Ayodhya Pathak and Anr. Vs. State of Bihar
EmailAppeal: Criminal Appeals Nos. 1312-1313 of 1998
Petitioner: Ayodhya Pathak and Anr.
Respondent: State of Bihar
Apeal: Criminal Appeals Nos. 1312-1313 of 1998
Judges: K.T. THOMAS & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Aug 14, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Sections 3, 114 – Evidence – Eye-witnesses – Occurrences taking place in front of house – Inmates, kith and kins of deceased – Spectators surging around – Possibility of blocking the view of inmates – Presumption. Held that the contention cannot be accepted. Inmates of the house must have witnessed the incident. It is unreasonable to think that the inmates would have kept themselves down when spectators surged forward. (Para 4)
Indian Penal Code, 1860
Sections 302, 304, pt-I and section 100 – Conviction – Accused party erecting a flagpost – Objection by deceased party – When heed not paid, deceased party using force – None of the injuries to deceased caused by sharp weapon – Most of them lacerated – Two persons dying and one injured – Conviction under section 302/34, if proper. Held that the narration shows that accused party would have had a reasonable apprehension about assault. Accused acted to thwart the said assault. However, they had crossed the frontiers permissible by law for self-defence. Hence, conviction altered to section 304, pt-I read with section 34. (Paras 5 to 8)
JUDGEMENT:
ORDER
1. This is a double murder case. Two brothers Rajendra Mishra and Binay Mishra were done to death at about 6.30. p.m. on 16.2.1988. Seven persons were charge-sheeted by the police for the said murders. Out of them, two were reported to be within the age of juvenile and hence the trial court proceeded against the other five accused including the present appellants. Among the five, four were charged with sections 302, 307 read with section 34 of the Indian Penal Code while one (Shakuntala Devi) was charged only with section 307 of the Indian Penal Code. The trial court convicted all the five for the offences charged and sentenced them to imprisonment for life. But on appeal, a division bench of the High Court confirmed the conviction only in regard to two persons who are the appellants before us (A1-Ayodhya Pathak and A4-Ram Jee Pathak), others were acquitted.
2. The two appellants before us are brothers. The prosecution case itself is that when the accused persons were trying to install a flagpost on the street abutting the house of the deceased, an altercation took place during which the accused attacked the deceased persons with blunt objects and inflicted blows on both of them as a consequence of which the deceased sustained serious injuries to which they succumbed later.
3. There are only three eye-witnesses to speak to the occurrence. They are PW-7 Ram Sunder Devi (widow of deceased Binay Mishra), PW-8 Shatrughna Mishra and PW-9 Dewanti Devi (the son and daughter respectively of PW 7). The testimony of those three persons was believed by the trial court and the High Court in order to establish the identity of the assailants who caused the injuries on the deceased persons.
4. Mr. J.P. Dhanda, learned counsel for the appellants contended that the three eye-witnesses would not have seen the occurrence as they were inside the house when the incident happened. We have difficulty to accept the said contention for the reason that the incident happened right in front of their house and therefore in all probabilities, the inmates of the house would have witnessed the occurrence. Any endeavour on the part of the defence to show that the vision of those witnesses would have been blocked by the surging spectators cannot succeed. This is particularly so when the victims were none other than the kith and kin of the three eye-witnesses. It is quite unreasonable to think that those inmates would have adopted an indifferent attitude by keeping themselves down when spectators would have surged forward during the course of the occurrence.
5. Nonetheless, we have to consider certain features which loom large on the presentation of the prosecution version of the occurrence, There is nothing to indicate that the accused persons went to the street for the purpose of attacking any one of the inmates of the house of the deceased. On the contrary, they went there only for the purpose of installing a flagpost when the deceased saw it they went near them and objected. But the accused did not take heed to such objections and they proceeded to carry out the work which they started. It was at the said stage that the deceased used force for plucking out the erected flagpost. The incident happened as a sequel to the said act of the deceased.
6. We have perused the injuries described in the postmortem report. None of the injuries could be attributed to any sharp cutting weapon. Most of them lacerated injuries and others were bruises or abrasions. Of course some of the lacerated injuries caused fracture including the skull.
7. The aforesaid narration of the prosecution version gives us the impression that the accused would have had a reasonable apprehension that when the deceased used force, they would be assaulting. The acts of the accused were pre-dominantly aimed at thwarting the said apprehended assault. Hence an initial right of private defence cannot altogether be ruled out as for the accused.
