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2001 DIGILAW 927 (RAJ)

Laxman v. State of Rajasthan

2001-05-22

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
Honble S.K. SHARMA, J.–All the six appellants, namely, Laxman, Heera Lal, Birdhi Lal, Kanhaiya Lal, Ram Chandra and Gopal were the accused on the file of the learned Additional Sessions Judge Jhalawar Camp at Aklera bearing Sessions Judge Jhalawar Camp at Aklera bearing Sessions Case No. 174/1993. They were found guilty, convicted and sentenced as under- U/s. 147 IPC Six months RI and fine of Rs. 500/- (in default to further undergo one month R.I.) U/s. 148 IPC Six months RI and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 302/149 IPC Life Imprisonment and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 307/149 IPC Seven Years RI and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 325/149 IPC Three Years RI and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 326/149 IPC Seven Years RI and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 324/149 IPC Three months RI and fine of Rs. 500/- (in default to further undergo one months R.I.) U/s. 223/149 IPC Three months RI and fine of Rs. 500/- (in default to further undergo one months R.I.) All the sentences were directed to run concurrently (2). The prosecution case can be compendiously stated thus- Written report (Ex.P.1) came to be lodged by Prem Chand (PW.8) with the Police Station Aklera at 3.30 P.M. on July 28, 1993 with the averments that his filed and the field of Mangilal were adjacent to each other and they belong to one caste. Accused Laxman when uprooted the `baad (boundary made of grass and thorns) of his (informants) field, his father obstructed, at this Laxman pushed his father by legs and fists. When Nanda (since deceased) intervened the accused Laxman, Heera Lal, Birdhi Lal, Ram Chandra, Gopal, Kanhaiya Lal and Chandra s/o Kanhaiya Lal armed with Gandasis, rushed towards the filed. Kanwar lal (since deceased) Prabhu Lal, Kailash, Ram Kalyan, Nandu Bai and Bheru intervened but the accused inflicted injuries on their persons. Nand Lal died at the spot. When he (informant) was taking the injured persons to the Hospital Kanwar Lal died on the way. The incident had taken place around 10 and 11 a.m. Accused Gopal was armed with Ballam (spear) whereas other accused were having Gandasis. Nand Lal died at the spot. When he (informant) was taking the injured persons to the Hospital Kanwar Lal died on the way. The incident had taken place around 10 and 11 a.m. Accused Gopal was armed with Ballam (spear) whereas other accused were having Gandasis. Police Station Aklera registered a case bearing FIR No. 109/93 u/Sec. 147, 148, 149, 307 & 302 IPC and investigation commenced. Post Mortem of dead bodies of deceased Nand Lal and Kanwar Lal was conducted. Site was inspected. Injured witnesses were medically examined. The accused were arrested and recovery memos of weapons at the instance of the accused persons were drawn. On conclusion of investigation charge sheet was filed against the accused persons. (3). In the course the case came up for trial before the learned Additional Sessions Judge Aklera. The trial court framed charges u/Sec. 147, 148, 302/149, 307/149, 325/149, 326/149, 324/149, and 323/149 IPC against the appellants who denied charges and claimed trial. The prosecution examined as many as 24 witnesses. Thereafter explanation of the accused appellants u/Sec. 313 Cr.P.C. was recorded. The accused denied the allegations and claimed that the complainant party inflicted injuries on their persons. The accused examined one defence witness Ram Lal (DW.1). The learned trial court after hearing the final submissions convicted and sentenced the accused appellants as indicated hereinabove. (4). Let us now indicate the nature of the evidence led by the prosecution in support of the case. To begin with there is a central evidence consisting of nine eye witnesses namely, Bhanwar Lal (PW.2), Moti Lal (PW.7), Prem Chand (PW.8), Smt. Nandu Bai (PW.9), Bheru Lal (PW.10), Prabhu Lal (PW.16), Ram Kalyan (PW.22) and Ram Bilas (PW.23), who were allegedly present at the place of incident. The evidence is sought to be corroborated by Onkar Singh SHO (PW.24) who recovered the weapons of offence at the instance of the accused appellants. (5). Before us, the argument of Mr. A.K. Gupta learned counsel for the appellants is two fold. Firstly, it is canvassed that the circumstances brought on the record are sufficient to show with a balance of probability, that the appellants caused the injuries to the