Khushi Ram and Another vs State of U.P.

Shri Kant Tripathi, J.—The Appellants, Khushi Ram and Satpal Singh have preferred this appeal against the judgment and order dated 18.6.1981 rendered by Sri. Jaswant Singh, IInd Additional Sessions Judge, Bijnor in S.T. No. 12 of 1981, State of U.P. v. Khushi Ram and Anr. whereby the learned Additional Sessions Judge, Bijnor convicted and sentenced the Appellant No. 1 Khushi Ram u/s 323, I.P.C. to undergo imprisonment till rising of the Court and also to pay a fine of Rs. 500 and in default of payment of fine to undergo further rigorous imprisonment of three months and also convicted and sentenced the Appellant No. 2 Satpal Singh u/s 304, Part II, I.P.C. to undergo three years rigorous imprisonment and also to pay a fine of Rs. 2,000 and in default of payment of fine to undergo a further rigorous imprisonment of six months.

The prosecution story leading to this appeal is that the complainant Babu Ram, the deceased Gopal and both the Appellants Khushi Ram and Satpal Singh are the real brothers. A partition had taken place amongst them about few months before the occurrence, according to which both the Appellants started to live together and the deceased Gopal and the complainant P.W. 5 Babu Ram, on the other hand, continued to live jointly but separated from the Appellants. All the properties were also partitioned except one Buggi, (hereinafter referred to as the Cart) which was kept joint and was valued to the extent of Rs. 2,500 and it was settled that the complainant and the deceased Gopal would pay Rs. 1,250 to the Appellants on the occasion of Ganga Isnan (Kartik Purnima) and the Cart would then become the sole property of the complainant and the deceased. It was also settled that the Cart would continue to be the joint property of the complainant, the deceased and both the Appellants till the payment of Rs. 1,250 to be made by the deceased and P.W. 5, Babu Ram (the complainant) to the Appellants but they could not do so within the time limit.

It is further alleged that on 25.11.1980 P.W. 5, Babu Ram, took out the Cart for transporting his sugar-cane from his field to a Kanta of the Mill but the Appellants asked him not to use the Cart without making the payment of the settled amount of Rs. 1,250. The complainant, however, replied that he would make payment in the evening but both the Appellants did not accede to the request. It is further alleged that the complainant anyhow took the Cart to his sugar-cane field and also took one more Cart belonging to one Mukhram. The complainant''s wife, P.W. 4, Murti Devi, daughter P.W. 3 Brijesh Kumari and son Trivesh Kumar and the deceased''s wife P.W. 6 Tizia also came to the sugar-cane field on the Cart for loading sugar-cane. The deceased Gopal, who had already gone to plough a field also came to the sugar-cane field to assist the complainant in loading the sugar-cane. The Appellants, Khushi Ram and Satpal Singh, also arrived there at about 10 a.m. At that time the Appellant No. 1, Khushi Ram had a lathi and the Appellant No. 2, Satpal Singh had a gun. The Appellant No. 2, Satpal Singh, started hurling abuses to the complainant Babu Ram but when the deceased Gopal Singh asked the Appellant No. 2, Satpal Singh, not to hurl abuses, he made two successive fire at the deceased Gopal Singh with his licensed gun, consequently, the deceased Gopal Singh died instantaneously. When the complainant''s daughter P.W. 3 Brijesh Kumari and wife P.W. 4 Murti Devi came to the rescue, the Appellant No. 1, Khushi Ram assaulted them with a lathi. It is further alleged that the Appellant No. 1, Satpal Singh made another fire on the complainant''s son Trivesh Kumar but he anyhow managed his escape.

The complainant Babu Ram lodged the first information report, Exhibit Ka-3, on the same day at 12.45 p.m. at the police station Seohara, consequently, the police registered the case and proceeded to make the investigation.

Sri. M.C. Gautam, S.O., Seohara himself undertook the investigation and proceeded to the place of occurrence immediately after the registration of the case and sealed the dead body of the deceased Gopal, after preparing the inquest report and other relevant papers and sent the same for post-mortem examination. The Investigating Officer recorded statements of the witnesses and prepared the site plan Exhibit Ka-11 and took in his possession the broken bangles of the wife of the deceased, used cartridge, blood stained soil and plain soil from the place of the occurrence and prepared the memos Exts. Ka-12 to Ka-14.

