Mukul Chand Mandal vs State of U.P.

U.K. Verma J.

This is an appeal against the judgment of Sri R.N. Sharma, Sessions Judge, Nainital convicting Mukul Chand Mandal u/s 304 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for seven years.

The prosecution case as contained in the First Information Report Ex. Ka-5 is that the Appellant Mukul Chand Mandal and the co-accused Hari Pad Mandal who was acquitted by the Sessions Judge checked Barun Dungi at 8.30 A. M. on 13-10-78 from interfering with the demarcation stone and the piled earth which, according to them, indicated the extent of Barun''s field. This annoyed Barun Dungi and a Marpeet started between them. Cham Chandra Kaviraj, Narain Tapali, Praphull Tapali and Sunil Kaviraj intervened to pacify them Mukul Chand Mandal Appellant, however, paid no heed to them. He brought his licensed gun from his house and shot at Barun Dungi who was injured in his left thigh. The younger brother of Barun Dungi named Sheo Pad snatched the gun from Mukul Chand. The father of Birun named Jogesh Dungi went with it to the police station Rudrapur and lodged this report Ex Ka-5

The Constable Moharrir Noniram prepared the recovery memo Ex. Ka-3 in respect of the S.B.B.L. Gun No. 28161, which had been deposited by Jogesh Dungi.

The injuries of Barun Dungi were examined by Dr. N.M. Agarwal PW 7 at 10.30 A.M. on 13-10-78. He found the following injuries on his person and noted their condition as indicated below :--

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Barun Dungi succumbed to his injuries and his post-mortem report is Ex. Ka-10. The post-mortem examinations were conducted by Dr. B. K. Endley who found the following ante-mortem injuries on the person of Barun Dungi:

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Dr. Endley had recovered three shots from the bladder which he found to be punctured. The lower part of the large intestine had also been found perforated.

The prosecution had examined the informant Jogesh Dungi PW 3, Sheo Pad PW 2. Charu Chand Kaviraj PW 4, Sunil Kaviraj PW 5 and Golakh PW 6 as the witnesses of the occurrence. The prosecution witness Sheo Pad gave out that he, Anil and the deceased Barun and his father Jogesh Dungi had been scraping the grass. Mukul Chand Mandal told them that the place where they were scraping the grass was his. Sheo Pad asked him to divide the land half and half but he did not agree. He threatened to take the land beyond the straight line and clarified the position at the spot. The mother of Mukul Chand Mandal arrived and took Mukul''s side. In the scuffle that followed, she got injured. Mukul Chand thereupon brought his gun and Hari Pad his ''Ballam''. Mukul Chand fired with his gun at Barun Dungi and he fell down. Sheo Pad seized the gun from Mukul Chand and went along with his father Jogesh, Anil, Niranjan and others and lodged the report. Barun Dungi was taken from the Govt. Nehru Hospital, Rudrapur to Bareilly for treatment where he died. It was suggested in the cross-examination to this witness that the deceased and also he and his father and Anil were trying to include the passage in their field and when they were checked, they hit hard on the head of Smt. Libbe Dasi, the mother of Mukul Chand and as a result thereof blood started coming out from her lacerated wound. It was further pointed to him that Jogesh Dungi was armed with ''Lathi''; Barun with ''Ballam'', he with ''Gandasa'' and Anil with ''Phawara'' and that they had surrounded Smt. Libbe Dasi and Mukul Chand fired at them only when they all with their weapons attacked him and prevented him from rescuing his mother.

Jogesh Dungi corroborated the statement of Sheo Pad. In the cross-examination, he was questioned as to why he had concealed the injuries caused to the mother of Mukul Chand. He gave out that he did not mention about the same as his son Barun Dungi had been seriously injured. The same suggestions as were given to Sheo Pad, were also given to him.

The witness Charu Chand Kaviraj denied to have gone to the place of occurrence at the time of the incident. He was declared hostile and cross-examined. He disowned his alleged statement u/s 161 Code of Criminal Procedure.

Sunil Kaviraj PW 6 deposed that at about 8.30 A.M. when Jogesh, Anil, Barun and Sheo Pad, were scraping the grass on the ''Mend'' of their field, Mukul arrived and told them that his passage extended up to the old boundary of their field and they should not interfere with it and allow it to remain straight The assertion of Mukul was not liked by the deceased and his family members and there started a Marpeet between Mukul on the one hand and the deceased and his relations on the other hand. It was at this time that persons of the village and the mother of Mukul and his brother Hari Pad, who was a coaccused, arrived. The mother of Mukul was injured but he could not see as to how she sustained the injury. Mukul thereafter went to his house. He brought his gun and from 15 to 16 steps fired at Barun who on sustaining the fire-arm injuries on his thigh fell down. Sheo Pad, rushed and seized the gun from Mukul. He and others along with the gun went away. In the cross-examination he gave out that at first Mukul was bare handed. Jogesh, Sheo Pad and the two others had no arm in thdr hands. He denied that the mother of Mukul had fallen down.

