Rama Kant Tiwary, Hira Tiwary, Tapeshwar Tiwary and Bachhan Tiwary vs The State of Bihar

S.N.P. Singh, J.—Rama Kant Tiwary appellant no. 1 has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for having committed the murder of one Hardeo Tiwary. Hira Tiwary appellant no. 2, Tapeshwar Tiwary appellant no. 3 and Bachhan Tiwary appellant no. 4 have been convicted u/s 323 of the Indian Penal Code and each has been sentenced to pay a fine of Rs. 50/-, in default to undergo rigorous imprisonment for one month. It was alleged that Hira Tiwary and Bachhan Tiwary assaulted Saryug Tiwary, whereas Tapeshwar Tiwary assaulted Sudama Tiwary causing them simple injuries. The occurrence leading to the prosecution trial and the conviction of the four appellants took place at about 6 a.m. on the 27th of September, 1965 at Darauli within the jurisdiction of the Darauli Police Station in the district of saran. The facts of the case, as alleged by the prosecution in the trial court, were the following. Deceased Hardeo Tiwary was a Pattidar of the appellant and the Sahan of the house of the deceased is adjacent north of that of the appellants. It was alleged that at about 6 a.m. on the date of the occurrence Hira Tiwary appellant no. 2 uprooted the Khunta from the Sahan land of the deceased, saying that he would pitch his own Khunta there. That led to an altercation and some exchange of abuses between Hira Tiwary and Sudama Tiwary (P.W. 1), son of Hardeo Tiwary. In the meantime the other three appellants, who were on the verandah of their house, went to the spot with lathi in their hands. Hardeo Tiwary and Saryug Tiwary (P.W. 3) also went to the spot. It was alleged that when Hardeo Tiwary attempted to pacify Hira Tiwary and Sudama Tiwary and asked them not to quarrel, Tapeshwar Tiwary ordered to kill. Thereupon Rama Kant Tiwary gave several lathi blows on the head and fore-head of Hardeo Tiwary. Hira Tiwary also gave a lathi blow on him. Hardeo Tiwary fell down at the spot and became unconscious. The prosecution further alleged that when Sudama Tiwary wanted to save Hardeo Tiwary from further assaults, Tapeshwar Tiwary inflicted a lathi blow on his right arm. When Saryug Tiwary (P.W. 3) went to save Sudama Tiwary, he was assaulted with lathi on his back by Hira Tiwary and Bachhan Tiwary. Thereafter the appellants fled away. Hardeo Tiwary was immediately removed to the Police Station which is only at a distance of five hundred yards from the place of occurrence. At about 7 a.m. Sudama lodged a first information report (Exhibit 5) which was recorded by Shiva Kant Mishra (P.W. 15), the Assistant Sub-Inspector of Police.

After recording the first information report, P.W. 15 examined the injuries of Hardeo Tiwary, Sudama Tiwary and Saryug Tiwary and prepared their injury report. He then took the statement of Saryug Tiwary and others, who had gone to the Police Station. As the doctor of the Darauli dispensary was not available, P.W. 15 sent the injured persons to Siwan Hospital. It appears that Hardeo Tiwary was admitted as an indoor patient in Siwan Hospital and he died on the same day at about 5 p.m. Sheokumar Pandey (P.W. 10), Assistant Sub-Inspector of Police of Siwan Police Station held inquest over the dead body of Hardeo Tiwary and prepared inquest report (Ext. 3). Post-mortem examination on the dead body was subsequently conducted by P.W. 9 Rajeshwari Narain, a lady doctor of Siwan hospital.