P.W. 1, Dr. Rishi Ram, medically examined the injured P.W. 4 Murti Devi and prepared the injury report Exhibit Ka-1, according to which the injured P.W. 4 Smt. Murti Devi had sustained the following injuries:

(i) Lacerated wound on the top of right side little finger just near the nail margin distally. Margins of wound were irregular, clotted blood was present, wound was red in colour size 1 cm. x 1/3 cm. x skin-deep.

(ii) A contusion 9 cm. x 3 cm. on the interior surface of the left side of arm in the middle 1/3rd, vertical in direction. Bluish red in colour.

The injured P.W. 3 Brijesh Kumari had sustained the following injury:

(i) One abrasion with traumatic swelling on the posterior surface medial side on the lower part of left forearm. Reddish in colour, size of swelling about 2 cm. x 2 cm. Abrasion was about 1 cm. x 1/3 cm.

P.W. 1, Dr. Rishi Ram, opined that both the injured, namely, Smt. Murti Devi and Smt. Brijesh Kumari had sustained simple injuries caused with some blunt object like lathi.

Dr. S.K. Agrawal conducted the post-mortem examination on the dead body of the deceased, Gopal Singh, on 26.11.1980 at 11.45 a.m. and prepared the post-mortem examination report Exhibit Ka-16, whose genuineness was not disputed during the trial by the for the Appellants.

The deceased Gopal Singh had sustained the following ante-mortem gun-shot injuries:

(1) Gun shot wound 3 mm. x 2 mm. x chest cavity deep on left side of chest 3rd inter clotted space about 2 mm. (two in number) above left nipple (wound of entry).

(2) Gun shot wound 3 mm. x 2 mm. x chest cavity deep on left side chest 4 mm. below acromica process on anterior fold of axilla (wound of entry).

(3) Gun shot wound 3 mm. x 2 mm. x chest cavity deep in 2nd space just on right side of middle on right side of chest (wound of entry).

(4) Gun shot wound 3 mm. x 2 mm. x chest cavity deep on right side of chest near axilla 8 cm. above right nipple (wound of entry).

(5) Gun shot wound 3 mm. x 2 mm. x muscle deep on the inner aspect of right upper limb 4 mm. below shoulder joint (wound of entry).

(6) Gun shot wounds (three in number) on the inner aspect of left forearm near wrist joint each measuring 3 mm. x 2 mm. muscle deep (wound of entry).

(7) Gun shot wounds (three in number) on the inner aspect of left forearm each measuring 4 mm. x 3 mm. x muscle deep (wound of entry).

(8) Gun shot wounds (three in numbers) in the left palm each measuring about 3 mm. x 2 cm. x muscle deep (wound of entry).

According to Dr. S.K. Agrawal, all the ante-mortem injuries sustained by the deceased, Gopal Singh, were inflicted with a gun. The cause of death was shock and haemorrhage due to ante-mortem injuries. Four pellets were recovered by the doctor from the dead body of the deceased and were kept in a sealed packet, which were transmitted to the S.P., Bijnor.

The Investigating Officer filed charge-sheet against both the Appellants on completion of the investigation.

The learned Additional Sessions Judge framed charges u/s 302, I.P.C. read with Section 34, I.P.C. and Section 323, I.P.C. against the applicant No. 1 Khushi Ram. The Appellant No. 2 Satpal Singh was charged u/s 302, I.P.C. Both the Appellants denied the charges levelled against them and claimed to be tried.

The prosecution examined as many as seven witnesses in support of its case. P.W. 1 Dr. Rishi Ram has proved the injuries of both the injured, namely P.W. 4 Smt. Murti Devi and her daughter P.W. 3 Smt. Brijesh Kumari and also their respective injury reports Exts. Ka-1 and Ka-2 and further stated that injuries of both the injured could have been caused on 25.11.1980 at 10 a.m.

P.W. 2 Rameshwar has proved the fact that he had taken the dead body of the deceased in a sealed condition from the place of occurrence to the District Hospital, Bijnor for post-mortem examination. P.W. 3 Smt. Brijesh Kumari and P.W. 4, Smt. Murti Devi are, respectively, the daughter and wife of the complainant and are injured witnesses. P.W. 5 Babu Ram is the complainant. All these three witnesses have supported the prosecution story. P.W. 6 Tijiya is the widow of the deceased but she has not supported the prosecution story and stated that she was not present at the time of the murder of her husband. This witness was declared hostile and was subjected to cross-examination by the prosecution with the permission of the Court.

