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1997 (2) JLJ 296
N.P. Singh and V.K. Agarwal, JJ.
Rajendra Tiwari and others v. State of M.P.
Cr. Appeal No. 1374 of 1994; against the judgment of conviction passed in Sessions Trial No. 25 of 1992; Decided on 5.3.1997.
(2) Penal Code, 1860 -- Ss. 302, 100 and 104 -- accused not in possession of disputed land -- deceased in actual settled possession -- accused cannot claim right of private defence which lies with deceased person -- accused rightly held liable for commission of murder.
Since the appellant No.1 Rajendra Tiwari was not in possession of the property and was a trespasser trying to forcibly oust and dispossess the deceased from the disputed land, obviously, therefore, the appellant No. 1 Rajendra Tiwari cannot be said to have any right of private defence, as has been tried to be urged on his behalf. Therefore, the firing of rifle by the appellant No. 1 Rajendra Tiwari appears to be without justification and not in the exercise of right of any alleged private defence. A trespasser cannot certainly have a right of private defence against a person in actual settled possession of the land, and the trespasser cannot forcibly oust him.
Appellant No. 1 is held liable for committing murder of deceased Gendalal and Narayan and finding of the trial Court in this regard is confirmed. AIR 1988 SC 83 and AIR 1994 SC 551 followed. AIR 1975 SC 1478, AIR 1973 SC 473, AIR 1968 SC 702, AIR 1976 SC 966, AIR 1976 SC 2263, AIR 1977 SC 2252, AIR 1979 SC 1010 and AIR 1993 SC 2651 discussed. [Para 37]
(3) Criminal P.C., 1973 -- S. 161 -- police statement -- improvements made in Court statements -- cannot be believed. [Para 40]
(4) Penal Code, 1860 -- S. 302/34 -- witnesses trying to implicate during Court statement -- presence of accused on spot doubtful -- entitled to acquittal. [Paras 41 & 44].
(5) Penal Code, 1860 -- Ss. 302, 302/34 -- natural presence of accused on spot -- sudden firing by another accused -- ;10 common-intention with present accused can be gathered -- he would be liable for part played by him -- but cannot be punished in absence of charge. [Para 47]
¼1½ flfoy izfØ;k lafgrk] 1908 && vk- 39 fu- 1 rFkk 3 && varfje O;kns‘k && ds fo#) vihy ugha dh xbZ && i{kdkjksa ds e/; vafre gks tkrk gSA ¿ iSjk 29À ¼2½ naM lafgrk] 1860 && /kkjk 302] 100 rFkk 104] && vfHk;qDr dk fooknxzLr Hkwfe ij dCtk ugha && e`rd dk okLrfod O;oLFkkfir dCtk && vfHk;qDr izkbosV izfrj{kk ds vf/kdkj dk nkok ugha dj ldrk tks e`r O;fDr ds ikl Fkk && vfHk;qDr gR;k dkfjr djus ds fy, nk;h Bhd&gh vfHkfu/kkZfjrA D;ksafd vihykFkhZ Ø- 1 jktsanz frokjh dk laifÙk ij dCtk ugha Fkk rFkk og fooknxzLr Hkwfe ls e`rd dks cyiwoZd csn[ky vkSj csdCtk djus dk iz;kl djus okyk vfrpkjh Fkk] blfy,] Li"Vr% ;g ugha dgk tk ldrk fd vihykFkhZ Ø- 1 jktsanz frokjh dks izkbosV izfrj{kk dk vf/kdkj Fkk] tSlk mldh vksj ls crkus dk iz;kl fd;k x;k gSA blfy,] vihykFkhZ Ø-1 jktsanz frokjh }kjk jkbQy pyk;k tkuk U;k;kSfpR;jfgr izrhr gksrk gS] izkbosV izfrj{kk ds vfHkdfFkr vf/kdkj ds iz;ksx esa ughaA Hkwfe ij okLrfod O;oLFkkfir dCtk j[kus okys O;fDr ds fo#) fuf‘pr :i ls vfrpkjh dks izkbosV izfrj{kk dk vf/kdkj ugha gks ldrk vkSj vfrpkjh mls cyiwoZd csn[ky ugha dj ldrkA vihykFkhZ Ø-1 dks e`rd xsankyky vkSj ukjk;.k dh gR;k djus ds fy, nk;h vfHkfu/kkZfjr fd;k tkrk gS rFkk bl ckjs esa fopkj.k U;k;ky; ds fu"d"kZ dh iqf"V dh tkrh gSA , vkb vkj 1988 ,l lh 3 rFkk , vkb vkj 1994 ,l lh 551 vuqlfjrA , vkb vkj 1975 ,l lh 1478] , vkb vkj 1973 ,l lh 473] , vkb vkj 1968 , lh 702] , vkb vkj 1976 ,l lh 966] , vkb vkj 1976 ,l lh 2263] , vkb vkj 1977 ,l lh 2252] , vkb vkj 1979 ,l lh 1010 rFkk , vkb vkj 1993 ,l lh 2651 foosfprA ¿ iSjk 37À ¼3½ naM izfØ;k lafgrk] 1973 && /kkjk 161 && iqfyl dFku && U;k;ky; dFkuksa esa lq/kkj fd, x, && fo‘okl ugha fd;k tk ldrkA ¿ iSjk 40À ¼4½ naM lafgrk] 1860 && /kkjk 302@304 && lk{khx.k }kjk U;k;ky; dFku ds nkSjku vkfyIr djus dk iz;kl && LFky ij vfHk;qDr dh mifLFkfr lansgkLin && nks"keqfDr dk gdnkj gSA ¼5½ naM lafgrk] 1860 && /kkjk 302 rFkk 302@304 && LFky ij vfHk;qDr dh LokHkkfod mifLFkfr && vU; vfHk;qDr }kjk vpkud xksyh pykbZ xbZ && orZeku vfHk;qDr ds lkFk lkekU; vk‘k; dk vuqeku ugha fd;k tk ldrk && og vius }kjk fd, x, dk;Z ds fy, nk;h gksxk && iajrq vkjksi dh vfo|ekurk esa nafMr ugha fd;k tk ldrkA ¿ iSjk 47À