Golakh PW 6 pointed that the quarrel started when Mukul asked Barun Dungi, Jogesh, Anil and Sheo Pd. not to dig grass. He too expressed inability to explain as to how the mother of Mukul sustained injury. Mukul was stated to have brought his gun after his mother had been injured and fired at Barun from 10 to 12 steps. Mukul did not fire the second shot. In the cross-examination he deposed that he first saw the quarrel in between Mukul and the others. He also did not deny that he witnessed blood coming out from the wound of Smt. Libbo Dasi, the mother of Mukul but pointed that it was not much. The people of the village who had gathered, fled away on seeing Mukul bringing with him his gun. He denied that the deceased and his brother and father had any weapon in their hands.

The prosecution witness Khagendra Nath who was examined to prove the First Information Report Ex. Ka-1 gave out in the cross-examination that he too was present at the time of the incident. Jogesh, Barun, Sheo Pad, and Anil started digging the passage. Mukul objected whereupon the quarrel began. Smt. Libbo Dasi sustained severe injury. : arun alone was carrying a ''Phawara'', whereas three others of his side were empty handed. Srnt. Libboo Dasi fell down. At that time Mukul had nothing in his hand. Sheo Pad, snatched the gun at once after Mukul had fired Charu Chand Kaviraj PW 4 who had been declared hostile, was not present at the time when Mukul fired. Barun Dungi had fallen. The gun of Mukul had been taken to the police station. He admitted the suggestion that Mukul tired when he was surrounded by Barun. Sheo Pad, Anil and Jogesh.

The accused Mukul Chand in his statement pointed that the quarrel started when the passage to his house was dug. Anil struck his mother from the other side of ''Phawara.'' She fell unconscious. Barun, Sheo Pad, Jogesh and Anil surrounded her and started shouting ''Mare Mare.'' He brought the gun to save his mother who had been surrounded The fire from his gun injured Barun in his thigh. Hari Pad was not present. The witnesses deposed against him on account of enmity.

The Appellant had not examined any witness in defence. The injuries sustained by Smt. Libbo Dasi and Mukul had been proved by Dr. N.M. Agarwal PW 7. The injury report of Smt. Libbo Dasi Ex. K.ha-1 shows that she had sustained the following injury:

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The injury was pointed to have been caused by blunt weapon and its duration was noted to be fresh at the time of examination which had been done at 12.30 P.M. on 13-10- 1978.

The injury report of Mukul Chand shows him to have sustained the following wounds:

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The learned Counsel for the Appellant argued that the Sessions Judge did not appreciate that the Appellant had merely exercised his right of private defence in respect of his passage which was being encroached and in respect of the person of his mother and his own when he had been surrounded by Barun Dungi, Sheo Pad, Jogesh and Anil who were all armed with weapons. The Appellant to prove that they were carrying weapons at the time of the incident, did not examine any witness. I have already pointed out above that the prosecution witnesses denied that these persons were carrying the weapons as suggested by the Appellant. If they had been doing to and had intended to cause grievous injuries either to the Appellant or to his mother, they could do so before the Appellant brought his gun. The Appellant himself had stated that Anil had caused injury to his mother from the other side of ''Phawara.'' no doubt the injury to Smt. Libbo Dasi had been caused on the head and was by no means minor being 9 cm long and bone deep with blood oozing out from it but without much thought it could be inferred that if the informant''s party had intended to cause grievous injury to her, they would not have inflicted just one ''lathi'' blow when they were easily in a position to inflict many more. The conduct of Anil in not using the ''Phawara'' (spade) in a normal manner but using it in such a manner that no one was struck by its heavy sharp metal side clearly establishes that there was no intention of any one of the four to cause grievous injuries much less the death of the Appellant''s mother or the Appellant himself. The learned Counsel for the State justifiably argued that the deceased Barun and Sheo Pad would not be presumed to have been armed with ''Ballam'' or ''Gandasa'' for had they been carrying those weapons, they would have atleast used them when the Appellant had fired on Barun. The fact that the Appellant was well within the reach of Sheo Pad and Jogesh, is not to be doubted for Sheo Pad on the admission of the Appellant himself, had seized the gun from him. If he could seize the gun, he could as well assault him and his conduct in not doing so only indicates that he was empty handed as was given out by the prosecution witnesses.

Sunil Kaviraj PW 5 and Golakh PW 6 deposed that they could not say how Smt. Libbo Dasi sustained injury on her head. Jogesh stated that he did not allege in the FIR about it as he had got stunned on account of the death of Barun. The ''Marpeet'' initially had started between the Appellant on the one side and the deceased and the three on the other. The mother of the Appellant had intervened in the midst of the quarrel. It is quite probable that she got hit by the blow which was aimed at the Appellant and for this reason Sunil Kaviraj PW 5 and Golakh PW 6 could not understand as to how it was caused. The omission on the part of the prosecution to allege about the injury of Smt. Libbo Dasi in the FIR and failure of some of the prosecution witnesses to state as to how they were inflicted by themselves were not sufficient circumstances for jumping at the conclusion that the prosecution version was unworthy and liable to be rejected.