P.W. 7 M.C. Gautam is the Investigating Officer. He has given evidence of the formal nature and has proved the site plan Exhibit Ka-11, charge-sheet Ka-16 and other relevant formal papers. This witness has further stated that he had taken broken bangles, blood stained soil, plain soil, one empty cartridge from the place of occurrence and prepared their respective fards, Exts. Ka-12, Ka-13 and Ka-14. This witness has further proved the statement of P.W. 6, Tijiya, recorded by him u/s 161, Code of Criminal Procedure which is on record as Ex. Ka-15.

It may be mentioned that broken bangles material Ex-1, empty cartridge material Ex-2, plain soil material Ex-3 and blood stained soil material Ex-4 were also produced during the trial.

Both the Appellants were examined u/s 313, Code of Criminal Procedure They have denied their involvement in the instant incident but have admitted that they used to live jointly alongwith the deceased and the complainant Babu Ram before the partition, but after the partition both the Appellants started to live jointly and the deceased and complainant started to live together but separated from the Appellants.

The Appellants have not adduced any evidence in defence.

The learned Additional Sessions Judge has believed the statements of P.W. 3 Brijesh Kumari, P.W. 4 Smt. Murti Devi and P.W. 5 Babu Ram and explained the circumstances due to which deceased''s wife P.W. 6 Smt. Tijiya turned hostile. The learned Additional Sessions Judge further held that both the Appellants had no common intention and the incident was not committed in furtherance of their common intention. The Appellant No. 1 Khushi Ram was, therefore, guilty of the offence u/s 323, I.P.C. only and was accordingly convicted and sentenced. The learned Additional Sessions Judge further held that the assault on the deceased with a fire arm was made by the Appellant No. 2, Satpal Singh, due to sudden provocation and as such the offence u/s 302, I.P.C. was not made out against him. The learned Additional Sessions Judge further held that the Appellant No. 2 Satpal Singh was guilty of committing the offence of culpable homicide not amounting to murder and accordingly convicted and sentenced him u/s 304, Part II of the Indian Penal Code.

I have heard Mr. Brijesh Sahai, the for the Appellant and the learned A.G.A. for the Respondent and perused the record.

The learned Counsel for the Appellant submitted that the complainant, the deceased and both the Appellants were the joint owners of the Cart and as such the complainant had no right to use the Cart exclusively without making payment of the settled amount of Rs. 1,250 to both the Appellants. The for the Appellants further submitted that the Appellants prohibited the complainant for using the Cart, but the complainant, instead of doing so, forcibly took away the Cart to his sugar-cane field and as such committed the offence of robbery of the Cart. As such the Appellants had not only the right of private defence of property but also had the rights even to kill the deceased.

It may not be out of context to mention that the Appellants had not raised the plea of the right of private defence of property before the trial Court. It is, however, permissible for the Appellants to raise the plea of right of private defence even at the stage of appeal despite the fact that no such plea was raised before the trial Court. The burden to establish the right of private defence lies on the accused but the accused is not required to establish the plea of self defence beyond all reasonable doubts. That plea stands discharged by showing preponderance of probabilities in favour of the plea on the basis of the evidence already on record. It may also be mentioned that the accused is not bound to adduce any evidence to establish the plea of self defence. When the plea of self defence is probable from the material on record, the same can be acted upon without there being any defence evidence or the plea of the accused.

Section 96 of the Indian Penal Code provides that nothing is offence which is done in exercise of the right of private defence.

Section 97 of the I.P.C. provides the right of private defence of the body and of property. The right of private defence of the property whether movable or immovable, is available to the accused not only with regard to his own property but also in regard to the property 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 any of such offences.

Section 103, I.P.C. deals with the right of private defence of property extending to cause death, according to which the right of private defence of property extends, under the restrictions mentioned in Section 99, I.P.C., 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 following descriptions:

(i) Robbery;

(ii) House-breaking by night;

(iii) 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 ;

(iv) 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; and

(v) ....

