RAM PYARE MISHRA Vs. PREM SHANKER

JUDGEMENT

(1.) Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court accepting the appeal filed by the respondents who were found guilty of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). The High Court held that if on taking overall view of the case right of self defence is made out or looks probable from the evidence on record, that right should not be construed narrowly because the right of self defence is a very valuable right and it has a social purpose.

(2.) Background facts as projected by prosecution in a nutshell are as follows : The incident occurred on 12.7.1978 at about 5.30 a.m. The respondents 1 and 2 are brothers and sons of Sheo Balak Misra. On the aforesaid date and time the accused respondents armed with knife and lathi respectively arrived at the 'Gotha' of the Mohan Mishra (hereinafter referred to as the 'deceased') and accused Hari Shanker started beating the deceased with lathi and also asked his brother Prem Shanker to kill him, whereupon Prem Shanker assaulted the deceased with knife. On hearing the cries of deceased, his brother R. P. Mishra (PW-1) who was washing his hands at the Hand Pump installed in the east of 'Gotha' of Ramakant Mishra, rushed to the scene of occurrence. The cries also attracted Ramakant Mishra (P.W.2), Suresh Mishra (P.W.4), Shiv Sahai and Vibhuti Mishra. Ramakant Mishra tried to rescue the deceased but he too was assaulted by Prem Shanker with knife. Deceased fell down on the ground. The witnesses succeeded in apprehending Prem Shanker along with the knife with which he had assaulted the deceased and Ramakant. However, accused Hari Shanker succeeded in making good his escape. Thereafter Ram Pyare Mishra and other witnesses proceeded to Police Station Kotwali along with Mohan Mishra and accused Prem Shanker on tractor trolley of Gangotri Mishra. Before they could reach police station, Mohan Mishra died on the way. R. P. Mishra (P.W. 1) prepared F.I.R. (Ex. Ka. I) in his own handwriting and presented the same at Police Station Kotwali at 6.30 a.m. on the same day. Prem Shanker and blood stained knife, (Ex.1) recovered from him were handed over to police at the police station, in respect of which memo Ex. Ka. 2 were prepared by Moharrir (PW-6) who also prepared Check report and registered the case in general diary. S.I. Harsh Nath Singh (PW-5) was present at the police station when the F.I.R. was lodged. He took up investigation and recorded the statement of first information at the police station. S.I. Radhey Shyam Tewari conducted inquest on the dead body of Mohan Mishra, which had been brought to the police station by first informant and others. The dead body was then sent for postmortem examination with constable Ram Asrey and Rang Nath. After recording the statements of Shiv Sahai and Suresh Mishra (P.W.4), the Investigating Officer reached the place of occurrence along with first informant and witness Shiv Sahai. He made inspection of the scene of occurrence and prepared site plan Ex. Ka. 13. The place where blood was found has been shown by letter 'A' in the site plan. Hari Shanker was arrested on the same day. Injured Ramakant Mishra was, however, interrogated on 13.7.1978 and after completing the investigation charge sheet Ex. Ka 15 was submitted against both the accused persons. Dr. Vermpal conducted autopsy on the dead body of Mohan Mishra on 12-7-78 at 12 noon and following ante mortem injuries were found.

(3.) In support of the appeals, learned counsel for the appellants submitted that the High Court has acted on surmises and conjectures and has accepted the plea of exercise of right of private defence. The High Court's conclusion as regards non-mention in the FIR that the witness managed to evade the lathi blow or about the injury on the accused are legally untenable. The High Court has not examined the question as to whether the right of private defence as claimed to have been exercised has been exceeded. It was pointed out that the witness stated about the assault by lathi but in the instant case the deceased does not appear to have received any lathi blow. Since lathi was found at the spot as claimed the defence version, the High Court probabilised that deceased had made an assault on accused Prem Shanker by lathi. The genesis and origin of the occurrence has been suppressed and true facts have not been presented. The High Court, it is submitted, accepted the plea of right of private defence but without any material to substantiate the plea, the High Court came to an abrupt conclusion that the right has been exercised and the accused persons were acting in self defence. The High Court also came to a conclusion that the injuries on accused Prem Shanker were not satisfactorily explained. It was pointed out that those injuries were superficial in nature. To similar effect is the stand taken by the State.