Ravi Kumar, Suresh Kumar and Sanjay Kumar vs State of Himachal Pradesh

Dev Darshan Sud, J.—This appeal has been preferred by the appellants against the judgment and sentence of the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, challenging their conviction under Sections 451, 323, 506, 302 of the Indian Penal Code, (hereinafter referred to as `IPC''). The other two accused Radha Devi and Sumna Devi have been acquitted by the learned Court below. The facts necessary for decision of this appeal are that accused Ravi Kumar, Suresh Kumar, Sanjay Kumar and Raj Kumar (who have been described as A-1 to A-4 in the judgment of the learned Court below and will be referred to as such hereinafter) trespassed into the courtyard of the residential house of Sadhu Ram at village Bhadraina with the intention of causing hurt to him and his family members. The prosecution case is that after having committed this trespass, they beat up Sadhu Ram, his wife Sheela Devi and their daughters. The case then proceeds that Radha Devi A-5 and Sumna Devi A-6 also joined in the affray and beat up the complainants. In this fight dandas (sticks), fist and kick blows were freely used. Sadhu Ram was administered a blow of danda on her head as a result of which he fell down. The other members of the complainant-party were also kicked and beaten up with fists, sticks and kicks. The injury inflicted to Sadhu Ram was serious resultantly he became unconscious and was shifted to Civil Hospital at Baijnath. During this process, police met the complainant party at Chobin Chowk where statement of Sheela Devi PW-5 u/s 154 Cr.P.C. was recorded and FIR Ex. PW-20/A was registered. The injured were medically examined and treated at Baijnath Hospital, whereas Sadhu Ram deceased was referred to Zonal Hospital, Dharamshala, thereafter he was referred to PGI, Chandigarh for comprehensive medical treatment. He died on way to Chandigarh. His postmortem was conducted and the accused proceeded against under Sections 302, 323, 451 and 506 IPC. The prosecution examined 21 witnesses in support of its case. The accused in their statement u/s 313 Cr.P.C. denied the allegations against them. They stated that a false case has been foisted against them because of a long standing enmity. On the day of occurrence the Patwari had come during the morning hours for demarcation of land at the instance of PW-5 Sheela Devi. No demarcation could be carried out at that time. At around 7.30 P.M., Sheela Devi came out and started abusing the accused. She was asked to desist by A-5 Radha Devi and A-6 Sumna Devi, but instead of heeding to their request, she set upon them with a danda (stick) and her deceased husband also joined in this riotous affray. When this fracas was in progress, A-1 Ravi Kumar and A-2 Suresh Kumar rushed to save their wives who were being beaten up. According to them, at this moment, the deceased Sadhu Ram rushed out of his house and slipped in the courtyard and struck his head against `Attali'' (cemented platform) resulting in serious injuries which caused his death.

The learned Court finds that the houses of the complainant and the accused are adjoining/adjacent. There was some kind of boundary dispute between them for which proceedings before the revenue authorities had been initiated for getting the land demarcated and boundaries fixed. On 10.6.2003 patwari of the concerned area came to the house of the parties at around 10.30/11.00 A.M. for demarcation proceedings. However, this could not be done as both parties started quarrelling and were engaged in a free for all verbal duel. He thereafter left the spot. It is alleged that thereafter deceased Sadhu Ram and PW-5 Sheela Devi went to the house of the Pradhan, Gram Panchayat and thereafter to the Dy. Superintendent of Police, Baijnaith and then returned home, but no action seems to have been taken. At around 7.30 P.M. again both the parties were engaged in a brawl. Thereafter they started giving, fist, kick and danda blows. PW-1/B is the MLC of PW-9 Sunita Devi daughter of Sadhu Ram showing that she had received incised wound over left side of upper lip about 2x2 cms. Ex. PW-1/C is the MLC of PW-7 Renu Bala daughter of Sadhu Ram deceased. She has also sustained abrasion on the thigh and tenderness on the right index finger. Ex. PW-1/D is the MLC of Veena Devi daughter of Sadhu Ram, showing three injuries sustained by her on her right thigh and on the right buttock. Ex. PW-1/E is MLC of Baby Rani daughter of deceased Sadhu Ram showing three injuries sustained by her on her forearms and leg, Ex. PW-1/F is the MLC of Sheela Devi PW-5, wife of deceased Sadhu Ram. She sustained three injuries which were present on her person i.e. bruise over the thigh, tenderness on the right cheek and tenderness on the right buttock. Ex. PW-1/G is MLC of Sadhu Ram deceased, which enumerates four injuries, eccymosis over left upper eyelid, abrasion over left upper arm, abrasion over right arm and large haematoma about 10x4 cms in size over occipital region.

