MANU/HP/0135/2000

Equivalent Citation: 2000(3)ShimLC 438

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal Nos. 304 and 367 of 1998
Decided On: 20.09.2000
Appellants: Durga Nand and Ors. Vs. Respondent: State of Himachal Pradesh and
Ors.
Hon'ble Judges/Coram:
Kamlesh Sharma and K.C. Sood, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: T.R. Chandel and Vinay Thakur, Advs. in Criminal
Appeal No. 304 of 1998 and B.P. Sharma, Additional Adv. General and J.K. Verma,
Assistant Adv. General in Criminal Appeal No. 367 of 1998
For Respondents/Defendant: B.P. Sharma, Additional Adv. General and J.K. Verma,
Assistant Adv. General in Criminal Appeal No. 304 of 1998 and T.R. Chandel and Vinay
Thakur, Advs. in Criminal Appeal No. 367 of 1998
Case Note:
Criminal - Acquittal - Benefits of Doubt - Present appeal filed by State
against order of acquittal - Held, Court found that lower courts had
correctly come to conclusion that on appreciation of evidence on record
involvement of Respondents had not been established satisfactorily as well
as beyond all reasonable doubt - Presence of Respondents at place of
occurrence, though established on record yet there was nothing on record
that they have participated in assault - They appear to have come on spot
and might have come to help in shifting, who had suffered injuries on his
person from gun shot - Respondents had been rightly acquitted by Sessions
Court, which did not call for interference - Hence appeal dismissed < Br > <
Br > Criminal - Conviction - Medical evidence - Section 302, 307 and 323 of
Indian Penal Code, 1860 - Whether appellant was entitled for acquittal? -
Held, finding of Session Court was right and appreciated evidence on record
to come to conclusion that Appellants had assaulted deceased with iron
pipe as well as stick and thereby inflicted multiple grievous injuries as well
as simple injuries on decresed - Ocular evidence was corroborated by
medical evidence of Doctor - At time of examination Doctor had found
injured Neel Kanth in semi conscious condition having seven injuries on his
person, out of which injury no 1 was opined as grievous as well as
dangerous to life - Such injuries were possible by sticks and iron pipe -
Doctor had conducted autopsy on dead body and had proved post mortem
report, which reveals that as per opinion of this witness cause of death was
brain injury leading to cardio respiratory arrest, which was possible with
iron pipe - Iron pipe was recovered from place of occurrence and was
identified to be used by Appellant for assaulting deceased - Therefore
Sessions Court had rightly convicted Appellants under Sections 302, 307
and 323 IPC - Hence appeal dismissed
JUDGMENT

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Kamlesh Sharma, J.
1. These two appeals (Criminal Appeals No. 304 of 1998 and 367 of 1998) are being
disposed of by a common judgment, as these arise out of the same judgment dated
29.6.1998 passed by the Additional Sessions Judge, Shimla whereby the Appellants,
namely, Durga Nand and Dharminder in Criminal Appeal No. 304 of 1998 were
convicted under Section 302 read with Section 34 IPC for the murder of Laik Ram and
sentenced to rigorous imprisonment for life and also to pay a fine of Rs. 5,000 each
and in default of payment of fine they were to undergo further rigorous imprisonment
for two years. They were also convicted under Section 307 read with Section 34 IPC
for attempt to murder Neel Kanth PW-5 son of Laik Ram and sentenced to undergo
rigorous imprisonment for seven years and also to pay a fine of Rs. 1,000 each and
on their default to pay the fine they were to further undergo rigorous imprisonment
for six months. They were further convicted under Section 323 read with Section 34
IPC for causing simple injuries to Gangawati PW 5 wife of Laik Ram and sentenced to
undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500 each
and on their failure to pay the amount of fine they were to undergo further rigorous
imprisonment for two months. All the three sentences were to run concurrently. Out
of the amount of fine, if deposited, a sum of Rs. 5,000 each has been ordered to be
given as compensation to Gangawati PW 4 and Neel Kanth PW 5, the injured. In their
appeal Durga Nand and Dharminder have assailed their conviction and sentence. By
the impugned judgment Hukmu Devi, Promod Kumar and Padma Ram have been
acquitted and feeling aggrieved by their acquittal the state has filed criminal appeal
No. 367 of 1998.
