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2000 DIGILAW 648 (RAJ)

Ram Charan v. State of Rajasthan

2000-05-19

G.L.GUPTA

body2000
JUDGMENT 1. - Through this appeal, Ram Charan and six others have called in question the judgment dated 28.10.1993, of the learned Additional Sessions Judge, Chabra (Baran), whereby Ram Charan and Om Prakash were convicted under Section 148 and 326 IPC, and Hari Vallabh, Chotu Lal, Lalji Ram, Gobaria and Babu Lal under Sections 148, 326/149 IPC. All the seven accused were sentenced to one year simple imprisonment and a fine of Rs. 100/- each; in default 15 days simple imprisonment under the first count and six months simple imprisonment and a fine of Rs. 50/- each; in default seven days simple imprisonment under the second count. 2. The case relates to an occurrence which is alleged to have taken place in village Nipania on 2.8.1989, at 1.30 p.m. The prosecution case was that seven accused had formed unlawful assembly and they had caused injuries to Sita Ram and Janki Lal by axes and lathies. The report of the occurrence was lodged by Janki Lal at Police Station Chabra at 5.00 p.m., on which a case under Sections 147, 148, 149, 323, 324 and 307 IPC was registered After the completing of the investigation, the police submitted a chailan against all the accused persons under Section 307 IPC. The learned Additional Sessions Judge framed charges against Om Prakash and Ram Charan under Sections 307, 323/149 IPC and against the remaining five accused under Sections 307/149 and 323 IPC. The prosecution examined RW. 1 to P.W. 15. The accused in their statements under Section 313 Cr.RC. denied accusation. They did not examine any witness in defence. 3. The trial Court held that the accused persons had formed an unlawful assembly and in furtherance of the common object of the assembly, grievous injuries had been caused to Janki Lal and Sita Ram by Ram Charan and Om Prakash. He, however, held that a charge under Section 307 I.PC. was not established but convicted them under Section 326 IPC and the remaining five accused with the aid of Section 148 IPC. 4. Mr. Jain, counsel for the appellants pointing out that the parties had entered into compromise and even had filed the compromise deed before the trial Court, contends that there was no charge framed against the appellants under Section 148 IPC, and, therefore, the conviction of the appellants under Section 148 IPC is illegal. 5. 4. Mr. Jain, counsel for the appellants pointing out that the parties had entered into compromise and even had filed the compromise deed before the trial Court, contends that there was no charge framed against the appellants under Section 148 IPC, and, therefore, the conviction of the appellants under Section 148 IPC is illegal. 5. There is merit in this contention of Mr. Jain. The accused were not charged with the offence under Section 148 IPC and, therefore, the trial court could not be justified in convicting them under Section 148 IPC. Since charge was not framed under Section 148 IPC, it has to be accepted that prejudice was caused to the accused persons. The conviction under Section 148 IPC is liable to be set aside. 6. The second contention of Mr. Jain was that the accused had also received injuries in that occurrence and they had lodged the F.I.R. also, but the prosecution has not explained the injuries of the accused. According to him, y the occurrence had taken place in the field of the accused where the complainant party had started grazing cattle and, therefore, the accused had a right of defence of their property. He submitted that when the accused objected to the grazing of the cattle by the members of the complainant party, they started giving beatings to the accused persons and, therefore, the accused had to cause some injuries to the members of the complainant party in exercise of their right to private defence. 7. This argument also can not be said to be without merit. Janki Lal, RW. 1 admits in categorical terms that his cattle had entered in the field of Ram Charan accused and Ram Charan had tried to drive the cattle from his field, on which he objected and at that time, an injury was caused by Prakash to his head. The statement of Janki Lal makes it clear that the occurrence of beating had taken place because the cattle of the complainant party had entered into the field of the accused, where accused Hari Vallabh, Babulal and Gobaria were ploughing the field, and as the accused persons tries to drive the cattle from their field, Jankilal protested. 8. The statement of Janki Lal makes it clear that the occurrence of beating had taken place because the cattle of the complainant party had entered into the field of the accused, where accused Hari Vallabh, Babulal and Gobaria were ploughing the field, and as the accused persons tries to drive the cattle from their field, Jankilal protested. 