At that particular point of time he was in a semiconscious condition, his pupils were reacting to light and CT Scan was advised. He was referred for CT Scan and further management to Zonal Hospital, Dharamshala. PW-2/B is the CT Scan report of Sadhu Ram showing fractures of temporal process of left zeugmatic and parietal bones. Ex. PW-4/B is the postmortem report opining that he has died due to asphyxia and neurogenic shock due to ante-mortem head injuries. The report further says that the injuries sustained by the deceased on his brain cavity and brain were sufficient in the ordinary course of nature to cause his death.

At this juncture, we are also adverting to the medical examination of the accused. PW-8/A is the MLC of A-2 Suresh Kumar. Ex. PW-8/B is the MLC of A-1 Ravi Kumar, PW-8/C is the MLC of Sumna Devi A-6 (who still stands acquitted), PW-8/D is the MLC of Radha Devi A-5 (who has also been acquitted). They also show that the accused had suffered injuries in the nature of lacerated wounds etc.

We have noted this medical evidence at the threshold because it testifies to the fact that there was infact a fight which occurred between the parties. We will now consider the evidence of the eye witnesses. PW-3 Baby Rani states that on 10.6.2003 Patwari of Patwar Circle, Rajed had come to their house for the purpose of demarcation, but could not proceed with the job as the accused started quarrelling. She further states that on the same day at about 7.30 P.M. in the evening when she alongwith her three sisters, father, mother and brother were sitting in the house; they heard some noise outside the house. Her mother Sheela Devi PW-5 went out and saw that the accused had assembled there. She asked them to stop abusing and threatening the family of the complainant upon which she was thrashed by A-1 Ravi Kumar, A-2 Suresh Kumar, A-3 Sanjay Kumar and A-4 Raj Kumar. The other two accused A-5 Radha Devi and A-6 Sumna Devi were also present. These two ladies, Radha Devi and Sumana Devi A-5 and A-6, caught hold of this witness by her hair and kicked her. At this juncture, her other sisters, brother and father came to the spot to rescue her mother Sheela Devi, but all the accused started beating up the entire family. As a result, they sustained injuries and her father fell down on the ground and sustained serious injuries on his head.

PW-5 Sheela Devi corroborates this witness on material particulars with respect to the factum of demarcation as also the beatings which were given by the accused party. PW-7 Renu Bala also speaks in similar terms by stating that her brother Raj Pal did not come to the spot as he was frightened by the conduct of the accused. He jumped out from the window of the upper storey and went to the police. PW-9 Sunita Devi and PW-12 Raj Pal daughter and son of the deceased Sadhu Ram, corroborate these witnesses.

Adverting to the evidence of PW-12 Raj Pal, he says that he saw the accused armed with dandas and hurling abuses at his family. They started beating up their father who fell unconscious. He went to save his father and jumped from the window and went to the Neelkanth Temple to inform the police and Baba. He says that Baba Dhuni Nath PW-11 arranged for transporting their father to the hospital from where he was referred to Zonal Hospital, Dharamshala and then to PGI, Chandigarh where he died.

PW-14 Surinder Singh, who is the Halqua Patwari of Patwar Circle Rajad. He says that on the fateful day he had been directed by the Tehsildar to go to Bhadrana and conduct demarcation of the land of the deceased. He went to the spot alongwith record at around 10.00 A.M., but the Kanungo did not turn up and in these circumstances no demarcation was carried out. On 14th June, 2003, two policemen came to his office with orders of Tehsildar directing him to supply the copy of the Jamabandi and Tatima etc. He rushed to the spot and Aks Shajara Ex. PW-14/A and Jamabandi Ex. PW- 14/B were prepared and issued by him to the policemen. He states in his cross-examination that Sheela Devi PW- 5 was insisting that she may be given the land near her house. He admits the suggestions that this land was adjoining the house, but not in possession of Sheela Devi. He admits that there was a quarrel between the parties at the spot.

PW-11 Baba Dhooni Nath, Chela Guru Mahender Nath, states that on the fateful day at around 8.00/8.15 P.M., Rajpal PW-12 came to him and told him that a quarrel had taken place in his village and his father had become unconscious. He (Rajpal) made a call to Police Station, Baijnath, but due to the nonfunctioning of STD his call was not matured. He (this witness) was Member of Zila Parishad at that time. In this capacity he went to the spot and managed a vehicle from Dhramman and took the injured to the hospital. He says that the deceased was vomiting blood and was lying on the ground at that time. He shifted him to hospital for medical treatment immediately. All the members of the complainant party and accused had also suffered injuries. He states that when we reached Neelkanth Temple, the police also reached there and he accompanied the police and injured to the hospital.

