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TMI Blog1983 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... gun towards Chhatrapal who in spite of being fired at tried along with some others who were there to catch hold of Pussu and to snatch the gun from his hands. As Pussu could not reload the gun he assaulted those who tried to catch him with the butt of the gun. Gaya Prasad was, however, able to snatch the gun from the hands of Pussu after delivering few blows with his lathi on the head of Pussu. Pussu suddenly managed to escape from the hold of the witnesses and ran towards Sheo Rakhan who was standing near a mango tree with his country made pistol which he was not in a position to open and reload in spite of his attempts. In the meantime the witnesses were carrying the injured Bankey Lal towards the village and when they came near a pipal tree, Pussu ran towards them with the country made pistol which he had reloaded by then and fired again at Bankey Lal and killed him instantaneously. This in brief is the prosecution case. 2. The defence version appears to be that on the date and at the time of the occurrence Pussu and Sheo Rakhan were going towards the 'Bhagwa Talab' near their village and on the way they came across Bankey Lal, his servant Nanhoon and Chhatrapal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial leave to appeal against Pussu and Sheo Rakhan after a petition for a certificate under Article 134(1)(c) of the Constitution had been dismissed by the High Court. By its order dated October 28, 1974, this Court granted special leave to appeal against Pussu alone and hence this appeal by special leave against Pussu only. 7. In the present case many facts are not in dispute. That Bankey Lal was killed by injuries caused by a fire arm is not in dispute. The time, the date and place of the alleged occurrence are also not in dispute. The presence of Chhatrapal, Bankey Lal, Pussu and Sheo Rakhan at the scene of occurrence when the occurrence took place is not also disputed. That the licensed gun of Jia Lal, father of Pussu was used at the time of occurrence is also not in dispute. That Chhatrapal suffered injuries on account of shots fired from that gun is also not in dispute. That there was enmity between the family of Bankey Lal and the family of Pussu owning to some consolidation proceedings is not seriously questioned before us. The only points in dispute are (1) whether Bankey Lal was killed on account of firing by Pussu as stated by the prosecution or whether he was kille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctated by an eye witness but by Jang Bahdur Singh who collected information from people who were there, that Jang Bahadur Singh who had lost his only son could not be expected to furnish all details at the time when the report was prepared and that the report contained broadly all the particulars of the occurrence. The trial court also observed that no motive could be assigned to the omission to refer to the injuries on the person of the accused said to have been caused by lathi blows. The High Court has, however, considered this last aspect namely the omission to refer to Gaya Prasad (P.W. 7) giving lathi blows to Pussu and to Chhatrapal catching hold of Pussu and preventing him from reloading the gun was a material omission. We shall advert to this aspect of the matter again at a later stage. One significant aspect of the First Information Report however is that even though there was enmity between the family of Jang Bahadur Singh and the family of Jia Lal, the father of Pussu, and although the defence theory is that the said Jia Lal had fired at Chhatrapal and Bankey Lal, there is no reference to the presence of Jia Lal the father of Pussu, at the scene of occurrence. 10. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the police on October 15, 1971 itself when he handed over the report about the occurrence and the statements of Chhatrapal Singh, Gaya Prasad and Ramnath were recorded by the police on October 16, 1971. Before considering the evidence of these eye witnesses, it is necessary to refer to a curious experiment which was carried out by the High Court in the course of the hearing of the appeal. The experiment relates to the capacity of Chhatrapal to run when he was fired at by Pussu. One of the arguments addressed on behalf of the accused before the High Court was that Chhatrapal could not have been fired at from a short distance but he must have been shot from a long distance as the injuries on his person were superficial and hence he could not run and try to catch hold of Pussu by his waist before Pussu could reload his gun. Chhatrapal was about 60 years of age at the time of the incident. In support of its conclusion that Chhatrapal could not run towards Pussu in order to catch hold of him this is what the High Court says : Chhatrapal appeared in the Court and we asked him to move briskly to a certain distance in order to demonstrate his ability. He did so. We also got one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons were on the western side of Bankey Lal. After this third fire, I rebuked the accused persons. Thereupon Pussu fired at me and then I caught hold of him from behind.... The snatching of the gun took place at a distance of ten paces on the eastern side of the place where Bankey Lal had sat down.... As soon as Pussu fired at me, I caught hold of him by his waist. After I had caught hold of his waist Pussu could not fire again so long as he did not get himself freed. To Court : At the time when Pussu fired at me and I caught him by his waist, the empty cartridge fired at me remained inside the gun. Pussu could not take it out or throw it away nor could he open the gun. To counsel : And in the meantime the gun was snatched. 