S.L. Jain, J.
1. Appellants Sheikh Bashir and Sheikh Shafiq, who stand convicted under Section 302, IPC read with Section 34 thereof with sentence of imprisonment for life vide impugned judgment dated 11-3-89 passed by the Second Additional Sessions Judge, Bhopal, in Sessions Trial No. 98/86, have filed this appeal under Section 374(2) of the Code of Criminal Procedure.
2. The prosecution case, in brief is that on 30-10-87 at about 12.00 o'clock in the afternoon the plouging operation was going on in the field of deceased Sheikh Nasir, known as 'Raghunathwala khet'. Deceased Shekih Nasir along with Sayed All (PW-10), Sheikh Mohd. alias Gutkay (PW-12) and Sheikh Rafique (PW-14) was ploughing the field. Sheikh Haneef (PW-9) and Sheikh Rayees (PW-11) were engaged in agricultural operations in the adjoining field. Appellant Sheikh Basheer his two sons namely, Sheikh Shafiq, appellant No. 2, and Sheikh Sharif and his brother-in-law, Sheikh Rehman reached the spot.
3. Appellants Sheikh Bashir and Sheikh Shafique were armed with ballams. Sheikh Rehman was armed with ballarn mounted on a rod. Sheikh Rehman abused the complainant party and asked them not to plough the field. Rehman tried to deal a blow of ballam on Sayed All which he saved. Appellant Bashir dealt a ballam on the head of Sayed Ali and dealt another blow on his shoulder, Sayed Ali ran away from the spot. Thereafter, appellant Bashir and Rehman dealt blows of ballam on Nasir. One blow of Rehman landed on the neck of Nasir which resulted in his instantaneous death on the spot itself. After the incident, the appellants and their co-accused Sheikh Sharif and Rehman went towards their village.
4. Sayed Ali (PW-10) along with Babu (PW-1) went to the police station Habibganj and lodged FIR, Ex. P-l. S. K. Sharma (PW17) Station House Officer, police station, Habibganj reached the spot and prepared spot map Ex.P-17. He also prepared the inquest panchnama (Ex. P-9). Bloodstained soil, chappals of deceased Nasir and a pirana were recovered from the spot as per Ex.P18. Dead body of Nasir was sent for post mortem examination to Gandhi Medical College, Bhopal. Appellants and Sheikh Shariff were arrested as per memo, Ex. P-20. A bushshirt stained with blood was recovered from the person of Sheikh Sharif as per Ex. P-2.
5. On the information given by appellant Sheikh Bashir a ballam was recovered as per Ex. P-10. A bamboo stick was recovered in pursuance of the information given by appellant Sheikh Shafique as per Ex. P-12. A lathi was recovered on the information given by Sheikh Sharif as per Ex.P-11.
6. Dr. B. P. Dubey, conducted postmortem examination on the body of deceased Nasir and found the following injuries :-
(1) Linear abrasion, lateral end was 3.5 cm below the level of left nipple, going downwards and medially, 5 cm long.
(2) Abrasion on left elbow, posterior aspect, circular 3 cm diameter.
(3) Incised wound on left upper arm lateral medial aspect. 6 cm above the elbow joint, size 3.5 cm x 5 cm, vertical, muscle deep.
(4) Superficial incised wound, lateral end was on right anterior axillary line and 20 cm above the anterior superior iliac spine, size 7 x 0.5 cm, transverse.
(5) Incised wound obliquely vertical on anterior medial aspect of right forearm, 8 cm. below the elbow joint, size 3.5 x 5 cm. skin deep, upper end is medially situated.
(6) Incised wound on anterolateral aspect of right forearm, 5 cm below the elbow joint, margins are inverted, size 11 x 3 cm, vertical.
(7) Incised wound 1.5 cm lateral to the injury No. 6 on right forearm size 9 x 2 cm,' vertical, muscle and tissue protruding out, injuries Nos. 6 and 7 are communicating with each other.