It appears that the Assistant Sub-Inspector of Police (P.W. 15) went to the place of occurrence at about 9-25 p.m. the same day and made inspection of the spot with the help of female inmates of the house of the deceased. P.W. 15 prepared a sketch map with explanatory notes (Ext. 6). He seized some blood stained earth from the spot. He took the statement of several persons on that very day. According to the prosecution, when he searched the joint house of the appellants Tapeshwar Tiwary, Hira Tiwary and Rama Kant Tiwary, he recovered two lathis and one Bhala. He seized those weapons in presence of the witnesses after preparing a seizure list. P.W. 15 investigated the case till the 3rd of October, 1965. On the 4th of October, 1965 he made over charge of the investigation to Nageshwar Prasad Singh (P.W. 6), the officer in-charge of Darauli Police Station. P.W. 6, after completing the investigation, submitted charge-sheet in the case. An enquiry under Chapter XVIII of the Code of Criminal Procedure followed and after commitment the four appellants were put on trial on various charges, in the Court of the Sessions Judge of Saran at Chapra. It appears that a charge u/s 302 read with Section 109 of the Indian Penal Code was framed against appellant Tapeshwar Tiwary besides the charge u/s 323 of the Indian Penal Code.

In support of this case the prosecution produced fifteen witnesses, out of whom P. Ws. 1, 3, 4, 5, 12, 13 and 14 deposed as eye-witnesses to the occurrence. No witness was examined on behalf of the defence. The appellants, however, pleaded not guilty to the charges framed against them. Three of the appellants, namely, Rama Kant Tiwary, Tapeshwar Tiwary and Bachhan Tiwary denied their presence at the spot at the alleged time. Appellant Hira Tiwary took the defence that the Khunta was in his Sahan and the same had been uprooted and thrown away by Sudama Tiwary. He further alleged that on his protest Sudama struck him on his head with lathi causing an injury. In order to save his life he wielded his lathi, but he did not know as to who were hit by it.

The learned trial Judge, upon a consideration of the evidence on the record, held that in the occurrence which took place at about 6 a.m. on the 27th of September, 1965, Hardeo Tiwary, Sudama Tiwary and Saryug Tiwary were injured and as a result of the injuries sustained by him Hardeo Tiwary died. The learned Sessions Judge further accepted the evidence of the prosecution witnesses on the point that Rama Kant Tiwary, appellant no. 1 caused fatal injuries by assaulting the deceased on his head. He further accepted the evidence of the witnesses on the point that Hira Tiwary and Bachhan Tiwary assaulted P.W. 3 with lathi causing simple injuries on him and Tapeshwar Tiwary assaulted P.W. 1 causing simple injury on him. He did not accept the evidence of the witnesses on the point that Tapeshwar Tiwary instigated others to kill Hardeo Tiwary. Accordingly he acquitted Tapeshwar Tiwary of the charge u/s 302 read with Section 109 of the Indian Penal Code. Although the trial Judge accepted the evidence of the witnesses on the point of assault on Hardeo Tiwary, Sudama Tiwary and Saryug Tiwary, he did not accept the prosecution case that the Khunta which was uprooted belonged to Sudama Tiwary. In Paragraph 19 of the judgment the learned trial Judge has considered the question whether the appellants had any right of private defence for inflicting the injuries on the members of the prosecution party. While considering that question he has also considered the defence version of the case. He has ultimately recorded the finding that it was Sudama Tiwary who had uprooted the Khunta of Hira Tiwary and there was an altercation over that. He has also considered the question whether the lathi blow which was given on the fore-head of Hira Tiwary justified the killing of Hardeo Tiwary by Rama Kant Tiwary. The learned trial Judge has ultimately come to the conclusion that the appellants had no right of private defence as they had ample time to have to the protection of the local Police Therefore, he rejected the plea of the right of private defence and ultimately convicted appellant no. 1 u/s 302 of the Indian Penal Code and the other three appellants u/s 323 of the India Penal Code, as stated above.

Mrs. D. Lall, learned counsel for the appellants did not challenge the time and the place of the occurrence. Indeed there is overwhelming evidence on the record to prove that an occurrence took place at about 6 a.m. on the 27th of September, 1965, in which Hardeo Tiwary, Sudama Tiwary and Saryug Tiwary were injured. All the eye-witnesses to the occurrence have testified to the fact that such an occurrence took place. Dr. Rajeshwari Narain (P.W. 9) has given evidence to the effect that at about 1 p.m. on 25th September, 1965 he held the post-mortem examination on the body of Hardeo Tiwary and found the following external injuries on the dead body.

