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CASE NO.:

Appeal (crl.) 643-645 of 1994

PETITIONER:

Ram Avtar & Ors.

RESPONDENT:

The State of U.P.

DATE OF JUDGMENT: 20/11/2002

BENCH:

Y.K. SABHARWAL & H.K. SEMA.

JUDGMENT:

J U D G M E N T

SEMA, J.

These appeals have been preferred by eight appellants, who had been

convicted by the learned VIII Additional Sessions Judge, Fatehgarh which

had been confirmed by the High Court. The High Court, while confirming

the sentence and conviction of the appellants under Section 302 IPC with the

aid of Section 149 IPC and Section 307 IPC with the aid of Section 149 IPC

set aside their conviction and sentence under Sections 224 and 225 IPC.

During the pendency of the appeals, three accused, namely, Saddan

s/o Shri Banni (appellant No. 2), Sonpal s/o Shri Punni (appellant No. 3) and

Net Ram s/o Shri Parasad (appellant No. 6) expired. Their appeals,

therefore, stand abated. These appeals are survived in respect of Ram Avtar

s/o Rohan Lal (appellant No. 1), Shambhu s/o Shri Rohan Lal (appellant No.

4), Shivaji s/o Shri Rohan Lal (appellant No. 5), Nek Ram s/o Fauzdar

(appellant No. 7) and Kailash s/o Shri Ram swarup (appellant No.8).

In these cases, the accused are related. The complainant group is also

related among themselves. Accused Net Ram and Rohan are brothers being

the sons of Parasad. Accused Ram Avtar, Shambhu and Shivji are sons of

Rohan. Similarly, accused Subhash Chandra and Mool Chand are sons of

Devi Shankar. Among the injured persons, Raj Narain, Prem Narain, Bhoop

Narain, and Brij Narain are brothers. The other injured, namely, Rakesh,

Shashi Kant and Vipin are sons of Raj Narain, while Mukesh is the son of

Prem Narain.

Briefly stated the prosecution case is that PW-1 Brij Narain lodged the

first information report (exh. Ka 17) that two constables from GRP

Kaimganj, namely, Mahtab Singh and Lal Hans had come to the house of his

brother Bhoop Narain in the evening of 22.11.76 and disclosed that they had

warrant of arrest of accused Ram Avtar s/o Rohan. They sent Bhoop Narain

to ascertain the availability of Ram Avtar but he returned with negative

information. Next morning, the two constables who had stayed with Bhoop

Narain, were informed by Bhoop Narain that Ram Avtar was sitting in the

Chaupal of Son Pal Kahar warming himself near the fire. After receipt of

the said information, two constables together with Brij Narain Hardwai,

Puttu Lal, Bhopal Singh, Rishi Pal, Bhoop Narain, Raj Narain, Prem Narain

and Reeti Mal went to arrest Ram Avtar. After pointing out to Ram Avtar,

the two constables held him. Saddan and Son Pal were sitting by the side of

Ram Avtar. On being held, Ram Avtar raised an alarm calling his father

Rohan. Thereupon, Rohan along with his two sons Shambhu and Shivji

and brother Net Ram and others, namely, Nek Ram, Amar Nath, Kailash,

Subedar, Har Narain, Devi Shankar, Mool Chand and Subhash Chand

arrived. Out of these Har Narain was holding his licenced gun while Net

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Ram and Subhash Chand had illicit guns and Mool Chand and Amar Nath

had Tamancha. Rohan, Shambhu, Shivji, Nek Ram, Devi Shankar Kailash

and Subedar had lathis. They assaulted the two constables resulting in

injuries in their head. Ram Avtar was, thus rescued. Saddan and Son Pal

also brought Tamancha from their house. They all began to make fire from

their guns and started assaulting with the help of lathis, resulting injuries to

different persons and death of Bhoop Narain at the spot. Injured Prem

Narain was removed to the hospital where he died.

During the trial, there was practically no dispute about the factum of

scuffle that had taken place except certain variations about the time. Both

the courts below have accepted the eye-witness account of PW-1 Brij

Narain, PW-4 Raj Narain, PW-7 Bhopal Singh and PW-8 Constable Mahtab

Singh.

In the instant cases, from the evidence on record, it appears that the

complainant party received as many as 40 injuries including the injuries

sustained by the deceased Bhoop Narain and Prem Narain, whereas, the

accused party sustained only 7 injuries. The deceased Bhoop Narain and

Prem Narain sustained eight injuries. With regard to the injuries sustained

by the deceased, Prem Narain, the prosecution evidence is that he was first

assaulted by lathis and when he was running away he was fired upon by fire

arms. The injuries sustained by Prem Narain, deceased, were first medically

examined by Dr. R.P. Gupta PW-2 of the District Hospital, Fatehgarh. Dr.

