w w w . L a w y e r S e r v i c e s . i n



Diwari Lal & Others v/s State of U.P.


Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

    Criminal Appeal No. 328 of 2001

    Decided On, 20 May 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE B. AMIT STHALEKAR & THE HONOURABLE MR. JUSTICE ALI ZAMIN

    For the Appellant: Ashwini Kumar Awasthi, Ajay Vikram Yadav, Manish Tiwary, Vimlendu Tripathi, Advocates. For the Respondent: Govt. Advocate, Rajesh Yadav, Vipin Kumar Yadav, Advocates.



Judgment Text


B. Amit Sthalekar, J.,

1. Heard Shri Vimlendu Tripathi, learned counsel for the appellants and the learned A.G.A. for the State.

2. The present criminal appeal has been filed against the judgement and order dated 24.1.2001 passed by the Special Judge (D.A.A. Act), Etawah in S.T No. 503 of 1993 connected with S. T. No. 546 of 1993 whereby the appellant have been convicted under section 148 I.P.C. and sentenced to 3 years R.I., under section 307/149 I.P.C. and sentenced to 7 years R.I. and under section 302/149 I.P.C. to life imprisonment. All the sentences were directed to run concurrently.

3. Briefly stated the facts of the case are that on 14.11.1991 a written report Ext. Ka-1 was submitted by one Akhilesh Kumar scribed by Rajveer Singh at police station Bharthana, Etawah, which was registered as case crime no. 294 of 1991 under sections 147, 148, 149, 307 and 302 I.P.C. wherein it was stated that on 14.11.1991 at about 6 a.m. the informant Akhilesh Kumar alongwith Prahlad Singh, Govind Singh, Sovaran Singh, Malkhan Singh, Ajmer Singh, Manoj Kumar and Babloo were ploughing his filed which he had purchased from Uma Shanker resident of Kunjpura Etawah and with regard to this agricultural plot he had old enmity with Nathu Ram and regarding which a court decision had been made in favour of his (Akhilesh's) father as a result of which Nathu Ram and his sons bore enmity towards Akhilesh. It is alleged that seeing Akhilesh and his companions ploughing the said plot, Nathu Ram (died during trial) alongwith Diwari Lal, Dinesh Chandra, Viresh Chandra, Shiv Singh, Sarvesh Chandra (died during trial), Nihal Singh and Kusum Singh armed with Lathi, Stick, Spear, Pharsa, Country Made Pistol, and handbombs came to the plot and surrounded the complainant after which Nath Ram exhorted his companions to kill the complainant and other persons whereupon the accused persons, namely, Nathu Ram and Sarvesh Chandra fired upon the complainant and others and also attacked them with Lathi, Danda, Pharsa Spear, and country made pistols, as a result of which the complainant's brother Ramesh Chandra died on the spot whereas Prahlad Singh, Kripal Singh, Govind Singh and Manoj Kumar sustained bullet injuries and injuries from Danda, Spear, Lathi and Pharsa. The complainant and the other injured started shouting upon which Subhash Chandra, Jaiveer and other villagers rushed to the spot and on their challenge the accused persons ran away. On the basis of this written report F.I.R. was registered by the police on 14.11.1991 at 10.35 a.m. (Ext. Ka. 2). Ext. Ka- 14 dated 14.11.1991 is a search report in respect of the accused persons which mentions that all the accused persons had ran away from their houses. Ext. Ka-8 is the recovery memo which shows recovery of four empty cartridges, one cartridge is of 12 bore, pieces of used bombs, half burn strings and three cartridges were recovered from the field of Nirbal. Ext. Ka-7 is the recovery memo of plain and blood stained earth from the place where the deceased Ramesh Chandra had fallen.

4. The inquest report is Ext. Ka-6 which shows the time of the F.I.R. as 10.35 a.m. dated 14.11.1991 and the time of commencement of inquest is mentioned as 11 a.m. dated 14.11.1991 and the time of completion of the inquest is mentioned as 2.00 p.m. dated 14.11.1991.

5. The dead body of the deceased Ramesh Chandra was sent for post mortem examination and postmortem was conducted on 15.11.1991 at 3 p.m. by Dr. H.N. Singh (P.W.-5) who has noted the following ante mortem injuries on the person of the deceased:

"(1) Blast Injury 8cmx8cm x skull cavity deep lying on part of forehead including nasal bone, causing multiple fracture of frontal bone & nasal bone. Injury is surrounded by blackening in are of 15cmx 14cm.

(2) Incised wound 24cm x 2cm x skull cavity deep causing multiple fractures of both parietal and occipital bone. Wound is lying transversely on the occipital and both parietals, on right Side 1 cm about right Ear and on left side 6cm above the left. Brain matter drained out.

(3) Incised wound 12 cm x 3 cm x skull cavity deep on back of head transversely situated above the neck at level of mid of both ears causing fracture of underlying occipital bone.

(4) Abrasion 2cm x 1 cm on outer aspect of left upper arm 13 cm below top of shoulder.

(5) Incised wound 4cm x 1cm x muscle deep, 8 cm below rest of neck on right Side back."

6. The doctor has also opined on the basis of the injuries that the death of the deceased is possible to have been caused at 7:00 am on 14.11.1991. He has also opined that the injuries are capable of being caused by a hand grenade and that the blast injury has been caused within a distance of 3 ft. In the opinion of the doctor the death of the deceased has been caused due to shock and excess bleeding.

7. The injured Akhilesh, the informant was examined by P.W.-6 Dr. K.K. Sharma, who has prepared the report (Ext.Ka.5) and has noted the following injuries:

"(1) A lacerated wound of size 3.5 x0.5 cm, muscle deep, irregular margins, over right Side of the head, 7.5 cm above the right Pinna of ear.

(2) A traumatic swelling of size 8cm X 5 cm over posterio lateral side of the left elbow joint."

8. In the opinion of the doctor the injuries are simple and caused by blunt object. Duration fresh.

9. The injured Manoj Kumar S/o Prahlad Singh was examined by Dr. B.S. Bisaria (P.W.-8) who has noted the following injuries:

"(1) Multiple semi-circular wound in an area 12cm x 11 cm on the right side of face and ear measuring about 0.2 x 0.5 cm in diameter x skin deep.

(2) Multiple semi-circular would in an area of 15cm x 14 cm on the front of right shoulder measuring about 0.2 x 0.5 cm in diameter x skin deep."

10. In the opinion of the doctor, all the injuries are simple and fresh and caused by any firearm weapon. The doctor has also advised for X-Ray.

11. Injuries suffered by injured Govind (who has not been examined during trial) as noted by Dr. V.S. Bisaria (P.W.-8) are as under:

"(1) Lacerated wound 5cm x 0.7 cm x muscle deep on the right side of skull 11 cm above of right ear.

(2) Abrasion 0.2 cm x 0.3 cm on the tip of right nose."

12. In the opinon of the doctor, all the injuries are simple, fresh and caused by hard blunt object.

13. The witness has testified that these injuries are capable of being caused by a blunt object. This witness also stated that he cannot say that injury no. 1 and 2 caused to Manoj Kumar were caused by bullet though the injury no. 1 is under the right side of the ear and is semi-circular. He also stated that normally a bullet is round in shape but pellets can be in any form and shape.

14. The investigating officer S.I. Radhey Shyam, P.W.-7 conducted the investigation of the case and prepared the inquest report (Ext. Ka-6), the recovery memo of empty cartridges and half burnt strings (Ext. Ka-8), prepared site plan (Ext. Ka-9), photo lash, dead body challan, letter to R.I. and letter to C.M.O. (Ext. Ka-10, 11, 12 and 13 respectively). The dead body was sealed and sent for postmortem examination through constables Tulsiram and constable Ram Kripal. The investigating officer in his testimony has stated that F.I.R was noted in his presence and registered as Case Crime No. 294 of 2991 under sections 147, 148, 149, 307 and 302 I.P.C. by Head Moharrir Shyam Babu Shukla and the G.D. was also prepared by him. He has proved the chik F.I.R Ext. Ka-1 as well as F.I.R. Ext. Ka-2. He has also stated that the informant Akhilesh met him around 10.30 a.m. and thereafter he went to the site which is an agricultural plot. There was no temple on the plot. He has also stated that the residences of two of the accused was situated to the south of the village Bhaisai. He prepared the chauhaddi of the site and marked it in the site plan. As per the site plan to the north is the plot of Surendra Yadav and Prem Singh. The actual site where the incident occurred has been marked as 'C' under red line. It is the field of Rama Shanker and Uma Shanker. The informant in his statement informed that with regard to this very plot he had won a case and there was a conflict between the parties with regard to this very plot. According to the informant this plot was of Nathu Ram and his sons. The investigating officer has also stated that the informant had told him that they were attacked not only with lathi and sticks but also by fire arm i.e. country made pistols and guns and pharsa as well as hand bomb. The investigating officer has stated that he has prepared the site plan on the disclosure and pointing out by the informant Akhilesh. Blood was also found on the Medh on the field of Nirbal Singh, which has been marked in the site plan as '+'. The investigating officer could not remember as to whether at the site there was any plough. The investigating officer has denied that the dead body of the deceased Ramesh Chandra was first brought to the police station and then sent for post mortem examination. The investigating officer has also identified the handwriting and signature of S.I. P.K. Mishra. He has further stated that subsequent investigation was carried out by S.H.O. himself.

