SUPREME COURT OF INDIA

Before:- K.T. Thomas and K.G. Balakrishnan, JJ.

Criminal Appeal Nos. 1312-1313 of 1998. D/d. 14.08.2001.

Ayodhya Pathak and another - Petitioners

Versus

State of Bihar - Respondent

Indian Penal Code, 1860 Sections 302 and 304 (Part I) read with Section 34 - Murder or culpable homicide not amounting to murder - Prosecution case itself is that when accused persons were trying to install a flagpost on street abutting house of deceased, an altercation took place during which accused attacked deceased persons with blunt objects and inflicted blows on both of them as a consequence of which deceased sustained serious injuries to which they succumbed later - There is nothing to indicate that accused persons went to street for purpose of attacking any one of inmates of house of deceased - On the contrary, they went there only for purpose of installing a flagpost when deceased saw it they went near them and objected - But accused did not take heed to such objections and they proceeded to carry out work which they started - It was at that said stage that the deceased used force for plucking out erected flagpost - Incident happened as a sequel to said act of deceased - None of injuries could be attributed to any sharp cutting weapon - Most of them were lacerated injuries and others were bruises or abrasions - Held, accused would have had a reasonable apprehension that when deceased used force, they would be assaulting - Held, acts of accused were pre-dominantly aimed at thwarting said apprehended assault - Initial right of private defence cannot be ruled out - But the number of injuries inflicted by accused and and number of persons who sustained injuries and number of persons who succumbed to the injuries would certainly show that accused had crossed frontiers permitted by law in an extreme manner - Conviction altered from Section 302 read with Section 34 to Section 304, Part I read with Section 34 of the Indian Penal Code.

[Paras 5 to 8]

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 (A-1-Ayodhya Pathak and A-4-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 instal 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 of the occurrence. They are P.W. 7 Ram Sunder Devi (widow of deceased Binay Mishra), P.W. 8 Shatrughna Mishra and P.W. 9 Dewanti Devi (the son and daughter respectively of P.W. 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 that 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 post-mortem report. None of the injuries could be attributed to any sharp cutting weapon. Most of them were 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 who 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.

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