State of U.P. vs Nirhu and Another

Omkareshwar Bhatt, J.—Nirhu and his son Mast Ram were tried for the offence under Sections 302 and 302/34, I.P.C. and acquitted in S.T. No. 322 of 1980. The judgment and order was passed by the then Sessions Judge, Basti on 30.3.1981. This appeal has been preferred by the State of U.P.

Sri R.S. Maurya, learned A.G.A. and Sri Siddharth Saran brief holder of Sri Govind Saran, learned Counsel for the accused-Respondents have been heard and the record of the case has been carefully perused.

The deceased of the case is Hari Ram. He was living at the house of his in-laws in village Daulatpur, police station, Paikauliya, district Basti. On 7.4.1980, at about 10.30 a.m., Kailasha the daughter of accused Nirhu assaulted Pushpawati, the daughter of the deceased. Whereupon Sukhraji P.W. 2, the mother of P.W. 1 Sarvanpati, started abusing the family members of the accused Nirhu. The two accused thereupon pushed Sukhraji and assaulted her. Sukhraji fell down and cried whereupon Hari Ram, the son-in-law of Sukhraji arrived and complained to the accused about their high handedness. Accused Nirhu exhorted that the deceased should be killed. Thereafter, accused Mast Ram and Nirhu went to their house and came out with spear and lathi. Mast Ram gave spear blow at the chest of the deceased due to which Hari Ram fell down. Hari Ram was assaulted by lathi and spear even after he had fallen down. The incident was seen by P.W. 1 Sarvanpati widow of the deceased, P.W. 2 Sukhraji mother-in-law of the deceased and P.W. 3 Shakuntala daughter of the deceased and several others who had arrived due to the shout of Shakuntala. Hari Ram died on the spot. Thereafter Nirhu asked his son Mast Ram to cut his hand so that he could say something in his defence. Thereupon Mast Ram caused injury by pharsa in the hand of Nirhu and entered in his house along with pharsa and spear and leaving Nirhu at the house Mast Ram ran away. Sarvanpati lodged a written report scribed by Chandra Prakash and sent the same to the police station through chaukidar Girish P.W. 5 at 11.45 a.m. The case was registered at the police station. At that time P.W. 6. Udai Pratap Singh, Investigating Officer was present. At about 1 p.m. he reached at the place of occurrence and besides the formalities of investigation arrested the accused Nirhu. On his pointing a blood stained pharsa, blood stained lathi and one more blood stained lathi were recovered from verandah and the house of Nirhu. The Investigating Officer found that Nirhu had injuries in both his hands. Since no doctor was available at Harraiya hospital, the accused Nirhu was sent to jail. On 8.4.1980. Dr. Harivans Shukla examined the injuries of Nirhu in the jail in presence of compounder Triyugi Narain Vishwakarma D.W. 1. Following injuries were found on the person of the accused Nirhu:

(1) Incised wound 4 cm. x 1 cm. x bone cut in depth on the back of left palm 3 cm. below the left wrist joint, wound showing the regular margins.

(2) Incised wound 6 cm. x 3 cm. x muscles deep with regular margin on the outer and back of metacarpal base of thumb side. Blood clots present in the wound.

(3) Incised wound 1.5 cm. x 0.5 cm. x muscles deep on the left side abdomen on outer aspect 24 cm. below the left axilla. Blood clots present in the wound.

In the opinion of the doctor the injuries were about one day old and injury No. 1 was grievous. Injuries were caused by sharp weapon.

The two accused as well as the deceased lived in village Daulatpura. The house of the accused is towards west of the house of the deceased at a distance of 15 paces. Some quarrel took place at the date, time and place as alleged by the prosecution is admitted to the defence. Accused Nirhu has stated that he went to get the matter subsided. The deceased assaulted him due to which his hand was cut. Accused Mast Ram has stated that when the deceased Hari Ram started assaulting his father by pharsa, he struck the deceased by spear in self-defence. However, he did not know that the deceased would die. Accused Nirhu has further stated that the written report was got written by the Investigating Officer in the village. He has also stated that the Investigating Officer rubbed the pharsa in his hand and got the same blood stained.