It may also be mentioned that no right of private defence is available in the cases in which there is time to have recourse to the protection of the public authorities. In no case, it is permissible for the accused to inflict more harm than it is necessary to inflict for the purpose of defence.

Section 105, I.P.C. deals with the commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered. In the matter of offence of robbery, the right of private defence of property continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

In the case of Sekar alias Raja Sekharan v. State AIR 2002 SC 3667 : 2003 (1) ACR 429 (SC), the Apex Court has held that whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It was further held that a plea of right of private defence cannot be based on surmises and speculation.

In this case, it is to be seen whether or not the Appellants had any right of private defence of property extending to cause death of the deceased. In this connection the crux of the submissions of the for the Appellants was that the complainant had committed an offence of robbery by forcibly taking the Cart to his sugar cane field and as such the Appellants had not only the right of private defence of the property but also had right to kill the deceased in exercise of that right.

In order to appreciate the submissions of the for the Appellants it seems to be necessary and expedient to see whether the act of the complainant in taking the Cart to his sugar-cane field for loading and transporting sugar cane to the Mill amounts to an offence of robbery. Section 390, I.P.C. defines "robbery", according to which, in all robberies there are either theft or extortion. "Theft" is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Theft has been defined in Section 378, I.P.C. according to which, whoever, intending to take dishonestly any movable property out of the possession of any person without that person''s consent, moves that property in order to such taking, is said to commit theft. In my opinion, in order to make out a case of theft, it is to be established that the subject-matter of the theft was in possession of the person, who contends that theft has been committed in respect of his property and taking of the property by the accused dishonestly without the consent of that person.

In view of the aforesaid legal position, the Appellants have to make it probable that they were in exclusive possession of the Cart immediately before the commission of the alleged offence of theft. Before making appreciation of the factual aspects of the case in this regard, it may also be mentioned that a bona fide claim of right to property is a good defence against the offence of theft. If the person, who is alleged to have committed the offence of theft, has a bona fide right in regard to the subject-matter of theft, he cannot be held responsible for the offence of theft.

In the present case, as per the evidence on record, the Appellants as well as the deceased and the complainant were the joint owners of the Cart. There is nothing on record to show that the Cart was in exclusive possession of the Appellants either before, or at the time of, the incident. It is well-settled that when two or more persons are joint or co-owners of any property, all of them are deemed to be in possession of the property. It is also a well known principle that the possession of one co-owner is the possession of all.

The prosecution has adduced evidence to the effect that a partition had taken place amongst the Appellants, the deceased and the complainant three months prior to the occurrence and they divided their all properties except the disputed Cart, whose value was settled by them to the extent of Rs. 2,500 and it was decided that the complainant and the deceased Gopal Singh would pay Rs. 1,250 to the Appellants on the occasion of Ganga Isnan (Kartik Purnima) and then the Cart would become the sole property of the complainant and the deceased. It was further settled that the Cart would continue to be the joint property of the complainant, the deceased and both the Appellants till the payment of Rs. 1,250 by the deceased and the complainant within the agreed time limit. It has also come in evidence that the complainant and the deceased could not make the payment of Rs. 1,250 to the Appellants within the time limit, but it cannot be inferred on the basis of non-payment of Rs. 1,250 that the Appellants became entitled to have the exclusive possession of the Cart by ousting the deceased and the complainant. The non-payment of Rs. 1,250 clearly supports the fact that the Cart continued to be the joint property of the complainant, the deceased and both the Appellants.

