Maiku and Others vs The State of U.P.

Surendra Vikram Singh Rathore, J.—1. Criminal Appeal No. 2369 of 2006 has been preferred by appellants Maiku, Kamlesh and Rampal and Criminal Appeal No. 2373 of 2006 has been preferred by Ram Gopal challenging a common judgment, therefore, the same are being decided together.

Mr. Arun Sinha, learned counsel for the appellants, and Mr. Umesh Verma, learned A.G.A. for the State were heard at length.

Under challenge in both the appeals is the judgment and order dated 6.11.2006 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Sitapur in Sessions Trial No. 803 of 1999, arising out of Case Crime No. 121-A of 1999, Police Station Kamlapur, District Sitapur whereby appellants Ram Gopal, Maiku, Kamlesh and Rampal were convicted for the offence under Section 302/34 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 5,000/- each with default stipulation of six months additional simple imprisonment. However, appellants were acquitted of the charges under Section 307/34 I.P.C. and accused Udan and Munnu were acquitted of the charges under Section 120-B and 201 I.P.C.

In brief, the case of the prosecution was that complainant of this case, namely, Shiv Pal lodged an F.I.R. of this case on 29.4.1999 at 7:00 a.m. alleging therein that Mishri Lal and others and one Ram Swaroop son of Bhagwan Deen were accused in the murder case of Lallu and the said murder case was pending. After the murder of Lallu, brother of Ram Swaroop, namely, Shri Ram eloped with the wife of Ram Gopal, who was brother of deceased Lallu of that murder case and was keeping the wife of Ram Gopal in Lucknow. Because of this enmity, proceedings under Section 107/116 Cr.P.C. were drawn by the police against them and that case was also pending. Because of the said enmity, on 29.4.1999 at about 7:00 a.m. Ram Swaroop, Mishri Lal armed with guns started altercation with Kamlesh and encompassed him. In the meantime, Ram Gopal son of Mahesh armed with gun and Maiku son of Ram Gopal armed with Kanta, Kamlesh son of Kishan armed with Banka and Rampal armed with lathi, chased Ram Swaroop and Mishri Lal. Because of that, firing took place from both the sides, the accused persons chased Ram Swaroop up to the door of the complainant where Ram Gopal sustaining injuries of the fire, fell down. Complainant Shiv Lal also received gun shot injury. He ran away from there and subsequently Ram Swaroop died there. The incident was witnessed by Mishri Lal, Jaiswal. The dead body was lying on the spot.

On the basis of this F.I.R., Case Crime No. 121-A of 1999 was registered at 7:00 a.m. The inquest proceedings were conducted on the headless body of the deceased and after completing the inquest proceedings, at 3:00 p.m. on the same day, dead body was sent for postmortem, which was conducted on 30.4.1999 at 3:45 p.m. The duration of death was reported in the postmortem was about one and a half day and following ante mortem injuries were reported by the doctor:-

(i) Incised wound 13 c.m. x 12 c.m. x through and through neck at the level of C 6 vertebra. Body of 6 C Vertebra sharply cut. The wound is having multiple flaps of skin.

(ii) Incised wound 3 c.m. x 1 c.m. x bone deep on right collar bone on middle part bone partially cut.

(iii) Incised wound 7 c.m. x 1.5 c.m. x bone deep on front of right leg just above right ankle joint.

In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries.

During course of investigation, it came into light that the conspiracy to commit this offence was hatched by Udan and Munne and the head of the deceased was disposed of by them. Severed head of the body of the deceased could not be traced out during investigation.

After completing the investigation, charge sheet was filed against four named accused persons inter alia under Sections 308 and 304 I.P.C. and a separate charge sheet was filed against Udan and Munne.