(8) Stab wound on the neck 5 cm above the manubrium sternum, transverse, size 7 X 1.5 cm. x 4 cm on right side which is superficial and 3 cm on left side. Wound was deep on left side, it had cut the muscle anterior left border of trachea, common carotid artery and jugular vein.
Viscera and clothing were preserved.
7. Dr. Dubey opined that death of Nasir was due to shock and haemorrhage as a result of stab wound on the neck. He further opined that the injuries were caused by sharp-edged weapon and death was homicidal in nature. Ex. P-6 is the report of Dr. Dubey. Ex. P7 is the diagram which was prepared by him. He also opined that the stab wound on the neck of deceased Nasir described as injury No. 8 in the report was individually sufficient to cause death in ordinary course of nature.
8. Injured Sayed Ali (PW-10) was examined by Dr. S. K. Mina (PW-18) and Ex. P-19 is his report.
9. After completion of the investigation, a challan was filed against the appellant A separate challan was filed against Sheikh Sharif before the Juvenile Court as on the date of incident, he was a juvenile.
10. Learned Additional Sessions Judge, Bhopal framed a charge under Section 302 read with Section 34 against the appellants for committing murder of Sheikh Nasir. Surprisingly, no charge was framed regarding the injuries caused to Sayed Ali (PW-10).
11. The appellants abjured the guilt and pleaded that they have been falsely implicated. It was also the case of the appellants that 'Raghunathwala Khet' was owned by appellant Sheikh Bashir and on the relevant date, it was in his possession. The deceased and other members of the complainant party wanted to dispossess him. It was accused Rehman (since deceased) who in exercise of right of private defence caused injury to deceased Nasir during the course of incident. During the incident complainant party caused the death of Rehman. Sheikh Sharif also sustained injuries during the incident.
12. After concluding the trial, the learned Additional Sessions Judge, found the appellants guilty of committing murder of deceased Sheikh Nasir and by the impugned judgment and order convicted and sentenced them as indicated above. -
13. It is against this judgment and order that the appellants have come up in this appeal.
14. We have heard Ku. Neena Khera, learned counsel for the appellants and Shri G. S. Ahluwalia, Dy Advocate-General for the State and gone through the record of the case.
15. Ku. Neena Khera learned counsel appearing for the appellants led us through the record and contended that the learned trial Judge erred in holding the appellants guilty of committing the murder of Sheikh Nasir.
16. As against this, learned counsel appearing for the State supported the judgment of the trial Court convicting and sentencing the appellant as indicated above.
17. The first point for determination is as to whether Sheikh Nasir met with a homicidal death? S. K. Sharma Station House Officer Police Station, Habib Ganj (PW-17) has stated that he prepared inquest panchnama Ex.P-9 and sent the dead body of Sheikh Nasir for postmortem examination. Dr. B. P. Dubey (PW-2) has stated that he conducted the postmortem examination on the body of deceased Sheikh Nasir and found as many as eight injuries as described herein above. He opined that death of Sheikh Nasir was due to shock and hemorrhage as a result of the injury on his neck. He also opined that the injuries were caused by hard and sharp object. He has specifically stated that death of Sheikh Nasir was homicidal. Ex. P-6 is the report of Dr. Dubey. From his evidence it is well established that Sheikh Nasir died a homicidal death. The fact of homicidal death of Sheikh Nasir was not disputed before the trial Court. In this appeal also learned counsel appearing for the appellants did not very seriously dispute that the death of Sheikh Nasir was homicidal. We therefore, have no hesitation in holding that Sheikh Nasir died a homicidal death.
18. This brings us to determine the crucial question as to who caused the death of Sheikh Nasir and whether the death of Sheikh Nasir amounted to murder?