Gupta was of the opinion that there were six lathi injuries and two gun shot

injuries on the person of the deceased Prem Narain. He further opined that

the nature of the gun shot injuries shows that they could have probably been

caused at the time when the deceased was running away. According to him,

'injury No. 7 is a gun shot wound " x " x muscle deep present over the

back of right forearm upper 3rd part.'

On reappraisal of the testimony of PW-1 Brij Narain, PW-4 Raj

Narain, PW-7 Bhopal Singh and PW-8 Mahtab Singh, the High Court came

to the finding that the accused party have exceeded the right of private

defence because right of private defence will remain limited to the extent it

could have been available against a private individual. Relying upon the

evidence of PW-1 Brij Narain that Bhoop Narain was found lying dead

outside the Baithak of Son Pal (Kahar), the High Court had held that if the

prosecution witnesses had gone to the Baithak of Son Pal where Ram Avtar

and others were warming themselves, he had already come out and the

danger to the life had ceased to exist. It also appears from the testimony of

PWs. 1, 4, 7 and 8 that the two constables had withdrawn themselves

immediately of an assault on their person. This will clearly show that the so

called danger to the life and liberty of Ram Avtar had ceased to exist.

As already noticed, the High Court, on reappraisal of the entire

evidence on record, particularly of PWs. 1, 4, 7 and 8, has come to the

following findings:

"It has been stated by all concerned Brij Narayan,

Bhopal Singh and Raj Narayan as also constable Mahtab Singh

that the two constables had withdrawn themselves immediately

of an assault on their person. This also means that the so called

danger to the liberty of Ram Awatar had ceased to exist. Then

again, it was shown in the cross-examination of PW-1 Brij

Narayan that Prem Narayan got the gun injury when he was in

the lance behind the Baithak of Sonpal. When a person even if

he was aggressor has gone back and reached back of the house

where he had gone for aggression, the right of private defence

would not continue. This right is always limited to the extent

that it can repell the aggressor, it is not a matter of defence but a

matter of retaliation which cannot be permitted for looked upon

with an eye of approval. Even the person who made fire upon

Prem Narayan had come out from the Baithak of Sonpal and is

shown to have been on the Chabutra, possibly belonging to Brij

Nandan, son of Punni. It has also been made out in his cross-

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examination that when Rakesh, Shashikant, Bipin and Mukesh

arrived, Bhoop Narayan, Revti Raman and Prem Narayan were

already lying on the earth surrounded by the accused persons.

This means that they had not only over powered Bhoop

Narayan, Revti Raman and others but were in a domination

situation but despite that these villagers have been given

injuries including gun shot wounds. This simply shows that the

incident was not limited at the stage of self defence. Even if the

earlier act was aggression by the complainant group, the

accused group has not confined itself to the mere residence to

save its life and liberty but has gone to the extent of complete

retaliation, for which they would have no right. Further

existing right of private defence can be at times against an

individual only but it cannot form the matter of common

intention at all. The situation in this case is a little bit

abnormal. Nothing has been said as to who had, in fact acceded

the right of private defence. The right of private defence could

be available at best to Ram Awatar, Son Pal and Netram and

may be to other persons who had arrived on the alarm raised by

Ram Awatar or for any reason but then the right of every person

will be limited to save his own in so far as the injuries are

concerned and to save the person of Ram Awatar from illegal

arrest and by no stretch of imagination it can take the shape that

all persons had a right to finish the aggressor group. An

individual action in exceeding right of private defence may be

tolerated but where the entire group behaves in a manner

acceding that right, it is a matter of aggression on their own part

with common intention of retaliation."

Mr. Salman Khurshid, learned senior counsel has taken pain to take us

to the entire evidence again which, in our view, is a mere repetition of what

has been discussed already by two courts. We are unable to persuade

ourselves to take the view contrary to the views already taken by two courts.

Lastly, learned senior counsel for the appellants faintly submits that

the injuries sustained by the accused have not been explained by the

prosecution, which will affect the prosecution case. The law is now well

settled on this subject that where the prosecution evidence is clear, cogent

and credit-worthy, mere fact that injuries are not explained by the

prosecution cannot by itself be a sole basis to reject such evidence and

consequently the whole case. As noticed above, in the instant case, the

prosecution evidence is clear, cogent and credit-worthy and admits no

ambiguity.

For the reasons aforestated, there is no merit in these appeals, which

are accordingly dismissed. The appellants are on bail. Their bail bonds are

cancelled. They are directed to surrender to the bail and serve out the

remaining part of sentence.