In the instant case, the defence has come with a definite case as stated by appellant Kamlesh in his statement recorded under Section 313 Cr.P.C. that on 29.4.1999 at about 7:00 a.m. Kamlesh had gone to ease himself towards south of the village. In the meantime, Ram Swaroop (deceased) and Mishri Lal armed with country-made pistols chased Kamlesh to kill him. On the alarm raised by Kamlesh, Ram Gopal and others and Rampal went to save Kamlesh. In the meantime, Ram Swaroop (deceased) and Mishri Lal fired at them causing injuries to Rampal. They also, in exercise of their right of private defence, caused injuries to them. However, they have, neither fired from gun nor caused any injury on the neck of Ram Swaroop (deceased). When they ran away from the place of occurrence, at that time, the head of Ram Swaroop was attached to his body. He has expressed an apprehension that some other persons, taking advantage of the situation, because of the enmity with him and Ram Swaroop, have severed his head.

F.I.R. of this case was lodged from the side of the accused by Mewa Lal, which was registered on the same day prior to the F.I.R. lodged by the complainant of this case and the said cross case was registered at Case Crime No. 121 of 1999, under Sections 323, 307 and 308 I.P.C.

The complainant of this case, namely, Shiv Lal was medically examined on the same day at 6:00 p.m. and following injuries were reported by the doctor:-

(i) Lacerated wound .1 c.m. x .1 c.m. x muscle deep on occipital bone.

(ii) Abrasion 2 c.m. x .2 c.m. on left shoulder.

(iii) abrasion 2 c.m. x .5 c.m. on middle of right scapula.

Duration was about 17-18 hours old. All the injuries were simple and caused by hard and blunt object.

Because of the death of complainant Shiv Lal, he could not be examined during trial. In order to prove its case, prosecution has examined P.W.-1 Mishri Lal and P.W.-2 Jaiswal, as witnesses of fact. P.W.-3 Dr. S.K. Srivastava, who has medically examined injured Shiv Lal. P.W.-4 S.I. Ram Sahodar Singh, Investigating Officer of this case. P.W.-5 Head Constable Rajendra Prasad, who has prepared chik report and G.D. of this case. P.W.-6 Dr. Sudhakar Mishra, who has conducted the postmortem on the body of the deceased. P.W.-7 Parsadi, who is a formal witness and was the brother of complainant Shiv Lal. He has stated that this F.I.R. was dictated in his presence by his brother Shiv Lal and he had put his thumb impression on it.

In defence, certified copy of the injury report of appellant Rampal, has been filed, who was medically examined on 29.4.1999 at 12:00 p.m. and following injuries were reported by the doctor on his body:

(i) Incised wound 5.2 c.m. x .4 c.m. x muscle deep on occipital bone.

(ii) On distance 5.2 c.m. connected wound size 3.8 c.m. x 0.3 c.m. x muscle deep on head.

Duration was about 6-7 hours old. In the opinion of doctor, injury No. (i) was caused due to sharp edged weapon and injury No. (ii) was caused by blunt object and were simple.

After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellants was that the trial court in its judgment has observed that the complainant side was aggressor and the appellant side acted in their private defence but when once Ram Swaroop (deceased) fell down after receiving the injuries, the right of private defence ceased to exist and thereafter severing of the head of the deceased from his body cannot be said to be an act done in exercise of right of private defence. It is further submitted that defence has come with a definite case that head was not severed by any of them and it was a subsequent event. The allegation of severing the head was not even mentioned in the F.I.R. It has also been argued that accused persons severed the head and kept on roaming in the village along with severed head, does not appeal to reason because F.I.R. from the side of the appellants was lodged prior to the F.I.R. lodged by the complainant Shiv Lal. So it cannot be presumed that the accused persons remained on the place of occurrence continued the offence and also lodged the F.I.R. of the incident. So the finding of the trial court that accused persons have committed the offence of murder as they have severed the head, does not stand substantiated by the record. It has also been argued that severing of the head does not appeal to reason and excluding the said part, the offence committed by the appellants would fall either within the purview of a free fight wherein both the sides have received injuries, which is clear from the F.I.R. of this case wherein it was alleged that firing took place from both the sides or at best it can be said to be an act of exceeding right of private defence, therefore, the offence would fall within the purview of Section 304 Part (I).