15. In his cross examination he has deposed that after completion of investigation the charge sheet, Ext. Ka-14 has been submitted by P.K. Mishra, Inspector.

16. In order to prove its case during trial, the prosecution has examined 8 witnesses in all.

17. P.W. 1 Akhilesh is the first informant and injured witness of the incident and has reiterated the version of the F.I.R. stating that on 14.11.1991 at about 6 a.m. in the morning he alongwith Prahlad Singh, Govind Singh, Sovaran Singh, Malkhan Singh, Ajmer Singh, Manoj Kumar and Babloo had gone to the agricultural plot in question where the incident occurred to plough the same. He has stated that he had won a court case with regard to this plot recently and had anticipated and also feared that some quarrel may take place with regard to this plot. At the same time Nathu Ram with whom the court case had been contested came to the site alongwith Diwari Lal, Dinesh Chandra, Viresh Chandra, Shiv Singh, Sarvesh Chandra, Nihal Singh and Kusum Singh. Nath Ram was armed with a Kanta and country made pistol, Diwari Lal was armed with spear and country made pistol, Dinesh Chandra was armed with country made pistol, Viresh Singh was armed with a Kanta and Pharsa, Nihal was armed with gun and Kusum was carrying a Jhola (bag) and armed with Lathi/Danda. On reaching the spot Nathu Ram exhorted the other accused persons to kill the informant and other persons and immediately thereafter all the accused persons started assaulting the informant and others and also opened fire in which Prahlad Singh, Kripal Singh, Govind and Manoj as well as informant Akhilesh received injuries. In the end accused Kusum threw a hand bomb which hit Ramesh Chandra who died on the spot. The informant has also stated that on hearing the hue and cry, Subhash Chandra, Jaiveer and several other persons of the village reached there and on their challenge the accused persons ran away from the spot. The informant has proved the report which was scribed by Rajveer which was also signed by him. The informant also stated that the medical examination of the injured persons was carried out and Prahlad and Kripal being more seriously injured were sent to Gwalior for treatment. In his cross examination he has stated that Nathu Ram's father is Bachchan Lal but he does not know the name of the father of Bachchan Lal. Raj Kumar was not the uncle of Nathu Ram but belonged to the same family. Jodha and ....(sic) also belong to the same family. Ameer Singh's father was Ram Chandra. Ameer Singh was resident of Kunjpura which is near Jaswant Nagar. Kunjpura is about 50 km. away from the village of the informant, P.W. 1. The informant also stated that he does not know whether Jodha is the brother of Ram Chandra or not. Babloo is the son of Hawaldar. Ajmer and Malkhan are real brothers and are sons of Sovaran. Sovaran and Hawaldar are real brothers. Prahlad and the deceased Ramesh Chandra and the P.W. 1 Akhilesh are real brothers. Govind's father is Iqbal. The accused Diwari Lal, Viresh, Shiv Singh, Sarvesh and Dinesh are real brothers and sons of Nathu Ram. P.W. 1 then stated that Raj Kumar was blind, he was married but had no children. His wife had predeceased him. Raj Kumar had executed a sale deed of his land in favour of one Badan Singh. Prior to execution of this sale deed Raj Kumar had executed a sale deed in favour of Lakhan Singh. Lakhan is the resident of Kunjpura. P.W. 1 stated that he does not know where Badan Singh resides. Lakhan Singh's father is Pyarey Lal. Badan Singh used to come to the house of Raj Kumar. The plot in dispute was chak no. 580. P.W. 1 has further stated that the land which Raj Kumar had given to Lakhan through sale deed was resold by Lakhan Singh to Raj Kumar through a sale deed. This witness has further stated that it is wrong to say that Lakhan Singh had got executed the sale deed of this land executed in his favour by playing fraud on Raj Kumar and on fear of being exposed and on objection being raised by Raj Kumar he had returned the same to Raj Kumar through a sale deed. This witness also stated that Badan Singh after three days of execution of the sale deed took the same land through a sale deed in favour of his son Uma Shanker. He also stated that half of this land was thereafter sold by Uma Shanker to his brother Rama Shanker through a sale deed. This fact was in the knowledge of Raj Kumar who did not raise any objection. This witness also stated that he did not know whether any part of this land was given by Raj Kumar to a school or to a temple of Mahaveerji though he has stated that on chak no. 580 there is a temple of Mahaveerji which was got constructed by Raj Kumar. To the west of this temple there is a primary school but he does not know the number of plot but he has stated that this land also belonged to Raj Kumar. Raj Kumar had died about 15 years ago. The primary school was got constructed by Raj Kumar. He has also stated that with regard to the disputed plot no. 580 civil proceedings are still pending. Raj Kumar for the purposes of management of temple and primary school had constituted committees of which the President was the accused Nathu Ram. He has also stated that civil proceedings in respect of plot in dispute was between the accused Nathu Ram and the informant's father Latoori Singh, Sovaran Singh, Kripal, Malkhan Singh, Ajmer etc. The sale deed of the same disputed land relating to the temple and school was got executed by Latoori Singh, father of the informant, Anarkali, Malkhan Singh, Ajmer, Kripal Singh from Uma Shanker and Rama Shanker. Uma Shankar and Rama Shankar got executed the sale deed of house of Raj Kumar in favour of Latoori, Anarkali and Prem Singh upon which Dinesh accused, instituted proceedings under section 107/116 Cr.P.C. against Latoori Singh, Prahlad, deceased Ramesh Chand, Kripal Singh, Sovaran, Malkhan and Ajmer. Rajveer was the scribe of this report. The informant has denied that he and the others had purchased the land in dispute through a fraudulent sale deed. He could not remember since what time the court proceedings were going on between him, Uma Shanker, Ameer Singh and others and Nathu Ram though he has stated that at the time when he purchased the land there was already a dispute going on with Nathu Ram. He has also denied that Nathu Ram was residing in the temple and has stated that instead he was residing in his house.

18. The informant P.W. 1 in his cross examination stated that accused Kusum used to sell milk and he has no enmity against him. The informant also stated that house of Nathu Ram was situated in the west and the temple was also situated in the west and the house was about 30 steps from the temple and Nathu Ram used to reside in the said house. He also stated that prior to purchase of the house by the informant, Ameer Singh used to reside therein and this house originally belonged to Raj Kumar and has been built on chak no. 580. The informant was not aware as to whether Raj Kumar had executed a fraudulent sale deed in favour of Ameer Singh but it is wrong to say that Raj Kumar always resided in the house. The informant also stated that he alongwith 9 - 10- persons had gone to the plot no. 580 to plough the same for the first time. There were two ploughs. He also stated that he had no apprehension that any conflict will ensue but stated that so many people had gone there with him because their help was required. He also stated that one person used one plough and it is incorrect to say that they had gone there with the intention to pick up a quarrel. He also stated that prior to the prosecution party ploughing the land Nathu Ram was in his house. Adjacent to plot no. 580 is the field of Himmat Singh and adjacent to that is the field of Nirbal Singh. He further deposed that he alongwith his companions started ploughing the land concerned from the east at that time the sun had already arisen and prior to start of the conflict they had already ploughed about 20 Koorh. Both the ploughs were being used. Ramesh was sitting in the field of Nirbal Singh and others were sitting in the field Chak No. 580. The informant and Govind were operating the two ploughs. The informant has also stated that those who were ploughing were carrying small sticks whereas the others were not carrying any weapon of any kind. He also stated that accused on reaching the field asked the informant and others to stop ploughing the field and immediately started assaulting them. The informant had seen the accused coming to the field with weapons and he alongwith his companions were frightened. Though they made an attempt to run away and some persons managed to run away but they could not escape. The informant ran towards his brother Ramesh, Govind ran towards Kripal Singh and before running they had released the bullocks and buffaloes from the ploughs. When he reached near Ramesh he was also assaulted by the accused persons. By that time Kusum had taken out a bomb from the Jhola (bag) and thrown it at Ramesh as a result of which Ramesh died on the spot. The informant had not been able to reach Ramesh and he was still 70 - 80 steps away when he saw accused Kusum throwing the bomb at Ramesh. The informant also stated that he was assaulted by Shiv Singh. Shiv Singh was armed with Pharsa and Sarvesh was armed with Kanta. The informant further stated that though in his examination in chief he had stated that Shiv Singh and Sarvesh were armed with Lathi and Danda but that is not correct as they were armed with Pharsa and Kanta. Kusum was armed with hand bomb in a Jhola and also had a Katta (country made pistol). He also stated that injuries caused to him were caused by the wooden part of the Kanta. He also stated that Kusum had no concern with the land in dispute. The informant also stated that his companions had gone with him because their help was required in leveling the field and also for preparing the small boundaries and to remove the grass. The informant also stated that he had recently won a case regarding this land and therefore his companions also came with him by way of precaution. The informant also stated that injuries of Prahland and Manoj were caused by fire arm. Accused Dinesh and Nihal Singh were firing from their guns and no one else was firing. Injuries of Kripal Singh were caused by Nathu Ram by Pharsa and Kanta, Sarvesh by Katta and Kanta and Diwari by Ballam (Spear) and Govind was also assaulted. The informant stated that it is wrong to say that they had gone to the land in dispute to seize the same. He also stated that neither of his companions carried a Phawda (spade) and they were not possessing any Kudal or Khurpi.

