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2001 DIGILAW 267 (MP)

RAJU ALIAS VIRENDRA SINGH v. STATE OF M. P.

2001-03-22

FAIZAN UDDIN

body2001
FAIZAN UDDIN, J. ( 1 ) THE appellant has preferred this appeal against his conviction under S. 307, Indian Penal Code, and sentence of three years rigorous imprisonment and a fine of Rs. 500/- and, in default, to further three months' rigorous imprisonment, passed by the First Additional Sessions Judge, Gwalior, in Sessions Trial No. 247/1991, decided on 7-7-1997. ( 2 ) BRIEFLY stated, prosecution story is that on 1-6-1991 accused-Raju alias Virendra Singh went to the house of Afar Singh (P. W. 6); there a quarrel took place between the accused and Panchu. Accused beat Panchu with lathi. Raju alias Rajendra (P. W. 3) and Surendra Pathak (P. W. 7) intervened and asked the accused not to beat Panchu. Upon this, the accused went inside his house, brought a gun and fired at Surendra Pathak (P. W. 7) who sustained gunshot injuries on the right side of head, shoulder and face. It is said that on intervention of Atar Singh (P. W. 6) and his wife accused ran away from the spot. First Information Report of the incident was lodged by Surendra Pathak (P. W. 7) on the basis of which Crime No. 179/1991 under S. 307, I. P. C. was registered; injured Surendra Pathak was sent to the Hospital for medical examination and treatment, where he was examined by Dr. Ashok Kumar Jain (P. W. 1) who found the following injuries on the person of Surendra Pathak :multiple punctured wounds varying size around 0. 5 cm. circumference; one above right pinna 3 cm. above pinna and 7 wounds superio-posteriorly to this (occipital region. Advised X-ray of skull for f/b detection. Case was referred to Neurology for X-ray and expert opinion. Injury is caused by some fire-arm. Nature of injury will be given after X-ray report andexpert opinion. Ex. P-1 is the injury report. Dr. R. K. Rawat took X-ray of the skull - both AP view and lateral view - and found radio opaque shadow of metallic density in right parietal area. Ex. P-6 is the X-ray report and Exs. P-7 and P-8 are the X-ray plates. Spot map (Ex. P-3) was prepared and after usual Investigation 'challan' was filed. Accused abjured the guilt. R. K. Rawat took X-ray of the skull - both AP view and lateral view - and found radio opaque shadow of metallic density in right parietal area. Ex. P-6 is the X-ray report and Exs. P-7 and P-8 are the X-ray plates. Spot map (Ex. P-3) was prepared and after usual Investigation 'challan' was filed. Accused abjured the guilt. It was contended that Atar Singh (P. W. 6) was beating Panchu who cried for help; hearing the cries and Seeing the crowd Gita (D. W. 3) along with her sisters and mother went there to rescue him. She asked Atar Singh (P. W. 6) not to beat Panchu. Raju alias Rajendra (P. W. 3) who was present there and was also beating Panchu caught her braider hair, pulled her and slapped her. On this Gita (D. W. 3), her sisters and mother beat Raju alias Rajendra (P,w. 3 ). It Is stated that thereafter Raju alias Rajendra (P. W. 3), Atar Singh (P. W. 6), Surendra Pathak (P. W. 7) and 4-5 persons, duly armed with Katta. chain, etc. came to the house of the accused where again Raju and others misbehaved with Gita and other ladies, caught hold of their braided hairs. The child in the lap of Gita fell down. Complainant Surendra Pathak (P. W. 7) took up a stone to strike the accused. It is said that when their persuasion failed, the appellant in order to save his sisters and mother fired in the air as a result of which some pellets might have struck Surendra Pathak (P. W. 7 ). ( 3 ) PROSECUTION in this case examined Dr. Ashok Kumarjain (P. W. 1), Gambhir (P. W. Raju alias Rajendra (P. W. 3), Yogesh Shukla (P. W. 4), Dlwakar Indulkar (P. W. 5), Atar Singh (P. W. 6), Surendra Pathak (P. W. 7) who is the injured. and Dr. R. K. Rawat (P. W. 8), Radiologist. The Investigating officer has not been examined. The defence examined Imrati Devi (D. W. 1), mother of the accused, Laxmibai (D. W. 2), mother of Panchu, Smt. Gita (D. W. 3), sister of the accused, Ramdayal (D. W. 4) and Gorelal (D. W. 5 ). Learned trial Judge held the appellant guilty, convicted and sentenced as mentioned in para 1 above. The defence examined Imrati Devi (D. W. 1), mother of the accused, Laxmibai (D. W. 2), mother of Panchu, Smt. Gita (D. W. 3), sister of the accused, Ramdayal (D. W. 4) and Gorelal (D. W. 5 ). Learned trial Judge held the appellant guilty, convicted and sentenced as mentioned in para 1 above. ( 4 ) SHRI A. K. Shrivastava, learned counsel for the appellant, submitted that the conviction