19. Learned Additional Sessions Judge, convicted the appellants on the eye-witness account of Sayed All (PW-10) Sheikh Mohd (PW-12) and Sheikh Rafique (PW-14). Sayed ali (PW-10) has stated that on the fateful day, he went to the disputed field as a labour to plough the field. He was accompanied by Sheikh Mohd. alias Gutkye, deceased Nasir and Sheikh Rafique (PW-14). When they were ploughing the field which according to him belonged to Nasir, at about 12 o'clock in the noon, Sheikh Bashir, Sheikh Shafique, Rehman and Sheikh Sharif came there. Rehman asked them to stop plouging. Accordingly, they stopped plouging. Rehman attempted to deal a ballam on him which he saved. Thereafter, appellant Bashir dealt a ballam which hit him on his head. Appellant Bashir gave another blow of ballam on his shoulder. He ran away from the spot. Thereafter, the assailants went towards deceased Nasir. Appellant Bashir and accused Rehman dealt blows by means of ballam on Nasir. Bashir caused injury on the left hand of Nasir. Deceased Nasir was armed with a parena which he was using for the purpose of ploughing. He dealt parena blows on the accused party. Nasir was also armed with a knife, he dealt a knife blow on Rehman. Rehman dealt a blow of ballam on neck of the deceased which resulted in his instantaneous death. The witness has also stated that Rehman also died during the incident. His corpse was picked up from the spot by the appellants and Sharif.
20. Sheikh Mohd. (PW-12) has stated that on the fateful day at about 11.30 a.m. he was ploughing 'Raghunathwala Khet' which belonged to deceased Nasir. Deceased Nasir, Sayed Ali and Sheikh Rafique (PW- 14) were also ploughing the above field. Appellant Bashir along with his two sons Sheikh Shariff and appellant No. 2 Sheikh Shafique and deceased Rehman reached the spot. They first assaulted Sayed Ali and thereafter, when deceased Sheikh Nasir tried to save Sayed Ali, accused Rehman dealt a ballam on the neck of deceased Nasir. Appellant Bashir also caused injuries to deceased Nasir. He has also stated that Sheikh Nasir died instantaneously on the spot itself.
21. Sheikh Rafique (PW-14) has also corroborated the evidence of Sheikh Mohd. (PW-12).
22. Sheikh Babu (PW-1) claiming himself to be an eye-witness of the incident has stated that he was grazing his cattle in his field. Both the appellants along with Sheikh Sharif and Rehman armed with Barchis surrounded the field of Sheikh Nasir. All the four persons assaulted Sheikh Sayed Ali and deceased Sheikh Nasir and went towards village Pipalia. Daughters of Sheikh Rafique namely Shabina and Parvin were also present at the time of incident. He first went to his village along with his cattle and after tying the cattle, he came to the spot and along with injured Sayed Ali went to police station, Habib ganj and lodged report Ex. P-l.
23. Parvin (PW-13) has also claimed to be an eye-witness of the incident. She has stated that she went to the spot to give meals to her father Nasir. At that moment, appellant Sheikh Bashir and Rehman reached there. They were armed with ballams. Sheikh Rehman questioned her father as to why he was ploughing the field of Sheikh Bashir. Her father claimed that it was his field and that is why he was ploughing it. Thereupon, Sheikh Rehman dealt a ballam on the neck of her father and appellant Bashir dealt ballam on the arm of her father. Her father died instantaneously on the spot itself. She has stated that during the incident Sayed Ali was also in the field. He was also assaulted by Sheikh Bashir. She has stated that appellant Shafique also reached the spot armed with a stick but no act has been attributed to Sheikh Shafique by this witness.
24. On a careful scanning of the evidence of Sheikh Babu (PW-1) and Parvin (PW-13), we find that it is doubtful that they were the eye-witnesses of the incident. In the FIR, Ex. P-1 it was stated by Babu that he was in his house as he was not well. He learnt about the incident from tractor trolly wallas. When he reached the spot, he found the dead body of Nasir. Presence of this witnesses and Parvin at the place of incident has not been disclosed by other eye-witnesses namely Sayed Ali (PW-10), Sheikh Mohd. (PW-12) and Sheikh Rafique (PW-14). Further if Sheikh Babu was really present at the spot, he would not first gone to his house to tie the cattle instead of rushing to police station.