deceased in the exercise of their right of private defence and as such their case is covered by section 96 IPC. A.K. Gupta learned counsel for the appellants is two fold. Firstly, it is canvassed that the circumstances brought on the record are sufficient to show with a balance of probability, that the appellants caused the injuries to the deceased in the exercise of their right of private defence and as such their case is covered by section 96 IPC. Secondly it is contended that in any case the circumstances and material brought on record in cross examination of the prosecution witnesses establish such a preponderance of possibility, verging of probability in favour of plea of private defence, that by its inexorable impact it creates a strong doubt with regard to the truth of the prosecution story. (6). Per contra Mr. G.S. Rathore learned Public Prosecutor supported the impugned judgment and urged that all the charges stand proved against the accused form the statements of the eye witnesses and the accused had exceeded their right of private defence. (7). Before dealing with the submissions advanced by the learned counsel we would like to scan the testimony of the alleged eye witnesses examined by the prosecution. From the material on record it appears that Bhanwar Lal (PW.2) sustained six incised wounds and his injury report is Ex.P.22. Bheru Lal (PW.10) received one incised would as per his injury report (Ex.P.23). Prabhu Lal (PW.16) sustained three incised wounds according to his injury report Ex.P.24. Ram Kalyan (PW.22) received two incised wounds vide his injury report Ex.P.25. Nandu Bai (PW.9) sustained one incised wound vide her injury report (Ex.P.26). Moti Lal (PW.7) received two Bruises vide injury report Ex. P.27. Ram Bilas (PW.23) received one incised wound and two bruises vide report Ex.P.28. and Kailash (PW.3) sustained two incised wounds and one abrasion vide injury report Ex.P29. It is thus evident that out of nine eye witnesses, eight sustained injuries and their presence at the time of occurrence appears to be natural. (8). Post Mortem Report (Ex.P.30) of deceased Nanda reveals that he sustained as many as seven incised wounds out of which four were on skull. He died on account of head injuries. Another deceased Kanwar Lal received as many as five incised wounds out of which four were on skull. His postmortem report (Ex.P.31) demonstrates that he also died on account of head injuries. (9). He died on account of head injuries. Another deceased Kanwar Lal received as many as five incised wounds out of which four were on skull. His postmortem report (Ex.P.31) demonstrates that he also died on account of head injuries. (9). We have been taken through the entire evidence and the circumstances of the case and we feel that the case built by the prosecution witnesses before the trial court attributing injuries to individual accused is clearly afterthought and no trace of it is to be found in the statements u/Sec. 161 Cr.P.C. made before the police. These witnesses only throw a dim light on the circumstances under which the deceased were assaulted. (10). We therefore, proceed to discuss the evidence with respect to the origin and genesis of the occurrence. A close look at the FIR (Ex.P.1) reveals that Moti Lal (PW.7), the father of informant Prem Chand (PW.8), when obstructed accused appellant Laxman in his act of uprooting the `Baad, he pushed by Laxman by legs and fists. Bhanwar lal (PW.2), Kailash 9PW.3), Prabhu Lal (PW.16), Ram Kalyan (PW.22) all are the sons and Bheru Lal (PW.10) is the grand son of Moti Lal. Ram Bilas (PW.23) is the son of deceased Nanda, who was the nephew of Moti Lal. A further deep rooted scrutiny of the evidence demonstrates the following fact situation - (i) Moti Lal (PW.7) in his cross examination deposed that before he reached at his filed at 10.10 am., the accused appellants were already at their field and sowing the crop of Macca. At that time Nanda (deceased) was at his field namely `Bhadkiya wala which was two miles away from the place of occurrence. Moti Lal further stated that filed measuring one bigha where the boundary dispute arose, was a Government land. The fight that occurred was a fight from both the sides. Gun from which Nanda opened fire belonged to him (Moti Lal). The Gun misfired. He further deposed that the accused had also sustained injuries and he had seen their blood flowing at the place of occurrence. He admitted that he and the accused belong to one family. (ii) Informant Prem Chand (PW.8) and Bheru Lal (PW.10) in their cross examination stated that they had seen a