The learned Counsel for the Appellants, however, submitted that neither the complainant nor the deceased had any right to use the Cart exclusively by ousting the Appellants, and if they did so forcibly, they committed the offence of robbery. It was further submitted that the offence of theft is made out if it is shown that a co-owner has taken away the joint property by putting him in exclusive possession without the consent of the other co-owner and without a partition. The for the Appellants placed reliance on Ramsharnagat Singh and Others Vs. State of Bihar, in support of his submission. In that case the Patna High Court has held that the main element of theft consists of removal, even without implied consent, of movable property from the possession of another with a dishonest intention. Dishonest intention consists as defined in Section 24, I.P.C. in causing wrongful gain or wrongful loss. Therefore, even a co-owner of a movable property with another, if his share is defined, can be guilty of theft, if he is found to remove the joint property without even an implied consent of the co-owner with dishonest intention, that is, with a view to cause wrongful loss to the co-owner and consequently wrongful gain to himself or anybody else. The legal position as explained by the Patna High Court cannot be denied but the factual position of that case was altogether different. In that case the subject-matter of theft was a shisham tree of which the prosecution party and the accused party were co-owners and each of them had 1/3 share in it. The tree was cut by the prosecution party but in the dispute relating to the plot, the panch had directed the prosecution party not to remove the logs of wood. Thereafter the accused party tried to remove the logs surreptitiously and would not leave the logs even and when the prosecution party objected to the removal. It was held that the dishonest intention was apparent on the part of the accused party. Their mere claim to the whole of it at the time of the obstruction could not show their bona fides. It was further held that from the fact that the prosecution party was forbidden by the panch to remove the logs it could not be said that the other party was permitted to take them away. At best they could claim only 1/3 share in the logs. The accused party was, therefore, held guilty of having committed theft. The factual position of the case of Ramsharnagat Singh (supra) was altogether different. The shisham tree which was subject-matter of theft in that case was physically divisible but the accused party took the entire wood logs despite the objection raised by the prosecution party without division of the logs. The accused party could not show their bona fides in regard to the claim for the whole shisham tree. In view of the peculiar feature of the case of Ramsharnagat Singh (supra), the Patna High Court held the accused party guilty of having committed theft. But the facts of the instant case are altogether different. The complainant, nowhere, stated, while taking the Cart to his sugar-cane field for transporting sugar-cane that he would use the Cart alone and would never permit the Appellants to use the same. It appears that the complainant took the Cart for temporary use only and not permanently by ousting the Appellants from the possession of the Cart and he had promised even to pay the amount of Rs. 1,250 in the evening. It is also relevant to mention that the Cart was not physically divisible and could not be of any use or utility in the event of its physical division and could be used only as a single undivided unit. In view of these factual aspects of the matter the complainant was not in any way having any dishonest intention either to cause any wrongful gain to himself or any wrongful loss to the Appellants. The case of Ramsharnagat Singh (supra) is hardly of any help to the Appellants.

In the case of Ramsharnagat Singh (supra), the case of Hasni v. Emperor AIR 1927 Lah 650, has been referred to in para 26 of the judgment. In Hasni''s case there was no element of any dishonest intention because the co-owner had taken away the joint mare for riding. The case of Hasni v. Emperor (supra) was almost similar to the facts of the instant case. It is true that even a co-owner of a movable property can be held guilty of theft if he takes away the joint property without express or implied consent of the other co-owner with dishonest intention, i.e., with a view to cause wrongful loss to the other co-owner and wrongful gain to himself or anybody else. Existence of dishonest intention in an offence of theft is one of the main ingredients of the offence. If any act of removal of a movable property by any person from the possession of another is not done with any dishonest intention, the same cannot constitute the offence of theft merely because he removes the property without express or implied consent of the person in possession of the property.

In the instant case, there is no material on record to show that the complainant voluntarily caused or attempted to cause the Appellants death or hurt or wrongful restraint or fear of instant death or of instant hurt or of any wrongful restraint. There is also no evidence to show that the complainant had any weapon while taking the cart to his field. The element of robbery is lacking in this case even if it is held that act of the complainant in taking the Cart to his field amounted to an offence of theft. In this connection the for the Appellant submitted that P.W. 5 Babu Ram has admitted during the cross-examination that the Appellants had tried to stop him from taking the Cart to his field but he however, forcibly took the Cart to his field. On the basis of this statement it was submitted that the act of the complainant in taking the Cart forcibly falls within the term "robbery" as defined in Section 390, I.P.C. In my opinion, the above statement of P.W. 5 Babu Ram is very vague and is of no help to the Appellants. He has no where stated that he had any weapon or he took the Cart either by giving threat, assault, extortion or fear of instant death of the Appellants or by assaulting them with any weapon. In absence of any evidence in this regard, the statement that the complainant took the Cart forcibly (jabardasti) would not constitute the offence of robbery. I, therefore, do not agree with the submissions of the learned Counsel for the Appellants.

