Ram Manohar Vs. State of M.P. - Court Judgment

Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - learned judge did not find defence version reliable. learned judge did not find the defence version reliable or natural. even assuming that her version is correct it does not involve appellant ram manohar with the incident nor does it establish that the appellant ram manohar got any way agitated so as to take offensive. 4), he does not accept her presence either on the spot or on the well. according to him, at that time mudhooni, batau and the mother of balmiki were at the well. state of punjab 1979crilj584 ,a case relied upon by the appellant's counsel lays down the law on the subject (para 10): the law regarding the right of private defence of property or person is well settled and may be briefly recapitulated here. it should, therefore be accepted as well-established that an accused is not bound to take any specific plea of self-defence or examine witnesses to prove the exercise of the right of private defence and that he can get the benefit of plea of self-defence by referring to circumstances appearing in the evidence of prosecution witnesses. an innocent person is not above law and an accused like any other innocent person must suffer the consequences of his false plea. it must always be remembered that the burden of proving the defence case is always on the accused which burden has to be discharged effectively.gulab c. gupta, j.1. the appellant feeling aggrieved by his conviction for the offences punishable under sections 302 and 324, ipc and sentenced to life imprisonment and 3 years' rigorous imprisonment respectively by shri m. v. apte, ii addl. sessions judge, rewa in sessions trial no. 20 of 83, decided on 30th april, 1984, has preferred this appeal under section 374(2), cr. p.c. challenging the legality and validity thereof.2. the appellant is held guilty of murder of kamta prasad son of baijnath on 7-10-1982, punishable under section 302, ipc. he is also held guilty of causing hurt on satyawati at the same time by dangerous weapon, punishable under section 324, ipc. prosecution allegation is that deceased kamta prasad was the real brother of the appellant. satyawati is the daughter of the deceased. on 7-2-82 at about 8 a.m., it is alleged, that the appellant and his two sons viz. umashanker and ravishanker had assaulted the deceased when the deceased was going towards the house of deoraj. appellant hit the deceased kamta prasad on his stomach by ballam. the daughter of kamta prasad, satyawati had reached the spot and shouted on which she was also assaulted with ballam. as a result of the injury by ballam the deceased fell down on the ground. it is alleged that the deceased and the appellant were not on friendly terms because of a dispute between them about the property. this, it is alleged, was the motive behind the incident. kamta prasad was taken to city kotwali, rewa where deoraj (p.w. 2) lodged the report (ex.p-2). kamta prasad unfortunately died. satyawati was also sent to the hospital for medical treatment. dr. s. k. khare (p.w.4) who had examined the deceased declared him dead and sent his report (ex.p-11). according to dr. khare the injuries on the person of the deceased and satyawati were caused within 24 hours by a sharp edged weapon (ex.p-12). dr. n. pancholi (p.w.8) performed autopsy and found an injury on the stomach, caused by sharp edged weapon which had caused death of kamta prasad. (ex.p-14). after investigation the appellant was put on trial, as aforesaid. ravishanker, minor son of the appellant was also found involved and was directed to be tried by bal nyayalaya. learned addl. sessions judge relying on the evidence of deoraj (p.w.2) and satyawati (p.w. 6) held that it was the appellant who caused the fatal injury on kamta prasad and an injury on satyawati. learned judge did not find defence version reliable. defence version was that the deceased kamta prasad had apprehended ravishanker when the latter was going to collect fodder and had taken him to his house and given cane beating. ravishanker had caught hold of cane on which the deceased asked his daughter satyawati to bring ballam. when the deceased kamta prasad obtained ballam, ravishanker apprehended its use and consequent danger to his life. ravi sanker, therefore, caught hold of the ballam and started snatching it. in this process kamta prasad fell down on the ground after being hit by ballam, it was not the defence case that appellant was present on the spot or had been involved in the incident in any manner. learned judge did not find the defence version reliable or natural. that is how the appellant had been convicted and sentenced.3. the only submission of the learned counsel for the appellant in this court is that from facts on record this court should hold that the ballam was used in exercise of right of private defence. the submission is that since from the evidence of dr. d. p. pandey (d.w.8) it is established that ravishanker (d.w.7) had also received injuries, it should be held that the appellant caused injury in order to save the life of ravishanker. it is submitted that in order to sustain a plea of self-defence it is not necessary that it should be specifically pleaded or raised or should appear as a whole. relying on the decisions of this court and supreme court, it is submitted that it is the obligation of the court to spell out the plea of self-defence and give benefit thereof to the appellant. learned government advocate, however, opposes such a submission and submits that even though the law does not insist that an accused person should take the specific plea of self-defence, it does not permit the court to act as a defence counsel and imagine a plea which is neither suggested to the prosecution witnesses nor taken in the statement under section 313, cr. p.c, nor proved by examining defence witnesses. before considering the scope of self-defence and manner and method of proof it may be mentioned that the appellant has examined 8 defence witnesses to prove it.the incident had taken place between kamta prasad and ravishanker (d.w.7). the specific defence appears to be that when ballam was brought by satyawati (p.w.6) the deceased kamta prasad and accused ravishanker caught hold of the said ballam. satyawati had also remained in possession thereof. it also appears to be the defence that when the ballam was being pushed on both sides in attempt by both of