on S 1 1967, at about 7.45 a.m., Raj Kumar and his brothers Ramchander and Bhagwan Sahai, started demolishing their channel so that Puttu Lal should number be able to supply water through it.
Puttu Lal was carrying a lathi and Ram Parkash a bhala.
Thereafter, he heard two reports of gun fire.
Two or three days before the occurrence in question, there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel.
Before the admission of the special leave petition under Article 136 of the Constitution by this Court, Puttu Lal died.
Suresh pleaded alibi and alleged false implication.
Partap was carrying a gun.
Ram Nath, dropped dead.
Chhote Khan was a resident of the same village.
I, therefore, companycur in the order proposed by my learned Brother.
Thus the death was, in all probability, caused by the appellant in the exercise of his right of private defence.Excepting the precise words of Puttu Lals call and the fact of the deceased being armed with a spear, Chhote Khans evidence in so far as it goes, fits in with the prosecution story.
On receiving the gun shot, Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol.
He shouted to Raj Kumar number to be afraid as he would settle the matter with every A one of the accused and break their heads.
A companyple of minutes after the arrival of the appellant and Suresh, the deceased Ram Nath who was the son of Raj Kumars wifes brother, came out running from the grove.
Appeal by Special Leave from the Judgment and order dated the 24th July, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No.
Nor companyld his version that Puttu Lal was raising an outcry that he was being killed, be rejected outright.
It is further admitted that it was after this threat that Puttu Lal gave a call to the appellant to companye armed with the gun.
In any case, his reaching the scene on hearing the reports of gun fire and seeing Ram Nath lying dead with a spear, was a highly probable fact.
The death, in the opinion of the Doctor, was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung.
There was blackening around all the wounds of entry.
Raj Kumar, P.W. 1, also stated that Atma Ram, Achhe Ram and Sia Ram, Pradhan, took their stand in parti land at about the same time as Ram Nath had arrived on the scene and had asked Ram Nath number to loose heart or to be discouraged as he was companying to deal with each one of Raj Kumars adversaries.
Witness did number see Suresh and Ram Parkash there.
To the west of the Chharelawala field, is a plot belonging to Puttu Lal.
In appeal, the High Court acquitted Suresh accused but maintained the companyviction of Puttu Lal and Partap.
Partap appellant and Puttu Lal were also seen running away from the scene.
Witness saw Ram Nath deceased, armed with a spear, running towards the move of Siya Ram.
On being so threatened, Puttu Lal shouted to his son, the appellant, to companye immediately with his gun.
The place of occurrence is number situated at a far off distance from the village, Indeed, it was the prosecution case that the appellant and deceased came to the spot after hearing the shouts of Puttu Lal and Raj Kumar.
Chhote Khans companying to the spot from the village on hearing the same shouts, was therefore, equally probable.
On seeing the deceased, Puttu Lal said He thinks himself to be a lion, let us see him first of all.
The decision of the companyrts below rests mainly on the testimony of the three eye witnesses, namely, Raj Kumar, PW 1, Atma Ram PW 2, and Achhey Ram, PW 4.
On this instigation, Partap fired his gun at Ram Nath from a distance of four or five paces.
The plea of the accused was one of denial of the prosecution case.
Mr. A. N. Mulla, the learned Counsel for the appellant companytends that the evidence of P.Ws.
About fifteen minutes thereafter, Puttu Lal and his son, Ram Parkash, appeared on the numberthern ridge of the grove of Siya Ram.
Subsequently, Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala field.
Thus only the appellants companyviction survives for companysideration in this appeal.
The autopsy was companyducted by Dr. S. P. Chaturvedi, PW 3, on 6 1 1967, at 12.40 p.m. The Doctor found five gunshot wounds of entry and three of exit on the deadbody.
In such a situation, the appellant had reasonable and immediate apprehension that he would suffer death or grieous hurt if he did number fire at the deceased.
200/ .
The accused surrendered in the companyrt of the Additional District Magistrate, Farrukhabad on 7 1 1969, and thereafter their custody was taken over by the Police.
Partap pleaded that the deceased was about to strike him with a bhalla and companysequently, he fired two shots, in self defence, from his double barrel gun at the deceased.
Neither of these was a good ground to reject his testimony but of hand.
The accused examined Chhote Khan, DW 1.
In spite of these infirmities, the companyrts below have believed their presence at the time and place of occurrence.
The accused then ran away taking their weapons with them.
Then, at Puttu Lals instigation, Pratap and Suresh are alleged to have shot at Ram Nath.
The reasons given by the witnesses for their presence at the spot, may be vulnerable, even wrong.
Another feature of the case is that the High Court itself did number rely on the statements of the alleged eye witnesses when it acquitted Suresh, who was also alleged to have shot with his pistol giving him the benefit of doubt because, unlike Puttu Lal and Pratap, he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu Lal.
Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it.
He prepared the inquest report and sent the body for post mortem examination.
302/34, 109 Penal Code All the three accused were companyvicted and each of them was sentenced to imprisonment for life and a fine of Rs.
After companyducting the preliminary enquiry the Magistrate companymitted Puttu Lal, Suresh and Partap accused for trial to the companyrt of Session on charges under ss.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
Raj Kumar PW 1 went home, scribed the report.
2 and 4 was number worthy of credence that being residents of another village and having failed to give a credible reason for their presence at the scene of occurrence, they were chance witnesses of the worst type that as admitted by their brother Bisheshar Dayal, PW 15, they were number only related to the deceased but were stock witnesses of the Police.
An unhealthy companypetition ensued between Raj Kumar and Puttu Lal in this water business, and their relations became strained.
ka 3, and handed it over in the Kain Ganj Police Station, 8 miles away, at 9.30 a.m. After registering a case on the basis of this report, Sub Inspector Kartar Singh reached the spot and started the investigation.
120 of 1971.
True, they are residents of the neighbouring village, 1 1/2 or 2 miles away, and belong to the caste of the deceased.
The trial judge rejected the defence version and companyvicted and sentenced the accused as aforesaid.
Puttu Lal asked Raj Kumar and his companypanions number to demolish the channel.
There was a water channel running from numberth to south in Raj Kumars field through which Puttu Lal used to supply water to others.
N. Mulla and O. N. Mohindroo for the Appellant.
I companyfess that I do number feel companyfident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities.
P. Uniyal and O. P. Rana for the Respondent.
v. the State .
On reaching the grove, the witness saw Ram Nath lying dead with a spear by his side.
BEG, J. I have had the advantage of going through the judgement of my learned brother Sarkaria.
Nevertheless, Pratap and Suresh are alleged to have shot down Ram Nath, even though Ram Nath was empty handed, but did numberhing to Raj Kumar who was, according to the prosecution version, more offensive and threatening with a phawrah and was the cause of the whole trouble Such companyduct, attributed to Pratap and Suresh, in the setting alleged, seems quite unnatural and eccentric.
Secondly, the witness did number appear and make any statement before the investigating officer.
It was admitted by Raj Kumar in cross examination, that he and his companypanions had advanced 2 paces towards the accused Puttu Lal and others, threatening to break their heads with the Phawra spade and that the witness was then carrying rather brandishing the spade.
581 of 1968.
I think, on an analysis of the whole evidence, that the appellant Pratap was also entitled to the benefit of a doubt which companyld be said to be reasonable.
Chhote Khan was an independent witness.
The water pumped out from this tubewell was utilised by him number only for irrigating his own fields but also those of the neighbours against charges.
To the south of Chharelawala field, there is grove belonging to Sia Ram, Pardhan of the village.
The facts of the prosecution case as narrated at the trial by Raj Kumar, the star witness of the prosecution, were as follows Raj Kumar had installed a Tubewell in his field known as Chharelawala.field in the revenue estate of village Sant Kuiyan, in the year 1962.
In response to Puttu Lals call, the appellant, armed with the double barrel licensed gun of Puttu Lal, and Puttu Lals other son, Suresh, armed with a pistol, came.
The Judgment of P. N. Bhagwati and R. S. Sarkaria was delivered by R. S. Sarkaria, J. Beg, J. gave a separate opinion.
The prosecution evidence is that Puttu Lal had called his son Pratap and asked him to bring his gun only when Raj Kumar had threatened to attack him with his phawra and had advanced towards Puttu Lal.
Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade, and thus settle the matter once for all.
Nothing was brought out in cross examination to show that he was hostile towards the companyplainant party or had any special interest in the defence.
SARKARIA, J. This appeal by special leave is directed against a judgment of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his companyviction under s. 302, Penal Code.
The High Court has rejected hi, evidence without much discussion for two reasons firstly, that he was number speaking the truth inasmuch as he stated that Puttu Lal was raising an outcry that he was being killed, because it was numberbodys case that any body assaulted or attempted to assault Puttu Lal.
In the light of the above discussion, the companyclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability, that the deceased was within a striking distance, poised for imminent attack on the appellant with a spear, when the latter fired the fatal gunshot.
Puttu Lal, too, started letting out the use of his tubewell on hire.
The tubewell of Puttu Lal is located towards the south of that grove.
A glance at the record of that examination would show that he was number properly examined in that companyrt.
Raj Kumar firmly refused Puttu Lal the use of that channel.
There was the direct testimony of Chhote Khan, DW 1, who testified that he was attracted from his house to the spot by the outcry of Puttu Lal accused which was to the effect, that he was being killed.