2. The prosecution case in brief is that deceased Laik Ram and Appellant Durga Nand
were real brothers and Respondent Padma Ram is their father. When Gangawati PW 4
was 6-7 years old, Respondent Padma Ram at the instance of late Ganeshu, the father
of Gangawati, started living at village Kelvi Jubber alongwith his entire family. On the
death of Ganeshu, Respondent Padma Ram started looking after Gangawati and entire
estate of her father Ganeshu, which she inherited on her attaining the age of
majority. As per the desire of Ganeshu, Respondent Padma Ram solemnized marriage
of Gangawati with his son Laik Ram. Subsequently, he started pressurizing
Gangawati as well as Laik Ram to get the Appellant Durga Nand also recorded as co-
sharer in the land Gangawati inherited from her father to the extent of half share, to
which they did not agree. For this reason Appellant Durga Nand as well as other
members of his family tortured Laik Ram to the extent that he abandoned Gangawati
when she was pregnant and started living with one Soda in village Kathog, where he
stayed for 20-22 years. Gangawati gave birth to Neel Kanth and brought him up
single handedly. During the absence of Laik Ram, Respondent Padma Rani by
exercising undue influence allured Gangawati and managed to get Appellant Durga
Nand recorded as tenant over her land measuring 24-9 bighas, of which Durga Nand
acquired proprietary rights lateron, constructed a house thereon and started living
therein separately alongwith his family.
3. Further case of the prosecution is that in the year 1994 during the Diwali festival
Neel Kanth brought his father Laik Ram back to his house for living with him and
Gangawati, which gave cause of annoyance to Appellant Durga Nand and members of
his family, who hatched a conspiracy to do away with the life of Laik Ram, and
Respondent Padma Ram asked Gangawati and Neel Kanth not to come out from their
house on 24.10.1995 because of solar eclipse so that they might not come to rescue
Laik Ram, whom they had planned to murder.
4. As per the case of the prosecution on 24.10.1995 Neel Kanth, his wife Kanta PW-
14 were present in their house, whereas, Laik Ram had gone to the house of Shiv Lal

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PW 6. At about 2 p.m. Gangawati reached her house with grass from jungle when on
hearing the noise of (sic) of a tree, she went to the place of occurrence where she
found Appellant Durga Nand cutting her Baan tree and his son Appellant Dharminder
ploughing her land. As she proceeded towards her house to apprise her son Neel
Kanth about it, Appellants Durga Nand and Dharminder and Respondents Hukmu
Devi, Bhaskra Nand and Bimla Devi armed with Dandas helped by Promod, who had
come lateron on the spot, attacked her and gave her beatings without any
provocation, when on hearing her cries Neel Kanth came on the spot to rescue her,
he was also given the same treatment. In the meantime Laik Ram also came on the
spot and finding himself helpless to save his son from the clutches of the assailants,
he took up his gun and fired the gun shot in order to scare them, as a result of which
some pellets hit Appellant Durganand on his leg. Immediately thereafter gun was
snatched from Laik Ram by Respondent Hukmu Devi and all the assailants caught
hold of Laik Ram and gave him beatings with lathis as well as stones and pushed him
as well as Neel Kanth below the field which they were ploughing. Appellant Durga
Nand inflicted pipe blow on the head of Laik Ram, as a result of which he died on the
spot and his dead body was thrown in the Nala, Neel Kanth, who had received
grievous injuries was also dumped near the dead body of his father Laik Ram, Kamta
Devi wife of Neel Kanth rushed to the house of Shiv Lal to seek his help, who came
on the spot and finding Laik Ram dead and Neel Kanth lying badly injured in the Nala
came on foot upto Lafu-ghati and boarded a bus therefrom to Theog to lodge report
in the police station, where his statement Ex. PW 2/B under Section 154 Code of
Criminal Procedure was recorded by ASI Partap Singh PW 18, on the basis of which
FIR Ex. PW 2/C was registered. He had also brought injured Neel Kanth in the bus to
Theog and got him admitted in the hospital.
5 . The police after conducting investigation put up challan against Appellant Durga
Nand, his wife Hukmu Devi and son Appellant Dharminder, and Respondent Promod
under Sections 147, 148, 302, 307 and 323 read with Section 149 IPC and against
Respondent Padma Ram under Section 120B read with Sections 302, 307 and 323
I.P.C. Two of the accused persons, namely, Bhaskra Nand and Bimla Devi being
juveniles, were sent for trial to Juvenile Court at Una.
6. In order to prove its case the prosecution has examined as many as 18 witnesses
but their case is mainly based on the injured witnesses Gangawati and Neel Kanth,
and eye witness Kanta. Since the Appellants and Respondents in their written
statements under Section 233 Code of Criminal Procedure have not disputed the
death of Laik Ram in the assault and have taken the plea of right of self defence, the
controversy is narrowed down considerably and we would like to advert to the
written statements before discussing the prosecution evidence.
