ANIL Vs. MONIKA

JUDGEMENT

(1.) The present appeal has been filed by defendant No. 1, who is aggrieved against the judgment and decree of the Lower Appellate Court, which has allowed the appeal of the plaintiffs and decreed the suit for a sum of Rs. 1,66,384/- alongwith interest @ 6% per annum from the date of filing the suit till its realization on account of causing the death of Dinesh-husband of plaintiff No. 1 and father of plaintiff No. 2. The suit was filed by the plaintiffs for recovery against the defendants No. 1 to 3 by way of damages for causing murder of Dinesh for the sum of 10 lacs with interest @ 18% per annum was claimed. The case of the plaintiffs was that they are indigent persons and do not possess sufficient means to pay the Court fee as prescribed by law for the suit and hence the plaintiffs are filing the present suit in form of forma pauperis. Plaintiff No. 2 is a minor aged about 3-1/2 years and is living under the care and custody of his mother Smt. Monika-plaintiff No. 1 and she has no adverse interest against the interest of the abovesaid minor being his mother and natural guardian. The plaintiff No. 1 aged about 24 years is a widow of deceased-Dinesh s/o Mahender Singh and from the said marriage, a child Satyam-plaintiff No. 2 had been born. Defendant No. 4 is the mother of the deceased and the father of the deceased had expired 17-18 years back and the plaintiffs were fully dependent on the income of the deceased-Dinesh. Dinesh was murdered by defendants No. 1 to 3 in the abadi area of village Kilorad, Tehsit and District Sonepat within the jurisdiction of Police Station Sadar, Sonepat on 14.02.2002 and FIR No. 21 dated 15.02.2002 was lodged under Sections 302/34 IPC and under Sections 25 and 27 of the Arms Act, 1959. Accordingly, it was pleaded that the accused were committed to the Court of Sessions vide order dated 03.05.2002 and on the basis of the allegations made in the report under Section 173 Cr.P.C. and the documents therein, charge under Section 302 IPC read with Section 34 IPC was framed against defendants No. 1 to 3 and in addition to it, charge under Section 27 of the Arms Act, 1959 was also framed against them. That vide order dated 27.03.2003, defendant No. 1-Anil was held guilty of committing the murder of Dinesh on 14.02.2002 by firing shots from his double barreled licensed gun which was recovered from his possession and he was accordingly convicted under Section 302 IPC and Section 27 of the Arms Act. The other defendants i.e. defendants No. 2 and 3 were acquitted whereas defendant No. 1 was sentenced to undergo imprisonment for life and to pay an amount of Rs. 5,000 as fine for committing an offence under Section 302 IPC. The plaintiffs alleged that the deceased was the only bread earning member of the family and they were fully dependent upon him and he used to cultivate land on lease and used to sell milk by keeping buffaloes and monthly income of the said Dinesh was nearly Rs. 6,000 to Rs. 7,000 per month from these two sources and, therefore, the plaintiffs have been deprived of the said income of Dinesh due to wrongful act of the defendants. The defendants took the life of Dinesh by unauthorized act and thus deprived the plaintiffs from the income, services and affection of Dinesh. The said Dinesh was quite hearty and was having very good health and was not addicted to any vices and he would have survived upto the age of 80-85 years. Due to the death of Dinesh, the plaintiffs had to sell away all the animals for their survival and an amount of Rs. 15,000 was spent on his cremation and bhog ceremony and Rs. 20,000 was spent on litigation during the trial of Anil. There is no male member in the family to look after the family of the plaintiffs and that defendant no. 4 is the mother of the deceased and hence she is a necessary party. Accordingly, a sum of Rs. 10,00,000 was claimed.

(2.) The defendants, in their written statement, took the plea that defendants No. 2 and 3 had been acquitted and the Court has found them innocent while defendant No. 1-Anil had been convicted and appeal had been filed before the High Court, which had been admitted for arguments. The acquittal had been upheld since the appeal of the State had been dismissed vide Crl. Misc. No. 360-MA of 2003 and, therefore, since the conviction had been stayed by the High Court, the plaintiffs cannot say that defendant no. 1 had murdered Dinesh. The lodging of the FIR was admitted but it was stated that it is a false case and the witnesses were interested and the defendants are not guilty. The judgment of conviction was also wrong and not sustainable. It was pleaded that there was agricultural land of the plaintiffs and the plaintiffs were cultivating that land and that the act of defendant No. 1 was not illegal or unauthorized.

(3.) The Trial Court framed the following issues:-