of the outer door of the house broken when they went

there in the evening of may 5, 1984. The comment of the High

Court that their such reply was evasive is wholly

unjustified for if they had not seen any mark of violence on

the door, the only answer they could have given to that

question was that they did not notice any such mark.

With its assumptive view that all the accused came

together armed with deadly weapons and implicit reliance on

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the evidence of D.W.3, the High Court then drew the

following inference :-

"This aspect of the case

probabilities that defence plea

that the complainant party went

armed and tried to break open the

outer door of the house of the

accused party. Thereafter, the

accused party retaliated and

attacked the complainant party.

This aspect of the case would

indicate that the complainant party

was the initial aggressor and the

accused party in order to retaliate

came out in the lane and attacked

the complainant party after the

latter had damaged the outer door

of the house of the accused."

(emphasis supplied)

In view of our preceding discussing the conclusions

drawn by the High Court that the complainant party tried to

break open the outer door of the house of the accused party

must be said to be factually untenable; and the discussion

to follow will demonstrate that on the above factual

conclusions the accused persons were not legally entitled to

the right of private defence.

Section 96 of the Indian Penal Code provides that

nothing is an offence which is done on the exercise of the

right of private defence and the fascicle of Sections 97 to

106 thereof lays down the extent and limitation of such

right. From a plain reading of the above Sections it is

manifest that such a right can be exercised only to repel

unlawful aggression- and not to retaliate. To put it

differently, the right is one of defence and not of requital

or reprisal. Such being the nature of right, the High Court

could not have exonerated the accused persons of the charges

levelled against them by bestowing them the right to

retaliate and attack the complainant party.

We reach the same conclusion through a different route-

even if we proceed on the assumption that the finding of the

High Court that the accused party came out in the lane and

attacked the complainant party after the latter had damaged

the outer door of their house is a proper one. The offence

that was committed by the complainant party by causing such

damage would amount to 'mischief' within the meaning of

Section 425 of the Indian Penal Code and, thereby, in view

of Section 105 of the Indian Penal Code the accused would

have been entitled to exercise their right of private

defence on property so long as the complainant party

continued in the commission of the mischief. In other words,

after the damage was done, the accused had no right of

private defence of property, which necessarily means that

when they attacked the complainant party i n the lane they

were the aggressors. Consequently, it was the complainant

party- and not the accused- who was entitled to exercise the

right of private defence of their persons; and their act of

gunning down Lachhi after four of them were assaulted by the

accused party with deadly weapons would not be an offence in

view of Sections 96 to 100 of the Indian Penal Code. In

drawing this conclusion we have drawn sustenance from the

following finding of the High Court which, in our view, is

based on correct appraisal of the evidence:

"However, from the evidence on the

record it is quite apparent that

Lachhi, companion of the accused,

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was shot after he and Subhash

accused had allegedly inflicted

injuries to Yogesh (deceased) and

Rajesh P.W. by that time both

Dinesh Chander and Suraj Bhan had

already received injuries at the

hands of the accused party. The

sequence of events clearly shows

that Lachhi deceased received

firearm injuries at the fag and,

when Yogesh, Rajesh Kumar and

Dinesh Chander, and Suraj Bhan had

already received injuries on their

person at the hands of the accused

party".

(emphasis suppled)

Before we conclude our discussion on the above aspect

it would be necessary to refer to the statement made by

accused Subhash in his examination under Section 313 Cr.

P.C. (quoted earlier), wherein he stated that on being

attacked by Rajesh and Yogesh he assaulted Yogesh and Suraj

Bhan. In support of his statement he examined Dr. Ramesh

Batra (D.W.1) and Dr. N.K. Verma (D.W.5), D.W.1 testified

that on May 5, 1984 at 11 P.M. he examined Subhash in his

clinic at Sonepat and found a lacerated wound 3 cms. x 1cms

over the left paroetal region and he stitched that wound.

The other doctor (D.W.5), who claimed to have examined

Subhash on the following day (May 6, 1984) at 6.45 P.M.,

deposed that he (Subhash) had one stitched wound over the

left parental bone, a bruise over the front of the right

knee, abrasion on the right shoulder, sub-conjunctival

haemorrhage over the middle part of the left eye and

swelling over the left eyebrow. According to D.W.5 all the

injuries that he found on the person of Subhash were caused

by blunt weapon. Apart from the fact that the evidence of

the two doctors vary regarding the number of injuries found

on the person of Subhash, the injuries could not have been

caused in the manner alleged by him, namely, attack by

knives by Rajesh and Yogesh in which case we would have

expected incised wounds. Indeed, D.W.4, who gave the defence

version of the incident, did not state in her examination of

having seen subhash being attacked by Rajesh and Yogesh much

less with knives and in cross examination she categorically

stated that Subhash did not receive any injury with the

knife and that he received 3/4 injuries with lathis. All

these facts and circumstances not only militate against the

defence versions but also persuade us to hold that the claim

of Subhash that he sustained injuries in the incident owing

to assault by Rajesh and Yogesh with knives is unfounded.

That brings us to the question whether the High Court

was justified in accepting the plea of alibi raised by

accused Shakti Singh. As already noticed all the accused

except Subhash took the plea to alibi but only Shakti Singh

led evidence to substantiate it. According to him he had

gone with the bailiff Dina Nath (P.W.10) to Panipat after

the possession of the shop had been delivered to him to

consult Shri H.K. Singal, Advocate about the other pending

case ant to inform him that the possession had been taken

and that he was with Shri H.K. Singal till 5 P.M. on May 5,

1984. Therefore, he stated, he could not have been present

at the time of occurrence, as alleged by the prosecution. In

support of his contention he examined Shri Singal (D.W.2).

He deposed that his office timing in summer were from 4.30

P.M. TO 8.00 P.M., and his office used to be opened by his

clerk at 4.00 P.M. On the day Shakti Singh took possession

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of a shop at Samalkha in the begining of may 1984 he came to

has office and informed him about it. He lastly stated that

Shakti Singh left his office at about 5.00 P.M. Though D.W.2

claimed to be the Advocate of Shakti Singh in the

litigation, no contemporaneous document was produced by

Shakti Singh or D.W.2 in support thereof or to prove the

plea of alibi. In absence thereof it is difficult to believe

that D.W.2, would be remembering who met him, on which date

and at what time. It is trite that a plea of alibi must be

proved with absolute certainly so as to completely excluded

the presence of the person concerned at the time when and

the place where the incident took place. Judged in that

context we are in complete agreement with the trial Court

that the testimony of D.W.2, for what it is worth, does not

substantiate the plea of alibi raised on behalf of the

accused Shakti Singh.

On the conclusions as above we unhesitatingly hold that

the prosecution has been able to prove the charges levelled

against the accused beyond all reasonable doubt. We,

therefore, allow these appeals, set aside the judgment of

the High Court and restore that of the trial court. The five

accused-respondents, namely, Dharamvir, Shakti Singh,

Suresh, Subhash and Yudhvir, who are on bail, shall now

surrender to their respective bail bonds to serve out the

sentence imposed upon them by the trial Court.