When the complainant had given assurance to pay the amount of Rs. 1,250 to the Appellants in the evening, there was no justification for the Appellants to go to the sugar-cane field of the complainant with deadly weapons and to assault the deceased and the injured. The Appellants had adequate time to have recourse to the protection of the public authorities but instead of doing so they proceeded to the sugar-cane field of the complainant with full preparation and also with deadly weapons. This act of the Appellants cannot be said to be in exercise of the right of private defence of the property.

It may not be out of context to mention that the deceased Gopal Singh had not taken the Cart for transporting the sugar-cane because he had already gone to plough his field and was not present when the complainant took the Cart to his sugar-cane field. The deceased Gopal Singh had not, therefore, committed the alleged offence of robbery and as such the Appellant No. 2 had no right to kill the deceased in exercise of the right of private defence of property. If the act of the complainant in taking away the Cart forcibly to his sugar- cane field amounts to an offence of robbery, the Appellants had no right of private defence of property against the deceased Gopal Singh. At most it can be said that the deceased Gopal Singh had come to the sugar-cane field to load sugar-cane on the Cart of which he was one of the co-owners and had a right to use the same and as such that act of the deceased was not in any way either the offence of robbery or theft.

The circumstances under which the deceased was killed by the Appellant No. 2 are also very relevant to overrule the existence of right of private defence of property, as claimed by the for the Appellants. It may be mentioned that the Appellants on reaching the field of the complainant immediately hurled abuses to the deceased and when the deceased asked them not to abuse, the Appellant Satpal Singh made two successive fires on the deceased Gopal Singh with his licensed gun resulting in the death of the deceased, and when the witnesses P.W. 3 Brijesh Kumari and P.W. 4 Murti Devi came to the rescue of the deceased they were also assaulted with lathi by the Appellant No. 1. The Appellant No. 2 made a fire on the complainant''s son but any how he managed his escape. In view of these factual aspects of the matter, the Appellants, who had gone to the complainant''s field with full preparation and also with deadly weapons, cannot be said to have acted in exercise of their right of private defence of property.

The story of right of private defence of the property, set up by the for the Appellant has no substance. I, therefore, do not agree with the submissions of the learned Counsel for the Appellants.

The next submission of the for the Appellants was that the complainant Babu Ram was not present at the time of the incident and this fact finds support from the statement of P.W. 3 Smt. Brijesh Kumari. It was further submitted that P.W. 4, Smt. Murti Devi has attributed the role of firing on the Appellant No. 1 Khushi Ram instead of Appellant No. 2 Satpal Singh and as such the prosecution witnesses were not consistent in regard to the name of the person who caused the fatal injuries to the deceased.

It may be mentioned that the Appellants, the complainant and the deceased are the real brothers. The occurrence took place in the broad day light at about 10 a.m. The F.I.R. was lodged on the same day at about 12.45 p.m. without any delay. The complainant as well as both the injured witnesses, namely, P.W. 3 Brijesh Kumari and P.W. 4 Murti Devi had supported the prosecution story during the examination in-chief and had given eye-witness account of the occurrence. There was no reason for the complainant to implicate his own real brothers and exonerate the real culprit, if the deceased had been killed in the broad day light by any other person. The learned Additional Sessions Judge has very elaborately dealt with the aforesaid contradictions pointed out by the for the Appellants and held that an attempt was made by the Appellants to persuade the complainant and witnesses not to support the prosecution case and on such persuasion P.W. 4 Smt. Murti Devi attributed the role of firing during the cross-examination, on the Appellant No. 1 Khushi Ram instead of the Appellant No. 2 Satpal Singh and denied the presence of her husband, the complainant Babu Ram at the time of the incident. In my opinion, the contradictions pointed out by the for the Appellants, in view of peculiar feature of this case, have no significance. The learned Additional Sessions Judge has very categorically recorded the finding that sessions trial was fixed for prosecution evidence on 6.2.1981 but on the request of the Appellant No. 1, on the ground of illness of his Counsel, the hearing was adjourned to 7.2.1981. The statements of P.W. 3 Brijesh Kumari, P.W. 4 Murti Devi and P.W. 5 Babu Ram were to be recorded on 7.2.1981 but the complainant Babu Ram moved an application that the relations of the Appellants were pressurising him and other witnesses not to give evidence against the accused or to give wrong statements and as such he requested the trial Court to record the statements of the witnesses on the same day. On the basis of the said application, the concerned Additional District Government Counsel (Criminal) moved an application that the complainant Babu Ram and his witnesses were being pressurised by the relations of the Appellants and hence their cross-examination should be concluded on the same day, i.e., on 7.2.1981. The for the Appellants, on the other hand, moved an application that he was not in a position to cross-examine the prosecution witnesses on that day as he could not prepare the case and requested that the hearing be adjourned to some other date. The learned trial Court, however, recorded the statements of P.W. 3 Brijesh Kumari, P.W. 4 Murti Devi and P.W. 5 Babu Ram in the examination-in-chief on the same day but deferred their cross-examinations to 10.2.1981. All the said three witnesses made consistent statements and gave eye-witness account of the occurrence in their examination in-chief so recorded and supported the prosecution case in its entirety as set up in the first information report but during the intervening period from 7.2.1981 to 10.2.1981 the position changed and the Appellants and their well wishers, it appears, succeeded in persuading all the three witnesses to give statement during the cross-examination in such a way as to spoil the prosecution case. The learned Additional Sessions Judge, in view of these circumstances, has not given any significance to the statements of P.W. 4 Murti Devi, who had attributed the role of firing on the Appellant No. 1 Khusi Ram during the cross-examination by changing her earlier version recorded during the examination in-chief by which she had attributed the role of firing on the Appellant No. 2 Satpal Singh. It also does not seem to be material that the witnesses differed in regard to the number of firing made by the Appellant No. 2, and P.W. 3 Brijesh Kumari stated that the complainant was not present. It appears that these contradictions in the statements of the witnesses are not only very minor, but also have occurred due to the pressure and persuasions on the witnesses made by the Appellants and as such they cannot be permitted to take any advantage of such minor contradictions. None can be permitted to suppress the justice by tampering with the evidence or bringing on record tainted facts, which have no sanctity in law.

