State of U.P. vs Damodar Prasad and Others

B.P. Singh, J.—This is an appeal against the judgment and order dated 17-8-1978 passed by Shri R.P. Gupta, IV Additional Sessions Judge, Pilibhit, in Sessions Trial No. 425 of 1977 State v. Damodar Parsad and three Ors. u/s 307 IPC read with Section 34 IPC P.S. Bisalpur, district Pilibhit.

Ram Kumar PW 1, Sia Ram PW 2 and Prahlad Prasad PW 3 are real brothers. In 1972 Prahlad Prasad and Sia Ram had run a business of Bale in partnership with Jhamman Lal. When the accounting was done, some money was found due upon Jhamman Lal. On the failure of Jhamman Lal to pay the amount, a suit for recovery of money was filed by Sia Ram and Prahlad Prasad against Jhamman Lal Niyaya Panchayat.

Jhamman Lal and Damodar Prasad had also filed a suit for recovery of money against Sia Ram and Prahlad Prasad in the Niyaya Panchayat. Both these suits were pending in the year 1976.

On 5-7-1976, Sia Ram and Prahlad Prasad were digging a drain in their field in order to facilitate irrigation of their plot. Accused Damodar Prasad, Ajudhia Prasad, Deena Nath and Jhamman Lal armed with lathis came there and assaulted Sia Ram and Prahlad Prasad. On alarm being raised, Ram Kumar PW 1, Mool Chand, Meghan and Verma reached there. On being challenged by the witnesses, the accused ran away.

Both Sia Ram and Prahlad Prasad had sustained injuries. First, they were taken to the house and from there they were taken to the Police Station, Bisalpur where a report (Ext. Ka-1) of the occurrence was lodged by Ram Kumar PW 1. From P.S. Bisalpur, Sia Ram and Prahlad Prasad were sent to Civil Hospital, Pilibhit where they were medically examined by Dr. V.P. Agarwal PW 4.

Dr. V.P. Agarwal PW 4 had found the following injuries upon the person of Sia Ram:

Lacerated wound 10 cm x 1 cm x bone deep on the left side of head close to mid-line, 12 cm above left ear. Kept under observation. Advised X-ray.

Lacerated wound 6 cm x 1.5 cm x bone on the left side of fore-head close to hair line 4.5 cm above left eye-brow. Kept under observation. Advised X-ray.

Lacerated wound 2.5 cm x 1.5 cm x bone on the right side of forehead close to midline 3.5 cm above soot of nose. Kept under observation. Advised X-ray.

Lacerated wound 2.5 cm x .5 cm x muscle on right side of fore-head just above outer half of right eye-brow.

Ecchynosis 4 cm x 3 cm around right eye involving whole of right eyelid upper and extending around.

Lacerated wound 3 cm x 1 cm x bone on the left leg in middle.

Sia Ram''s partietal bone was found fractured. The remaining injuries were simple and all the injuries could have been caused by a blunt weapon. All the injuries were fresh.

Dr. V.P. Agarwal PW 4 had found the following injuries upon the person of Prahlad Prasad:

Lacerated wound 7 cm x .5 cm x bone on the left side of head 12 cm above left ear. Kept under observation. Advised X-ray.

Lacerated wound 1 cm x .75 cm x bone on left side of head 7 cm above left car. Kept under observation. Advised X-ray.

Lacerated wound 2 x 1.5 cm x bone on left side of head 6 cm above left ear, 3 cm infront of injury No. 2. Kept under observation. Advised X-ray.

Lacerated wound 6 x .3 cm x bone on the head in mid-line 12 cm above root of nose, kept under observation. Advised X-ray.

Lacerated wound 2.5 cm x .5 cm x bone on the right side of head 8 cm above right ear. Kept under observation. Advised X-ray.

Abraded contusion 2.5 cm x 1 cm on right side of head 2 cm behind injury No. 5 at the same line.

Abraded contusion 2.5 cm x 1.5 cm on right side of head 5 cm above right ear. 3 cm infront of injury No. 5.

Arasion 3 cm x 1 cm on right temple.

Abraded contusion 4 x 2.5 cm 10 cm above root of right ear.

Contusion multiple in an area of 13 x 12 cm on the back of chest left side upper part. Kept under observation. Advised X-ray.

Contusion 4 x 1.0 cm on the back of left upper arm.

Abraded contusion 4.5 cm x 3 cm on the right side back of chest.

Abrasion 3 x 2 cm on the point of right elbow joint.

Traumatic swelling 6x4 cm on the back of right fore-arm lower half. Kept under obseravation. Advised X-ray.

Abrasion 3 x 2 cm on the front of right shoulder.

According to the Doctor, injuries 1, 2, 3, 4, 5, 10 and 14 were kept under observation while the remaining injuries were simple and were caused by some blunt weapon. All the injuries were fresh. The right ulna bone of Prahlad Prasad was found fractured.

S.I. K.P. Singh, PW 5, was posted in P.S. Bisalpur in July 1976 and was present in Police Station when the case was registered. He had investigated the case against the accused. Routine investigation had followed and after completing the investigation, a charge sheet (Ext. Ka-6) was submitted by the Investigation Officer.

The accused pleaded not guilty and claimed to be tried.

In all, the prosecution examined seven witnesses i.e. Ram Kumar, PW 1, Sia Ram PW 2, Prahlad Prasad PW 3, Dr. V.P. Agarwal PW 4, S.I. K.P. Singh PW 5, Dr. R.S. Sharma PW 6 and Bhindai Singh Gangwar, PW 7.

The accused did not lead any evidence in their defence.

