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2008(5) Supreme 442
Supreme Court of india
(From Allahabad High Court)
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Genda Singh and Ors. — Appellants
versus
State of U.P. — Respondent
Criminal Appeal No. 1036 of 2008
(Arising out of SLP (Crl.) No. 1029 of 2007)
Decided on : 09-07-2008
AIR 1979 SC 391; AIR 1971 SC 1857 – Relied upon.
(b)Indian Penal Code, 1860 – Sections 102 and 105 – As soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence – The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors. (Paras 8, 9 and 13)
AIR 1963 SC 612; AIR 1975 SC 87; (1996)1 SCC 458; (2002)8 SCC 354; AIR 1991 SC 1316; (2005)10 SCC 358 – Relied upon.
(c)Indian Penal Code, 1860 – Section 97 – Theappellants having exceeded right to self defence, are not entitled to proction thereof. (Para 15)
Facts of the case :
1.The allegations of the prosecution are that a day before the incident sometime in the evening boundary of the fields of the complainant was damaged by accused Genda Singh and Mahavir Singh and for it some altercations had also taken place. On the fateful day in the morning hours, the complainant Kendra Pal Singh alongwith his father Virendra Singh and uncle Hari Raj Singh went to plough their fields. They were just repairing the boundary at that place where it was damaged by accused Genda Singh and others.
2.It was about 7.00 a.m. Genda Singh, Mahavir Singh, Thamman Singh and Leela Singh all variously armed came at that place and exhorted that the boundary wall would not be disturbed from the place where it was set up. Some quarrel had taken place on it and they gave blows with their weapons to Hari Raj Singh and Virendra Singh.
3.They were rescued by some persons who came there on hearing. On hearing the hue and cry made by the complainant, Father of the complainant Virendra Singh in unconscious state and Hari Raj Singh in a precarious condition were brought to the Police Station where report was lodged.
4.Trial Court found the accused persons guilty and convicted and sentenced as aforenoted.
5.The High Court dismissed the appeal.
Findings of the Court :
Appellants exceeded the right to self defence.
Result : Appeal partly allowed.
Judgment
Dr. Arijit Pasayat, J. —
1.Leave granted.
2.Challenge in this appeal is to the Judgment of a Division Bench of the Allahabad High Court upholding the conviction of the appellants for offences punishable under Section 302 read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). The learned Additional Sessions Judge, Bijnor had found the accused appellants guilty and had sentenced each to undergo RI for life for the first offence and six months’ RI for the second offence. The sentences were directed to run concurrently. One Leela Singh who faced trial alongwith the appellants was given the benefit of doubt and was acquitted of the charges.
3.Background facts in a nutshell are as follows :
The incident is alleged to have taken place on 17th June, 1980 at about 6.00 p.m. at Village Bilai, which is also 4 Kms. at a distance from the Police Station Haldaur, District Bijnor. The report of the incident was lodged at Police Station Haldaur on that very day at 8.30 p.m. The allegations of the prosecution as would appear from the written report (Exhibit Ka-8) are that a day before the incident sometime in the evening boundary of the fields of the complainant was damaged by accused Genda Singh and Mahavir Singh and for it some altercations had also taken place. On the fateful day (17th June 1980) in the morning hours, the complainant Kendra Pal Singh alongwith his father Virendra Singh and uncle Hari Raj Singh went to plough their fields. They were just repairing the boundary at that place where it was damaged by accused Genda Singh and others. It was about 7.00 a.m. Genda Singh armed with Tabal, Mahavir Singh armed with axe, Thamman Singh armed with Lathi and Leela Singh armed with iron pipe came at that place and exhorted that the boundary wall would not be disturbed from the place where it was set up. Some quarrel had taken place on it and they gave blows with their weapons to Hari Raj Singh and Virendra Singh. On hearing the hue and cry made by the complainant, Surendra Singh, Prakash Singh, Balbeer Singh, Naubahar Singh and other persons turned up at the site and rescued the complainant and other persons. Father of the complainant Virendra Singh in unconscious state and Hari Raj Singh in a precarious condition were brought to the Police Station where report was lodged. The report was registered at Crime No.130 of 1980 at the Police Station Haldaur for the offences under Sections 323, 324 and 308 IPC and its entry was also made in the G.D. (Exhibit Ka-12). Sub Inspector Vipin Pal Singh and other Police Constables namely Anwar Khan, Mahendra Singh and, Shaukat Khan were sent from the Police Station to the hospital with necessary papers for drawing inquest report vide exhibit ka-12 P.W. B.S.Rana S.I., (P.W.8) took up the investigation of the case and prepared the inquest report. Dr. Gurcharan Singh (P.W.2) conducted the autopsy at the dead body of Hari Raj Singh on that very day at 4.30 P.M. and prepared the report (Exhibit Ka-6). Virendra Singh was brought to the Primary Health Centre at 8.00 a.m. on 17th June, 1980 by Constable Tej Pal Singh. He died on the same very day. It was opined by the doctor who conducted the autopsy of Hari Raj Singh and Virendra Singh that their deaths had taken place on account of shock and hemorrhage. It was also opined that the ante mortem injuries sustained by the victims might have been caused on that very day i.e. 17th June, 1980.
Injuries of PW-5 Kendra Pal Singh were also medically examined at Primary Health Centre, Haldaur on 18th June, 1980 at 9.15 a.m. (Exh. Ka-2) by PW-1 (Dr. Chaod Kumar Singh).
Charge sheet was filed after investigation. Since accused persons abjured their guilt, trial was held.
Placing reliance on the evidence of the witnesses, more particularly, the injured witness the trial Court found the accused persons guilty and convicted and sentenced as aforenoted. The Judgment of the trial Court was questioned before the High Court
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