In the instant case, it is not shrouded in mystery as to how the quarrel started. The prosecution and the Appellant both have the common case on this point that the ''Marpeet'' began when Mukul objected to the digging of the land which he asserted to be his passage. Smt. Libbo Dasi, it is also admitted between the parties, had intervened when the quarrel had began. On the question of the injury of Smt. Libbo Dasi, Khagendra Nath PW 1 pointed that after sustaining considerable injury on her head she had fallen on the ground. The prosecution witnesses Jogesh and Charu Chand Kaviraj too stated that Smt. Libbo Dasi had fallen on the ground as a result of the injury. The witnesses Sheo Pad and Golakh pointed that Smt. Libbo Dasi had not fallen. I am not inclined to believe that Smt. Libbo Dasi inspite of the injury on her head would have remained standing as given out by Sheo Pad and Golakh and there was no cause for Mukul to get excited and gravely provoked more so when Barun Dungi and three others were encroaching upon the passage beyond the demarcating stone and the heaped earth which indicated the limit of their land. Had it not been so, Sheo Pad PW 2 would not have told Mukul to share it half and half. Khagendra Nath PW 1 had clearly stated that Mukul had quarrelled with the deceased and the three others when they started shortening the passage which led to Mukul''s house at a distance of ten to twelve steps. Golakh too stated that Mukul asked the four not to dig the land If they had merely been scraping the grass, there would not have been digging.

It, therefore, is to be seen whether the Appellant could be said to have justifiably fired when both he and his mother on good grounds tried to resist Barun Dungi deceased and three others from digging their passage which connected the Pukka road between Jafarpur and Dineshpur from their house but had been assaulted. The learned Sessions Judge in his judgment has reproduced the Sections 96, 97, 99 and 100 of the Indian Penal Code and referred to the decision in Biran Singh v. State of Bihar reported in AIR 1985 Supreme Court at page 87 for holding that it was not justified. The Sections 96 and 100 of the Indian Penal Code read together go to show that a person may have the right of private defence but he can in exercise of it voluntarily cause death or any other harm to the Appellant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated-

First--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly--An assault with the intention of committing rape ;

Fourthly--An assault with the intention of gratifying unnatural lust;

Fifthly--An assault with the intention of kidnapping or abducting;

Sixthly--An assault with the intention of wrongfully confining a person, under cirumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

I have already discussed above that the facts and circumstances of the case do not show that Barun Dungi and the three others could not be presumed to have intended to cause the death or grievous hurt either to Smt. Libbo Dasi or to the Appellant. The remaining conditions 3rd to 6th of the Section 100 were not attracted in this case. The Appellant thus could not be said to be justified in causing the death of Barun Dungi.

It will next need to be examined whether the firing by the Appellant was to ward off a danger imminent, present and real or its character was punitive or retributive. The circumstances of this case are similar to the case of Biran Singh. In that case also the accused had gone to his house, fetched a sword and assaulted the deceased whereupon it was inferred that the acts of the accused Biran bore the stamp of a design and were not within the strict bound of the right of private defence. The Supreme Court has given the guide line that in order to find whether a right of private defence is available to an accused, the entire incident has to be examined with care and viewed in its proper setting and such an approach that the severity of the injuries is often a matter of chance without carefully examining the entire setting, is not proper. The plea of the learned Counsel for the Appellant in the perspective of the facts of this case that a person exercising the right of private defence in good faith, is not expected to weigh with golden scale, what maximum amount of force is necessary to keep him within the proper limit, has no application. The Appellant thus, as the facts are, has rightly been convicted u/s 304 of the Indian Penal Code. The Sessions Judge, however, has not clarified whether he had convicted the Appellant under the first part or the second part of Section 304 of the Indian Penal Code. He merely has mentioned this circumstance that the Appellant in that heat of passion upon a sudden quarrel fired on the thigh of Barun. The Appellant as also appears to be the view of the Sessions Judge could not be presumed to have intended to cause the death of Barun Dungi. The quarrel too was not in respect of such a matter which could have provokod Mukul Chand Mandal to cause death or such injury as was likely to cause death. On the other hand I am satisfied that he had fired at Barun Dungi when there was a temporary loss of his self control and there was not sufficient time for his passion to cool down and for reason to get the better of him. He also could only be said to have fired with the knowledge that he was likely to cause his death; but without the intention to cause his death or to cause such bodily injuries as were likely to cause death. The offence caused by the Appellant is covered by the second part of Section 304 of the Indian Penal Code.

The Appellant has been sentenced by the Sessions Judge to seven years Rigorous Imprisonment. Taking into consideration all the circumstances including the fact that more than ten years has elapsed since the incident, I think, it would meet the ends of justice if the Appellant is sentenced merely to four years rigorous imprisonment instead of seven years as ordered by the Sessions Judge.

The appeal is allowed to this limited extent only that the Appellant is convicted under part two of Section 304 of the Indian Penal Code and sentenced to four years rigorous imprisonment. The Appellant is on bail. His bail bonds are cancelled. Let him be taken into custody to serve the sentence awarded to him.