The learned Sessions Judge believed the prosecution account of the occurrence in which Sia Ram and Prahlad Prasad had received injuries at the hands of the four accused, but the learned Sessions Judge held that the accused were acting in self-defence and, as such, no offence was committed by them. Consequently, the accused were acquitted.

Aggrieved by the judgment and order of the trial court, the state has come in appeal 378 of the Code of Criminal Procedure the powers of the High Court in reviewing the evidence in case of acquittal are the same as the court has in a case of appeal against conviction. Reference may be made to the two decisions of the Supreme Court in this connection. In the case of Labh Singh and Others Vs. State of Punjab, , the Supreme Court has observed as follows:

In some earlier judgments of this Court, it was said that the High Court should not reverse an order of acquittal unless there are "substantial and compelling" reasons to do so. In order to dispel doubts, it was clarified in subsequent decisions that the use of such phrases was neither intended to lay down a formula to be rigidly applied in every case, nor to curtail the powers of the High Court in appeal over an order of acquittal. It is now well settled that the powers of the High Court under Sections 417, 418 and 423 of the Code of Criminal Procedure 1898 (or for that matter under the corresponding provisions of the new Code of 1973) while hearing an appeal against an acquittal are as wide and comprehensive as in an appeal against a conviction. It has full power to reappraise the entire evidence upon which the order of acquittal was based and to reach its own conclusion. But before reversing an order of acquittal it should endeavour to displace or dispel in a general or specific way the primary reasoning of the trial court upon which the acquittal is founded, paying due regard and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses and the value of their evidence, (2) the initial presumption of innocence in favour of the accused, a presumption certainly not weakened by his acquittal at the trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses See Sita Ram Durga Prasad Vs. The State of Madhya Pradesh, .

In the case of Tota Singh and Another Vs. State of Punjab, , the Supreme Court has observed as follows:

This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion winch is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.

Keeping in view the above observations, we may now proceed to examine the evidence on the record.

It is not disputed that an occurrence took place on 5-7-1976 at about 6 A.M. in the field of Damodar accused in which Sia Ram and Prahlad Prasad had sustained injuries at the hands of the Respondents. The question, arises whether the Appellants were acting in self-defence of their property. It is also not disputed that when the occurrence took place Sia Ram and Prahlad Prasad were engaged in digging a drain by using spade. The case of the prosecution is that both these injured persons were digging their drain in their field while the contention of the learned Counsel for the Respondents is that the drain was being dug by Sia Ram and Prahlad Prasad in the field of the Respondents.

In the evidence before the trial court Ram Kumar, PW 1, has stated that Sia Ram and Prahlad Prasad were assaulted by the Respondents on account of enmity resulting from the civil litigation between the parties, but the case of Ram Kumar PW 1 in the FIR was that Sia Ram and Prahlad Prasad were digging drain in their field and the Respondents did not agree to the same and it was for this reason that the Respondents had assaulted Sia Ram and Prahlad Prasad. Thus, according to the FIR case of the prosecution the immediate cause for the occurrence was the digging of the drain. In this background, the fact assumes importance whether the drain was being dug in the field of Sia Ram and Prahlad Prasad or in the field of the Respondents. The site-plan (Ext. Ka-5), which was prepared by the Investigating Officer shortly after the occurrence had taken place, is quite revealing. This site-plan shows that the field of Ram Kumar PW 1 is towards the north and adjacent to this field is the plot of Respondent Damodar Prasad. The Investigating Officer has shown that a portion of the drain was being dug in the plot of Damodar Prasad. The Investigating Officer was cross-examined on this aspect and he gave highly unsatisfactory explanation. He stated that he never intended to show the drain in the plot of the accused but some how the ink became thicker and it was inadvertently shown that the drain was in the field of the accused. We have looked into the original site-plan and the above explanation is palpably false. The site-plan clearly shows that the portion of the drain has shown by the Investigating Officer in the plot of the Respondents.

Another circumstance to note in this connection is that according to Sia Ram PW 2, they had made a programme of digging the drain for some days, but they could get time to dig the drain only on that day. It is significant to note that Ram Kumar PW 1 is a teacher and had taken leave on that day for the simple purpose of digging that drain. If the drain was to be dug in their own field by Sia Ram and Prahlad Prasad, there was no occasion for Ram Kumar PW 1 to take leave from the school. On his own admission Ram Kumar PW 1 was not personally involved in the digging of the drain. This leads to the inference that Ram Kumar PW 1 and his brother were intending to dig the drain in the plot of the Respondents and as they apprehended opposition from the side of the Respondents, Ram Kumar PW 1 had taken leave from the school and was present upon the scene of occurrence in order to lend help to his brothers, if there was any occasion of the same.

Thus, the findings of the trial court cannot be termed as perverse or unreasonable. This is a view which can be taken by a Judge on a consideration of the entire evidence before him. The learned Sessions Judge, who has taken the above view, had the advantage of observing the demeanour of the witnesses and his conclusion was quite legitimate.

Section 104 the Indian Penal Code provides that- "If the offence, the committing of which, or the attempting to commit which, occasions the exercise of ther ight to private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding Section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrongdoer any harm other than death."

In the present case, Sia Ram and Prahlad Prasad were digging the drain and by no stretch of imagination it can be argued that the Respondents had time to have recourse to the protection of the public authorities. Furthermore, when a man is exercising his right of self-defence, it is not always possible to weigh the force with which the right is exercised. There are no set rules of one''s behaviour in this regard. The injuries, which were sustained by Sia Ram and Prahlad were likely to be inflicted if they were to be restrained from digging the drain in the field of the Respondents.

In this view of the matter, the appeal is dismissed. The Respondents are on bail. They need not surrender to their bail bonds and their sureties are discharged.