7. It is stated by Appellant Durga Nand in his written statement that the case against
all of them is false and real genesis of the occurrence have been concealed by the
prosecution. According to him land bearing Khasra Nos. 69, 206/17 and 178
measuring 24 bighas 9 biswas situate in Chak Lafu, Pergna Dharthi, village Kelvi
Jubber is owned and possessed by him. When Laik Ram after spending number of
years in another village came to village Kelvi Jubber, a conspiracy was hatched by
him, witness Gangawati and members of her family to dispossess him from the land
and to kill him. On 24.10.1995 at about 2.00 p.m. when he was working in his land
bearing Khasra No. 69 alongwith members of his family, Laik Ram, his wife
Gangawati and his son Neel Kanth with intention to eject them, entered his land and
Laik Ram, who was armed with muzzle loading gun fired at him as a result of which
he got injured. Finding that he had not been finished, all of them pounced upon him
with Dandas and apprehending danger to his life, he acted in self defence. His further
defence is that during the fight the gun was snatched from Laik Ram and Danda from

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the hand of Gangawati, still they inflicted injuries on him, his wife Hukmu Devi and
also his daughter. After the attack was repelled the complainant party including Laik
Ram proceeded to their house and thereafter he fell unconscious and was removed to
hospital by Baldev and Promod. His further case is that everything was stage
managed and dead body of Laik Ram was placed somewhere down. He had also
lodged FIR about the incident but police was partial in conducting the investigation.
Taking full responsibility on himself he has stated that in fact the scuffle/fight was
between him on one part and Laik Ram and Neel Kanth on the other and had he not
repelled the attack, he would have been killed and the lives of the members of his
family would also have been in danger. He has denied the presence of his father
Padma Ram at the time of occurrence.
8 . Appellant Dharminder and Respondents Hukmo Devi and Padma Ram have filed
joint written statement stating that in order to eject them from their land Laik Ram
fired at Appellant Durga Nand while he was ploughing his field and finding that gun
shot had not killed him, Laik Ram and Neel Kanth attacked on him, who in order to
save himself acted in self defence. Respondent Parmod, who was in his orchard
alongwith, Baldev, was called by Respondent Hukmo Devi on to the spot and they
took Durga Nand to hospital, who was injured and unconscious . The stand of
Appellant Dharminder and Respondent Padma is that they never participated in the
fight and had reached on the spot after the complainant party had retreated to their
home.
9. In a separate written statement Respondent Parmod has stated that on hearing the
gun shot he came on the spot and witnessed the fight between Durga Nand on one
hand and Laik Ram and Neel Kanth on the other and took Durga Nand to hospital in
injured condition. According to him, the incident had started when Laik Ram fired a
gun shot at Durga Nand, who was ploughing his field.
10. The Appellants and Respondents have also examined Baldev Singh DW-1, who
has stated that at the time of occurrence he was in the orchard of Respondent
Parmod, wherefrom he had witnessed that Laik Ram came on the spot with a loaded
gun and fired at Appellant Durga Nand, who was ploughing his field and thereafter
Neel Kanth and Gangawati also came and started quarrelling. According to him, he
alongwith Parmod had gone on the spot on the call of help by Respondent Hukmo
and found Durga Nand lying in the Nala, wherefrom he was removed to the hospital.
In his cross-examination he has denied the suggestions that Laik Ram was not having
gun and he had not fired at Appellant Durga Nand, rather he was given beating by all
the accused persons with sticks. Jagat Ram DW 2 has also deposed that on hearing
the cries of Respondent Hukmo he went on the spot and found that Appellant Durga
Nand was being removed by Respondent Hukmo and Dharminder with the help of
Baldev and Respondent Par mod. This witness had not seen Laik Ram, his wife and
son at the place of occurrence, as they had already left for their house. In his cross-
examination he has stated that he had not seen anyone opening the fire on Durga
Nand and expressed his ignorance that Laik Ram was beaten with sticks by the
accused persons.
11. Yashpal Thakur, DW 3 Senior Pharmacist, Sub Jail, Kaithu District Shimla has
produced records alongwith sealed packet of pellets Ex. D. 1. Doctor P.L. Ghonta,
DW-4, Registrar, Department of Urology, Indira Gandhi Medical College, Shimla has
stated that he examined Appellant Durga Nand on 3.4.1997 in police custody who
was referred to him for removal of some foreign body as per the OPD Ticket Ex. DW-
4/A signed by Doctor M.L. Dhar. This witness had removed the foreign body i.e.
pellet in the bail Ex. D. 3 from the scrotum of Appellant Durga Nand on 21.5.1997.
However, in his cross-examination he has admitted that the pellet in the scrotum of

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Appellant Durga Nand was not dangerous to his life.
1 2 . Appellant Durga Nand in his statement under Section 313 Code of Criminal
Procedure in answer to question Nos. 3 and 4 has admitted that father of Gangawati
had entrusted his entire estate to his father Respondent Padma Ram, who thereafter
had started residing in the premises of Ganeshu alongwith his family and on her
attaining the age of 18 years Gangawati was married to Laik Ram and Neel Kanth was
born out of the said wed-lock.