25. The evidence of Sheikh Mohd. (PW- 12) and Sheikh Rafique (PW-14) also does not inspire confidence. None of them has explained the injuries on accused Rehman and appellant Sheikh Sharif. In a murder case the non-explanation of the injuries sustained by the deceased at or about the time of occurrence or in the course of altercation is a very important circumstance from which the Courts can draw the following inferences:- (i) That the prosecution has suppressed the genesis and origin of the occurrence and thus not presented the true version, (ii) The witnesses who have not explained the injuries on the person of the accused are lying on most material point and therefore, their evidence is unreliable, (ill) the failure on the part, of the witnesses to explain the injuries on the persons of the accused party assumes greater importance when the evidence consists of interested or inimical witnesses. See (Lakshmi Singh v. State of Bihar), AIR 1976 SC 2263. The injuries sustained by accused Rehman and Rafique cannot be said to be superficial.
26. The evidence of eye-witness otherwise also is not creditworthy. According to Sheikh Sayed Ali (PW-10) and Sheikh Mohd. (PW-12) appellant Bashir dealt a ballam on left hand of the deceased and Rehman dealt a blow on the neck of the deceased but from the medical report it is clear that deceased suffered as many as 8 injuries. Thus, the ocular evidence is not consistent with the medical evidence. Further Sheikh Babu (PW1) and Parvin (PW-13) have been planted as eye-witnesses, though they were not on the spot. The absence of any explanation in the FIR as to the injuries received by some of the accused persons also makes the prosecution case unreliable. (See Mittar Sen v. State of U. P.), AIR 1976 SC 1156.
27. The trial Court has recorded a finding that Rehman was not killed in the field and he was killed in another incident which occurred afterwards by way of revenge. There is no evidence to the effect that Rehman was killed afterwards when the complainant party retaliated. Admittedly, Rehman also died the same day and his body was lying in the same field. The learned trial Judge has not recorded any finding to the effect as to where and at what point of time Rehman died. On perusal of para 4 and last sentence of the statement of Sayed Ali, we find that Rehman died on the spot itself and his corpse was picked up by other members of the accused party. The learned trial Judge has observed that if Rehman died on the spot itself and complainant party was aggressor, the accused party would not have shifted the corpse of Rehman. The observation is based on mere surmises. Simply because Sheikh Rehman was shifted from the spot, it cannot be inferred that the field belonged to the complainant party and accused party was aggressor. Sheikh Rafique has specifically stated that deceased Nasir dealt a parena and also a knife blow on Rehman. Therefore, it is established that Rehman died on the spot itself.
28. From the evidence of defence witness, Dr. Naik (DW-1), it is clear that Sheikh Sharif was also examined by him on 30-1085, at about 3 p.m. He found two incised wounds on his person.
29. From the evidence of Patwari, Om Prakash Shrivastava (PW-5), it is clear that the incident occurred as Khasra No. 46. On the basis of the entries in Khasra, this witness has stated that Bhoomiswami of Khasra No. 46 was appellant No. 1 Sheikh Bashir. A perusal of copy of Khasra Ex. P-15 reveals that in column 3 of the Khasra name of Sheikh Bashir son of Sheikh Wahid has been recorded as Bhoomiswami. This Sheikh Bashir is none but appellant No. 1. In cases where a person other than the owner is in possession of agricultural land, the name of the person in possession is recorded in the relevant column of Khasra. The name of any member of the complainant party does not find place in any column of the Khasra, therefore, the only inference would be that on the relevant date Khasra No. 46 known as 'Raghunathwala Khet' was owned by appellant Sheikh Bashir and he was in possession thereof.