It is the consistent case of the prosecution that it was the Appellant No. 2 Satpal who assaulted the deceased with his licensed gun and had caused fatal injuries to the deceased. The prosecution case cannot be discarded on the basis of the tainted statements of P.W. 4 Smt. Murti Devi recorded during the cross-examination by which she attributed the role of firing on the Appellant No. 1 Khushi Ram instead of Appellant No. 2 Satpal, specially when the said statement is not only contrary to her own earliar statement recorded during the examination-in-chief but also against the other evidence on record duly corroborated by the F.I.R. and other circumstances of the case. It is immaterial whether Appellant No. 2 Satpal made two fires, three fires or more specifically when clinching evidence to the effect that it was he who caused fire arm injuries to the deceased, has come on record and there was no possibility for the complainant and other witnesses to commit any mistake in identifying the real assailants. I, therefore, do not agree with the second submission of the learned Counselfor the Appellants.

The learned Counsel for the Appellants further submitted that P.W. 6 Smt. Tijiya, the wife of the deceased, has not supported the prosecution story. In my opinion, this circumstance is of no help to the Appellants specially when P.W. 3 Brijesh Kumari, P.W. 4 Smt. Murti Devi and P.W. 5 Babu Ram have supported the prosecution story and their statements are duly corroborated with medical evidence, F.I.R. and other circumstances of the case and are believable. It appears that the P.W. 6 Smt. Tijiya, wife of the deceased had been won over by the Appellants by adopting persuasions and pressure tactics as held by the learned Additional Sessions Judge.

No other point was pressed.

In my opinion, the learned Additional Sessions Judge has rightly held the Appellant No. 1 guilty of the charge u/s 323, I.P.C. and Appellant No. 2 guilty of the charge u/s 304, Part II, I.P.C. The learned Additional Sessions Judge has already taken a very lenient view in imposing only the sentence of one day''s imprisonment and a fine of Rs. five hundred only on the Appellant No. 1 Khushi Ram. The Appellant No. 2 Satpal Singh has been sentenced to undergo three years rigorous imprisonment u/s 304, Part II of the I.P.C. and has been exonerated of the charge u/s 302, I.P.C.

The appeal has no merit and is accordingly dismissed.

Let the Appellant No. 2 Satpal Singh be taken into custody for serving out the sentence.

The learned Chief Judicial Magistrate, Bijnor is directed to make compliance of this order and submit the compliance report within two months. The amount of fine, if not already deposited, shall be recovered in accordance with law.