8. It is evident that the complainant party was at fault at two points (1) when the cattle was allowed to enter into the field of the accused and (2) when accused tried to drive the cattle, Janki Lal raised a protest. In this connection the case for the accused is that as the cattle entered in their field, they wanted to drive the same but at that time the members of the complainant party entered in their field and caused injuries to them, and first, they tried to run away from their field but they were surrounded in the field of Jhooma and, therefore, in exercise of right of private defence they had to cause injuries to the members of the complainant party. It can not be said that the defence of the accused persons is not probable. It is significant to point out that all the accused had sustained injuries in the occurrence. Their injury reports are Ex.D. 5 to Ex.D. 10. Injury Report of Ram Charan shows that he had a cut wound on his scalp besides abrasions and bruises. Hari Vallabh had three cut wounds on his scalp and mastoid region besides bruises and abrasions. So also, Babu Lal had a cut wound on his scalp. Lalji had also suffered a cut wound on his fronto parietal region and left eye brow. Chhota, Lalji, Babulal and om Prakash had suffered simple hurts by blunt weapons. 9. Looking to the number of injuries suffered by accused person, the greater probability is that they were first attacked and injuries to Janki Lal and Sita Ram were inflicted thereafter. It is pertinent to note that Janki Lal has suffered only one incised wound on his scalp and five bruises and Sita Ram had suffered only one incised wound on his scalp and bruises. It is pertinent to note that Janki Lal has suffered only one incised wound on his scalp and five bruises and Sita Ram had suffered only one incised wound on his scalp and bruises. Of course, the injuries suffered by Janki Lal and Sita Ram on their scalp were found to be of grievous nature but on that ground it can not be said that the accused had exceeded that right of private defence. In such moments of excitement or disturbed mental equilibrium, it is somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. See Deo Narain v. State of U.P. AIR 1973 S.C. 473 . 10. As already stated, the occurrence had taken place first in the field of accused and then in the field of Jhooma, wherein the members of accused party suffered multiple injuries and, therefore, if the accused had caused injuries to Janki Lal and Sita Ram, it has to be accepted that they were justified in causing injuries to them. 11. It is significant to point out that the prosecution has not at all explained the injuries of the accused though questions were asked in this accused at the time of occurrence is a very important circumstance in this case which raises an inference that the prosecution version is not correct and defence of the accused is probable. It is pertinent to point out that the accused had not concealed the factum of causing injuries to the members of complainant party. Even in the F.I.R. Ex.D. 1 lodged by Hari Vallabh, it was clearly stated that they were attacked by the members of the complainant party and, therefore, they had to cause injuries to them in exercise of right of private defence. 12. The trial Court has not considered this aspect of the matter at ail in its judgment. At para No. 4 of the judgment, the contention of the accused has been recorded that the accused had to cause injury in exercise of right to private defence but the learned Judge did not elaborate further and without discussing the evidence whatsoever observed that there was no sound proof of the existence of right defence. At para No. 4 of the judgment, the contention of the accused has been recorded that the accused had to cause injury in exercise of right to private defence but the learned Judge did not elaborate further and without discussing the evidence whatsoever observed that there was no sound proof of the existence of right defence. The approach of the learned Judge to the contention raised by defence counsel was far from satisfactory. 13. As a result of the foregoing discussion, it has to be held that the trial Court had erred in convicting the appellants in this case. The appellants are entitled to acquittal. 14. Consequently the appeal succeeds. The judgment of the trial court, convicting and sentencing the appellants is set-aside. They are acquitted of the offence charged with. They are on bail. They are not required to surrender to the bail bonds, which are cancelled.Appeal allowed. *******