gun lying near the dead body of Nanda. He further deposed that the accused had also sustained injuries and he had seen their blood flowing at the place of occurrence. He admitted that he and the accused belong to one family. (ii) Informant Prem Chand (PW.8) and Bheru Lal (PW.10) in their cross examination stated that they had seen a gun lying near the dead body of Nanda. (iii) Onkar Singh SHO (PW.24) who investigated the case, deposed in his cross examination that accused appellant Gopal lodged FIR NO. 108/93 (Ex.D.14) against Nand Lal, Ram Bilas, Prabhu Lal, Bhanwar Lal, Kailash, Kalyan and Prem and a case under section 147, 148, 149, 324, 323 and 447 iPC was registered, against them, thereafter he got accused Laxman, Birdhi Lal, Gopal and Kanhaiya medically examined. Birdhi Lal and Gopal sustained fractures and Laxman and Kanhaiya sustained simple injuries. Onkar Singh further stated that after investigation he found that Nanda (deceased) rushed from his land `Bhadkiya Wali to the place of occurrence after hearing that Motilal was beaten by the accused. (iv) Though X-ray reports Ex.D7 & Ex. D10 of the accused Laxman and Gopal have been produced but their injury reports have been withheld by the investigation officer. (v) Ram Kalyan (PW.22) in his examination in chief stated that his father (Moti Lal) was raising thorn boundary in his side of the field but the accused were obstructing. When Nanda intervened, the accused started beating him. (11). It thus appears that when all the accused appellants were busy in their filed and were sowing Macca crop, Moti Lal started raising `thorn boundary on a Government land which was adjacent to the land of the accused appellants. At this accused Laxman uprooted the boundary and pushed Moti lal by fists and legs. After hearing that Moti lal was beaten, nanda (deceased) nephew of Moti Lal and his sons Bhanwar Lal, Kailash, Prabhu Lal, and Ram Kalyan alongwith grand son Bheru Lal together with Ram Bilas the son of deceased Nanda, Smt. Nandu Bai and Kanwar Lal came rushing from the village which was about two miles away from the field. Nanda opened fire at the accused from the Gun belonged to Moti Lal but the Gun misfired. Thereafter both the sides started fighting each other. Nanda died at the spot. Bhanwar Lal, Bherulal, Ram Kalyan, Nadu Bai, Moti Lal, Ram Bilas, Kailash and Kanwar lal sustained injuries. Nanda opened fire at the accused from the Gun belonged to Moti Lal but the Gun misfired. Thereafter both the sides started fighting each other. Nanda died at the spot. Bhanwar Lal, Bherulal, Ram Kalyan, Nadu Bai, Moti Lal, Ram Bilas, Kailash and Kanwar lal sustained injuries. While the injured were taking to the Hospital, Kanwar lal died on the way. Accused Laxman, Birdhi Lal, Gopal and Kanhaiya also sustained injuries. FIR No. 108/93 (Ex.14) was lodged by accused Gopal against nand lal, Ram Bilas, Prabhu Lal, Bhanwar Lal, Kailash, Kalyan and Prem and case under sections 147, 148, 149, 324, 323 and 447 IPC was registered against them. Accused laxman, Birdhi Lal, Gopal and kanhaiya were medically examined by the police and it was revealed that accused Birdhi Lal and Gopal sustained fractures. FIR No. 109/93 of the insant case was lodged afterwards. (12). After considering the evidence with respect to the origin and genesis of the occurrence we now proceed to examine as to what is the effect of non-explanation of the injuries sustained by the accused at about the time of the occurrence. There may be cases where the non-explanation of the injuries by the prosecution may no affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor or superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (13). In Lakshmi Singh vs. State of Bihar (1), their Lordships of the Supreme Court propounded that - ``In a murder case, the non- explanation of the injuries sustained by the accused at about the time of occurrence is a very important circumstances from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrences and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to thrown doubt on the prosecution case. (14). (3) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to thrown doubt on the prosecution case. (14). In State of Gujrat vs. Bai Fatima (2), it was indicated by the Honble Supreme Court as follows- ``In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:- (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence; (2) If makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. (15). Their Lordships of the Supreme Court in Puran Singh vs. State of Punjab (3), observed that ``the right of private