We need to consider two more witnesses at this juncture relating to recovery. They are PW-6 Jagdish Chand and his son PW-10 Sunil Kumar. PW-6 Jagdish Chand is brother-in-law of the deceased and was associated in the recovery proceedings. He says that A-1 Ravi Kumar and A-2 Suresh Kumar accused were instrumental for having four dandas recovered in the house of one Narayani Devi. These sticks were found in the bushes. He was declared hostile and cross-examined at length. In the cross- examination conducted on behalf of the accused, he says that there was no mark of identification on these dandas (sticks). All of them were sealed. PW-10 Sunil Kumar was running an electronic shop at Baijnath, who proves Ex. PW-6/C, which is the statements made by the accused A-1 Ravi Kumar and A-2 Suresh Kumar. He also says that the dandas were recovered in the backyard of house of Narayani Devi. Sadhu Ram was his `Fufa'' (uncle).

The medical evidence consists of PW-1 Dr. Sunita Kashyap who examined Sadhu Ram, Baby Veena Kumari, Renu Bala, Sunita and Sheela Devi. She proves their MLCs. PW-2 Dr. Vijay Thakur is the Radiologist in Dr. Rajinder Prashad Medical College and Hospital, Tanda who proves Ex. PW-2/A CT Scan of the deceased. PW-4 Dr. D.P. Swamy, Assistant Professor, Forensic Medicine Department, Medical College, Tanda, who conducted the postmortem, has proved the report Ex. PW-4/B. In his opinion, cause of death was asphyxia and neurogenic shock due to ante-mortem head injuries. According to him, "In my opinion this person died of asphyxia and neurogenic shock due to ante-mortem head injuries. The injuries mentioned of brain cavity and b rain were sufficient in ordinary course of nature to cause death and the time lapsed between injury and death 1/2 to two days and between death and postmortem was 12-18 hours."

We now advert to the evidence of DW-1 Puran Chand. He was ward member of Gram Panchayat Bhadrena in the years 2002 to 2004. He says that he knows the accused as also the complainant. If there is any noise/screaming in the house of complainant that would be audible from his house. On 10.06.2003 at about 10.00 A.M. in the morning Patwari had come to village Rajed for the purpose of demarcation which was asked for by Sadhu Ram. Sheela Devi PW-5 asked him (Patwari) to enter the land of the compound of the accused in her name, but the Patwari did not do so. He stayed there about half an hour and left. The houses of Sheela Devi PW-5 Complainant and accused party are adjoining to each other and have separate courtyards. He says that the courtyards are separated by a wall and Neelkanta plants. On the same day he heard some loud noise in the houses of complainant and the accused. He saw PW-5 Sheela Devi armed with a danda accompanied by her two daughters in the courtyard of the house of the accused. At that point of time, she had assaulted A-5 Radha Devi and A-6 Sumna and when all of them were fighting, A-1 Ravi Kumar and A-2 Suresh Kumar came to rescue these two ladies. Deceased Sadhu Ram also rushed to the spot. When he was running his foot struck against the Attali (raised cement platform) as a result he fell down and suffered some injury on his head. He alongwith daughters of Sadhu Ram picked him up and took him inside the house. He says that in the fight, the accused also suffered injuries. He denies the suggestions that Sadhu Ram died because of the injuries inflicted by the accused. This is the entirety of the evidence. The facts on record, indicate that there was land dispute between the parties and that both the parties were infact engaged in a free for all fight. They have sustained injuries and that Sadhu Ram died as a result of injuries sustained. The injuries on the accused have been proved by PW-8 Dr. S.D. Rana.

The point for determination is as to whether any offence u/s 302 IPC was made out or not. What we find from the evidence is that there is no premeditation to commit any murder. All this has happened in the heat of the moment when sticks, fist and kick blows have been freely used by both the parties. Learned counsel appearing for the appellant has relied upon a number of decisions to urge that no offence is made out for the reasons that the evidence is of a partisan nature and cannot be used to convict the accused. He places reliance on the judgment of the Supreme Court in (1) Sevi and another (2) Sevi and Another Vs. State of Tamil Nadu and Another, to urge that where:

... all the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in crossexamination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else. ....

(p. 1232)

He submits that non-explanation of the injuries on the accused itself would render the case doubtful. He relies upon the decision of the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar, , holding:-

... It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : (Reported in State of Gujarat Vs. Bai Fatima and Another, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

(pp-2269-2270)

A number of other decisions on this point have been referred to by him including The State of Gujarat Vs. Bai Fatima and Another, But we also note the other decisions of the Supreme Court that this fact by itself will not be fatal to the case of the prosecution where the injuries on the accused are of minor nature though such injuries have not been explained (See: Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, , Amar Malla and Others Vs. State of Tripura, and Sucha Singh and Another Vs. State of Punjab, In Sucha Singh''s case the Court sounded a note of caution that there should be no exaggerated devotion to the rule of benefit of doubt.