19. This witness in cross examination has further stated that plot in question Chak no. 580 measured about 11 bighas in which there was a banyan tree standing. He also stated that he had gone with his companions to plough the said land but he had no apprehension that Nathu Ram would fight over it although there was enmity between him and Nathu Ram. After this marpeet the informant and others went to the police station in a Bullock Cart, the body of the deceased was lying in the field. One Har Vilas had brought the bullock cart from the village and another bullock cart was brought by Vishundara. The entire marpeet lasted about 10-12 minutes. The informant was medically examined in P.H.C. Bharthana at about 1 p.m. alongwith his injured companions. The injuries of Kripal and Prahlad being serious in nature, they were referred to Etawah for treatment but the informant did not go with him and instead Rajesh and Satyendra had gone with them. After medical examination the informant and others came to the police station and met the Daroga and gave him the entire information.They reached the police station after the medical examination at about 2 p.m. Other than the injured nobody had come with the informant to the police station. At one place the informant has stated that prior to his medical examination he had gone with his father Latoori to the police station but he could not remember whether anybody else had gone with him. After the dead body came to the police station the informant had gone to Etawah with the dead body for post mortem examination. He stayed in the night at Etawah as the post mortem was conducted on the next day. He also stated that no fire arms were used against him but Nihal Singh was carrying a gun with which he had fired at Ramesh.

20. P.W. 2 Kripal Singh is the injured witness and in his deposition he had stated that at about 7 O'clock in the morning his son Govind Singh was ploughing the field no. 580 and Sovaran Singh, Ajmer Singh, Malkhan Singh, Ramesh, Prahlad, Manhoj, Babloo alias Ramakant were present there alongwith him. He deposed that they were preparing the Medh and cleaning the grass of the said plot. At the same time accused Nathu Ram, Diwari Lal, Sarvesh, Shiv Singh, Viresh, Dinesh, Kusum Singh, Nihal Singh reached there. Nathu Ram and Sarvesh were armed with Kanta and country made pistols, Shiv Singh was armed with Pharsa and country made pistol, Viresh was armed with Pharsa and Katta, Diwari Lal was armed with Ballam (spear) and Katta, Dinesh was armed with gun, Nihal Singh was armed with gun and Kusum was armed with hand bombs and country made pistol. Nathu Ram asked them to stop ploughing otherwise all will be killed but they protested and did not stop ploughing, whereupon the accused persons started assaulting them and the P.W. 2 alongwith Prahlad, Akhilesh, Manoj, Govind Singh received injuries. Ramesh was also injured and died on the spot. He also stated that since he received injuries in the beginning, therefore, he could not see as to who has caused injuries to Ramesh but he clearly stated that injuries to him were caused by Sarvesh and Diwari Lal with Kanta. Nathu Ram wanted to purchase the land in question which was purchased by him, Ajmer Singh, Malkhan Singh ....(sic), Latoori for which a consolidation case was won by them and mutation was also carried out in their favour. Accused Dinesh thereafter made a false report (Istgasa) but for want of witnesses this case also ended in favour of the P.W. 2 (Kripal Singh). He further deposed that on hearing the hue and cry Subhash, Jagveer Singh, Ramanath, Nathuram and other villagers reached on the spot and witnessed the incident.

21. In the cross examination P.W. 2 Kripal Singh stated that Raj Kumar was the resident of his village and he was blind. Nathu Ram accused was the uncle of Raj Kumar (Chacha). In the plot no. 580 of Raj Kumar there is a primay school and a Hanuman temple. To the west of the temple in this plot there was a house of Raj Kumar. He does not know whether Raj Kumar had made separate committees for the primary school and the Hanuman Temple but these properties were being looked after by Ajmer Singh. P.W.-2 also stated that the house of Raj Kumar is to the west of the temple and very close to it and in this house Nathu Ram and his sons reside. Nathu Ram used to do pooja in the temple. The primary school was got constructed by Raj Kumar and he had donated the school and the land to the Government with the intention that the Government would run the school. The Government had also constructed a new school on this plot no. 580. Raj Kumar had no children. The house of Raj Kumar in which Nathu Ram was residing was sold by Uma Shanker and Rama Shanker in favour of Anarkali wife of Hawaldar. He has also stated that Uma Shanker and Rama Shanker were sons of Ameer Singh. Kusum Singh was running a pan shop and was also selling milk. Kusum Singh used to collect milk from the village and sell the same in Bharthana, Etawah. Kusum Singh is the resident of Dadiyan which is about one and half kms away from village Bhasai. No member of his family resides in the village of P.W. 2. The witness also stated that there was a consolidation case between Nathu Ram and his family and also a civil dispute.

22. In cross examination this witness further stated that at the time of incident alongwith him the other legitimate title holders were removing grass from the ploughed field but they were not carrying any Kudal or Khurpi. It is incorrect to say that on that day he did not go to the field to prepare the Medh (small boundary). He has also stated that he had informed the investigating officer that his son Govind and informant Akhilesh were ploughing the field whereas he alongwith others was removing the grass from the ploughed field by hand. He also stated that before assaulting them the accused had fired in the air. They were not carrying Lathi or Sticks but they came with the common intention to kill. He has stated that he was assaulted by Kanta and not with any fire arm by Sarvesh and Diwari Lal. He has stated that Diwari Lal had assaulted him with the wooden part of the Ballam (spear). He has clarified that he had been assaulted by the wooden part and not from the sharp edge of the Ballam as a result of which he has received injuries. At the time when he was assaulted he was standing towards the south of the temple at a distance of about 200 steps, to the south of which there is the field of Nirbal Singh. He stated that for the first time when he saw the accused persons they were to the north south near the temple and he was not frightened seeing the accused persons otherwise he would have run away. Nathu Ram asked them to stop ploughing but they did not stop. Deceased Ramesh was standing behind him on the southern Medh. He has denied that any hand bomb was thrown from his side at Nathu Ram or that they were injured by any hand bomb thrown by them at Nathu Ram. He has also deposed that it is incorrect to say that they had received injuries while they were throwing bomb at Nathu Ram and that Ramesh has also received bomb injuries in this process. He had gone in a buffalo cart alongwith his son Govind and wife to Bharthana. He had gone from the village to the hospital and from there he had gone to a hospital in Gwalior for treatment. He met the Daroga 9 - 10 days after returning from Gwalior. He also stated that it is wrong to say that a false report has been lodged against the accused persons with the connivance of the police and by changing the time in the F.I.R. It is also incorrect to say that no such incident as narrated by him had occurred and it is also incorrect to say that there was firing from both sides.

23. P.W. 3 Manoj Kumar s/o Prahlad Singh is also an injured eye witness of the incident and has deposed that on 14.11.1991 at about 7 a.m. in the morning he had gone to the field alongwith Kripal Singh, Govind, Prahlad Singh, Ramesh Singh, Akhilesh, Sovaran Singh, Malkhan Singh, Ajmer Singh and Ramakant. They had won a case in respect of the land in question and therefore, they had all gone to the field and at the time of the incident some persons were removing grass of the field. At that time, Nathu Ram armed with Katta and Kanta, Diwari Lal armed with Ballam and country made pistol, Sarvesh armed with Katta and Kanta, Viresh armed with Katta and Pharsa, Shiv Singh armed with Katta and Pharsa and Kusum, who was carrying a jhola containing hand bombs and a Katta, Nihal Singh armed with country made pistol and Dinesh armed with gun reached there and surrounded them and started assaulting them. In this assault Ramesh, Manoj, Prahlad, Akhilesh, Kripal Singh and Govind had received injuries. He alongwith Prahlad was injured by fire arm which were used by Nihal and Dinesh. He stated that he received pellet injuries on his ear and neck. He further stated that perhaps Kripal Singh had received injuries by Pharsa and his uncle Ramesh had died on the spot on receiving the injuries caused to him by Pharsa and hand bomb. Hand bomb was thrown by Kusum Singh at Ramesh which had badly injured Ramesh. After that this witness got his medical examination done of his injuries.

24. In his cross examination this witness further stated that with regard to plot no. 580 there was a court case with Nathu Ram and even at that time there was some civil case was going on. Between the house of Nathu Ram and temple there may be a distance of 10 - 15 ft. The house of Nathu Ram is situated to the west of the temple. He does not know whether Raj Kumar resides in the same house in which Nathu Ram alongwith his family was residing. Raj Kumar had no other house in the village. He does not know whether Raj Kumar is the uncle of accused Nathu Ram. The house in which Nathur Ram's family resides is in the name of Nathu Ram of which a sale deed was got executed by the wife of Hawaldar, and Prem Singh but he does not know from whom this sale deed was got executed. Till the date of the incident the vendor had not taken possession of the said plot no. 580. He stated that he alongwith others had gone to the plot no. 580 for the first time to take possession of the same. He had no apprehension that there would be any quarrel with the accused or that the accused Nathu Ram would try to prevent them from taking possession of the plot. They had taken two pairs of ploughs to the field alongwith 10 persons who were not armed with any weapon. Two people were ploughing the field and rest were removing the grass from the field. He had given statement to the Daroga on the date of the incident but after that the Daroga had not examined him. The witness has denied that he alongwith others had gone to the field in question, plot no. 580, with arms or hand bombs to plough the field. This witness has clearly stated that accused Viresh was armed with pharsa and Katta, Sarvesh was armed with Katta and Kanta, Shiv Singh was armed with Pharsa and Katta. When the witness first saw the accused they were carrying arms, they came from all sides. Nathu Ram was on the north west corner of the field.