One abrasion 1 1/2" x 1/2" on the front of the left arm in the middle.

Ecchymosed of his whole of his left upper and lower eye-lids.

Bruise 3" x 2" on the left temporal region.

Diffused swelling 3" x 3" on the whole of the left cheek.

One lacerated wound 1 �" x 1/2" muscle scalp on the left side of his head, five inches above the root of the left ear.

Diffused, swelling 4�" x 3�" on the left side of the scalp 1�" above the left eye-brow.

On dissection of injuries nos. 2, 3, 4, 5 and 6 the lady doctor found haemorrhage under the skin and muscles. She found multiple depressed fractures of the parietal, frontal and temporal bones on the left side of the head. In the opinion of the doctor, all the injuries were ante-mortem and they were caused by hard blunt substance such as lathi, and the death was due to shock and haemorrhage as a result of injury no. 5 which was sufficient to cause death in the ordinary course of nature.

It appears that the same lady doctor examined Sudama Tiwary and Saryug Tiwary at about 11 a.m. on the 27th of September, 1965. The doctor has given evidence to the effect that she found a swelling 4" x 2�" on the back of the right fore-arm of Sudama Tiwary just above the wrist-joint. The injury was simple in nature and was caused by some hard blunt substance such as lathi. The age of the injury was within six hours. The doctor has given further evidence to the effect that she found the following two injuries on the person of Saryug Tiwary:

Swelling 6" x 4" on the left side of his back in the scapular region.

One swelling 3" x 2" on the right side of his back on the supra-scapular region.

In the opinion of the doctor, both the injuries were simple in nature and were caused by hard blunt substance such as lathi. After going through the medical evidence I have no doubt in my mind that in the occurrence three persons on the side of the prosecution, namely, Hardeo Tiwary, Sudama Tiwary (P.W. 1), Saryug Tiwary (P.W. 3) were injured in the occurrence. I have also no doubt in my mind that Hardeo Tiwary died as a result of the injuries sustained by him in the occurrence.

The place of occurrence, according to the investigating officer, was the eastern sahan in front of the house of Sudama Tiwary (P.W. 1). At the time of local inspection the investigating officer found clear indication that a Khunta had been uprooted from the sahan. In the sketch map he has shown the place, from where the Khunta was uprooted. It is clear from his evidence as well as from the sketch map that the place of occurrence is very close to the houses of the parties. As the place of occurrence is not in dispute, it is not necessary to consider the evidence of the investigating officer in any detail.

Learned counsel appearing on behalf of the appellants, raised only two contentions. In the first place Mrs. Lall submitted that no reliance should be placed on the evidence of the eye-witnesses as they are highly interested witnesses. Secondly she contended that even if the evidence of the witnesses be believed that Rama Kant Tiwary assaulted Hardeo Tiwary and Hira Tiwary and Bachhan Tiwary assaulted Saryug Tiwary (P.W. 3) and Tapeshwar Tiwary assaulted Sudama Tiwary (P.W. 1) the appellants are entitled to acquittal as the members of the prosecution party were the aggressors and as such the appellants were justified in assaulting them in exercise of the right of private defence of person as well as property.