defence of person of property is to be exercised under the following limitations: (i) that if there is sufficient time for recourse to the public authorities, the right is not available; (ii) that more harm than necessary should not be caused; (iii) that there must be a reasonable apprehension of death of of grievous hurt to th person or damage to the property concerned. Their Lordships in para 18 of the judgment further observed thus: ``... It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been subject matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on they property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. Where there is an element of invasion or aggression on they property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extent to the causing death also, ant it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension in enough to put the right of private defence in to operation. (16). Their Lordships of the Supreme Court in Mohd. Ramzan vs. State of Delhi (4), ruled that the onus to establish his plea of private defence u/Sec. 105 Evidence Act on an accused person, is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence which the accused is charged beyond reasonable doubt. It is further will established that a person faced with imminent peril of life and limb of himself of another is not expected to weigh in golden scales ``the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further then what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. (17). In State of Bihar vs. Nathu Pandey (5), in the altercation that followed, two persons from prosecution party received fatal bhala injuries resulting in their death. Some of the accused party were armed with Bhalas but it was not possible to say who were so armed and which of them inflicted the fatal wounds on the deceased. It was found that persons who claimed the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. it was held by their Lordships of the Supreme Court that- (i) none of the accused could be convicted u/Sec. 302 IPC. (ii) none of the accused could be convicted u/Sec. 302 read with section 149 or Sec. 34 IPC. The object of the assembly was not unlawful. it was held by their Lordships of the Supreme Court that- (i) none of the accused could be convicted u/Sec. 302 IPC. (ii) none of the accused could be convicted u/Sec. 302 read with section 149 or Sec. 34 IPC. The object of the assembly was not unlawful. There was no common object or common intention to kill the two deceased person. The murders were not committed in prosecution of the common object of the assembly or were not such as the members of the assembly knew to be likely to be committed. (18). In the case on hand as already stated, a criminal case of criminal trespass under Sec. 447 alongwith sections 147, 148, 149, 324 and 323 IPC was registered against the deceased Nand lal, Ram Bilas, Prabhu Lal, Bhanwar lal, Kailash, Kalyan and Prema on the report of accused Gopal. From the testimony of the prosecution witnesses we are disposed to believe that deceased nand lal was the aggressor and he opened fire with the intention to kill the accused persons, who were sowing Macca crop in their field. The fight that occurred was a fight from both the sides. Four accused persons Laxman, Birdhi Lal, Gopal and Kanhaiya sustained grievous and simple injuries resulting the soil of the place of occurrence stained with their blood. Nand lal died at the spot on account of head injuries. Kanwar Lal died while he was taking to the Hospital because of head injuries received by him and Bhanwar lal, Ram kalyan, Nadu Bai, Moti Lal, Ram Bilas and Kailash sustained injuries. The prosecution witnesses Prem Chand (PW.8) and Bheru Lal (PW.10) admitted that they had seen a gun lying near the dead body of Nand Lal. Moti Lal (PW.7) admitted that Gun from which Nanda opened fire belonged to him. All the eye witnesses examined by the prosecution disowned their earlier statements recorded by the police u/Sec. 161 Cr.P.C. Some of the accused persons were armed with Gandasis and spear but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Nand Lal and Kanwar Lal. Therefore the accused were not charged under Sec. 302 IPC. The only question is whether they can be convicted u/Sec. 302 read with Sec. 149 IPC. (19). Therefore the accused were not charged under Sec. 302 IPC. The only question is whether they can be convicted u/Sec. 302 read with Sec. 149 IPC. (19). In State of Bihar vs. Nathu Pandey (supra) it was held thus - (Para 8) ``In order to attract the provision of Sec. 