Regarding appellant Rampal, it has been argued that he was assigned only lathi and there is absolutely no allegation from the side of the prosecution that any lathi was hurled by any of the appellant. So the case of the appellant Rampal becomes distinguishable and he becomes entitled for benefit of doubt. Thus learned counsel for the appellant has virtually prayed for benefit of doubt to appellant Rampal as there was no allegation that he used lathi in causing injury to the deceased.

Regarding other accused appellants, the only submission is that the offence would not travel beyond the purview of Section 304 Part (I) I.P.C.

Learned A.G.A. has argued that once the deceased started running away from the place of incident then the danger or any apprehension to the life of the appellant side ceased to exist and consequently right of private defence also ceased to exist and any act done thereafter would be an independent offence and cannot be said to have been done in exercise of right of private defence.

In view of the rival submissions made by learned counsels for the parties, the date time and place of occurrence is an admitted fact. It is also an admitted fact, as per version of F.I.R., that initially it was Ram Swaroop (deceased) and Mishri Lal, who chased Kamlesh and when appellants armed with their respective weapons, reached there then Ram Swaroop and Mishri Lal started running away and they came to the door of the complainant and firing, from both the side, took place. This is the initial case of the prosecution. The appellants have come with a definite defence that the head of the deceased was not severed by them.

Submission of learned counsel for the appellants find full support from the F.I.R. itself wherein it was not mentioned that head of the deceased was severed by any of the appellant. It was mentioned in the F.I.R. that Ram Swaroop died and his dead body was lying on the spot. Severing of head of deceased was such an important fact that the same could not have been missed to be mentioned in the F.I.R. Admittedly F.I.R. of the cross case was lodged prior to the F.I.R. of the instant case. So it also cannot be believed that the accused persons remained on the place of occurrence roaming in the village with severed head of the deceased, on the contrary they rushed to the police station to inform the police about this incident. So how and by whom the head was severed from the body of the deceased comes under shadow of doubt particularly because this fact was neither mentioned in the F.I.R. nor in the statement of witnesses under Section 161 Cr.P.C.

Perusal of the impugned judgment shows that the trial court was of the view that it was the burden of the appellants to prove that the head was not severed by them. This approach of the trial court was absolutely not in accordance with law. Apart from it, on several points he has taken into consideration the statements of witnesses recorded under Section 161 Cr.P.C. as substantive piece of evidence. The burden to prove its case beyond reasonable doubt always lies on the prosecution and it never shifts on the appellants. The incident of this case has taken place in the broad day light at 7:00 a.m. The initial case of the prosecution was that the firearm injuries were received by the complainant and also by the deceased Ram Swaroop but absolutely no firearm injuries were found on the body of the deceased nor on the body of the complainant Shiv Lal. In order to explain this fact situation, the prosecution has developed a case during trial that the fire shot by the appellants hit on the head of the deceased, which was subsequently severed. Since the finding of fact has not been challenged on behalf of the appellants, therefore, we are of the considered view that the story of severing the head of the deceased by the accused persons in the same incident does not appeal to reason. The entire finding of the trial court was on the fact that accused persons severed the head and therefore, they acted in retaliation and to take revenge, so the offence would fall within the purview of Section 302 I.P.C.