It appears from the judgment of the learned Sessions Judge that while appraising the evidence of the eye-witnesses to the occurrence, the learned Sessions Judge was conscious of the fact that the eye-witnesses to the occurrence are not independent witnesses. In Paragraph 10 of his judgment he has pointed out the relationship of the witnesses inter se and has further pointed out their interestedness. He has rightly taken the view that the evidence of the witnesses has to be weighed with due care and caution. The fact that the witnesses who have been examined as eye-witnesses to the occurrence are natural and competent witnesses, has not been challenged and indeed could not be challenged. No doubt in the first information report the names of P. Ws. 4, 5, 12, 13 and 14 were not mentioned as eye-witnesses to the occurrence. But on that ground alone their evidence cannot be brushed aside. As pointed out by the learned trial Judge in Paragraph 11 of his judgment P. Ws. 2, 4, 5, 12 and 13 were examined by the investigating officer on the very day of the occurrence. As the first information report was drawn in haste, P.W. 1 did not mention the names of all the witnesses who had seen the occurrence. It is the consistent evidence of all the eye witnesses to the occurrence that Rama Kant Tiwary assaulted the deceased with his lathi. It appears that in their earlier statement the witnesses had stated that two or three lathis had been given by Rama Kant Tiwary. In the Sessions Court, however, all the witnesses gave evidence to the effect that four to five lathi blows were inflicted on the head of the deceased by Rama Kant Tiwary. It was contended in the trial court on the basis of the evidence of the lady doctor that Hardeo Tiwary had been given only one blow on the head and the injuries nos. 3, 5, and 6 were caused by one blow, whereas injuries 1 and 4 were caused by assault, as deposed to by the doctor. The learned trial Judge has, for very good reasons, not accepted the contention of the defence. The witnesses, no doubt, have made some exaggerated statement about number of blows which were inflicted on the head of the deceased by appellant Rama Kant Tiwary. They are, however, consistent that the head injuries were caused on the deceased Hardeo Tiwary by Rama Kant Tiwary. The suggestion of the defence that mar-pit took place between appellant Hira Tiwary on one hand and the members of the prosecution party on the other and other appellants were not present at the spot have been rightly rejected by the trial Judge. I find it difficult to persuade myself to believe that the witnesses would falsely implicate Rama Kant Tiwary of the serious charge of murder, if in fact the fatal injuries on the deceased had been caused by Hira Tiwary. Upon a consideration of the evidence of the eye-witnesses I have not the least doubt in my mind that it was Rama Kant Tiwary who assaulted Hardeo Tiwary. The fatal injury, namely, injury no. 5 was caused as a result of the blow given on the head of the deceased by Rama Kant Tiwary. There is also satisfactory evidence to prove that Hira Tiwary and Bachhan Tiwary assaulted Saryug Tiwary (P.W. 3) whereas Tapeshwar Tiwary assaulted Sudama Tiwary (P.W. 1). The evidence of the witnesses on the point of assault is fully corroborated by medical evidence which I have referred to above. In relying on the evidence of the eye-witnesses to the occurrence, who no doubt appear to be interested. I have taken into consideration the fact that there was absolutely no delay in lodging the first information report and the first information report was lodged by one of the injured witnesses. It is rather difficult to believe that within a hour of the occurrence Sudama Tiwary (P.W. 1) would have concocted a complete story about the occurrence. The version, as given by the witnesses in their evidence, is substantially the same as has been given in the first information report (Ext. 5).

The next question which falls for consideration is whether the appellants can take a plea of the right of private defence of person or property on the facts and circumstances of the case. Learned counsel appearing for the appellants submitted that in view of the fact that Hira received a bleeding injury on his head by the informant, the assaults on the prosecution party by Hira Tiwary and other appellants were justified in exercise of the right of private defence of person. It is not possible to accept this contention. In the first place it is not known as to what was the nature of the injuries which was received by Hira Tiwary. Appellant Hira Tiwary was never examined by any doctor. Had he received any severe injury, he must have been examined by some doctor. Secondly, it is not possible to hold on the materials on the record that Hira Tiwary was assaulted before the assaults by the appellants on the deceased and P. Ws. 1 and 3. I must state here that learned trial Judge has accepted the statement of Hira Tiwary that the injury was caused to him by Sudama Tiwary (P.W. 1). In my opinion, however, it is not possible to hold in absence of any other material on the record that the injury on Hira Tiwary had been caused by Sudama Tiwary (P.W. 1). Even if it be assumed that Sudama Tiwary gave a lathi blow to Hira Tiwary that would not give the appellant any right of private defence of person unless it could be shown that the members of the prosecution party were the aggressors and Hira Tiwary was assaulted by the prosecution party before the members of the prosecution party were assaulted by the appellants. Evidence is absolutely wanting on that point. On the contrary the nature and number of injuries inflicted on the members of the prosecution party clearly indicate that the appellants were the aggressors. For all these reasons I reject the contention of learned counsel appearing for the appellants that the appellants were justified in assaulting the deceased and the other two persons, namely, P. Ws. 1 and 3 in exercise of right of private defence of person.