15. There is nothing elicited in the cross examination of this witness which could discredit his testimony. There was no ill-will between Chhatrapal and the members of Pussu's family. He denied a suggestion that there were some proceedings under Section 107 Criminal Procedure Code against him. There was also, no evidence in support of that suggestion. Chhatrapal had been in fact injured by gun shots and the gun used on that occasion ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurrence took place he was in his plot near Bhagwa Talab which was close to the scene of occurrence, that he heard the cries of Pussu 'Run up, save me, Bankey Lal and Ghaseetey are killing me'. What took place thereafter may be narrated in his own words thus ; Having gone there, I saw that Bankey Lal deceased and Ghaseetey were assaulting Pussu accused with lathis. Jia Lal. challenged both of them and said Do not beat him, otherwise I shall shoot you down . On Jia Lal's saying so, Chhatrapal and Bankey stopped for a short time; but they again rushed to assault Pussu. In the meantime Pussu accused took shelter behind the mango tree. Then Jia fired 2-3 shots at Chhatrapal and Bankey. On receiving the gun shots injuries Chhatrapal fell down on the ground. Bankey Lal, too, received some injuries. In the meantime Bankey Lal's servant Nanhua caught hold of Jialal accused from behind, as a result of which his arms also got bound. Nanhua shouted Run up. I have caught hold of the sala . At this Shiva Rakhan accused reached there. He caught hold of Nanhua and felled him down and Jia Lal accused was released from his hold. Bankey Lal deceased rushed to snatch the gun of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions. Pussu, as mentioned earlier, was arrested on October 23, 1971 when he surrendered before court. The gist of the version in the F.I.R. (Exh. Ka. 10) given by Pussu at the Kotwali Police Station, Fatehpur is summarised by the trial court in its judgment and the relevant portion of that judgment reads thus: When both these accused reached near Bhagwa Talab they found deceased Bankey Lal. Ghaseetey alias Chhatrapal and Bankey Lal's servant Nanhoon coming from north side of the village towards them armed with lathis. On account of fear both these accused left that passage but the aforesaid three persons rushed up at them and began to assault them with lathis. On hearing their cries his father accused Jia Lal who was having his licensed gun, Jagannath and Sheo Autar reached there and began to save them from the assault. The assailants namely Bankey Lal, Chhatrapal and, Nanhoon threw down his father Jia Lal on the ground and began to snatch his gun. In the meantime he ran away from there but when he was running away he heard a gun shot sound. He did not go to his police station due to fear and, therefore, reached Police Station Kotwali, Fatehpur. He had also stated abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, he would instead of demanding the return of the gun on the point of his pistol, run towards Bankey Lal and shoot at him, which in fact is what he is alleged to have done in this case. The High Court's opinion that the normal conduct of a person in the position of Pussu would have been what the High Court has stated in the course of its judgment is a mere surmise. At any rate on such an imaginary ground the evidence of the eye witnesses could not be rejected. Another reason given by the High Court is again a supposition resting on no solid ground and that relates to the condition of the gun (Exh. Ka-1). The High Court has observed : None of the eye-witnesses has stated that any blow of lathi plied by Gaya Prasad fell on the butt of the gun. Gaya Prasad has stated that he inflicted four or five lathi blows on Pussu. The gun was deposited in the Mal Khana at the Police Station and a piece of the wooden part of the butt of the gun was found broken. This was noted in the recovery memo (Exh. Ka-1). The gun was examined by us and we found a wooden piece of the butt having chipped off and the opening lever of the gun had become inoperative. This could only happen if lathi blow f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on the grounds which are fanciful or in the nature of conjectures. 26. We have pointed out above the manifest errors committed by the High Court in the course of its judgment acquitting the accused Pussu. 27. On a careful reading of the evidence in this case, we feel that Jia LaL had out of love and affection towards his son from the beginning tried to shield Pussu but has ultimately not been successful. From the evidence it is obvious that Pussu and Sheo Rakhan were armed with fire arms and they were the aggressors. The plea of self defence urged on behalf of Pussu cannot be accepted. A person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot rely upon the right of self-defence if in the course of the transaction he deliberately kills another whom he had attacked earlier. In the instant case having regard to the nature of the weapon used it has to be held that the act by which the death of Bankey Lal was caused by Pussu was done with the intention of causing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.... In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. 29. In the result, we set aside the judgment of the High Court in so far as Pussu is concerned and restore his conviction for the offence punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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