and sentence is illegal and contrary to law. It was contended that the complainant party was the aggressor, and the trial Court has not considered the defence version and the evidence of the witnesses examined by the defence. The findings arrived at are perverse. Shri A. S. Rathore, learned Panel Lawyer appearing for the State, on the other hand, supported the conviction and sentence. ( 5 ) RAJU alias Rajendra (P. W. 3) is the person who is said to be the cause of the incident. He has been medically examined and the injury report with respect to him is Ex. P-2 but he has not stated in his deposition that he was beaten. The genesis of the incident as sought to be suggested by the prosecution, has not been supported by this witness. The defence has put a suggestion to this witness that he and Atarsingh (P. W. 6) were beating Panchu, and Gita (D. W. 3) asked them not to beat him. This suggestion has been denied by the witness. ( 6 ) SURENDRA Pathak (P. W. 7) is the complainant and the person injured. In his statement before the Court he has stated that the police had reached the spot, and the policy party had taken him to the rhana. ' He stated that he of his own accord had not gone to the police station to lodge the report. The defence has put a suggestion to him that it was he, Raju alias Rajendra (P. W. 3), Atar Singh (P. W. 6) and other persons who had gone to the house of the accused and there the incident took place resulting in the gunshot injuries to him. The witness has denied this suggestion. He has, however, stated that he and Atar Singh (P. W. 6) were standing from each other at a distance of 10-20 cubits, and Raju was standing near him. The witness has denied this suggestion. He has, however, stated that he and Atar Singh (P. W. 6) were standing from each other at a distance of 10-20 cubits, and Raju was standing near him. He also denied the defence suggestion that at the house of the accused he caught the braided hair of the sister of the accused and on this the accused fired. Atar Singh's wife has not been examined. Yogesh (P. W. 4) and Diwakar Indulkar (P. W. 5) have been declared hostile as they have not supported the prosecution case. ( 7 ) THE defence, however, has come forward with a different story. Defence version is that Panchu was being beaten by Afar Singh (P. W. 6 ). Hearing the cries of Panchu and his mother, accused's mother Imarti Devi (D. W, 1) went there. People from the neighborhood had gathered there. Panchu's mother was entreating Atar Singh not to beat her son. Atar Singh then called Raju alias Rajendra (P. W. 3 ). He came and he also began to beat Panchu. Seeing this, Gita (D. W, 3), daughter of Imarti Devi (D. W. 1) and sister of the accused asked them to leave Panchu. On this Raju became furious, caught her braided hair and slapped her. SCCing this, Imarti Devi, Gita and her sisters beat Raju. Soon thereafter, the complainant Surendra Pathak (P. W. 7), Raju alias Rajendra (P. W. 3), Afar Singh (P. W. 6) along with 4-5 persons, duly armed with Katta, chain, etc. came to the house of the accused, manhandled Gita and Sita by catching their braided heirs; the complainant picked up a stone to hit the accused. The child in the lap of Gita fell down. Seeing this, the accused fired in the air. Laxmi (D. W. 2), mother of Panchu, stated that her son Panchu was being beaten by Raju (P. W. 3) and Atar Singh (P. W. 6 ). Sita and Gita (D. W. 3) went there and asked them not to beat him. Raju slapped Gita. Gita (D. W. 3) who is sister of the accused has stated that knowing about Panchu's beating by Raju and Atar Singh she had gone through and asked them not to beat Panchu. Raju misbehaved with her and slapped her. On this she along with her sisters and mother beat Raju. Raju slapped Gita. Gita (D. W. 3) who is sister of the accused has stated that knowing about Panchu's beating by Raju and Atar Singh she had gone through and asked them not to beat Panchu. Raju misbehaved with her and slapped her. On this she along with her sisters and mother beat Raju. After some time Raju (P. W. 3), his 3 brothers and Surendra Pathak (P. W. 7) along with 4-5 persons came to the house of the accused, forcibly opened the door and entered the house, where again caught her braided hair, she was having in her lap her two year old child, Raju began to beat her with chain and she cried, her mother and brother came to her rescue. Complainant Surendra Pathak (P. W. 7) took out a stone to hit the accused. On this the accused ran to beat Surendra Pathak. She feigned ignorance about firing. Ramdayal (D. W. 4) stated that at Atar Singh's house Panchu was beaten. Gita came there, she was slapped by Raju, and then Gita along with her sisters beat Raju. Thereafter, Raju, Surendra Pathak along with 7-8 persons came to the house of the accused and began to attack his sisters. On this accused fired his gun in the air. Gorelal (D. W. 5) stated that Raju (P. W. 3), Surendra Pathak (P. W. 7) and Raju's brothers along with 4-5 persons, duly armed, came to the house of the accused and attacked the sisters of the accused. Atar Singh (P. W. 6) was I. G. 