JAGVIR AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri P. N. Misra, Senior Advocate, assisted by Sri Jitendra Pal Singh and Sri M. C. Singh, learned counsels for the appellants and learned A. G. A. appearing for the State and perused the record.

(2.) THE appellant no. 1, Jagvir, appellant no. 2, Chet Ram, appellant no. 4, Har Vir, and appellant no. 5, Udai Vir died during the pendency of this appeal and this Court vide order dated 7.12.2009 abated the present appeal against the deceased appellants Nos. 1, 2, 4 and 5. The appeal thus survives only on behalf of appellant No. 3, Chet Ram, appellant no. 6, Vir Singh and appellant no. 7, Chhattar. As a result, the appeal is now being heard only on their behalf.

(3.) ACCUSED Chet Ram, Lakhpat and Har Vir Singh denied their presence on the spot accused Jag Vir, Udai Vir, Vir Singh and Chhattar Pal in their examination under Section 313 Cr. P. C. refuted the prosecution version. The accused Udai Vir filed a detailed written statement setting out that on the day of the incident it had rained heavily and when it stopped raining at about 2.00 P. M., he went to see his cow-dung cakes which he had heaped on the land of Gram Sabha near the field of Sohan and found that Sohan had raised a barrage to save his maize crop of his field from being washed away by rain water. He demolished the barrage on which Sohan (deceased) along with his sons Naresh and Sukhi, brother, Ranjit and brother-in-law Rajendra quarrelled with him and when his brother Vir Singh and Tej singh arrived on hearing their altercation, Sohan and his sons, his brother and brother-in-law started re-erecting the barrage which had been demolished and when the same was resisted, Sohan and others attacked him and his brothers, Vir Singh and Teja with Lathis and spears. In the scuffle, that followed his brother Mahavir who had also arrived at the place of incident too received injuries and who in his self defence wielded a spear hitting Sohan in his chest and Teja wielded his Lathi hitting Rajender. He further stated that Mahaveer lodged a written report of the incident at police station-Jahangeerabad, copy of which was on record as Ext. Kha-4 on the basis of which Case Crime No. 216-A was registered against Naresh and Ranjit and other accused persons. The accused Udai Vir and Vir Singh were sent in police Jeep to the district hospital after their medical examination at Primary Health Centre, Jahangeerabad. D. W. 1 Dr. H. U. K. Zubari, Radiologist who had taken X-Ray of accused Udai Vir detected emphysema in his left lung. D. W. 2 Dr. M. K. Goyal who had attended both Udai Vir and Vir Singh had noticed surgical emphysema in their lungs and had advised X-Ray for confirmation of the same and D. W. 3 Dr. D. B. Singh who had medically examined Mahavir Singh on 3.8.1980 at 11.00 A. M. were examined in defence. The Sessions Judge after taking into consideration the entire evidence on record as well as the cross version of the incident set-up by the accused persons in their statements recorded under Section 313 Cr. P. C. as well as the detailed written statement filed by the accused Udai Vir and the plea of exercise of right of private defence raised on behalf of the accused persons held that the accused and not Sohan (deceased) and his sons were the aggressors. While coming to the aforesaid conclusion he noticed that the cow-dung cakes were heaped by the accused Udai Vir on Gram Sabha land and not on his land and thus, accused had no legal justification for demolishing the barrage which had been erected by the deceased, Sohan with a view to prevent his field from getting inundated by rain water and save his maize crops and if on account of erection of the barrage the cow-dung cakes and straw kept by the accused on the Gram Sabha land were likely to be washed away by rain water, the accused persons were to thank themselves.