25. The witness also deposed that he saw the accused persons only when they were about 5-6 ft. away and were on all sides of the field. He also stated that he along with others did try to run away but they could not escape and were assaulted by the accused appellants. Ramesh died on the spot after the incident. Subhash and Jaiveer alongwith other villagers came to the spot after the injuries were caused to him and the accused persons ran away seeing the villagers. On hearing the sound of firearm the bullocks ran away with the plough. The injured were taken by bullock cart to Barthana. He also stated that from the Thana they came to Etawah for treatment. From the Thana the witness Manoj along with Prahalad Singh, Kripal Singh and Govind Singh had gone to the hospital in a jeep. The witness remained admitted in the hospital for two days. The witness also stated that accused Dinesh and Nihal were carrying guns, the rest of the accused were carrying two weapons each. The accused had fired using both hands. This witness has stated that first the hand bomb was thrown and thereafter, the accused attacked with pharsa and then started firing from the firearms. The witness has stated that it is incorrect to say that he alongwith others had gone to the plot no. 580 in question to take forcible possession or that they had not won the case and had gone to the said plot with hand grenades and guns etc., to take forcible possession of the same through a fraudulent sale deed and that on accused Nathu Ram remonstrating with them, they threw hand grenades at Nathu Ram. The witness has also stated that it is incorrect to say that other than accused Nathu Ram no other accused was present at the spot and it is also incorrect to say that the time of the F.I.R. has been changed in collusion with the police.

26. P.W.-4 Head Constable Shyam Babu Shukla is the Head Muharir and he has proved the filing of the written report by the informant Akhilesh Kumar and has also affirmed that on the said basis he has registered the Chik F.I.R. being Case Crime no. 273. He has also proved his signature on the F.I.R. which is Ext.Ka.2 as well as the time of 10:35 am and date 14/11/1991 mentioned therein. The witness has also stated that General Diary (GD) has been weeded out. It is maintained in the Thana for one year and thereafter sent to the record room and after five years it is weeded out.

27. P.W.-5 Dr. H.N. Singh has conducted the postmortem of the deceased Ramesh Chandra. This witness has proved the injuries as per the postmortem report Ext.Ka.4.

28. P.W-6 is Dr. K.K. Sharma who has examined the injured Akhilesh. This witness has proved the injury report Ext.Ka.5, caused to Akhilesh Kumar, the informant.

29. P.W.-7 is Radhey Shyam Verma, who has conducted the investigation of the case. His deposition has already been narrated above.

30. P.W.-8 is Dr. B.S. Bisaria who has medically examined the injured Manoj and injured Govind and also proved the injury report Ext. Ka.13.

31. On the basis of the evidence brought on record by the prosecution the trial court has convicted and sentenced the appellants, as aforesaid.

32. Sri Vimlendu Tripathi, learned counsel for the accused-appellants submitted that the copy of the FIR was sent to the Magistrate on 18.11.1991 i.e. after four days of the incident and was not sent promptly, therefore, the FIR itself is ante-timed.

33. Rebutting the submissions of the learned counsel for the appellants on the question of the FIR being forwarded to the Magistrate belatedly, learned A.G.A. has submitted that even though Section 157 Cr.P.C. requires such report to be sent by the police officer to the Magistrate empowered to take cognizance of such evidence forthwith but that is only for purposes of keeping control of the investigation and if necessary to give appropriate directions under Section 159 Cr.P.C. The learned AGA submitted that if the FIR is otherwise promptly recorded and there is nothing on record or even a whiff of suspicion to show that there was a possibility of it being anti-timed, the mere fact that the report was forwarded to the Magistrate belatedly would not vitiate the trial nor can it be conjectured on that ground that the F.I.R. is anti-timed. Reliance has been placed on the judgment of the Supreme Court in Pala Singh and others Vs State of Punjab, (1972) 2 SCC 640. Paragraph 7 of the said judgment reads as under:

"7. Shri Kohli strongly criticised the fact that the occurrence report contemplated by S. 157, Cr.P.C. was sent to the magistrate concerned very late. Indeed, this challenge, like the argument of interpolation and belated despatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. No doubt, the report reached the magistrate at about 6 p.m. Section 157, Cr. P.C. requires such report to be sent forthwith by the police officer concerned to a magistrate empowered to take cognisance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under s. 159. But when we find in this case that the F.I.R. was actually recorded without delay and the investigation started on the basis of that F.I.R. and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants case that they have been prejudiced by this delay."

34. The judgment of the Supreme Court in Pala Singh (supra) has been followed by a Division Bench of this Court in Criminal Appeal no. 2525 of 1978, Chhotey Lal and others Vs State of U.P. reported in 1990 (2) Crimes (HC) 531. Paragraph 14 of the said judgment reads as under:

"14. It is true that Sec. 157 Cr.P.C. was not properly complied with inasmuch as the Special Report was not sent forthwith to the Court concerned but this by itself, without any other circumstance, is nothing to come to a conclusion that the investigating was tainted or that the F.I.R. was not in existence at the time when it is alleged to have come into existence. In the case of Pala Singh and another Vs. State, it has been held that mere delay in receipt of report of occurrence by the Magistrate will not make the investigation tainted without any other conclusion which may lead to that conclusion. In the present case since the prosecution evidence has been found to be reliable, this delay in sending of the special report to the Magistrate will have no bearing on the prosecution case."

35. Reliance has also been place on the judgment of the Supreme Court in Bhajan Singh Alias Harbhajan Singh Vs State of Haryana, (2011) 7 SCC 421 wherein it was held by the apex court that the Cr.P.C. provides for internal and external checks, one of them being the receipt of copy of the F.I.R. by the Magistrate concerned. This is to ensure that the F.I.R. may not be anti-timed or anti-dated. The purpose of prompt reporting to the Magistrate is that Section 159 Cr.P.C. empowers the Magistrate to hold investigation or preliminary enquiry of the offence either himself or through a Magistrate subordinate to him. Explaining the word "forthwith" in Section 157 Cr.P.C., the Apex Court held that the word "forthwith" does not mean that the prosecution is required to explain the delay of every hour in sending the F.I.R. to the Magistrate. If in a given case, the number of dead or injured persons is very high delay in dispatching the report is natural. Paragraphs 28, 29, 30 and 31 of the judgment read as under:

"28. Thus, from the above it is evident that the Cr.P.C provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not anti-timed or anti-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Cr.P.C., if so required. Section 159 Cr.P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.

29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti-timed or anti-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression `forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.

30. However, unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence.

31. In view of the above, we are in agreement with the High Court that there was no delay either in lodging the FIR or in sending the copy of the FIR to the Magistrate. It may be pertinent to point out that defence did not put any question on these issues while cross-examining the Investigating Officer, providing him an opportunity to explain the delay, if any. Thus, we do not find any force in the submissions made by the learned counsel for the appellants in this regard."

36. The Supreme Court in 1998 SCC (Crl) 1055, Shiekh Ayub Vs State of Maharashtra has held as under:

"........It was urged by the learned counsel that the fact that copy of the FIR had reached the Magistrate on 10.2.1995 creates a serious doubt regarding the date and time when the FIR was prepared. He also drew our attention to the evidence of PW.3 Aslam who had stated that the police had prepared some writing after coming to the village and had taken his thumb expression on it. We do not find any substances in this contention because after recording the FIR at 7.30 a.m. the Investigating Officer had proceeded to the place to the place of the incident and prepared inquest reports. The evidence of Panch witness PW.6 and the inquest reports show that work of preparing inquest reports had started at 8 a.m. The inquest reports and other Panchnamas also contain the number of FIR. Therefore, there can be no doubt that the FIR had come into existence before 8 a.m. on 6.2.1995. Even though it had reached the Magistrate after three days that delay cannot, in view of the other evidence, create any doubt regarding its genuineness."

37. From the record we find that the FIR was registered on 14.11.1991 and there is also a date of 15.11.1991 mentioned on the side. It is to be noted that the date of 18.11.1991 is also mentioned in the FIR (Ext.Ka.2) but from that alone we are not inclined to take the view that the F.I.R. is anti timed. No doubt the information ought to have been communicated to the concerned Magistrate promptly but there is nothing on record to lead to the presumption that if it was sent on 18.11.1991, the F.I.R. itself would be anti timed. At the most it may be lapse on the part of the police.

38. In the present case, we may further note that the incident occurred on 14.11.1991 at about 7:00 am. Ten people were present from the prosecution side on the plot no. 580; they had gone to plough the field and clean the grass when they were attacked by the accused persons who were eight in number. The accused were carrying lethal weapons like farsa, kanta, ballam (spear), tamancha and hand bomb. Large number of persons from the members of the prosecution party were injured and some were sent to Etawah for treatment while some were sent to Gwalior for treatment. In spite of this, the F.I.R. was lodged on 14.11.1991 itself at 10:35 am. The written report has been proved by the informant P.W.-1 and the F.I.R. has also been proved by Investigating Officer, P.W.-7 and P.W.-4 Head Constable Shyam Babu Shukla who was the Head Muharir at the relevant point of time. In the inquest report held on 14.11.1991 itself at 11:00 am(Ext.Ka.6), the time and date of F.I.R. is mentioned as 10:35 am dated 14.11.1991. Thus, it was a prompt F.I.R. In the circumstances, in our opinion, merely because the report was forwarded to the Magistrate on 18.11.1991 if true, would not be fatal to the trial. However, we may at the same time, hasten to caution the Government on this aspect of the matter to ensure that copy of the F.I.R. in all such cases is forwarded to the Magistrate promptly and that the provisions of Section 157 Cr.P.C. are complied with in letter and spirit.