So far as the right of private defence of property is concerned, learned counsel appearing for the appellant mainly relied upon the statements made by P.W. 8 before the investigating officer. That statement has been taken into consideration by the learned trial Judge in Paragraph 19 of his judgment. According to that statement Sudama Tiwary has uprooted the Khunta of Hira Tiwary. It appears that the learned trial Judge has relied on some of the statements of the witnesses made before the police in considering the question whether Hira Tiwary uprooted the Khunta which belonged to Sudama Tiwary or whether Sudama Tiwary had uprooted the Khunta which belonged to Hira Tiwary. At one place in his judgment the learned trial Judge stated as follows:--

...according to P.W. 1, 20 cubits of this Sahan from north belonged to him, next 10 cubits to the accused and the remaining 21 to Baban Tiwary.

Learned counsel appearing for the appellants could not point out the particular passage in the evidence of P.W. 1, in which he has made such a statement. Learned counsel ultimately had to concede that in all probabilities the witness P.W. 1 made such a statement before the Police. The learned trial Judge was not justified in using so freely the statement of a witness made before the Police in arriving at a positive finding. Although I am not impressed by the reasonings given by the trial Judge in arriving at his conclusion that it was Sudama Tiwary who had uprooted the Khunta of Hira Tiwary, I will assume that the trouble started because Sudama Tiwary had uprooted the Khunta of Hira Tiwary. Uprooting of a Khunta from the Sahan was such a minor incident that even if it be assumed that it was uprooted by Sudama Tiwary the appellant had no justification in opening assault on the prosecution party far from killing one of the members of the prosecution party. As pointed out by the learned trial Judge, the Thana was only five hundred yards from the place of occurrence. If the appellants had any apprehension, they could have easily gone to the Police Station and informed the Police Officer about the wrongful act of the prosecution party. The plea of the right of private defence of the property, therefore, is not at all available to the appellants even if it be assumed that Sudama Tiwary uprooted the Khunta, which belonged to Hira Tiwary. I, therefore, do not find any force in the contention of learned counsel that the appellants were justified to assault the deceased and P. Ws. 1 and 3 in exercise of the right of private defence of the property.

The only point which now remains to be considered is whether on the facts and circumstances of the present case the conviction of the appellant no. 1 for the offence u/s 302 of the Indian Penal Code is justified. The medical evidence which I have referred to above shows that only one injury was grievous in nature. Although in the opinion of the Doctor that injury was sufficient to cause death in the ordinary course of nature, I find it not safe to apply Clause (3) of Section 300 of the Indian Penal Code on the facts and circumstances of the present case. It is clear from the evidence on record that everything happened at the spur of the moment and it was not a case of assault after pre-meditation. Appellant no. 1 Rama Kant Tiwary no doubt gave more than one blow, but only one blow was given with force which caused the fracture. On the facts and in the circumstances of the present case it would be safe, in my opinion, to hold the appellant Rama Kant Tiwary guilty of lesser offence u/s 304 Part I of the Indian Penal Code. So far as the other three appellants are concerned, I do not find any cogent ground to interfere with their conviction or sentence. Their conviction u/s 323 and their sentence of fine of Rs. 50/- in default to undergo rigorous imprisonment for one month are upheld. Accordingly I alter the conviction of Rama Kant Tiwary from one u/s 302 to one u/s 304 Part I I.P.C. and reduce the sentence from rigorous imprisonment for life to rigorous imprisonment for ten years. I maintain the conviction of Hira Tiwary, Tapeshwar Tiwary, and Bachhan Tiwary u/s 323 of the Indian Penal Code and the sentence of a fine of Rs. 50/- on each of them thereunder and in default to undergo rigorous imprisonment for one month. In the result, the appeal is dismissed with the modification in the conviction and the sentence of Rama Kant Tiwary, appellant no. 1 as indicated above.

Wasiuddin, J.

I agree.