Agarwal, J. -- I. The accused/appellants have been convicted for offence punishable u/s. 302 r/w. Sec. 34 of the IPC for having intentionally caused the death of Gendalal and Narayan in furtherance of their common intention and have been sentenced on each of the above counts to life imprisonment and to pay fine of Rs. 2,000/- and in default to undergo R.1. for 2 years, in S.T. No. 25 of 1992, by impugned judgment dated 6.10.1994. Appellants feeling aggrieved by the said conviction as also sentenced imposed on them, have filed the present appeal.
2. The prosecution case stated in brief is that, Khasra No. 33/4 and Khasra No. 33/5, area 3 acres is an agricultural land at village Dungaria, known as 'Tagrawala Khet' (which hereinafter will be called 'disputed land' for convenience). Chunnilal was the Bhumiswami of the said disputed land and his son Shivji received the same in his share in partition by way of family settlement and his name was also mutated thereon. Shivji had sold the disputed land by registered sale-deed to Satyendra Kumar and Indra Kumar who are the sons of Narayan, alias, Ram Narayan and Gendalal whereafter their names were also recorded in the record of rights. Since, the said purchasers Satyendra Kumar and Indra Kumar were minors, the agricultural operations on the disputed land used to be carried on by the deceased Narayan and Gendalal. Even prior to the purchase, the deceased used to cultivate the disputed land as sub-tenants.
3. According to the prosecution, most of the disputed agricultural land was sown in the year 1991 by Gendalal and Narayan, 4-5 days prior to the incident. On 26.1 0.1991, i.e., the date of incident at about 4.30 p.m., the accused/appellants Rajendra Tiwari, Narendra Prasad Tiwari and Vishwanath went to the agricultural land alongwith Chunnilal (PW 4) to plough the said land. Appellant No. I Rajendra Prasad Tiwari was armed with a 315 Rifle and cane, appellant No.2 Narendra was armed with a 12 bore gun, while appellant No.3 Bhura, alias, Vishwanath was armed with a 'Lathi'. Deceased Gendalal, Narayan and Indra Kumar (PW 5) came on the spot and protested ploughing of field by the appellants. However, the accused/appellants were not prepared to listen to the protests and wanted the cultivating operation to continue. However, when deceased Gendalal and Narayan continued to protest and came in front of the plough, the accused/appellant No. 1 Rajendra Tiwari, who had a 315 rifle with him, fired on the deceased Gendalal and Narayan, who sustained injuries. Gendalal and Narayan died on the spot. The accused/appellant Narendra -also fired his 12 bore gun at the time of incident. Indra Kumar (PW 5) ran towards the deceased Narayan and Gendalal to intervene, upon which accused/appellant No.3 Vishwanath, alias, Bhura assaulted him with 'lathi', on account of which he received injuries on his hand.
4. On receiving information, the Station House Officer, Pan agar, K.S. Bhatia (PW 12) came to the spot. Ramnath Patel (PW I) reported the matter, which was recorded as Dehati Nalsi (Ex. P/1) by K.S. Bhatia (PW 12). He also recorded the marg intimation (Ex. P/25) & (Ex. P/26) regarding the deaths of deceased Gendalal and Narayan. On the next day, Investigating Officer prepared the spot map (Ex. P/19) and seized a broken chain of a wrist watch, one cane, three empty cartridges and one live cartridge of 315 rifle, one broken nose-cap guard of the said rifle, as per seizure memo (Ex. P/14). Two lathis, one each from under the dead bodies of deceased Gendalal and Narayan, were also seized, as per seizure memos (Ex. P/16) & (Ex. P/18). Blood stained soil and ordinary soil from besides the dead-bodies of Gendalal and Narayan was seized, as per seizure memos (Ex.P/15) & (Ex. P/17). After preparing inquest reports of the dead-bodies of Narayan and Gendalal, as per (Ex. P/12) & (Ex. P/13) respectively, the dead-bodies were sent for post-mortem examination.
5. Dr. B.K. Sakalle (PW 3) conducted post-mortem exami
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