State Of U.P vs Preetam & Ors

REPORTABL

E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 506 OF 2006

State of U.P. ... Appellant (s)

VERSUS

Preetam & Ors. ...Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. The present appeal is directed by the State of U.P.

against the final order and judgment dated

23rd March, 2004 passed by the High Court of Judicature

at Allahabad in Criminal Appeal No. 577 of 1981 whereby

the High Court allowed the criminal appeal by setting

aside the order of conviction recorded by the trial court

against the respondents.

2 2. We may now briefly note the background facts,

necessary for the adjudication of the present matter. It is

the case of the prosecution that on 20th August, 1977 at

around 3.30 p.m., Gulab and his nephew Chhatrapal

were grazing their cattle in Dhadhai Haar. Preetam

(hereinafter referred to as `respondent No.1'), who is a

collateral of the above two, came there and asked

Chhatrapal and Gulab, as to why they were grazing their

cattle in his field. Chhatrapal and Gulab told him that

they were not grazing in his field. Respondent No. 1 then

abused and started beating them. Chhatrapal and Gulab

retaliated and started beating Preetam. On an alarm

raised by respondent No. 1, his family members, who

were present in the vicinity doing work in their fields,

namely Dilli, Tutti, Mukundi, Karan Singh, Balli, Katti,

Hari Singh, Baura, Thakurdas and Siya Brahims came

running to his rescue. They were armed with kulharis

and lathis.

3 3. Respondent No. 1, Karan Singh (hereinafter referred

to as `respondent No. 2') and Mukundi (hereinafter

referred to as `respondent No. 3') were armed with axes

and Katti alias Hari Singh (hereinafter referred to as

`respondent No. 4') and Tutti alias Babu Lal (hereinafter

referred to as `respondent No. 5') were armed with lathis.

On seeing them, Chhatrapal and Gulab, due to the fear

of the respondents, ran towards the village Abadi. They

were prevented from reaching their house by the

respondents. They were encircled in the field of Hirwa,

which was in the Thakur Baba Har. In the field, they

were assaulted by respondent Nos. 1, 2 and 3 and seven

other accused persons with axes and lathis. On hearing

the voice of Chhatrapal and Gulab, informant (PW1) and

his brother, Bahadur (PW2) rushed to save them. They

were ploughing their fields in the near by ground. On

reaching the spot of the incident, they were also

assaulted. Some other witnesses also arrived at the spot

of occurrence on hearing the alarm raised by Punna,

PW1 and Bahadur, PW2. They include his daughter

4

Lachchi and Sunkiya, wife of his brother Bahadur. After

the assault, the respondents ran away towards the

village. Gulab and Chhatrapal were lying dead in a pool

of blood in the field of Hirwa. They had suffered axe and

lathi injuries. Due to rain and fear of the respondents,

they did not go to the police station that day. The FIR

was lodged on 21st August, 1977 at 8.30 a.m. by Punna,

PW1. The distance between the police station and the

place of occurrence was 5 miles.

4. On the prosecution side, apart from the two

deceased, Punna, PW1 suffered only blunt object injuries.

Bahadur, PW2 had suffered an incised wound

2 cm x 5 cm muscle deep at the border of the right

mandibular angle 4 cm, below right ear. These injuries

were medically examined by PW6, Dr. R.S. Mishra on

21st August, 1977 between 10.30 and 11.30 a.m. He had

proved the injury reports of Punna and Bahadur. A

perusal of his statement shows that none of the injuries

were grievous in nature. No X-Ray report or any other

5

supplementary reports were placed on record. The

injuries were apparently simple.

5. The postmortem examination on the body of the two

deceased, Gulab and Chhatrapal was conducted by PW8,

Dr. V.D. Mishra. In his report, he stated that there were

three incised wounds on the body of Chhatrapal, two of

them being on head, one covered right side face, lower

part of the right ear and part of neck and the other on

the left side of head 12 cm above the left ear. In both the

injuries underlying bones were cut. The third injury was

on buttock. In the opinion of the doctor, cause of death

was due to shock and hemorrhage as a result of injuries

No. 1 and 2.