39. The learned counsel then submitted that there is a contradiction in the description of injuries by the informant Akhilesh (P.W. 1) and that in his cross examination the informant P.W-1 has stated that injuries were caused to him by Lathi and Danda whereas in his examination-in-chief he has stated that injuries caused to him was of a kanta. We find that in his examination-in-chief the informant has stated that the injury was caused to him by the stick portion which is attached to a kanta. His injury report, as verified by the Doctor K.K. Sharma, P.W.-6 also mentions that the injuries have been caused by a blunt object. Therefore, we do not accept the submissions of the learned counsel for the appellants that there is any contradiction in the statement of informant Akhilesh with regard to injuries received by him.

40. The next submission of the learned counsel for the appellants is that the witnesses are wholly unreliable since they are interested witnesses being related to one another. We find that the witnesses P.W.-1 and 3 are fact witnesses and though they are related to each other in the sense that P.W.-1 Akhilesh complainant is the son of Latoori Singh and P.W.-3 Manoj Kumar is the son of Prahlad Singh, who is the brother of informant Akhilesh Singh. Thus the witness Manoj Kumar is the nephew of the informant Akhilesh Singh. All these witnesses have testified with regard to weapons being carried by each of the accused and there is no contradiction in that regard in their statements. It is relevant to note here that it is the admitted case of the prosecution from the inception that on the date of the incident they had gone to the field in question, measuring 11 bighas, for cultivating the same alongwith two ploughs, bullock and buffalo and started cultivating the field. The witnesses of fact have also very clearly deposed that while two persons were ploughing the field, rest of the persons were cleaning the field and removing grass from the field whereas some persons were sitting, may be waiting for their turn since the plot in question was big in size. The prosecution witnesses have also very specifically deposed that it is the accused persons who reached the spot armed with deadly weapons and challenged them to stop cultivating the field and when they did not oblige, the accused persons started assaulting them with their weapons. The prosecution witnesses have also received injuries in the incident and have been medically examined by the doctors, who have proved their injuries during trial. Otherwise also the incident took place at about 7.00 a.m. in the morning and it is a day light incident and therefore, in the absence of any major contradiction in the testimonies of the prosecution witnesses, we are not inclined to disbelieve their testimony merely on the ground that they happened to be related to each other. The mere fact that prosecution witnesses are related to each other is no ground to discard their testimony, which is otherwise unimpeachable, merely on a false notion that the related witnesses would have colluded to given false evidence to deliberately implicate the accused more so when the related witnesses are also injured witnesses.

41. The Supreme Court in the case of Waman and others Vs State of Maharashtra, (2011) CrLJ 4287 (SC) in paragraphs 7,8,9,10,11 and 12 has held as under:

"7) In view of the stand of the counsel for the appellants that since PWs 1-4, eye-witnesses are closely related to the deceased and complainant, conviction can not be based on such evidence, let us state the law on the admissibility/acceptability or otherwise of their evidence as considered by this Court.

8) In Sarwan Singh and Others vs. State of Punjab, (1976) 4 SCC 369, a three-Judge Bench of this Court, while considering the evidence of interested witness held that it is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself discredit the evidence.

In the said case, the witness relied on by the prosecution was the brother of the wife of the deceased and was living with the deceased for quite a few years. This Court held that "but that by itself is not a ground to discredit the testimony of this witness, if it is otherwise found to be consistent and true".

9) In Balraje alias Trimbak vs. State of Maharashtra, (2010) 6 SCC 673, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyze the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

10) The same principles have been reiterated in Prahalad Patel vs. State of Madhya Pradesh, (2011) 4 SCC 262. In para 15, this Court held that "though PWs 2 and 7 are brothers of the deceased, relationship is not a factor to affect credibility of a witness. In a series of decisions this Court has accepted the above principle (vide Israr vs. State of U.P., (2005) 9 SCC 616 and S. Sudershan Reddy vs. State of A.P., (2006) 10 SCC 163)

11) The above principles have been once again reiterated in in State of U.P. vs. Naresh & Ors., (2011) 4 SCC 324. Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of an witness. The following statement of law on this point is relevant:

"29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. [Vide Jarnail Singh vs. State of Punjab (2009) 9 SCC 719, Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; and Balraje @ Trimbak (supra)]"

12) It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."

42. The Supreme Court in the case of Gangabhavani v. Rayapati Venkat Reddy, AIR 2013 SC 3681, on the issue of related witnesses has held as under:

"EVIDENCE OF A RELATED/INTERESTED WITNESSES:

11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308).

12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390, this Court held:

"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents." (Emphasis added) (See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC 3473).

13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, while dealing with the case this Court held:

"7. .....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."

43. Therefore, in such circumstances though the prosecution witnesses are related to each other but on the ground of their relationship alone it cannot be accepted that the testimonies of the prosecution witnesses are tainted and unreliable and they are interested witnesses. The contention of the learned counsel for the appellants is thoroughly misconceived and is rejected.

44. The learned counsel for the accused-appellants next submitted that the incident was triggered on account of grave and sudden provocation offered by the prosecution witnesses and therefore, the accused were entitled to the benefit of exception to sub section (2) of Section 300 I.P.C. The submission is that P.W.-1 in his testimony has stated that on the date of the incident i.e. 14.11.1991 he alongwith his other companions had gone to plot no. 580 for the first time to cultivate the same. He has also referred to the statement of P.W.-3 Manoj Kumar wherein the P.W.-3 has also stated that till the date of the incident the informant and others had not taken possession of the plot no. 580 in question and therefore, submits that on the date of the incident itself the informant and his companions had gone to the plot in question for the first time with the intention to take possession of the same and it was to prevent them from taking forcible possession that the incident occurred in the heat of the matter. Reference has been made to the provisions of Section 101, 103 and 105 of the Evidence Act, 1872 which read as under:

"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

102.....

103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

104.....

105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

45. We may also note that what emerges from the testimony of the witnesses of fact (P.W.-1 and P.W.-3 ) is that there was some litigation with regard to plot no. 580 between members of the prosecution party on one hand and Nathu Ram and accused appellants on the other, and that the prosecution had won a case with regard to the said plot. No doubt the testimony of both the prosecution witnesses P.W.-1 and P.W.-3 would indicate that they had gone to the said plot for the first time to take possession thereof. P.W.-1 has stated he along with his companions went to the plot in question for the first time to plough the same and P.W.-3 has stated that prior to the incident they were not in possession of the said plot but having won a case with regard to the said land it can be expected of them to have gone to the field to plough the same on the basis of such decision. The fact that when the informant and the witnesses of fact were ploughing the field the accused persons came to the plot armed with weapons has been clearly narrated by the prosecution witnesses in their testimonies. The witnesses have stated that Nath Ram was armed with a Kanta and country made pistol, Diwari Lal was armed with ballam (spear) and country made pistol, Dinesh Chandra was armed with country made pistol, Viresh Chandra was armed with a Kanta and Pharsa, Sarvesh was armed with Kanta and tamancha, Nihal was armed with gun and Kusum was carrying a Jhola (bag) and armed with Lathi/Danda. The injuries sustained by the P.W.-1, P.W.2, P.W.-3 and the deceased Ramesh Chand, have been proved by prosecution witnesses Dr. H.N. Singh, Dr. K.K. Sharma and Dr. B.S. Bisaria, and in the opinion of the doctors the injuries sustained by the injured and the deceased could have been caused by the weapons carried by the accused persons. At this point we may refer to the statement of the accused persons recorded under section 313 Cr.P.C. None of the accused-appellants in their statement have taken the plea of private defence. It is clearly notable that none of the accused in their statement have anywhere stated that the informant and the others were also carrying lathis, dandas or even lethal weapons. Nowhere in their statement under Section 313 Cr.P.C. have they stated that they were first attacked by the informant and other prosecution witnesses or by the deceased.

46. The learned counsel for the accused-appellants at this stage, referred to the judgment of the Supreme Court in the case of Yogendra Morarji Vs State of Gujarat, (1980) 2 SCC 218. The relevant paragraphs 14, 15 and 16 of the said judgment read as under:

"14. Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this Section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai v. State of Gujarat , under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.

15. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded under Section 313 of the CrPC, 1973.

16. Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code (See Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup , Pratap v. State of U.P. .

47. What is laid down in that judgement is that the prosecution must first prove its case before a plea of private defence can be set up by the accused and then examined by the court. In the present case, we find that the informant along with other injured as well as the deceased had gone to the plot no. 580 to plough the same. They were ten in number. A question has been raised by the defence as to why so many persons were required to plough the field and that this alone would show that their intention was to create disturbance and take forcible possession of the said plot and that they had gone to the field well prepared for eventuality.