them to obtain it, it accidentally hit kamta prasad. no defence witness has even stated that appellant ram manohar was ever involved in the said incident. this defence now appears to have been abandoned at least in part. learned counsel uses this defence only to hold that ravishanker suffered injuries because of deceased kamta prasad. learned counsel wants to correlate this defence with the prosecution version that the appellant caused injury by ballam because his son ravishanker was beaten. this, according to the learned counsel is permissible in law. while its legal validity will be considered subsequently, evidence of defence witnesses may be noticed in order to properly appreciate the submission. balmik prasad (d.w.2) claims to be sitting in the house of deoraj where deceased kamta prasad had gone. according to him, within two minutes of deceased leaving the house of deoraj he heard shouts and came out and saw ravishanker, kamta prasad and satyawati grappling. he, therefore, ran towards them, when he was at a distance of about 10 yards from them, he saw that ravi shanker had hit kamta prasad with ballam and ran a way. kamta prasad fell down on the spot. according to him, ballam was thrown by ravishanker near the spot. this witness does not say anything about the deceased causing injury on ravishanker nor does he support the defence version that injury to kamta prasad was caused accidentally. benimadhav (d.w.2) was another person sitting in the house of deoraj and claims to have seen kamta prasad, ravishanker and satyawati grappling, he had also seen kamta prasad fallen on the field and ravishanker running with ballam though he does not say that ravishanker caused injury by ballam. both these witnesses do not support the defence story of ballam being snatched by kamta prasad and his daughter on one side and ravishanker on the other. both of them do not support the prosecution case that the incident had taken place in the house of kamta prasad. according to them the incident had taken place near the house of balmik, shobhnath and raghvish prasad. virendra singh (d.w. 3) is not an eye-witness and is being examined only to prove that deoraj had reported that ravishanker had hit kamta prasad with ballam. mohnibai (d.w.4) claims to be an eye-witness and states that while ravishanker was going towards his house with fodder kamta prasad caught hold of him saying that he had cut the fodder from his field. according to her, ravishanker was taken to kamta prasad's house and given cane beating. ravishanker snatched the cane from kamta prasad and gave him beating. on this kamta prasad asked his daughter satyawati to bring the ballam. as soon as ballajn was brought on the spot, both kamta prasad and ravishanker ran towards satyawati to take possession of ballam and grappled with each other. she then saw kamta prasad falling on the ground. in her cross-examination she admitted that she had not seen ballam hitting any one. she had not even seen the blood coming out of kamta prasad's body. she had not seen the ballam and cannot identify the same. it appears rather unlikely that she would not have seen ballam striking kamta prasad even accidentally or blood coming out of the injury though she claims to have seen ravishanker running away. it is surprising that she has not claimed to have seen the ballam. even assuming that her version is correct it does not involve appellant ram manohar with the incident nor does it establish that the appellant ram manohar got any way agitated so as to take offensive. she does not even state about the presence of appellant when his son was being beaten. sukhnandan (d.w. 6) however, does not support her but asserts that it was ravishanker who had given ballam and was seen running away with the ballam, in cross-examination this witness destroyed the entire defence by attempting that he had not seen any one using ballam to cause injury. he has also not seen his son with the ballam and he does not recognise mohnibai (d.w. 4). ravishanker who is also facing trial before bal nyayalaya has proved the story of caning by kamta prasad. he also states that he has snatched away the cane from kamta prasad and caused two injuries on kamta prasad by the cane. according to him on this kamta prasad asked his daughter satyawati to get the ballam. when satyawati brought the ballam and was giving to kamta prasad, he also caught hold of ballam and started pulling. according to him, the ballam accidentally hit kamta prasad. though this witness supports the version of mohnibai (d.w.4), he does not accept her presence either on the spot or on the well. according to him, at that time mudhooni, batau and the mother of balmiki were at the well. dr. pandey (d. w.8) has found one abrasion on the left forearm measuring 1/2' x 1/2' and tenderness with slight swelling measuring 1/4' x 1/4' on the lower eye-lid of the left eye of ravishanker on 7-10-1982 at 7 p.m. when he had examined him in civil hospital, mangawan. dr. pandey proved his report ex.d-5-a. it appears that dr. pandey had examined ravishanker because of requisition from station house officer, mangawan (ex.d-5). from the report, ex.d-6, it appears that appellant ram manohar had lodged a report at police station, mangawan and ravi shanker was sent for medical examination consequent upon that. report (ex.d-6) lodged by appellant is somewhat intriguing. it was lodged at 14-10 hours and mentions that the appellant and his son came to the police station and reported that when ravishanker was going towards his house, kamta prasad came out with lathi and started hitting him with it, on which his son shouted. on hearing shouts of the son, appellant came on the spot and started shielding his son. the report further states that at that time deoraj came on the spot with ballam and attempted to hit him. on this he snatched the ballam from deoraj and kept the same in his house. from this report it does not appear that either he or his son ravishanker used ballam to cause injury on kamta prasad. the report does not even allege that it was kamta prasad's daughter who brought the ballam. fortunately for this court, no attempt has been made by the learned counsel to justify the aforesaid defence version. in this statement under section 313, cr. p.c. the appellant denies having participated in the incident. in reply to question no. 24 he stated that he was at his khaliyan. according to him his son ravishanker was going to his home