30. From the prosecution evidence discussed above, it is also clear that the complainant party was ploughing the field which was owned and possessed by Sheikh Bashir. Deceased Nasir and other persons of the complainant party were asked to refrain from ploughing the field as the same belonged to Sheikh Bashir but they made a false claim that the field was the property of deceased Nasir and was in his possession. Where Sharif son of appellant. Sheikh Bashir sustained injuries during the incident and Rehman died during the same occurrence in which Nasir is alleged to have been killed, the plea of the appellants regarding exercise of right of their private defence cannot be ignored, particularly in the absence of any finding of the trial Court as to how and when these injuries were sustained.
31. Where the prosecution suppressed the fact that the land in question was owned by the accused party, and was in their possession and complainant party was ploughing the field per force and the prosecution witnesses suppressed the injuries sustained by the accused party, no other proof is required to hold that the accused party acted in exercise of their private defence.
32. Learned trial Judge refused to give the benefit of exception of the right of private defence holding that they did not specifically plead their right in their statements under Section 313, Cr.P.C. It is not necessary that the right of private defence must be pleaded specifically. It is paramount duty of the Court to shift and scan the evidence carefully with a view to find out the circumstances under which the accused persons acted. The Court must make all reasonable allowance in favour of the accused and not apply the law in such a manner that the person would become cowardice. The mental condition of the assailants must also be taken into consideration. The Court should not feel shy giving the benefit of the exception.
33. The learned trial Judge has observed that there is no evidence to the effect that the trespass of complainant party upon the field, in question, if any, was recent and wag not settled and the complainant party was in the process of acquiring possession. This observation also is without any basis. There is no material whatsoever on record to justify a finding that complainant party was in the settled possession.
34. Therefore, we have no hesitation in holding that the appellants acted in the exercise of their right of private defence of property as well as person.
35. Force used by the owner of the land to protect his possession would be an act done in the exercise of right of private defence. Admittedly, Rehman died in the incident. Naturally, he was beaten mercilessly, Sharif son of appellant Bashir also sustained injuries. There was danger to the life arid property of the accused party. Therefore, they were justified in exercising right of their private defence by inflicting injuries to the members of the complainant party,
36. It is true that no person exercising right of private defence can inflict more harm on the assailants than necessary for the purpose of defence but the facts of the case narrated above in. detail, disclose that, the accused party was in an eminent and. reasonable danger of loosing their lives or limbs. Therefore, if they in exercise of right of their private defence, inflicted any harm even extending to death, it cannot be said that, they exceeded right of defence and inflicted more harm on the complainant party than was necessary for the purpose of private defence. The approach in deciding this question should be from the vision of a. common man. The matter should not be judged with a vision of cool by stander but with empathy. The act of the appellants is covered by Clause (1) of Section 100, I.P.C. where the accused persons acted in the right of private defence the violence inflicted by them would not be penal but would be a justifiable violence and hence immune from punishment.
37. Even if we hold it to be a case of exceeding of right of self-defence, the conviction of appellants Sheikh Bashir and Sheikh Shafiq under Section 302 read with Section 34, IPC cannot legally be sustained as the fatal injury on deceased Sheikh Naseer was caused by accused Sheikh Rehman (since deceased). In a case of exceeding of right of self-defence no one can be made liable vicariously for the act of the other.
38. The upshot of the above discussion is that the appellants are entitled to right of private defence and they cannot be held guilty of any offence much less of the offence punishable under Section 302 read with Section 34, IPC.
39. In result, the appeal is hereby allowed. The conviction and sentence awarded to the appellants by the trial Court for the offence punishable under Section 302 read with Section 34, IPC are set aside and the appellants stand acquitted. Appellant- Sheikh Bashir is in custody. He be released forthwith if not required in any other case. Appellants Sheikh Shafique is on bail. His bail bonds are discharged.