48. We are not inclined to believe the submission of the learned counsel for the appellants for the reason that the plot in question measured 11 bighas which is a very large plot, as stated by prosecution witnesses and therefore, it can be accepted that ten people had gone there to plough the field in question. It is also to be noted that the prosecution witnesses have very specifically and clearly stated in their testimonies that they had gone to the field in question to plough the same alongwith two ploughs, bullocks and buffalo. They have further deposed that while two persons were ploughing the field by two ploughs other persons were cleaning the field and removing the grass and some persons were there to help them since the field was measuring 11 bighas.

49. From the statement of P.W.-1, P.W.-2 and P.W.-3 it is clear that none of them or their companions were carrying any weapons and in fact they have clearly stated that they had absolutely no apprehension that they would be stopped from ploughing the field or that an incident of the kind would ensue since so far as they were concerned they had already won the litigation in their favour with regard to the said land. We may also note that the accused in their statements recorded under Section 313 Cr.P.C. have nowhere stated that the prosecution party was carrying weapons and offered resistance and that therefore, they had to defend themselves and they exercised their right of private defence.

50. The learned counsel for the appellants at this stage, referred to the judgment of the Supreme Court in Moti Singh Vs State of Maharashtra, (2002) 9 SCC 494 and submitted that right of private defence cannot be denied to the accused even if the plea to that effect has not been taken in the examination of the accused under Section 313 Cr.P.C. Reference has been made to paragraphs 4, 9, 10, 11 and 12 which read as under:

"4. Though the appellant did not adopt the right of private defence as a plea in the statement recorded under Section 313 of the Criminal Procedure Code, his co-accused (fifth accused - Jai Singh) put forward a case that the prosecution witnesses and the deceased marched towards their house in retaliation for the earlier incident and launched an attack on the inmates including him.

5.....

6...

7...

8...

9. Section 102 of the Indian Penal Code says that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or even a threat to commit any offence though the offence may not have been committed and the right continues as long as such apprehension of danger to the body continues. Section 100 of the Indian Penal Code confers the right of private defence of the body upto the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, be of any of the acts as may reasonably cause the apprehension that grievous hurt be the consequence of such assault.

10. Regarding the contention that the appellant is disentitled to get the benefit of right of private defence as he failed to make out a plea in that regard we may point out that it would be quite unjust to deny such a right to the accused merely on the ground that he adopted a different line of defence.

If the evidence adduced by the prosecution would indicate that the accused were put under a situation where they could reasonably have apprehended grievous hurt even to one of them, it would be inequitable to deny the right of private defence to the accused merely on the ground that he has adopted a different plea during the trial. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation.

11. This Court has stated the above legal position time and again. A three judge bench of this Court in State of U.P. v. Lakhmi has stated thus:

"The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 of the Code without referring to exception I of Section 300 of IPC is not enough to deny him of (he benefit of the exception, if the court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence, would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability".

12. A two judge bench of this Court in Periasami and Anr. v. State of Tamil Nadu has stated thus:

"We may point out that the appellants have not stated, when examined under Section 313 of the Code, that they have acted in exercise of such right. Of course, absence of such a specific plea in the statement is not enough to denude them of the right if the same can be made out otherwise."

51. We find that facts of that case as put forth by co-accused Jai Singh (therein) is that the prosecution witnesses and the deceased marched towards their (accused) houses in retaliation for an earlier incident and launched an attack on the community including him. In that case, it has also been noted that the injuries sustained by accused Jai Singh was caused by the prosecution party armed with blunt objects. We may note that, it is in that context, that even though the plea of private defence was not raised in Section 313 of the Code but the Hon'ble Supreme Court admitted the plea of private defence in view of the grievous injury inflicted to one of the accused. Paragraph 14 of the said jugement reads as under:

"14. In our considered opinion, the appellant, even if the prosecution version that it was he who inflicted the fatal stab on the deceased is to be accepted as correct, it ended in the exercise of right of private defence.

As the reasonable apprehension that the grievous hurt would have been inflicted to one of the accused cannot be ruled out on the broad probabilities, delineated by the prosecution to the evidence, we are disposed to extend the said right to this appellant. Resultantly the conviction and sentence passed on him cannot be sustained."

52. In the present case, what we find is that neither the plea of private defence has been taken by the accused appellants in their testimony recorded under Section 313 of the Code of Criminal Procedure nor is it the case of the accused that any of the prosecution witnesses were carrying weapons or were otherwise armed and that any injuries had been caused to the accused persons which resulted in retaliation by the accused persons by way of private defence and which resulted in injuries to the prosecution witnesses and death of Ramesh Chand. There is no injury report on record to show any injury being caused to or sustained by any of the accused persons to support the theory of an attack or assault having been launched by the prosecution side which resulted in a retaliation by the accused. In such circumstances, the plea of private defence is neither available nor can be allowed to be raised by the accused in the facts and circumstances of the present case.

53. The learned counsel for the appellants has also referred to the judgement of the Supreme Court in the case of Vajrapu Sambayya Naidu and others Vs State of Andhra Pradesh and Others, (2004) 10 SCC 152. Paragraphs 20 and 21 of the said judgement read as under:

"20. The trial court came to the conclusion that the members of the defence party though they had a right of private defence of property, had exceeded that right by causing injuries which ultimately resulted in the death of one of the members of the prosecution party. This was on the assumption that the members of the defence party had only a right of private defence of property, which did not entitle them to cause the death of any person in the exercise of that right. Rut the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore though initially the appellants had only the right of private defence of property; once the members of the prosecution party started an assault on them with sharp cutting weapons, that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that atleast grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary. Unfortunately, the courts below have not viewed the case from this angle. We are of the view that the appellants were entitled to exercise their right of private defence of property as well as of person in the facts and circumstances of the case.

21. Even assuming that the right of private defence of persons did not accrue to the appellants and that, in fact, they exceeded their right of private defence of property, it has to be seen as to which of the accused exceeded that right. It is well settled that in a case where the court comes to the conclusion that the members of the defence party exceeded the right of private defence, the court must identify and punish only those who have exceeded the right. Section 34/149 IPC will not be applicable in the case of persons exercising their right of private defence. [See : State of Bihar v. Mathu Pandey and Subramani v. State of Tamil Nadu ]. For the same reason, the appellants cannot be held guilty of the offence under Section 148 IPC, because nothing is an offence which is done in the exercise of the right of private defence."

54. The facts of the said case itself disclose that the defence party was actually attacked and assaulted by the prosecution with sharp cutting weapons and this gave a reasonable apprehension to the appellants that at least grievous injury may be caused to them if not, death and therefore, they were entitled to use reasonable force to resist the members of the prosecution party which gives the appellants the right to private defence. We find that the facts of the said case are totally different from the facts of the present case and have no application to the present case as we have already noted hereinabove that it is nobody's case herein that the members of the prosecution party were armed with weapons of any kind which may have raised a reasonable apprehension in the minds of the accused-appellants that grievous injury resulting in possible death to one of them would have been caused if they had not exercised their right of private defence. The facts of the case on the other hand are that the prosecution party had gone to the plot no. 580 in question to plough the same, may be for the first time, on the basis of some judgement in their favour and it is when they were ploughing the field that the accused-appellants armed with farsa, ballam (spear), kanta, country made guns, tamancha and hand bomb assaulted the prosecution party resulting in the death of one of the members of the prosecution party namely, Ramesh Chandra and injuries to the other prosecution witnesses. Further the case was decided in favour of prosecution therefore prosecution party was rightful owner of the land as such no question of right of private defence regarding the property arises for the defence.

55. The next judgment relied upon by the learned counsel for the appellants is (2014) 5 SCC 744, State of Rajasthan Vs Manoj Kumar. Relevant paragraphs 15, 15.1, 15.2 and 15.3 read as under:

"15. The learned counsel for the State next contended that when the accused persons had exceeded their right of private defence and caused the death of the deceased, all of them should have been convicted under Section 302/34 IPC. In this regard, we may refer with profit to certain authorities before we advert to the facts unfurled in the case at hand:

15.1. In Munshi Ram v. Delhi Administration, AIR 1968 SC 702, while dealing with right to private defence, this Court has observed that law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities, for the right of private defence serves a social purpose and that right should be liberally construed. The Court further stated that such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen, because there is nothing more degrading to the human spirit than to run away in the face of peril.

15.2. In Mohd. Ramzani v. State of Delhi, 1980 SCC (Cri) 907 the Court has observed that:

"19. ....It is further well-established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in "golden scales" the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it."

15.3. In Bhanwar Singh and others v. State of Madhya Pradesh (2008) 16 SCC 657 it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death and if the court were to reject the said plea, there are two possible ways in which this may be done, i.e., on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2."

56. In our opinion, the said judgment also has absolutely no application to the facts of the present case. That was a State appeal and the plea of the State was that since all the accused persons had exceeded their right of private defence and caused the death of the deceased all of them should have been convicted under Section 302/34 IPC. The judgment of the Supreme Court in the case of Manoj Kumar has no application to the facts of the present case and is therefore, clearly distinguishable.

57. The learned counsel for the appellants has referred to the judgment of the Supreme Court in Kashi Ram and others Vs State of Madhya Pradesh, (2002) 1 SCC 71. In our opinion, the said judgment has no application to the facts of the present case.

58. The learned counsel for the appellants has also referred to the judgment of the Supreme Court in Bhawar Singh and others Vs State of Madhya Pradesh, (2008) 16 SCC 657. Paragraphs 51 and 52 of which read as under:

"51. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity must be present, real or apparent.

52. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. {See Dharam v. State of Haryana [2006 (13) SCALE 280]}."