1 3 . Therefore, the defence of the Appellants/Respondents as emerging from their
statements under Section 313 Code of Criminal Procedure and their written statement
is that Appellant Durga Nand was ploughing/working in his field bearing Khasra No.
69 alongwith members of his family when with an intention to eject them Laik Ram
armed with muzzle loading gun came on the spot and fired gun shot, as a result of
which Durga Nand received injuries and finding that he was not killed, Laik Ram
alongwith his wife Gangawati and son Neel Kanth attacked him and members of his
family with Lathis and inflicted injuries on them. Apprehending danger to his life and
the lives of members of his family, Appellant Durga Nand acted in self defence and
snatched gun from Laik Ram and Dandas from Neel Kanth and Gangawati. After the
attack was repelled the complainant party including Laik Ram proceeded towards
their house and at that point of time Durga Nand fell unconscious and was removed
to hospital by Respondent Parmod and Baldev.
14. Right of private defence comes under General Exceptions as given in Chapter IV
of the Indian Penal Code. Nothing is an offence which is done in the exercise of the
right of private defence as provided under Section 96 and every person has a right to
defend his own body, and the body of any other person, against any offence affecting
the human body and to defend the property, whether movable or immovable of
himself or of any other person against any such act which is an offence falling under
the definition of theft, robbery mischief or criminal trespass is provided under
Section 97. But these rights are subject to the restrictions contained in Section 99.
The right of private defence of the body may extend to causing of death is provided
under Section 100 and causing any harm other than death is given under Section
101. The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed and it continues as long as
apprehension of danger to the body continues, is laid down under Section 102.
Similarly when the right of private defence of property extends to causing death and
when such right extends to causing any harm other than death and commencement
and continuance of such right is provided under Sections 103 - 105. The right of
private defence against a deadly assault when there is risk of even harm to an
innocent person is laid down under Section 106 IPC.
1 5 . Under Section 105 of the Evidence Act it is provided that onus rests on an
accused person to establish his plea of private defence but it is not as onerous as
that of the prosecution to establish every ingredient of the offence with which the
accused is charged beyond reasonable doubt. Referring to Section 102 IPC, in Deo
Narain v. State of U.P. MANU/SC/0109/1972 : 1973 Cri L J 677, the learned Judges of
Supreme Court have held:
...The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or
threat to commit the offence though the offence may not have been
committed, and such right continues so long as such apprehension of danger
to the body continues. The threat, however, must reasonably give rise to the

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 present and imminent and not remote or distant danger. This right rests on
the general principle that where a crime is endeavoured to be committed by
force, it is lawful to repel that force in self-defence. To say that the Appellant
could only claim the right to use force after he had sustained a serious injury
by an aggressive wrongful assault is a complete misunderstanding of the law
embodied in the above section. The right of private defence is available for
protection against apprehended unlawful aggression and not for punishing
the aggressor for the offence committed by him. It is a preventive and not
punitive right. The right to punish for the commission of offences vests in the
State (which has a duty to maintain law and order) and not in private
individuals. If after sustaining a serious injury there is no apprehension of
further danger to the body then obviously the right of private defence would
not be available. In our view, therefore, as soon as the Appellant reasonably
apprehended danger to his body even from a real threat on the part of the
party of the complainant to assault him for the purpose of forcibly taking
possession of the plots in dispute Or of obstructing their cultivation of
private defence and to use adequate force against the wrongful aggressor in
exercise of the right.
16. In Mohd. Ramzani v. State of Delhi MANU/SC/0165/1980 : AIR 1980 SC 1341, it
is held in para 19:
...It is further well established that a person faced with imminent peril of life
and limb of himself or another, is not expected to weigh in "golden scales"
the precise force needed to repel the danger. Even if he at the heat of the
moment carries his defence a little further than what would be necessary
when calculated with precision and exactitude by a calm and unruffled mind,
the law makes due allowance for it....
17. In Vijayee Singh and Ors. v. State of U.P. MANU/SC/0284/1990 : AIR 1990 SC
1459, after considering upto date case law on interpretation under Section 105 of
Evidence Act the learned Judges of Supreme Court have concluded in paras 31 and
33:
...It can thus be seen that there is dividing line between a case of the
accused discharging the burden by preponderance of probabilities which is
equated to proof of the exception and a state of reasonable doubt that arises
on a consideration of the evidence and facts and circumstances as a whole,
as regards one or more of the ingredients of the offence. Therefore, in a case
where the prosecution has discharged its burden and where the accused
pleads exception and if there is some evidence to support that plea the
obligatory presumption under Section 105 is lifted and the accused may
proceed further and establish his plea by a preponderance of probabilities or
he may carry his plea further and succeed in creating a reasonable doubt
about an ingredient of an offence. Consequently, in respect of the general
exceptions, special exceptions, provisos contained in the Penal Code or in
any law defining the offence, the accused by any of these processes would
be discharging the burden contemplated under Section 105 but in cases of
the exceptions covered by special statutes and where the burden of proof is
placed on the accused to establish his plea, he will be discharging the same
by preponderance of probabilities and not by merely creating a doubt.