's driver. On Atar Singh's instigation and connivance the quarrel had taken place resulting in the incident. ( 8 ) LEARNED counsel for the appellant further contended that it was the complainant party which was the aggressor; they attacked the house of the appellant, and the appellant in exercise of the right of private defence of person, had fired in the air and in doing so there was no intention as such to cause death. Reliance is placed on Krishan Kumar v. State of Madhya Pradesh (2000) 1 Jab LJ 333. Reliance is placed on Krishan Kumar v. State of Madhya Pradesh (2000) 1 Jab LJ 333. Learned counsel for the appellant then contended that even if it be held that the accused had committed an offence, then the offence committed would fall under S. 324, I. P. C. Learned counsel placed reliance on the decision of the Supreme Court in Kundan Singh v. State of Punjab, AIR 1982 SC 62 : (1982 Cri LJ 626 (2)) and Janved v. State of M. P. (1988)2 MPWN 177. ( 9 ) HAVING considered the matter, the facts and circumstances prima facie go to show that it was the complainant party which was the aggressor, they attacked the house of the appellant, and the appellant apprehending that the aggressor might cause death or grievous hurt to him or the members of his family in exercise of the right of private defence of person, fired. The right of private defence of person and property is a well recognised valuable right and it is necessary to be preserved for maintenance of the rule of law. Persons have to respect the right of person as Well as of property. The right to 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 a punitive right, It is not the law that a person when called upon to face an assault must run away to the police station and not to protect himself. The right of private defence of person or property, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it Is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation, SCC Jal Dey v. State of Punjab, AIR 1963 SC 612 : (1963 (1) Cri LJ 495 ). ( 10 ) COUNSEL for the appellant contended that so far as the conviction of the appellant under S. 307. I. P. C. is concerned, under the facts and circumstances and the material on record, it is illegal. ( 10 ) COUNSEL for the appellant contended that so far as the conviction of the appellant under S. 307. I. P. C. is concerned, under the facts and circumstances and the material on record, it is illegal. Having heard and considering the facts and circumstances and the material brought on record, this Court is of the opinion that the offence would, at the most, be u/s, 324, I. P. C. , and, as such, the conviction of the appellant under S. 307, I. P. C. , cannot be sustained. Accordingly, the conviction of the appellant under S. 307, I. P. C. is set aside, and instead the appellant is found guilty under S. 324, I. P. C. , and is convicted thereunder. ( 11 ) LEARNED counsel for the complainant and the accused have stated that both the complainant and the accused have filed application (1. A. No, 1302/2001) for compromise. It is stated that the appellant is qualified in Bachelor of Dental Surgery (B. D. S.) and is doing House Job in Dental Hospital, Indore: the complainant Surendra Pathak (P. W. 7) is in service in the M. P. State Road Transport Corporation and is posted In Gwalior; both the appellant and the complainant live at one place and they have amicably settled their dispute and they would live as good neighbors. ( 12 ) HAVING heard the counsel for both parties and having regard to all the facts and circumstances of the case and the fact that both the appellant and the complainant have settled their dispute amicably, this Court is happy to record that the complainant and the appellant have amicably settled their dispute and It has been assured that happy relationship will be established between the parties. Accordingly, permission is granted to compound the offence and the composition as set out in the application is accepted. In view of the compounding of the offence, the appeal is allowed and the appellant is acquitted of the offence under S. 324, I. P. C. He is on bail. Bail bonds are discharged. Order accordingly. .