8. However, the number of injuries inflicted by the accused and the number of persons who sustained the injuries and the number of persons succumbed to the injuries would certainly show that the accused had crossed the frontiers permitted by law in an extreme manner. In the result, we alter the conviction from section 302 read with section 34 to section 304, part I read with section 34 of the Indian Penal Code. The alteration calls for commensuration in the sentence also as the incident resulted in the death of two persons and serious injuries to one lady-Usha Devi. We feel that the ends of justice would meet by imposing a sentence of rigorous imprisonment for a period of ten years each for the two appellants. We do so.
9. These criminal appeals are disposed of in the above terms.
1. This is a double murder case. Two brothers Rajendra Mishra and Binay Mishra were done to death at about 6.30. p.m. on 16.2.1988. Seven persons were charge-sheeted by the police for the said murders. Out of them, two were reported to be within the age of juvenile and hence the trial court proceeded against the other five accused including the present appellants. Among the five, four were charged with sections 302, 307 read with section 34 of the Indian Penal Code while one (Shakuntala Devi) was charged only with section 307 of the Indian Penal Code. The trial court convicted all the five for the offences charged and sentenced them to imprisonment for life. But on appeal, a division bench of the High Court confirmed the conviction only in regard to two persons who are the appellants before us (A1-Ayodhya Pathak and A4-Ram Jee Pathak), others were acquitted.
2. The two appellants before us are brothers. The prosecution case itself is that when the accused persons were trying to install a flagpost on the street abutting the house of the deceased, an altercation took place during which the accused attacked the deceased persons with blunt objects and inflicted blows on both of them as a consequence of which the deceased sustained serious injuries to which they succumbed later.
3. There are only three eye-witnesses to speak to the occurrence. They are PW-7 Ram Sunder Devi (widow of deceased Binay Mishra), PW-8 Shatrughna Mishra and PW-9 Dewanti Devi (the son and daughter respectively of PW 7). The testimony of those three persons was believed by the trial court and the High Court in order to establish the identity of the assailants who caused the injuries on the deceased persons.
4. Mr. J.P. Dhanda, learned counsel for the appellants contended that the three eye-witnesses would not have seen the occurrence as they were inside the house when the incident happened. We have difficulty to accept the said contention for the reason that the incident happened right in front of their house and therefore in all probabilities, the inmates of the house would have witnessed the occurrence. Any endeavour on the part of the defence to show that the vision of those witnesses would have been blocked by the surging spectators cannot succeed. This is particularly so when the victims were none other than the kith and kin of the three eye-witnesses. It is quite unreasonable to think that those inmates would have adopted an indifferent attitude by keeping themselves down when spectators would have surged forward during the course of the occurrence.
5. Nonetheless, we have to consider certain features which loom large on the presentation of the prosecution version of the occurrence, There is nothing to indicate that the accused persons went to the street for the purpose of attacking any one of the inmates of the house of the deceased. On the contrary, they went there only for the purpose of installing a flagpost when the deceased saw it they went near them and objected. But the accused did not take heed to such objections and they proceeded to carry out the work which they started. It was at the said stage that the deceased used force for plucking out the erected flagpost. The incident happened as a sequel to the said act of the deceased.
6. We have perused the injuries described in the postmortem report. None of the injuries could be attributed to any sharp cutting weapon. Most of them lacerated injuries and others were bruises or abrasions. Of course some of the lacerated injuries caused fracture including the skull.
7. The aforesaid narration of the prosecution version gives us the impression that the accused would have had a reasonable apprehension that when the deceased used force, they would be assaulting. The acts of the accused were pre-dominantly aimed at thwarting the said apprehended assault. Hence an initial right of private defence cannot altogether be ruled out as for the accused.
8. However, the number of injuries inflicted by the accused and the number of persons who sustained the injuries and the number of persons succumbed to the injuries would certainly show that the accused had crossed the frontiers permitted by law in an extreme manner. In the result, we alter the conviction from section 302 read with section 34 to section 304, part I read with section 34 of the Indian Penal Code. The alteration calls for commensuration in the sentence also as the incident resulted in the death of two persons and serious injuries to one lady-Usha Devi. We feel that the ends of justice would meet by imposing a sentence of rigorous imprisonment for a period of ten years each for the two appellants. We do so.
9. These criminal appeals are disposed of in the above terms.