Besides the formal witnesses, three eye-witnesses of the case are widow, mother-in-law and daughter of the deceased. There were independent eye-witnesses but none was examined by the prosecution. Shakuntala, P.W. 3 has stated that on her alarm, several villagers had arrived. Similar is the statement of P.W. 1 Sarvanpati. The incident is admitted to the defence and according to the defence, the deceased assaulted accused Nirhu and in order to save him, accused Mast Ram gave spear blow to the deceased. In the above situation, non-examination of independent witnesses casts doubt on the veracity of the prosecution version. It appears that the three relation witnesses have tried to suppress the genesis of the occurrence. The deceased had three incised injuries as has been noted above. The injuries of the accused Nirhu are on the back of left palm, on the outer and back of metacarpal base of thumb side and on the left side of abdomen.

The testimony of the three eye-witnesses does not find complete corroboration from medical evidence. The deceased has one punctured wound, two abrasions, four contusions and one lacerated wound. According to Sarvanpati P.W. 1, the deceased was assaulted by spear and lathi after he had fallen down. Except one punctured injury, there is no other punctured wound on the body of the deceased. Sarvanpati P.W. 1 came out of the house after hearing the alarm of Shakuntala P.W. 3 that her father had been killed by spear. Sukhraji has stated that after the deceased fell down, no spear injury was caused to him. Sarvanpati has stated that after taking out spear and lathi, accused Mast Ram gave a spear blow at the chest of her husband due to which he fell down and accused Nirhu assaulted by lathi. There is thus, inconsistency in the statements of the eye-witnesses. The trial court has rightly concluded that the F.I.R. version of the incident was not correct that the deceased was given spear and lathi blow after he fell down on the ground. In the F.I.R., there is no mention of pharsa. It is not clear as to how and when the accused came to possess it. Sarvanpati P.W. 1 has admitted that there was injury in the hand of accused Nirhu. Sukhraji P.W. 2 has denied the suggestion that the deceased assaulted the accused Nirhu on his waist and hand whereupon accused Mast Ram caused injury to the accused in defence. The prosecution allegation that the accused Mast Ram cut the hand of accused Nirhu by pharsa so that accused Nirhu might have some case in defence is not worthy of credence. This part of prosecution story, it appears, has been inserted on some advice and the informant Sarvanpati cannot be attributed with the knowledge about the potentiality of the allegation being a rustic village lady. It has come in evidence of Sarvanpati that when she was dictating the report, the Investigating Officer had arrived and he was sitting there. The chawkidar was not given copy of the chik F.I.R. According to Shakuntala, P.W. 3, chawkidar went to call thanedar. The F.I.R. was sent to the Magistrate on the next day, i.e., on 8.4.1980. The trial court rightly found that the F.I.R. is not prompt and true and correct version of the occurrence has not been put forth in it.

The recovery of pharsa from the house of the accused Nirhu lacks satisfactory proof. Nirhu has stated that someone had planted pharsa at his house. He has also stated that the Investigating Officer rubbed his blood in the pharsa. The possibility that the pharsa belonged to the deceased is not ruled out.

The injury of the accused Nirhu is in his abdomen, back of metacarpal bone of thumb and at the back of left palm which was found grievous. The right of private defence is available when there is reasonable apprehension in the mind of the accused that death or grievous hurt would otherwise be the consequence of assault. Every person has a right to defend his own body and body of any other person against any offence affecting the human body. In the present case, accused Nirhu had actually sustained grievous injury besides two other injuries of sharp weapon. The apprehension of death or grievous hurt, therefore, was present.

In the facts and circumstances the right of private defence extended to causing of death of assailant who according to the defence was the deceased Hari Ram. On appraisal of evidence, the view taken by the trial court that the possibility of the deceased having caused pharsa injury to Nirhu initially whereupon Mast Ram caused single spear injury to the deceased is a possible and probable view. We see no reason to disagree.

In view of the aforesaid discussion the appeal has got no force and it is accordingly dismissed. The accused Respondents are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.