Adverting to the decision in Inder Singh and Another Vs. The State (Delhi Administration), the Court granted a caveat that proof beyond reasonable doubt is a guideline and not a fetish to be applied blindly.

Lastly, we notice in Dhananjay Shanker Shetty Vs. State of Maharashtra, , where the Court holds that it is not an inflexible rule of criminal jurisprudence that where the injuries on the accused are not explained, such non-explanation assumes significance only when there are material circumstances in the case of the prosecution rendering the case of the prosecution doubtful. In these circumstances, we cannot use this fact alone for holding that a false case has been foisted on the accused but we do note as we repeat that there was a free for all fight.

He contends that even if it is assumed that the accused were responsible for causing hurt or injuries to the complainants, they cannot be convicted for use of force exercised in their right to private defence. In particular he relies upon the judgment of the Supreme Court in Subramani and Others Vs. State of Tamil Nadu, holding:-

It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised the right of private defence of property extended u/s 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in section 99 IPC. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because section 96 IPC makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intent to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But it cannot be said that the murder was committed pursuant to a common intention to commit such crime. In some what similar circumstances in State of Bihar Vs. Nathu Pandey and Others, this Court considered the question as to whether the accused could be convicted u/s 302 read with either section 149 or section 34 IPC. It observed: (SCC p. 210, para 8)

In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with sections 96 to 106 dealing with the right of private defence. u/s 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or supposed right" in the fourth clause of section 141.

(pp. 218-219)

He then contends that there is un-explained delay in lodging the First Information Report and in these circumstances, due to inconsistency in the evidence of the witnesses no conviction can follow. He places reliance on the judgment of the Supreme Court in State of Punjab Vs. Ajaib Singh and Others, . He fortifies his submission by the decision of the Supreme Court in Birappa and Another Vs. State of Karnataka, . Before adverting to the judgment, what we note is that the right to self defence can hardly be said to have been established on the facts on record. What we find from the evidence is that the genesis of the entire dispute was the demarcation which could not be carried out in the morning of the fateful day by the patwari who had left the spot. We also find that it is an established fact that there was a quarrel between the parties in the morning followed by a brawl in the evening. We find that both the parties have levelled allegations and counter allegations against each other and that both of them have sustained injuries. We do not find multiple injuries on the body of the deceased Sadhu Ram who is alleged to have been assaulted with a blunt weapon (in this case a stick), which would establish premeditated plan to kill him. The first point of time at which the injuries on the person of the deceased have been recorded is MLC Ex. PW-1/G. He was taken to the hospital at 11.00 A.M. on that very day and the doctor noticed four injuries on his person which were on the upper eyelid left upper arm, right upper arm and large haematoma about 10x4 cms in size. We find the nature of the injuries that the doctor record is simple which has been scored off and then it has been written "Head injury". The defence set up is that Sadhu Ram came running out to the spot, struck his head with the Attali (cemented platform) after he tripped, as a result he sustained these injuries. DW-1 has not been believed by the learned Sessions Judge. He states in his evidence that he saw the parties quarreling and arguing and it was the complainants who infact initiated the aggression. While dealing with this evidence, the learned Sessions Judge discards it on the ground that the police has been unable to recover any danda (stick) from the complainants party. This was no reason for wholesale rejection. No effort has been made by the Court to ascertain as to under what circumstances the accused also sustained injuries on their persons. Merely using one circumstance to disbelieve the entire evidence is not the proper way for its assessment. The Court should have been alive to the principles enunciated in C. Magesh and Others etc. Vs. State of Karnataka, .

We also find the plea of self defence as having been not established on the facts, but only repeated heated exchanges and brawls between the parties where all men and ladies participated without hesitation. In these circumstances we cannot say that it was an act premeditated murder.

In facts lead to the only conclusion that can be drawn from the evidence on the record is that a free fight had taken place in the heat of the moment where injuries have been inflicted inter alia on Sadhu Ram who died as a result thereof. As such, no offence is made out u/s 302 IPC. We cannot find major contradictions in the evidence of the eye witnesses of the prosecution but we find it strange that the learned Court discards the evidence of DW-1. In any event we find intention of causing death of Sadhu Ram to be totally lacking. In these circumstances, we hold that no offence u/s 302 IPC has been made out rather an offence which we find is that the case will be covered u/s 326 IPC for voluntarily causing grievous hurt by dangerous weapon. In these circumstances, we allow this appeal to the extent that the conviction u/s 302 shall be converted into one u/s 326 IPC. The other sentences shall remain intact. The accused are sentenced to the detention already undergone. The accused are directed to be released from custody forthwith in case they are not required in any other case.