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1998 Supreme(All) 574
IN THE HIGH COURT OF ALLAHABAD
GIRIDHAR MALAVIYA, B. K. SHARMA
RAJ BAHADUR SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Appeal 2683 Of 1988
Decided On : 05/13/1998
JITENDRA SINGH, P.C.SHARMA, R.S.TIVARI, RAGHURAJ KISHOR
Encroachment on public land does not give rise to a right of private defense, and the absence of injuries on the accused-appellants negates the claim of self-defense. In the absence of an intention to kill, the offense is reduced from murder to culpable homicide not amounting to murder.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - ENCROACHMENT ON PUBLIC RASTA - RIGHT OF PRIVATE DEFENCE - SUDDEN QUARREL - INTENTION TO CAUSE BODILY INJURY LIKELY TO CAUSE DEATH - SECTION 304 PART I IPC - SENTENCE.
Fact of the Case:
Accused-appellants were convicted for the murder of the deceased, who was shot by them during an altercation over the encroachment of a public Rasta. The accused-appellants claimed that they acted in self-defense, but the trial court rejected their plea and convicted them under Section 302 IPC.
Finding of the Court:
The High Court found that the accused-appellants had encroached upon the public Rasta and that the deceased and his son had objected to it. The court also found that the accused-appellants had fired shots at the deceased and his son, causing the deceased's death. However, the court held that the accused-appellants had not acted in self-defense, as they had not received any injuries in the altercation. The court also found that the accused-appellants had not intended to kill the deceased, but only to cause him bodily injury.
Issues: 1. Whether the accused-appellants had encroached upon the public Rasta? 2. Whether the accused-appellants had acted in self-defense? 3. Whether the accused-appellants had intended to kill the deceased?
Ratio Decidendi: 1. The court held that the accused-appellants had encroached upon the public Rasta, as evidenced by the site plan prepared by the Investigating Officer and the testimony of the witnesses. 2. The court held that the accused-appellants had not acted in self-defense, as they had not received any injuries in the altercation and had not given a consistent account of the events leading up to the shooting. 3. The court held that the accused-appellants had not intended to kill the deceased, but only to cause him bodily injury, as evidenced by the fact that they had fired shots from a distance and had not aimed at the deceased's head or chest.
Final Decision: The High Court partly allowed the appeal, setting aside the conviction and sentence of the accused-appellants under Section 302 IPC and convicting them instead of the minor offense under Section 304 Part I IPC, with a sentence of 7 years R.I. each.
( 1 ) HEARD counsel.
( 2 ) THIS is an appeal against the judgment and order dated 26-11-1988 passed by Shri V. K. Jain, the then Additional Sessions Judge, Etah in S. T. No. 167 of 1987 (State v. Raj Bahadur and others), whereby he convicted accused-appellants Raj Bahadur Singh and Ram Nath Singh for the offence under Section 302 read with Section 34 I. P. C. and sentenced them to suffer R. I. for life.
( 3 ) THE deceased in the present case is Shri Pal Singh. Vijendra Singh informant (PW 1) was his son. Raj Bahadur Singh and Ram Nath Singh accused-appellants are real brothers inter se. Their brother Ashok Singh was also named in the F. I. R. in the present case but he was absconding during the investigation and so the present accused-appellants only were charge-sheeted and committed to the Court of Session and were tried by the Additional Sessions Judge about the murder of the deceased as aforesaid. Narendra Singh (PW 2) was another son of the deceased. All these persons were residents of village Hathaura Kheda, Police Station Patiyali, District Etah. In the said village a chak road belonging to the Gaon Samaj was running from East to West. There was house of Raj Bahadur Singh accused-appellant No. 1 towards its North and on the west of this house there was open land of Shri Pal deceased and to the west of which across the Rasta there was house of Ram Nath Singh accused-appellant No. 2. To the south of the Rasta there was an agricultural field of Shri Pal deceased.
( 4 ) THE prosecution story was that on 11-8-86 at about 6. 30 p. m. the deceased and the informant were returning from their field to their house, that when they reached near the house of Raj Bahadur Singh accused-appellant they saw that both the accused-appellants and Ashok Singh co-accused were digging the foundation in the Rasta in front of their house, that the informant and the deceased forbade them from digging the foundation in the Rasta but they did not agree and started altercating, that on hearing the altercation Shyam Pal Singh the paternal uncle of the informant Narendra Singh brother of the informant and Govil Singh came there, that on seeing them Ashok Singh co-accused exhorted the accused-appellant No. 1 Raj Bahadur Singh to bring the gun, whereupon the accused-appellants Raj Bahadur Singh and Ram Nath Singh and Ashok Singh co-accused climbed on their roof, that both the accused-appellants Raj Bahadur Singh and Ram Nath Singh were holding their licensed gun, that Ram Nath Singh, accused, appellant, fired one shot on the deceased, which struck him, that Raj Bahadur Singh accused-appellant fired another shot on the deceased, which also struck the deceased, that the deceased fell down on receiving the firearm injuries and then both the accused-appellants and Ashok Singh co-accused ran away towards the east.
( 5 ) THE deceased was injured but was alive and so he was sent on cot to District Hospital Patiyali for treatment, but the Medical Officer Patiyala Hospital referred the case to District Hospital Etah. The informant had got the F. I. R. scribed by Jaipal Singh and had lodged at the police station at 8. 30 a. m. whereupon a criminal case was registered against both the accused-appellants and Ashok Singh co-accused. The deceased, however, died on the way to the Etah Hospital. Thereupon the case was converted into one under Section 302, I. P. C.
( 6 ) THE inquest proceedings were taken andthe dead body was sent for post-mortem to Etah Hospital. The post-mortem of the dead body of the deceased was performed by Dr. R. K. Sharma, Medical Officer, district Hospital Etah on 12-8-86 at 2 p. m. His material observations were as follows :probable age about 55 years. PROBABLE time since death about 1/2 day.
( 7 ) TWO fire-arm wounds (abrasion) on back of right fire-arm 1/4 cm x 1/2 cm wounds are on upper part. Wounds are 6 cm apart from each other. There is no blackening or tattooing present on the wounds. INTERNAL Examinationsixteen metallic