33. The general burden of establishing the guilt of accused is always on the
prosecution and it never shifts. Even in respect of the cases covered by
Section 105 the prosecution is not absolved of its duty of discharging the

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 burden. The accused may raise a plea of exception either by pleading the
same specifically or by relying on the probabilities and circumstances
obtaining in the case. He may adduce the evidence in support of his plea
directly or rely on the prosecution case itself or, as stated above, he can
indirectly introduce such circumstances by way of cross-examination and
also rely on the probabilities and the other circumstances. Then the initial
presumption against the accused regarding the non-existence of the
circumstances in favour of his plea gets and on an examination of the
material if a reasonable doubt arises the benefit of it should go to the
accused. The accused can also discharge the burden under Section 105 by
preponderance of probabilities in favour of his plea. In case of general
exceptions, special exceptions, provisos contained in the Penal Code or in
any law defining the offence, the Court, after due consideration of the
evidence in the light of the above principles, if satisfied, would state, in the
first instance, as to which exception the accused is entitled to, then see
whether he would be entitled for a complete acquittal of the offence charged
or would be liable for a lesser offence and convict him accordingly.
18. In Rajinder and Ors. v. State of Haryana MANU/SC/0748/1995 : (1995) 5 SCC
187, while referring to Section 97 IPC it is held in para 20:
On a plain reading of the above section it is patently clear that the right of
private defence, be it to defend person or property, is available against an
offence. To put it conversely, there is no right of private defence against any
act which is not an offence. In the facts of the instant case the accused party
was entitled, in view of Section 97 and, of course, subject to the limitation of
Section 99, to exercise their right of private defence of property only if the
unauthorised entry of the complainant party in the disputed land amounted
to "criminal trespass", as denied under Section 441 IPC....
In the context of the facts and circumstances of the case above, it is further held that
accused party had no right of private defence to property entitling them to launch the
murderous attack. On the contrary such murderous attack not only gave the
complainant party the right to strike back in the self-defence but also disentitled the
accused to even claim the right of private defence of person. The learned Judges also
held that even if it was found that the complainant party had criminally trespassed
into the land entitling the accused party to exercise their right of private defence it
would not have been justified in disturbing the conviction under Section 302 read
with Section 149 IPC, in view of the express provision of Section 104 IPC that right
of private defence against "criminal trespass" does not extend to the voluntary
causing of death and exception 2 to Section 300 IPC has no manner of application in
view of premeditated attack by accused party with an intention of doing more harm
than was necessary for the purpose of private defence, which was evident from the
injuries sustained by the three deceased, both regarding severity and number as
compared to those received by the four accused persons.
19. In the above judgment the contention raised on behalf of the accused party that
having acquitted some of the accused persons disbelieving the evidence of the
prosecution witnesses the trial Court ought not to have relied upon the same to
convict them, was rejected as the maxim "Falsus in uno, falsus in omnibus" does not
apply to the criminal trials and it is the duty of the court to disengage the truth from
falsehood instead of taking an easy course of rejecting the evidence in its entirety
solely on the ground that the same is not acceptable in respect of some of the
accused.

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20. The learned Counsel for the Appellants has cited another judgment of Supreme
Court reported in Bhagwan Swaroop v. State of Madhya Pradesh 1992 SCC 422,
wherein the learned Judges have held that the fact that "the injuries actually caused
were simple or grievous is of no consequence. It is the scenario of a father being
given lathi blows which has to be kept in mind and we are of the view that in such a
situation a son could reasonably apprehend danger to the life of his father and his
firing a gunshot at that point of time in defence of his father is justified." Similarly,
in Lap v. Sukhdev Singh and Ors. 1998 SCC 601, firing of shot from his double
barreled gun by one of accused persons in exercise of private defence was accepted
in view of the unexplained injuries on the accused persons, their possession over the
land in dispute on the fateful day and the complainant party entering the land armed
with Gandasis and attacking the members of the accused party.
21. In order to apply the ratio of above cited judgments to the present case the
evidence of injured witnesses Gangawati and Neel Kanth, eye witnesses Kanta and
Shiv Lal and other relevant witnesses is to be analysed to find out whether the
prosecution has discharged its burden in proving its case beyond reasonable doubt
and further whether the plea of self defence is so established as to create a doubt in
the prosecution case.