59. In our opinion, the judgment of the Supreme Court in the case of Bhawar Singh (Supra) pithily states the law that right of private defence cannot be treated as a right of aggressor or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. In our opinion, the said judgment supports the case of the prosecution more than the case of the appellants.

60. The learned counsel for the appellants has also placed reliance on the judgment of the Supreme Court in Munshi Ram Vs Delhi Administration, AIR (1968) SC 702 particularly paras 18 and 19 wherein it was held that if the complainant party had invaded the land of the accused and the accused were taken by surprise, law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. The said judgment in our opinion has no application to the facts of the present case particularly in view of the ratio of Bhawar Singh (Supra).

61. With regard to the plea of private defence claimed by the accused appellants, the learned AGA has relied on the judgment of the Supreme Court in Rajinder and others Vs State of Haryana, (1995) 5 SCC 187. Paragraphs 19, 20, 21 and 22 of the said judgments read as under:

"19. Having drawn the above inferences we have now to ascertain whether the unauthorised entry of the complainant party in the disputed land, which according to the trial Court was in settled possession of the accused party legally entitled the latter to exercise their right of private defence and, if so, to what extent. The fascicule of Sections 96 to 106 I.P.C. codify the entire law relating to right of private defence of person and property including the extent of and the limitation to exercise of such right. Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence and Section 97 which defines the area of such exercise reads as under:

"97. Every person has a right, subject to the restrictions contained in section 99, to defend-

First. - His own body, and the body of any other person against any offence affecting the human body:

Secondly, - The property, whether moveable or immoveable, of himself or of any other other person. against any act which is an offence falling under the definition of theft. robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. (emphasis supplied)

On a plain reading of the above section it is patently clear that the right of private defence, be it to defend person or property, is available against an offence. To put it conversely, there is no right of private defence against any act which is not an offence. In the facts of the instant case the accused party was entitled, in view of Section 97 and, of course, subject to the limitation of Section 99, to exercise their right of private defence of property only if the unauthorised entry of the complainant party in the disputed land amounted to "criminal trespass", as defined under Section 441 I.P.C. The said Section reads as follows:

"Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".

21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or uniawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate insult or annoy the person in possesion of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such anintention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult, intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave the complainant party the right to strike back in self defence but disentitled the accused to even claim the right of private defence of person.

22. We hasten to add, that even if we had found that the complainant party had criminally tresoassed into the land entitling the accused party to exercise their right of private defence we would not have been justified in disturbing the convictions under Section 302 read with Section 149 I.P.C., for Section 104I.P.C. expressly provides that right of private defence against "criminal trespass" does not extend to the voluntary causing of death and Exception 2 to Section 300 I.P.C. has no manner of application here as the attack by the accused party was premeditated and with an intention of doing more harm than was necessary for the purpose of private defence. Which is evident from the injuries sustained by the three deceased, both regarding severity and number as compared to those received by the four accused persons. However, in that case we might have persuaded purselves to set aside the convictions for the minor offences only: out then that would have been, needless to say, a poor solace to the appellants."

62. We find that the Supreme Court in the said judgment has held that even if the complainant party has committed criminal trespass in the land entitling the accused to exercise their right of private defence, the court would not have been justified in disturbing the convictions under Section 302 read with Section 149 IPC particularly in the light of the provisions of Sections 104 IPC which expressly provides that right of private defence against criminal trespass does not extend to voluntarily causing of death.

63. We may also refer to the judgment of the Supreme Court in the case of Abid Vs State of U.P., 2009 (66) ACC 737 (SC). The facts in that case were that the accused persons were aggressors. D-1 and D-2 were unarmed when they asked the accused persons as to why they had harvested the standing crop. Assuming that the accused persons therein had purchased the agricultural land from one Gheesey through a registered sale deed and they were in possession but there was no justifiable reason for them to attack D-1 and D-2 with deadly weapons like ballam, gandasa and lathis even if, D-1 and D-2 had questioned them about harvesting the crop. The Supreme Court held that in the circumstances, the trial court as well as High Court could not be said to have committed any error in not accepting the plea of private defence. Paragraphs 24, 25, 26 and 27 of the said judgment reads as under:

"24. That it is for the accused to establish plea of private defence is well settled. The plea of self-defence, is not required to be proved by the accused beyond reasonable doubt. What is required of the Court is to examine the probabilities in appreciating such a plea. Nevertheless, the accused has to probablise the defence set up by it. In the present case, the accused has miserably failed to establish, much less probablise, right of private defence. As a matter of fact, the evidence on record shows that the accused persons were aggressors. D-1 and D-2 were unarmed when they asked accused persons as to why they had harvested the standing crop. Assuming that the accused persons had purchased the agricultural land from Gheesey by registered sale deed and they were in possession but there was no justifiable reason for them to attack D-1 and D-2 with deadly weapons like ballam, gadasa and lathis, even if D-1 and D-2 questioned them about harvesting the crop. In the facts and circumstances of the case, there is no scope for any right of private defence as D-1 and D-2 had neither put the person nor the property of the accused in peril.

25. In our considered view, the trial court as well as the High Court cannot be said to have committed any error in not accepting the plea of private defence.

26.The deadly weapons with which appellants were armed and large number of injuries inflicted on D-1 and D-2 clearly show that the appellants shared common object of committing murder. That the accused persons were more than five and formed unlawful assembly is amply established. D-1 and D-2 died on the spot. The conviction of the accused under Section 302 read with 149 IPC does not suffer from any legal flaw.

27. The result of the foregoing discussion is that both appeals must fail and are dismissed."

64. In the present case, we find that though the prosecution party were ten in number but they were completely unarmed. They had gone to the field in question may be for the first time, to plough the same. It was a very big plot measuring about 11 bighas and therefore, two ploughs drawn by bullocks and buffaloes were required and other members of the party were involved in cleaning the ground and removing the grass. The prosecution party had gone there as they had won a case against the accused. The witnesses of fact have stated that as there was a judgment in their favour they had no apprehension of any assault from the accused party or from anybody. The accused appellants came there armed with deadly weapons like farsa, kanta, ballam (spear), guns, tamancha and hand bombs and immediately on arriving on the plot the accused Kusuma Appellant no.6 threw a hand bomb on Ramesh Chandra resulting in his instantaneous death. Rest of the prosecution witnesses were assaulted by other weapons which is borne out from their injury report. Not a single injury is reported to have been caused to the accused party (appellants) to even remotely suggest that the members of the prosecution party were also armed with weapons. No such injury report has been brought on record by the accused appellants, therefore, in the circumstances the plea of private defence raised by the accused appellants must necessarily be rejected.

65. The Supreme Court in Avtar Singh Vs State of Haryana, 2012 (79) ACC 699, held that the role played by the accused in causing serious injuries on the deceased and the injured witnesses and the other persons being found proved, the same does not call for any interference. If once that conclusion is irresistible the only other question to be considered was the plea of self-defence raised on behalf of the appellants and in this context the conclusion of the trial court in holding that it was the accused party who had attacked the complainant party and thereby the complainant party cannot be held to be aggressors was perfectly justified.

66. The learned counsel for the appellants next submitted that the deceased Ramesh Chandra died as a result of bomb injuries sustained by him thrown by Kusuma and therefore, the case of Kusuma should have been distinguished and separated from that of the other accused and that the accused-appellants other than Kusuma ought not have been convicted under Section 302/34 IPC as they had no such intention to cause the death of Ramesh Chandra.

67. In the present case, we may refer to certain facts of the case. The accused persons were armed with weapons as attributed to them in the testimony of the prosecution witnesses. The accused Kusuma was carrying a hand bomb in a bag and it was he who threw the bomb which struck Ramesh Chandra resulting in his instantaneous death. It has come in the testimony of the witnesses that Kusuma was in no way related to any of the accused or any of the members of the prosecution party. There is no enmity between the prosecution party and Kusuma. Kusuma used to purchase milk from the village and take it to sell it in Barthana, Etawa. He also used to run a Pan shop in the village. The submission of the learned counsel is not acceptable and is liable to be rejected for the reason that none of the members of the prosecution party was carrying any arms at the time when the incident happened. They had gone to the field to plough the same may be for the first time, on the basis of a judgment in their favour. The accused came their armed with pharsa, ballam (spear), kanta, country made guns, tamancha and one of the accused Kusum Singh was also carrying hand bomb in a bag (jhola). In the given facts and circumstances, it could hardly be assumed that the accused did not come to the field at 7:00 in the morning, armed with weapons as mentioned above, not to cause grievous injuries which would likely result in death of one or other members of the prosecution party. It is another matter that the injury no.1 sustained by the deceased Ramesh Chandra is a blast injury, injury no. 2,3 and 5 are lacerated wounds and injury no.4 is an abrasion. The Doctor who conducted the postmortem P.W.-5 testified that the cause of death was due to shock and excess bleeding due to injuries sustained by the deceased. To a question put by the defence counsel the witness P.W.-5 has stated that it is possible that the blast injury could have been caused by a hand bomb. The injury no. 1 is a blast injury which has caused fatal injuries to the deceased on his head and that his bone of the nose and the frontal bone of the head has been completely broken. In the circumstances, it also cannot be presumed that injuries no. 2,3,4 and 5 could not have been caused to the deceased by the weapons being carried by the other accused other than accused Kusuma Singh. The fact that all the accused came to the plot armed with such weapons as they were carrying and the fact that they also used those weapons and assaulted the members of the prosecution party with the same, resulting in the death of Ramesh Chandra and injuries to other prosecution witnesses clearly shows that they came with the common intention to cause grievous injuries and even death and therefore, in the circumstances, in our opinion, the case of the other accused is in no manner distinguishable from the act of the accused Kusuma Singh.

