CHAUHAN, J. - (1.) ARISING out of the same incident, the two appellants Raju @ Raj Kumar and Hemant Kumar have been convicted vide judgment dated July 17, 2000 and the third appellant Manoj Kumar has been convicted vide judgment dated July 11, 2003. Since both the judgments under challenge deal with the same incident, they are being decided by this common judgment.
(2.) VIDE judgment dated July 17, 2000, the appellant Raju @ Raj Kumar, has been convicted for offences under Section 302 IPC and sections 3/25 & 3/27 of the Arms Act. For offence under Section 302, he has been sentenced to life imprisonment and imposed with a fine of Rs. 1,000/- and to further undergo a sentence of one month simple imprisonment in default thereof. For offence under Section 3/25, he has been sentenced to five years imprisonment and imposed with a fine of Rs. 1,000/ -. For offence under Section 3/27, he has been convicted and sentenced to 7 years rigorous imprisonment and imposed with a fine of Rs. 1,000/ -. In case of default in payment of fine for both the aforementioned offences, he has been further directed to undergo one months of simple imprisonment. The appellant No. 2, Hemant Kumar, has been convicted for offence under Section 302/34 and has been sentenced to life imprisonment and has been imposed with a fine of Rs. 1,000/- and to further undergo a sentence of one month simple imprisonment in default thereof. Vide judgment dated July 11, 2003 the appellant No. 3, Manoj Kumar has also been convicted for offence under Section 302/34 IPC and has been sentenced to life imprisonment and imposed with a fine of Rs. 1,000/- and to further undergo for one month simple imprisonment in default thereof. Hence the appellants have challenged these two judgments before us. The brief facts of the case are that statement of Anirudh (the deceased in this case) was recorded by the police at Sri Kalyan Hospital, Sikar on May 26, 1998. In his statement, he claimed that around 8. 30 PM his brother Basant Mishra (PW. 4), Mahesh Kumar Saini (PW. 3) and he had gone to their plot situated in Lisadia ka Bas. Next to that plot is a house of Phool ji Lisadiya. At that time on the roof of Phoolji's house, the son of Ram Niwas and the children of Shanti Prasad were present. According to him, they first abused him and then opened fire. He was hit on the right side of his chest. His brother, Umesh Mishra, brought him to the Hospital. He further claimed that family of Ram Niwas and Shanti Prasad were inclined to take possession of their plot. Therefore, an animosity had arisen between them. He further claimed that he does not know the names of the children of Ram Niwas and Shanti Prasad. On the basis of the said statement, the police chalked out a formal FIR (FIR No. 243/1998) for offences under Sections 307 & 149 IPC. However, after the death of Anirudh, the offence under Section 302 IPC was also added and the investigation commenced. During the course of investigation, Raju and Hemant were arrested and Manoj was declared as an absconder. The charge sheet was filed against Raju and Hemant Kumar for offences, under Sections 302, 302/34 IPC and for offences under Sections 3/25, 3/27 & 3/33 of the Arms Act. After Manoj was arrested, a supplementary charge sheet was submitted against him for offence under Section 302/34 IPC. In order to prove its case in the first trial, the prosecution examined as many as 16 witnesses and submitted 37 documents. They also submitted 8 article. In the second trial, the prosecution examined as many as 12 witnesses and submitted 37 documents. The defence produced a single witness and submitted 4 documents. After examining the oral and documentary evidence, vide judgment dated July 17, 2000 the appellants No. 1 & 2 were convicted and sentenced as aforesaid and vide judgment dated July 11, 2003, the appellant No. 32 as convicted and sentenced as aforementioned. Mr. S. R. Bajwa, Senior Advocate, learned counsel for the appellants, has initially argued that the parcha bayan of the deceased, Anirudh, could not even be recorded. According to the Bed Head Ticket (Ex. D-4), when Anirudh was brought to the hospital his blood pressure was unrecordable and he was already in shock. The Bed Head Ticket recorded at 9-10 PM clearly shows that neither the pulse not blood pressure was recordable and by 9. 45 PM, there was no pulse and no blood pressure. Since during this period of 35 minutes, the patient was in shock, the parcha bayan could not be recorded. Even Doctor who has signed the fitness certificate has not been examined by the prosecution. In the parcha bayan the deceased does not reveal the presence of his brother Anjani and Umesh at the time death. However, the prosecution has presented both of them as eye witnesses of the incident. But during the course of arguments, Mr. S. R. Bajwa argued that the plot did not belong to the complainant party. In fact, the possession of the plot was with the accused party. He drew our attention to both the judgments under consideration and claimed that since the possession of the plot was with the accused persons since the complainant party was trying to take the possession of the plot, therefore, in the right of private defence of the property, the incident had occurred. He further contended that section 103 IPC enumerates the circumstances under which the right of private defence can be extended to causing of death. However, he fairly conceded that none of these circumstances existed in the present case. Therefore, according to him, the appellants had exceeded the right of private defence of the property. He has further argued that in case of right of private defence of the property, the common intention is not to commit an offence but the intention is to defend the property, which is under immediate danger. Therefore, according to him, the co-accused, Hemant and Manoj, cannot be held vicariously liable for the commission of an offence. Since Raju has exceeded the right of private defence, he cannot be convicted for offence under Section 302 IPC. At best he can be convicted for offence under Section 304 Part I IPC.
(3.) ON the other hand, the learned public prosecutor, Mr. R. P. Kuldeep, has argued that it is a case of direct evidence, wherein Anjani Kumar (PW. 1), Mahesh Kumar (PW. 2), Basant Kumar (PW. 4) and Ramesh @ Umesh (PW. 5) are the eye witnesses. According to testimony of Ramesh @ Umesh (PW. 5), the said plot was bought on June 27, 1986 from Parsaram Lasadiya for Rs. 20,000/ -. He also sought permission from the Municipality for construction of a house and in order to shart the construction, he had sent a truck load of stones on the plot. He further argued that therefore, possession was with the complainant. Hence, the right of private defence of property cannot be taken by the accused. According to him, the accused were the aggressors. According to the eye witnesses, Raju had fired the single shot, which eventually killed Aniruth. Therefore, he has supported the impugned judgments. We have heard both the learned counsel for the parties and have critically examined the record and scanned the impugned judgments. Death of Anirudh was undeniably homicidal in nature. As per autopsy report (Ex. P. 24) the deceased sustained following antemortem injuries:- 1. Lacerated perforating wound 3/4cm x 1/2 cm x deep in thoracic cavity obliquely, going inside, oval in shape, edges are inverted. Surrounding skin in reddish, d edged are dark in colour [jk at chest anteriorly at anterior board of axilla at right side chest. Muscles are pink in colour, wound present in between 3rd and 4th costal margin. 2. Lacerated wound 1-1/2 cm x 1 cm x Deep in thoracic cavity at chest right side posteriorly in between 10th and 11th rib near vertebral column edges are averted refused bleeding from wounds, wound No. 1 and 2 are (torn ). According to Dr. G. R. Tanwar (PW. 10) cause of death was shock due to excessive hemorrhage and injury to lung. ;