21. Gangawati, PW-4, has fully corroborated the prosecution story and has proved
recovery of blood stained earth, pieces of bangles, stones etc. from the place of
occurrence. In her cross-examination she has admitted that plaint Ext. D. 1 and
statements Exts. D. 2 and D. 3 bear her signatures but added that she was instigated
by Respondent Padma Ram to institute a suit against her husband Laik Ram, who at
that time was residing separately. She has also admitted that Appellant Durga Nand
has also instituted a suit against her in the Court of Sub Judge, Theog. According to
her, Appellant Durga Nand had been cultivating her entire land during the absence of
her husband Laik Ram from the house. She has admitted that her licensed gun was in
her house at the time of assault. She has denied that Appellant Durga Nand was
extracting fodder from Ban tree as of his right and reiterated that he and Appellant
Dharminder were cutting the tree and other accused persons had hidden themselves
in one corner of the field. She has also stated that she had not noticed any one
ploughing the field but had seen the oxen and yok there. She had also not seen any
one firing as she had fallen down as a result of beatings given to her. She had not
seen Respondent Promod at the first instance but found him there when her husband
and son had fallen flat on the ground. She noticed her husband lying flat on the
ground 5-10 minutes after her hearing the gun-shot. She has denied that Respondent
Promod had picked up a quarrel with her son prior to 24.10.1995 and thereafter they
were not on visiting terms, but admitted that prior to that date he had never
quarrelled with her husband.
2 3 . Neel Kanth, PW-5, is also an injured witness. He has given the eye-witness
account of the occurrence and supported the prosecution case in its entirety.
According to him, on noticing Respondents Hukmu, Bhaskra Nand and Bimla Devi and
Appellant Dharminder plucking peas crop in his field, he asked his mother Gangawati
to request them not to damage their crop and when she went there, all of them
started beating her. Seeing this he had rushed to the spot to save his mother but
Appellants Durga Nand and Dharminder and Respondents Baldev and Promod
appeared on the scene and started beating him with sticks. They inflicted multiple
blows on his head as a result of which he had fallen down and become unconscious.
On regaining consciousness he saw Appellants Durga Nand and Dharminder and
Respondents Baldev and Promod beating his father and dragging him in the field.
They had thrown him down below in another field and thereafter in the Nala. Seeing
this, he started crying and again became unconscious. On again regaining

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consciousness he found himself lying in the Nala by the side of dead body of his
father and Respondent Padma Ram nearby from whom he asked the condition of his
father but he left the place without giving him any answer. In his cross-examination
he has denied having heard gun shot but admitted that crackers were being busted as
it was next day to Diwali. According to him, he was interrogated by the police and his
statement under Section 161 Code of Criminal Procedure was recorded in the hospital
but he did not remember its contents. He has stated that he remained in the hospital
for ten days. He has admitted that his mother Gangawati is holder of a licensed gun,
which was found missing from their house after the occurrence. He showed his
ignorance that Appellant Durga Nand had also got a counter-case registered. He has
also denied the defence version put to him. He showed his ignorance that Respondent
Hukmu had produced the gun before the police.
2 4 . Kanta PW-14 has also corroborated the version of her husband Neel Kanth.
According to her, on hearing 'Raula', her father-in-law came on the spot and tried to
rescue Gangawati and Neel Kanth, who were being given beatings with sticks
mercilessly by all the accused persons, as a result of which they had fallen down and
thereafter were dragged to the field and subsequently to the nearby Nala. She went
to inform witness Shiv Lal, who removed her husband Neel Kanth to the hospital in
injured condition. According to her, Respondent Padma Ram was present in the house
but he made no efforts to disengage the parties. In her cross-examination she has
stated that Appellant Durga Nand and his family had been separate in mess and
worship since her marriage and she had not seen the parties trespassing into the
fields of each other but on the day of occurrence deceased Laik Ram had entered the
field where they had sown peas crop. She has admitted that her mother-in-law had a
licensed gun, which was used by Appellant Dharminder, who fired a gun shot aiming
at her husband but some of its pellets had struck against Appellant Durga Nand.
According to her, the gun was picked up from their house by Appellant Dharminder
during the time they were being belaboured by other accused persons. She has
denied the defence version put to her, knowingly and intentionally withheld this part
of the prosecution version that deceased Laik Ram finding himself helpless to save
his son Neel Kanth from the clutches of Appellant Durga Nand and other accused
persons fired a gun shot to scare them away. He had no intention to kill Appellant
Durga Nand by firing the gun shot, as alleged by the Appellants and other accused
persons, as he had not aimed it on the vital part of his body. Had he such an
intention he would have aimed at some vital part of the body of Appellant Durga
Nand instead of lower portion of his legs and would not have missed his aim being a
home guard personnel.