6. The postmortem examination of deceased Gulab

took place at 2.45 p.m. on 22nd August, 1977 and was

conducted by PW8, Dr. V.D. Mishra. Three incised

wounds were also found in the body of Gulab, one on the

upper side of head 10 cm above from left ear, underlying

6

bone was found cut and the second and third incised

wounds were on the left side head. The third injury was

2 cm above injury No. 2. The doctor then stated that all

three injuries were on his skull. The cause of death was

shock and hemorrhage due to the above injuries.

7. The prosecution in support of its case examined five

eye witnesses. PW1, Punna and PW2 Bahadur both were

injured witnesses. PW3, Kumari Pramod was daughter of

PW2. The fourth witness was Kunwar, PW4, he was

declared hostile by the prosecution. PW5, Thakur Das

alias Munna too turned hostile and did not support the

prosecution case. The other witnesses are PW7, Ram

Swaroop, the scribe of the report, PW6, Dr. R.S. Mishra,

who examined the injuries of the prosecution witnesses

and PW8, Dr. V.D. Mishra who performed the autopsy of

dead bodies.

8. On the other hand, respondents also sustained

minor injuries. The injuries suffered by them were of

7

blunt object. Preetam Singh, respondent No. 1 suffered

two lacerated wounds, one on the left elbow joint and the

other on the left side of the segital suture. Other injuries

were on the left ring finger at the level of second

phalangial joint and on the left shoulder joint. Hari

Singh, respondent No. 4 had suffered only an abrasion

on the first phalanx of the right thumb. Karan Singh,

respondent No. 2 had a contusion vertically on the left

side of the back and another contusion horizontally at

the level of the inferior angle of the left scapula, abrasion

circular in the radius of .5 cm on the outer aspect of the

left shoulder joint, contusion at the outer aspect of the

left shoulder joint and lateral wound, bone deep, on the

right parietal protuberance. Injury No. 5 was on the

vitalo part of his person. Mukundi, respondent No. 3 had

three contusions, on the right shoulder joint, right side of

mid neck and dorsal surface of the right palm. Babu Lal,

respondent No. 5 suffered one lacerated wound and a

contusion. The lacerated wound was skin deep at the

level of the left temporo mandibular joint and contusion

8

with swelling on the dorsal surface of the first phalanx of

left thumb. All the injured respondents were examined on

the same night, i.e., 20th August, 1977 between

9.00 p.m. and 10.15 p.m. All these injuries were suffered

from a blunt object.

9. Subsequently, the charge sheet was filed by the

investigation officer, Bhagwan Singh, PW9 and

respondents were put on trial. The trial court vide its

judgment dated 24th February, 1981 convicted all the

respondents as follows:

" ORDER

Accused Preetam, Karan, Mukundi, Katti alias

Hari Singh and Tutti alias Babu Lal are held

guilty of the offence punishable under Section

302 read with Section 149 IPC for committing

murder of Gulab and Chhatrapal. Accused

Preetam and Mukundi are further held guilty

of the offence punishable under Section 307

IPC. Accused Karan Singh, Tutti and Katti are

further held guilty of the offence punishable

under Section 307 read with Section 149 IPC.

The Preetam, Karan, Mukundi, Katti and Tutti

are also held guilty of the offence punishable

under Section 323 read with Section 149 IPC.

In view of above, I award no sentence under

Section 148 and 147 IPC.

9 Accused Baura alias Drigpal, Siyaram,

Thakkoo alias Thakurdas and Balli alias

Baladin are held not guilty of the offences with

which they stand charged and are acquitted.

Their bail bonds are discharged.

Accused Dillipat is dead and the case against

him abates.

Sd/

(B.N. Misra)

Addl. Sessions Judge,

Hamirpur,

24.02.1981

SENTENCE

I have heard the learned counsel for accused

Preetam, Karan, Mukundi, Katti alias Hari

Singh and Tutti alias Babu Lal on the

questions of sentence.

