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1997 Supreme(Pat) 362
PATNA HIGH COURT
G.S.Chaube, J.
Bhudeo Singh
Versus
State Of Bihar
Death Reference No. 2 of 1995 ;
Decided On : MAY 6, 1997
The right of private defence of property does not extend to the voluntarily causing of death or of any other harm to the wrong-doer, if the offence, the committing of which or the attempting to commit which, occasions the exercise of such right of private defence is theft, mischief or criminal trespass.
Headnote:
CRIMINAL - MURDER - EVIDENCE ACT, 1872 - SECTIONS 32, 145 - PENAL CODE, 1860 - SECTIONS 101, 103, 104, 147, 148, 149, 302, 304, 307, 326 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTIONS 313, 366 - RIGHT OF PRIVATE DEFENCE - CRIMINAL TRESPASS - INTENTION TO COMMIT MURDER - ADMISSIBILITY OF AUTOPSY REPORT - EVIDENCE OF DOCTOR - WITNESSES - CREDIBILITY - CORROBORATION - SECTION 32 OF THE EVIDENCE ACT - POST-MORTEM REPORT - RELEVANCE - SECTION 145 OF THE EVIDENCE ACT - PREVIOUS STATEMENTS - CONTRADICTION - SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE - DYING DECLARATIONS - SECTION 104 OF THE CODE OF CRIMINAL PROCEDURE - VOLUNTARILY CAUSING OF DEATH OR OF ANY OTHER HARM TO THE WRONG-DOER - SECTION 97 OF THE CODE OF CRIMINAL PROCEDURE - RIGHT TO DEFEND PROPERTY - SECTION 99 OF THE CODE OF CRIMINAL PROCEDURE - RESTRICTIONS - SECTION 441 OF THE CODE OF CRIMINAL PROCEDURE - CRIMINAL TRESPASS - INTENT TO COMMIT AN OFFENCE OR TO INTIMIDATE, INSULT OR ANNOY ANY PERSON IN POSSESSION OF SUCH PROPERTY - SECTION 326 OF THE CODE - VOLUNTARILY CAUSING OF GRIEVOUS HURT BY MEANS OF A WEAPON OF CUTTING.
Fact of the Case:
The prosecution case was that there was a piece of land measuring about 10 kathas at village Khaira within Banka police station in the district of Bhagalpur (now Banka), the ownership of which was in dispute between Narain singh (Kahar) and his agnate Laxman singh, both of the same village. Paddy crops had been grown over the said piece of land. In the morning on that day, i. e. , 23-11-1969, while the said chawkidar was away from his village the said Laxman Singh, his two sons and 3 to 4 others were getting the paddy crops of the said disputed piece of land harvested with the help of 5 to 7 reapers. Laxman Singh and his associates were then armed with weapons. His agnate narain Singh (deceased) went to the field with his wife and his younger brothers wife to lodge protest. It led to an altercation between the parties. Consequently, Laxman Singh killed deceased Narain Singh and injured his wife and sister-in-law.
Finding of the Court:
The court found that the prosecution had proved beyond reasonable doubt that the appellants had committed the murders of Narain Singh and his daughter Debia Devi, and that they had also caused grievous hurt to P. Ws.1 and 3. The court further found that the appellants had acted in furtherance of a common object, and that they were therefore all liable for the murders under Section 149 of the Penal Code. However, the court found that the evidence did not support the conviction of appellant Govind Singh under Section 307 of the Penal Code for attempting to commit murder of P. Ws.1 and 3, and instead convicted him under Section 326 of the Penal Code for voluntarily causing grievous hurt.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellants had committed the murders of Narain Singh and his daughter Debia Devi, and that they had also caused grievous hurt to P. Ws.1 and 3? 2. Whether the appellants had acted in furtherance of a common object, and that they were therefore all liable for the murders under Section 149 of the Penal Code? 3. Whether the evidence supported the conviction of appellant Govind Singh under Section 307 of the Penal Code for attempting to commit murder of P. Ws.1 and 3?
Ratio Decidendi: 1. The court held that the prosecution had proved beyond reasonable doubt that the appellants had committed the murders of Narain Singh and his daughter Debia Devi, and that they had also caused grievous hurt to P. Ws.1 and 3. The court relied on the testimony of the eyewitnesses, the medical evidence, and the circumstantial evidence to reach this conclusion. 2. The court held that the appellants had acted in furtherance of a common object, and that they were therefore all liable for the murders under Section 149 of the Penal Code. The court found that there was an assembly of more than five persons, that the assembly became unlawful as soon as the assault on the deceased and the injured witnesses started, and that in prosecution of the common object of such assembly the twin murders were committed. 3. The court held that the evidence did not support the conviction of appellant Govind Singh under Section 307 of the Penal Code for attempting to commit murder of P. Ws.1 and 3. The court found that there was no specific evidence that all the injuries inflicted on the person of P. W 3 Manti Devi were caused by appellant Govind Singh only, and that no intention to commit murder while inflicting those injuries could be imputed to the assailant.