25. It is not in dispute that Appellant Durga Nand had received injuries of the gun
shot on the lower portion of his legs and one pellet was even found in his scrotum as
stated by Dr. P.L. Ghonta, DW 4. From the ocular version of PWs 4, 5 and 14 as well
as the defence version of the Appellants and other accused persons it is clear that
complainant party consisting of deceased Laik Ram, his wife Gangawati and his son
Neel Kanth, who had come on the spot one after another were not the aggressors.
They were three in number and out of them two were unarmed and were pitched
against the accused party consisting of seven persons armed with pipe and lathis, as
such, there was no reasonable apprehension of danger to the accused to give them
right of self-defence to beat Laik Ram to death, inflict grievous injuries to Neel Kanth
and simple injuries to Gangawati. In view of the litigation between the parties in
respect of ownership and possession of the land it was the normal conduct of
Gangawati to raise objection to cutting of Ban tree and plucking of peas crop and
there was no occasion for the accused persons to give beatings to her as well as her
son Neel Kanth and, her husband Laik Ram to death, who at a later stage had
appeared on the scene and tried to save Neel Kanth. It is also proved on record that

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the gun was snatched by accused persons from the hands of Laik Ram after he had
fired a gun shot, whereafter there was no occasion for them to continue giving
beatings to Neel Kanth and Laik Ram.
26. In these facts and circumstances on record it was Laik Ram who had right of
self-defence to save his son Neel Kanth from the clutches of the accused persons
which he had exercised by firing a gun shot to scare them away, which is established
from the pellet injuries received by Appellant Durga Nand on his legs. So far the right
of self-defence claimed by Appellant Durga Nand and other accused persons is
concerned, it is not established from the facts and circumstances on record.
27. Learned Counsel for the Appellants has urged that evidence of injured witnesses
(PWs 4 and 5) and eye witness (PW 14) is not worthy of credence being interested,
inimical and suffering from inconsistency in respect of genesis of occurrence, as
Gangawati PW 4 has stated that Appellant Durga Nand was cutting Ban tree, whereas,
Neel Kanth PW 5 has stated that he and other accused persons were plucking peas
crop and also that they have not supported the prosecution story that Laik Ram had
fired a gun shot to scare away accused persons who were beatings his son Neel
Kanth with pipe and sticks. It is correct that evidence of witnesses who are not only
interested but also having strained relations with the accused persons is required to
be scrutinized with care and caution, which has been done in the present case to find
that evidence of injured and eye witnesses inspires confidence to hold that accused
persons were aggressors and responsible for the injuries found on the persons of
deceased Laik Ram and injured Neel Kanth and Gangawati. The minor contradictions
in the statements of Gangawati and Neel Kanth in respect of genesis of occurrence
are immaterial and their evidence cannot be rejected on this ground alone. So far
withholding of prosecution version by PWs 4, 5 and 14 that Laik Ram had fired a gun
shot at Appellant Durga Nand is concerned, it explains the injuries found on the
person of Appellant Durga Nand. The statement of eye witness PW 14 that gun shot
was fired by Appellant Dharminder by bringing the gun from the house of
complainant party may not be correct and appears to have been made in her anxiety
to put blame on the accused persons for the gun shot also. But for this reason the
evidence of these witnesses cannot be rejected as the principle of "Falsus in uno,
falsus in omnibus" does not apply to the criminal trials and it is for the court to
separate the chaff from the grain instead of rejecting the evidence in its entirety as
held in Rajinder and Ors. v. State of Haryana (supra).
2 8 . Learned Counsel for the Appellants has further relied upon the judgment of
Supreme Court in Seriyal Udayar v. State of Tamil Nadu MANU/SC/0282/1987 : AIR
1987 SC 1289, and urged that even if the right of private defence is not established
but the defence is probabilised to the extent that it was Laik Ram who had fired a gun
shot the accused persons are entitled to acquittal. In the case before the learned
Judges of Supreme Court on analysing the evidence Sessions Judge had (acquitted
accused persons on the ground that prosecution witnesses had not explained the
injuries found on the accused persons and the possibility that incident had taken
place in the manner suggested by the defence and exercise of right of private defence
could not be excluded. The High Court had reversed these findings. Taking into
consideration that due weight shotild be given to the conclusion arrived at by the
Sessions Judge before whom the evidence was recorded, the interference of the High
Court in the appeal against acquittal was not held proper by the apex Court. The
learned Judges also held that, "...even if oil the basis of material as it stands, the
right of private defence of the accused Appellant is not established still the material
produced in cross-examination and circumstances discussed above do indicate that
the incident might have happened in a manner in which it was suggested by accused-
Appellant and in this view of the matter it could not be said that the prosecution has

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been able to establish the offence against the Appellant beyond reasonable doubt..."