I have found all these five accused guilty of the

offence punishable under Section 302 read

with Section 149 IPC. The only punishment

provided for this offence is death sentence or

imprisonment for life. Hence, I award these

five accused a sentence of imprisonment for

life. These accused shall undergo

imprisonment for life for the offence

punishable under Section 302 read with

Section 149 IPC.

I further award sentence of seven years R.I. to

accused Preetam and Mukundi under Section

307 IPC and two years R.I. to accused Karan

Singh, Tutti and Katti under Section 307 read

with Section 149 IPC.

10 I further award sentence of six months R.I. to

accused Preetam, Karan Singh, Mukundi,

Katti and Tutti under Section 323 read with

Section 149 IPC.

All the sentences shall run concurrently.

All the five accused be taken into custody to

serve out the sentences awarded to them. The

bail bonds are cancelled.

Sd/

(B.N. Misra)

Addl. Sessions Judge,

Hamirpur,

24.02.1981"

10. The High Court, in appeal, vide its judgment and

order dated 23rd March, 2004 set aside the order of

conviction recorded by the trial court and acquitted all

the respondents. Hence the present appeal is filed by the

State before us.

11.We have heard the learned counsel for both parties.

The learned counsel appearing on behalf of State, Mr.

T.N. Singh submits that the High Court was not

correct in holding that respondents did not exceed the

right of private defence. The injuries suffered by

11

respondents are not at all proportionate and

reasonable as compared to the injuries sustained by

the deceased. He further submits that evidence of

PW1 and PW2 clearly show that they had only `painas'

in their hands when they had come to rescue of the

two deceased.

12. Learned counsel further submits that the High Court

was not right in holding that prosecution had

suppressed the genesis of the crime. The fact that two

persons lost their lives and two got injured clearly

shows that the respondents even if they acted in self

defence, exceeded it. The High Court also did not give

any valid reasons for such assumptions. The injuries

suffered by respondents were simple in nature and

were inflicted by some blunt object whereas on the

other hand, they had mercilessly attacked and killed

two innocent persons with axes. The evidence of PW1

shows that the respondents were the aggressors and

hence cannot take the plea of self defence. From his

12

deposition, it is also clear that two deceased were

chased by the respondents and were beaten to death

and, therefore, right of private defence does not arise

at all.

13. On the other hand, Mr. Anis Ahmad Khan, learned

counsel appearing on behalf of the respondents

submits that the FIR itself lays the foundation of

self defence. PW1 has categorically stated in the FIR

that the Chhatarpal and Gulab had first beaten

Preetam, i.e., respondent No.1 and on the alarm

raised by him, other respondents had come to save

him.

14. He further submits that in fact there is no credible

evidence to show as to how the original fight had

started between Gulab and Chhatrapal on the one

side and Preetam on the other. According to the

learned counsel, the High Court has correctly

discarded the evidence of the prosecution witnesses

13

as the witnesses have successively made

improvements in the prosecution version. According

to the learned counsel, the place of occurrence is not

the one suggested by the prosecution, but was the

field belonging to the respondents. The witnesses

examined by the prosecution had been working in

their own field, a long distance away, which would

have made it impossible for them to witness the

incident. He further submits that the prosecution has

miserably failed to explain the injuries suffered by the

respondents. Learned counsel further submitted that

the prosecution had deliberately introduced a false

witness namely Kumari Pramod, PW3. She had been

brought in merely to support the version given by her

father Bahadur, PW2.

15. We have considered the submissions made by the

learned counsel. On a thorough reexamination of the

evidence, the High Court discarded the evidence of

each witness. The High Court disbelieved the

14

prosecution story as projected through PW1, Punna.