Final Decision: The court allowed the appeals in part. The convictions of appellants No.1, 2, 3, 4, 6, 7 and 10 in Cr. Appeal No.395/95 were set aside, and they were acquitted. The conviction of appellant Govind Singh (in Cr. Appeal No.388/95) under Sec.302 of the Code for committing murder of Narain Singh and Debia Devi was set aside and altered to Sec.302 read with Section 149 of the Code, and he was sentenced to imprisonment for life. His conviction under Sec.307 of the Code was set aside and altered to Sec.326 read with Section 149 of the Code, and he was sentenced to rigorous imprisonment for five years. The convictions of appellants No.5, 8 and 9 in Cr. Appeal No.395/95 under Sec.302 read with Sec.149 of the Code were maintained, and they were sentenced to imprisonment for life. Their conviction under Sec.307 read with Sec.149 of the Code was set aside and altered to Sec.326 read with Sec.149 of the Code, and they were sentenced to rigorous imprisonment for five years each.
G. S. Chaube, J.
1. Sole appellant govind Prasad Singh alias Govind singh in Cr. Appeal No.388/95 has been convicted by the 1st Addl. Sessions Judge of Banka in Sessions Case no.229/77 under Sections 148, 302 and 307 of the Indian Penal Code ("the code" in short) and has been condemned to death for the offence under section 302 of the Code. He has been further sentenced to undergo imprisonment for life for the offence under Sec.307 of the Code. No separate sentence has been passed for his conviction under Sec.148 of the Code. Consequently, his sentence of death has been referred to this Court by the trial Court for confirmation under Sec.366 of the code of Criminal Procedure and the said reference has been registered as Death Reference No.2/95.
2. The appellants other than Appellant No.9 in Cr. Appeal No.395/95 are convicted ia same sessions case under Sections 147, 302 read with Sections 149 and 307 read with Sec.149 of the Code and have been sentenced to undergo imprisonment for life for the offence under Sec.302 read with section 149 and rigorous imprisonment for seven years for the offence under section 307 read with Sec.149 of the code. No separate sentence has been awarded to them for the offence under section 147 of the Code. Appellant No.9 Gulli Rai @ Gulabi Rai has, however, been convicted under Sections 302 and 307 with the aid of Sec.149 of the code and sentenced to the same terms of imprisonment as his co-appellants. The sentenceed of all the appellants are directed to run concurrently.
3. The prosecution case as disclosed in the first information report lodged by Chawkidar Mahadeo Hajra of village Baratikar with Banka police at 1.00 P. M. on 23-11-1969 is that there was a piece of land measuring about 10 kathas at village Khaira within Banka police station in the district of Bhagalpur (now Banka), the ownership of which was in dispute between Narain singh (Kahar) and his agnate Laxman singh, both of the same village. Paddy crops had been grown over the said piece of land. In the morning on that day, i. e. , 23-11-1969, while the said chawkidar was away from his village the said Laxman Singh, his two sons and 3 to 4 others were getting the paddy crops of the said disputed piece of land harvested with the help of 5 to 7 reapers. Laxman Singh and his associates were then armed with weapons. His agnate narain Singh (deceased) went to the field with his wife and his younger brothers wife to lodge protest. It led to an altercation between the parties. Consequently, Laxman Singh killed deceased Narain Singh and injured his wife and sister-in-law. According to the first information report, when Chawkidar Mahadeo Hajra returned to his village from Phoolahra where he had been to the preceding night, became to know of the occurrence and went to village Khaira to learn from a few villagers, including Appellant No.7 makeshwar Singh, of what had happened there. Consequently, he went to the paddy field to find Narain Singh lying dead and the two women of his family, namely, wife and sister-in-law, severely injured. The neck of deceased narain Singh was also almost completely slit. He also found paddy crop from an area of about half a katha harvested on the western side of the disputed field. Leaving the dead and the injured at the paddy field where they had fallen, the chawkidar Mahadeo Hajra went to banka police station and lodged the first information report (Ext.1 ).
4. From the record of the Court below it further transpires that a daughter (P. W.2) and the niece (P. W.4)of deceased Narain Singh fled from the village on seeing the occurrence. They reached a place called Punsia where they happened to come across P. W.5 deep Chandra Prasad Singh, a brother of the deceased Narain Singh, who was coming home from Sahebganj where he was engaged in some trade. They narrated the incident to him. Consequently, P. W.5 went to the place of the occurrence to find deceased Narain singh and his daughter Debia Devi lying dead on th