The ratio of this judgment does not apply to the case in hand in view of our above
findings that incident in question had happened in the manner suggested by
prosecution.
29. We find that the Additional Sessions Judge has rightly read and appreciated the
evidence on record to come to the conclusion that Appellants Durga Nand and
Dharminder had assaulted deceased Laik Ram, Gangawati and Neel Kanth PW 5 with
the iron pipe as well as stick and thereby inflicted multiple grievous injuries as well
as simple injuries on their persons. The ocular evidence as discussed above, is
corroborated by the medical evidence of Doctor Ashwani Tomar PW 12, who
examined injured Neel Kanth and issued MLC Ex. PW 12/A. At the time of
examination Doctor Ashwani Tomar had found injured Neel Kanth in a semi-
conscious condition having seven injuries on his person, out of which injury No. 1
was opined as grievous as well as dangerous to life. According to him, the said
injuries were possible by sticks and iron pipe Ex. P-2, P-12 and P-6. So far injured
Gangawati is concerned, she was examined by Doctor Kuldip Kanwar PW 13 but when
he appeared in the witness box her MLC was not got proved from him. But it is of no
effect in view of the ocular version that she was given beatings by the Appellants.
Doctor Kuldip Kanwar had conducted autopsy on the dead body of Laik Ram and has
proved post mortem report Ex. PW 13/B, which reveals that as per the opinion of this
witness the cause of death of Laik Ram was brain injury leading to cardio respiratory
arrest, which was possible with the iron pipe Ex. P-6, which was recovered from the
place of occurrence and was identified to be used by Appellant Durga Nand for
assaulting the deceased. The stick Ex. P-12 was recovered at the instance of
Appellant Dharminder.
3 0 . We further find that the Additional Sessions Judge has rightly convicted the
Appellants under Sections 302, 307 and 323 IPC with the aid of Section 34 IPC,
though they were charged and tried for substantive offences with the aid of Section
149 IPC by relying upon the judgment of this Court in State of H.P. v. Maheshi alias
Mahesh and its connected matters 1996 (1) Sim. L.C. 265, as common intention is
gathered from the evidence on record. Both the Appellants had assaulted deceased
Laik Ram and Neel Kanth with lethal weapon in furtherance of their common intention
to do away with their lives.
3 1 . We also find that the Additional Sessions Judge has correctly come to the
conclusion that on the appreciation of the evidence on record the involvement of
Respondents Hukmu, Parmod and Padma Ram has not been established satisfactorily
as well as beyond all reasonable doubt. The evidence, however, reveals that
Respondent Hukmu was present at the place of occurrence and also participated in
the assault but her role has not been proved satisfactorily. Similarly, the presence of
Respondents Parmod and Padma Ram at the place of occurrence, though established
on record, yet there is nothing on record that they have participated in the assault.
They appear to have come on the spot subsequently and Respondent Parmod might
have come to help in shifting Appellant Durga Nand, who had suffered injuries on his
person from the gun shot. All the Respondents have been rightly acquitted by the
Additional Sessions Judge, which does not call for interference by us in the appeal
filed by the State of Himachal Pradesh.
32. Lastly, an alternative argument of the learned Counsel for the Appellants is that
the present case falls under exception (i) given under Section 300 IPC to urge that it
is a case of culpable homicide not amounting to murder and the Appellants may be
convicted and sentenced under Section 304 IPC in view of grave and sudden
provocation for them to (??) as deceased Laik Ram had fired at them. This argument

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has been raised to be rejected, as it is proved on record that deceased Laik Ram had
appeared on the scene at a much later stage and he had fired one gun shot to save
his son Neel Kanth from the clutches of the Appellants and others. It has also come
on the record that immediately thereafter the gun was snatched by Respondent
Hukmu wife of Appellant Durga Nand, whereafter deceased Laik Ram became
unarmed and could not cause any harm to the Appellants, as such, there was no
occasion for sudden and grave provocation for the Appellants to beat Laik Ram to
death and cause grievous injuries to Neel Kanth and simple injuries to Ganga Wati. In
this view of the matter, we need not discuss the authorities cited by the learned
Counsel on this point. The Appellants have been rightly convicted for the offences
punishable under Sections 302, 307 and 323 read with Section 34 IPC. The sentence
awarded to them is also just and proper.
33. The result of above discussion is that there is no merit in both these appeals and
these are dismissed. Bail bonds furnished by the Respondents in Criminal Appeal No.
367 of 1998 are discharged.
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