68. We may look at the matter from another angle. The accused Kusuma, appellant no. 6 was in no way concerned with the plot no. 580; he was in no way concerned with the members of the prosecution party, yet the other accused brought him at 7:00 am armed with hand bomb; the intention could only have been to use the same with the full knowledge that the same can cause death and therefore, in our opinion, the particular act of the other accused cannot be distinguished from the act of accused Kusuma and therefore, the judgement of the Supreme Court in the case of State of Rajasthan Vs. Manoj Kumar(supra) has no application to the present case.

69. The learned counsel for the appellants next referred to the judgment of the Supreme Court in Samsul Haque Vs State of Assam passed in Criminal Appeal no. 1905 of 2009 with Criminal Appeal no. 246 of 2011 and submitted that incriminating material was not put to the defendant appellants during trial, therefore, the defendants did not have adequate opportunity to rebut such material. Paragraphs 21, 22 and 23 of the judgment read as under:

"21. The most vital aspect, in our view, and what drives the nail in the coffin in the case of the prosecution is the manner in which the court put the case to accused No.9, and the statement recorded under Section 313 of the Cr.P.C. To say the least it is perfunctory.

22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam (2008) 16 SCC 328. The relevant observations are in the following paragraphs:

"21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."

23. While making the aforesaid observations, this Court also referred to its earlier judgment of the three Judge Bench in Shivaji Sahabrao Bobade v. State of Maharashtra(1973) 2 SCC 793 , which considered the fall out of the omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence, and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognised, that where there is a perfunctory examination under Section 313 of the Cr.P.C., the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed."

70. The learned counsel submitted that the questions put to the accused during trial and their statement under Section 313 Cr.P.C. are absolutely identical in nature and no question has been put to any of the accused with regard to causing the death of Ramesh Chandra and therefore, a vital question in this regard has not been put to any of the accused. In support of these submissions, the learned counsel has also relied upon a judgment of the Supreme Court in Asraf Ali Vs State of Assam, (2008) 16 SCC 328. Paragraphs 15, 16, 17 and 18 of which read as under:

"15. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

"The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."

16. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

17. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section(1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

18. In certain cases when there is perfunctory examination under Section 313 of the Code, the matter is remanded to the trial Court, with a direction to re-try from the stage at which the prosecution was closed."

71. The submission is that questions which have been put to the accused under section 313 Cr.P.C. is that the accused carried out the assault on the members of the prosecution party with the intention to cause the death of Akhilesh Kumar. The submission of the learned counsel is that no question was put to any of the accused with regard to death of Ramesh Chandra being caused by any of them and therefore, there was a vital lapse in the entire trial and that the accused were denied an opportunity to defend themselves since it was not Akhilesh Singh who had died but it was Ramesh Chandra who had died whereas the question put to the accused during trial was that the act of accused had resulted in the death of Akhilesh Singh. In this context, we may refer to the question no.1 which was actually put to the accused Brijendra under Section 313 Cr.P.C and we are not quoting the questions put to the other accused since the questions put to all the accused are of identical wordings.

“LANGUAGE”

72. A reading of the question no.1 would show that the question which was put to the accused was that 'had they not come to the disputed plots in question on 14.11.1991 at 7:00 in the morning with the common object alongwith other co-accused persons to commit murder of Ramesh Chandra armed with lethal weapons and had fired upon the informant Akhilesh Kumar with the intention to kill him and that they had assaulted Akhilesh Kumar, the informant and others with the intention to cause his death. It is these lines "cause his death" which is being interpreted by the learned counsel for the appellants to submit that the question which was put to the appellants was that they came to cause the death of Akhilesh Kumar although Akhilesh had not died but had only received injuries with a blunt object as per medical report. The submission of the learned counsel can be out-rightly rejected for the reason that the question put to the accused-appellants specifically was that 'they had come on the date and time of the incident at the disputed site with a common object to cause the murder of Ramesh Chandra armed with lethal weapons and had also fired upon Akhilesh Kumar and others resulting in the death of Ramesh Chandra.' This clearly indicates that the question put to the accused related to the murder of Ramesh Chandra and does not suggest that Akhilesh Kumar was the person who had been murdered because with reference to Akhilesh Kumar the word "aadi" has also been used and it is not to suggest that all the members of the prosecution party had died but that the murder was of Ramesh Chandra and the intention was to cause the murder of Ramesh Chandra. The question put to the accused has to be read as a whole and not by splitting it to distort its intent and meaning. Therefore, in our opinion, the judgement referred to by the learned counsel for the appellants in the case of Samsul Haq (supra) and Asraf Ali (supra) have no application to the facts of the present case.

73. The learned counsel for the appellants next submitted that the entire story of there being a dispute between the members of the prosecution party and the appellants is a concocted story and the land always belonged to Nathu Ram and other accused and therefore, there was no motive to commit the murder.

74. On the question of motive, we may reject the submission of the learned counsel for the appellants out right on the ground that this was a day light murder having being executed at 7:00 in the morning on 14.11.1991 and there were also injured eye witnesses of the said incident and they have specifically and very clearly narrated the incident in their testimony. Therefore when there are injured and impeachable eye witness account of a day light incident motive becomes irrelevant.

75. In the case of Shardul Singh Vs. State of Haryana (2002) 8 SCC 372, it has been held that:

"motive', which is not always capable of precise proof, if proved, may lead additional support to strengthen the probability of the commission of the offence by the person accused but the absence of motive does not ipso facto warrant an acquittal."

76. Similarly, in the case of Ravi

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ndra Kumar Vs. State of Punjab, (2001) 7 SCC 690, the Apex Court has held that- "It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. It is therefore not possible to change the tide on account of the inability of the prosecution to prove the motive aspect to the hilt. 77. Similarly in the case of State of U.P. Vs. Baburam (2000) 4 SCC 515 it has been held that- "It is not possible to accept the view that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would be weaken the prosecution to any would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it is generally in a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of offender to such a degree as to impel him to commit the murder cannot be construed as a fatal weakness of the prosecution." 78. Similarly, in the case Thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380, it has been held that- "There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. Hence in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused." 79. Similarly, in the case of Yunis alias Kariya Vs. State of M.P. (2003) 1 SCC 425, it has been held that- "Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case." 80. In (1973) 3 SCC 219 (Shivaji Genu Mohite Vs. The State of Mahrashtra) the Supreme Court in paragraph 12 has held as under: "12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy." 81. In (2017) 11 SCC 120 (Rajagopal Vs. Muthupandi alias Thavakkalai and Others) the Supreme Court in paragraph 14 has held as under: "14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW-1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence." 82. Learned counsel for the appellants then submitted that the description of injuries by injured Akhilesh Kumar, informant P.W.-1 is contradictory. We may note here that minor discrepancies in statements of witnesses will not vitiate the trial. The Supreme Court in the case of State of U.P. Vs M.K. Anthony, (1985) 1 SCC 505, in paragraph 10 has held as under: "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible. 83. The Supreme Court in the case of Gangabhavani v. Rayapati Venkat Reddy, AIR 2013 SC 3681, on the issue of contradictions in evidence has held as under: "CONTRADICTIONS IN EVIDENCE: 9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited." A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557). 10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. 84. The learned counsel for the appellants lastly submitted that the Site Plan Ext. Ka.9 does not show where the accused were alleged to be standing and therefore, the entire prosecution story is manufactured and concocted. 85. The Investigating Officer has proved the site plan Ext.Ka.9 prepared on 14.11.1991 itself which clearly shows the plot "C" where the quarrel occurred and just below it to the South is the plot "D" which is the plot of Nirbal Singh and the plot where the body of the deceased was found is marked by "+". The arrows which come from North in the Southerly direction show the same to be coming from Shiv Mandir and houses to the North therein which are marked as "houses of the accused" and after crossing the entire plot "C" which is a large plot, the arrows turn to the east to plot "C". Thus, we find no reason to doubt the site plan although the submission of the learned counsel for the appellants is that the places where the accused persons were standing have not been indicated in the site plan but we may add that in a case of this nature where a sudden attack and assault was launched by the accused persons upon the members of the prosecution party and the prosecution witnesses of fact have also stated that accused were standing all around the field and moving and attacking and they were eight in number, the mere fact that the presence of individual accused persons at a particular spot has not been shown in the site plan would not be fatal to the trial or to induce us to disbelieve the prosecution case. 86. For reasons aforesaid, we do not find any illegality or infirmity in the judgment of the trial court and the same is upheld. 87. The appeal lacks merit and is accordingly dismissed. 88. The appellants Diwari Lal, Dinesh Chandra, Viresh Chandra, Shiva Singh, Nihal Singh and Kusuma are on bail. C.J.M. Etawah is directed to take them into custody in the aforesaid case and send them to jail to serve out the sentences, awarded by the trial court and affirmed by us. 89. Office is directed to send a copy of this order to the court concerned within a week for compliance. The compliance report shall be sent by the court concerned to this court within a further period of fifteen days.
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