We have gone through the evidence of the prosecution witnesses in the instant case, complainant Shiv Lal has expired during trial. So he could not be examined as witness. The F.I.R. lodged by him was proved by P.W.-7 Parsadi, who happens to be his real brother. He has stated that in his presence, his brother Shiv Lal had dictated the F.I.R. and put his left thumb impression on it. He himself has not claimed to be an eyewitness of this incident. In the instant case, P.W.-1 Mishri Lal and P.W.-2 Jaiswal have been examined as witnesses of fact. Both these witnesses were accused in the murder case of Lallu. In the F.I.R., it was mentioned that firing took place from both the sides. Even at the time of preparation of site plan by the Investigating Officer, the two places where from both the sides fired, have been shown in the site plan. In the G.D. of the registration of this case, which has been proved by the prosecution, the prior registration of the cross case of the incident, was also mentioned. Admittedly the fact of severing the head of the deceased by the present appellants was not mentioned in the F.I.R. These two prosecution witnesses produced by the prosecution have alleged that the accused persons had severed the head of the deceased. P.W.-1 Mishri Lal has stated that after severing the head of the deceased, he came back. His statement under Section 161 Cr.P.C. was recorded after about one month. However, this fact was not stated by him before the Investigating Officer inspite of the fact that a headless dead body was found on the place of occurrence. However, all these contradictions were put to him in his cross-examination and have been proved by the Investigating Officer. He has admitted in his cross-examination that it is true that both the sides indulged into Maarpeet. Firing took place from both the sides. From his side, Ram Swaroop had received firearm injury and from the other side Rampal received injuries. Rampal also fell down. He has also stated that at the time of inquest proceedings, he was not present in the village. But he has not explained, as to where he was at that time. Likewise P.W.-2 Jaiswal has also not given statement to the Investigating Officer regarding severing the head of the deceased by the appellants. On the contrary, he has given statement of firing from both the sides. These contradictions were put to these witnesses and the same were proved by the Investigating Officer also. Thus the fact of severing the head of the deceased was neither mentioned in the F.I.R. nor it was in the statement of the witnesses under Section 161 Cr.P.C. so it was an improvement and cannot be believed. But the learned trial court lost sight of this aspect. P.W.-2 Jaiswal has stated that Rampal has not received any injury. However, he has stated that after fall of Ram Swaroop (deceased) he had ran away from the place of occurrence. Thus his statement on the point of severing the head by the present appellants cannot be believed. Therefore, the defence case become more probable that both the sides indulged into firing and a free fight took place and some other persons after the incident, taking advantage of this situation, severed the head of Ram Swaroop (deceased). Therefore, the story of severing the head of Ram Swaroop (deceased) by the present appellants appears to be wholly unreliable. From the side of appellants, F.I.R. was lodged prior to the instant case, therefore, it is unbelievable that while the appellants themselves were roaming in the village, as alleged, along with severed head of the deceased then they themselves would lodge the F.I.R. of this case and invite the police in the village. Admittedly the said severed head could not be traced out during investigation. Therefore, that part of the story becomes absolutely unreliable. As such, submission of learned counsel for the appellants and A.G.A. assumes importance that the incident started in exercise of right of private defence but the moment the apprehension of any danger ceased to exist, the right of private defence would cease to continue. Any act done thereafter would be in excess of right of private defence. Therefore, the act committed by the appellants would be exceeding their right of private defence because once deceased and Mishri Lal started running away then the danger, if any, ceased to exist.

In view of the aforesaid, in the considered opinion of this Court, it was not an intended act but while exercising their right of private defence, the appellants have exceeded the said right and this unfortunate incident took place. Therefore, the offence committed by the appellants would fall within the purview of Section 304 Part (I) I.P.C. and for the said offence, sentence of nine years rigorous imprisonment would be adequate and appropriate sentence.

So far as appellant Rampal is concerned, he has not been assigned any specific role in the incident. Since in this case, both the sides, according to the admitted case of the prosecution, have fired on each other, therefore, in that process, it is unbelievable that any person armed only with lathi could have used his lathi as weapon of offence and cause injury to anyone. Therefore, involvement of appellant Rampal, in this incident, becomes doubtful and he becomes entitled for benefit of doubt.

Therefore, Criminal Appeal No. 2369 of 2006 so far as it relates to appellant Rampal deserves to be allowed and is hereby allowed. He is acquitted of the charge levelled against him. He is on bail. His bail is cancelled and sureties discharge. He need not surrender. Criminal Appeal No. 2369 of 2006 preferred by appellants Maiku and Kamlesh and Criminal Appeal No. 2373 of 2006 preferred by appellant Ram Gopal deserves to be partly allowed and are hereby partly allowed. Their conviction is altered from Section 302/34 I.P.C. to Section 304 Part (I)/34 I.P.C. and sentence of life imprisonment is hereby modified to the period of nine years rigorous imprisonment with fine of Rs. 10,000/- each with default stipulation of two months rigorous imprisonment. Appellants Maiku, Kamlesh and Ram Gopal are in custody. They shall serve out their remaining part of sentence as modified by this Court. The period of detention already undergone by them in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.