He had stated that Gulab and Chhatrapal had

engaged in a "marpeet" with Preetam in Dhadhai

Haar. Both sides had assaulted each other. Gulab

and Chhatrapal had run towards the village. They

were followed up to the field of Hirwa by the

respondents and were assaulted. This alleged

incident in Dhadhai Haar was sought to be proved by

PW3, Kumari Pramod. However, the High Court

disbelieved her evidence on the ground that she was

unlikely to be present at the scene of the incident.

Her name did not figure in the FIR. She had just

supported her father and uncle entirely. She had

improved her version; which did not even tally with

the version given by the injured, when they were

examined. Similarly, the High Court noticed the

prosecution version that Gulab and Chhatrapal have

been assaulted by a number of persons. They were

supposed to have been assaulted by three of the

respondents, who were armed with axes. Others were

15

using lathis. But the postmortem report shows that

none of the deceased had suffered any injuries which

could have been caused by lathis. The High Court,

therefore, concluded that the ocular version has been

contradicted by the medical evidence.

16. The High Court, thereafter, notices that there seems

to be no plausible explanation about the delay in

registration of the FIR. The conclusion reached by the

High Court is that there was a delay of 17 hours

between the alleged occurrence and the registration of

the FIR. The only explanation given is that due to the

fear of the respondents, the family of the

complainants kept sitting near the dead body. They

did not even call for a doctor or medical assistance.

The High Court disbelieved the sequence of events

leading to the registration of the FIR. It is noticed that

according to PW1, the Chowkidar of the village had

arrived at the spot soon after the incident. Even his

help was not taken for the registration of the FIR.

16 Noticing the technical terminology used in the FIR,

the High Court has expressed the opinion that it has

not been scribed by the rustic villager Punna. It was

scribed by a professional, Ram Swaroop, PW7. It is

further noticed that even though PW3 was stated to

be the only witness to prove as to how the "marpeet"

(fight) originated and where, yet her name was not

mentioned in the FIR. On the other hand, the two

ladies (daughter of the informant and wife of Bahadur,

PW2) were withheld by the prosecution though

according to the FIR, they had witnessed the incident

that took place in the field of Hirwa. The prosecution

also withheld Thakur Baba and Jageshwar, whose

names had also been mentioned in the FIR. The High

Court, taking serious notice of the manipulations and

modulations doubted the authenticity of the version

given by PW3. It is noticed by the High Court that

even the most independent and important witness in

the chain, PW4, Kunwar was in fact declared hostile

by the prosecution. Similarly, the last witness

17

namely, Thakur Das, PW5, who completes the chain,

was also declared hostile. From the above, it becomes

evident that the prosecution version was not proved

beyond reasonable doubt.

17. Coming to the defence version, the High Court has

held that the incident might have initially happened at

Dhadhai Haar. At that time, the parties had been

separated. After sometime, the second incident

occurred when the prosecution party tried to graze

their cattle in the field of Karan Singh, respondent

No.2 forcibly. When he objected, they started beating

him up. On the alarm being raised by Karan Singh,

Preetam, Mukundi etc. came to the spot armed with

axes. The High Court also disbelieved the version

given by PW1 that two deceased had run towards

their village. This version is disbelieved as the

prosecution has failed to bring any evidence to show

that Hirwa's field falls on the way to the village.

18 18.In such circumstances, the High Court has held that

the respondents have established their plea of self

defence. The High Court ultimately concluded that

the cumulative effect of all the infirmities of the

prosecution and the probabilities of the plea of self

defence renders the case put forward by the

prosecution doubtful. In such circumstances, the

appeal of the respondents was allowed and they were

acquitted.

19.We are of the considered opinion that the conclusions

reached by the High Court can not be said to be either

perverse or based on no evidence. The High Court

has recorded plausible as well as probable conclusion.

The respondents were, therefore, clearly entitled to the

benefit of doubt and have been rightly acquitted.

20.In this view of the matter, we find no reason to

interfere with the judgment of the High Court. The

appeal is, therefore, dismissed.

19 ...................................J.

[B.Sudershan Reddy]

...................................J.

[Surinder Singh Nijjar]

New Delhi

March 31, 2011.