with grass when kamta prasad apprehended him and hit on his hand and head by a danda. ravishanker fell down and started shouting. even then he did not reach the spot and shouted from khaliyan d;k djrs gksa. the khaliyan, according to him was at a distance of 200 yards. on this kamta prasad grappled -with ravi shanker. he further states that thereafter kamta prasad started running towards the south. at that time deoraj came on the spot and hit kamta prasad as a result of which he fell on the ground, he further states that day a shanker son of kamta prasad has a ballam which he had purchased and used to move about with that ballam. it is, therefore, clear that the appellant in his specific defence plea has attributed the injury by ballam to deoraj. he does not allege any injury either by himself or by ravishanker. the appellant does not even claim to be present on the spot. fortunately, for this court, no attempt has been made by the learned counsel for the appellant to even justify this defence plea.4. it is therefore, plain that it is not a case where the accused person has not taken any defence plea. it is, on the contrary a case where the appellant as the accused person has taken a definite defence plea, attributing the responsibility of the fatal blow to deoraj. it is also a case where specific defence plea is not supported by defence witnesses. the defence witnesses have given an entirely different version. deoraj (p.w.2) was, in fact suggested the defence version stated by ravishanker (d.w. 7) in his cross-examination (para 33) but denied the same. it is really surprising that in spite of this suggestion to a prosecution witness, the appellant took an entirely different plea in his statement under section 313, cr. p.c. is it the responsibility of this court to make out a new case of self-defence of the appellant as submitted by the learned counsel? before any final judgment be passed on the plea the law on the subject be noticed.5. in mohinder pal v. state of punjab : 1979crilj584 , a case relied upon by the appellant's counsel lays down the law on the subject (para 10):the law regarding the right of private defence of property or person is well settled and may be briefly recapitulated here. the onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. he might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials on the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. but the exercise of this right is subject to the limitations and exceptions provided in section 99 of the penal code the last one being the right of private defence in no case extends the inflicting of more harm than it is necessary to inflict for the purpose of defence.while discussing apprehension of accused person the supreme court observed that, 'a mere claim of such apprehension is not enough'. the court on objective test and on the facts and circumstances of each case must arrive at the conclusion that situation was such as was likely to cause reasonably such apprehension. this case, therefore, lays down that it is not open to the court to call out a plea for defence by applying its imagination to facts and circumstances of the case. the onus is on the accused to establish this right and he might for this purpose take a specific plea or adduce defence evidence. he, however, need not do either and may succeed in establishing his plea on the basis of material on record consisting of evidence of prosecution witnesses. he may on the basis' of this material, 'show that apparently criminal act which he committed was justified in exercise of his right of private defence of person or property or both.' this court in ram chandra v. state of m.p. 1971 jab lj (note 114) page 93 and victor v. state of madhya pradesh 1966 mplj 877 : 1966 cri lj 841, had also recognised that an accused person can avail of the plea of self-defence without specifically pleading it and without examining any witness by reference to the circumstances appearing in the prosecution itself. it should, therefore be accepted as well-established that an accused is not bound to take any specific plea of self-defence or examine witnesses to prove the exercise of the right of private defence and that he can get the benefit of plea of self-defence by referring to circumstances appearing in the evidence of prosecution witnesses. this law does not permit an accused person to require the court to pick up factors from here and there and build a case of exercise of self-defence by adopting the imaginative approach. ingenuity of an advocate cannot, on the basis of this law, create the right of self-defence. this law, without doubt does not permit an accused person to take one after the other false pleas nor does it encourage such a course of action. though an accused person is presumed to be innocent in law, it does not entitle him to indulge in falsehood by taking one after another false defence pleas. an innocent person is not above law and an accused like any other innocent person must suffer the consequences of his false plea. this court is, therefore, of the opinion that by requiring it to call out an entirely new defence plea for the appellant, learned counsel has only displayed his enthusiasm which has little support of law. if a plea based on imagination was to be admitted, it would necessarily involve consideration of any thing and every thing even if it has no basis whatsoever in the case. in fact 26 english alphabets and vowels are capable of spelling out almost every thing and as long as these 26 alphabets are available on record any defence case can be written with their help but that cannot be accepted to be the law of this land. it must always be remembered that the burden of proving the defence case is always on the accused which burden has to be discharged effectively. though the burden of proof for a defence may not be as stringent as for the prosecution, the law does not recognise mere ipse dixit of the accused or the vociferous argument of the advocate to be sufficient to meet the aforesaid test. neither the imagination of the counsel nor analysing ability of the court can be summoned to provide a defence to an accused who has himself not taken any defence or having taken it, is unable to prove it. this court has, therefore no hesitation in holding that the submission advanced by the learned counsel merits no consideration.6. since nothing else is submitted for consideration, the appeal fails and is dismissed.