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of common object of the assembly. Under the fourth clause of section 141 an assembly of five of more persons is an unlawful assembly if the common object of its member is is to enforce any right or supposed right by means of criminal force to any person. Sec. 141 must be read with Sec. 96 to 106 dealing with the right of private defence. Under section 96 nothing is an offence which is done in the exercise of right of private defence. The assertion of right of private defence within the limit prescribed by law can not fall within the expression ``to enforce any right or supposed right in the fourth clause of Sec. 141. (20). In the instant case, even from the testimony of prosecution witnesses it is evident that the accused appellants had real apprehension that aggressor nand Lal who was armed with a gun, might cause death or grievous hurt. They had no time for recourse to the public authorities. From the material on record it is established that all the accused appellants faced with imminent period of life, were forced to use force and in doing so two of the accused had sustained grievous injuries. The prosecution has failed to establish the charge u/Sec. 302 read with 149 IPC in view of Sec. 96 to 106 read with clause fourth of Sec. 141. (21). Mr. G.S. Rathore, learned Public Prosecutor for the State, however contended tat on the allegations made by the prosecution the accused had mercilessly assaulted the prosecution witnesses including deceased nand Lal and kanwar Lal, therefore, even if they had the right of private defence, they had exceeded the same. Reliance was placed on State of U.P. vs. Laeeq (6), and Bhaiya Bahadur Singh vs. State of M.P. (7). The cases cited by Mr. Rathore learned Public Prosecutor are distinguishable. Reliance was placed on State of U.P. vs. Laeeq (6), and Bhaiya Bahadur Singh vs. State of M.P. (7). The cases cited by Mr. Rathore learned Public Prosecutor are distinguishable. In State of U.P. vs. Laeeq (supra) the complainant side was armed with sticks and the accused gave fatal knife blow to the deceased. It was held that the accused exceeded the right of private defence and was convicted u/Sec. 304 IPC. In the case of Bhaiya Bahadur Singh (supra) the accused was armed with a gun and victim party was armed with lathies and Ballam. It was held that the accused was in a dominating position and exceeded right of private defence. Learned Public Prosecutor further canvassed that the injuries sustained by the accused were minor in nature, the fractures were caused on non-vital parts of the body and it was not necessary for the prosecution to explain the said injuries. We are unable to pursuade ourselves to agree with the submission. In the first place as the prosecution has deliberately suppressed the origin of the occurrence and after close scrutiny of the evidence was came to know as to how the occurrence started. Secondly, when the deceased nand Lal opened fire with a Gun it was not possible for the appellants to weigh their blows in golden scales in order to assault the prosecution party. Deceased Nand Lal, Kanwar Lal and the prosecution party including the kith and kins of Moti Lal at whose instance the occurrence started, were the aggressors and the appellants were fully entitled to the exercise of the right of self defence because their persons had been attached. After seeing the gun in the hand of Nand Lal, the accused appellants would have undoubtedly a reasonable apprehension that either death or grievous hurt could be caused to all of them or one of them. This being the position they were fully justified in causing the death of the deceased persons in the exercise of their right of private defence of person. This being the position they were fully justified in causing the death of the deceased persons in the exercise of their right of private defence of person. Such an apprehension could not be said to be hypersensitive or based on no ground and it will be idle to contend that the accused should have waited until one of their party member would have died or received serious injuries before acting on the spur of moment, nor can one expect a person who is attacked by an aggressor to modulate his blows in accordance with the injuries he receives. Under these circumstances, therefore, it is difficult to agree that the accused in any event exceeded their right of private defence. (22). At this juncture we intend to incorporate the observations of their Lordships of the Supreme Court rendered in Lakshmi Singh vs. State of Bihar (supra), which are as follows - (Para 2) ``This is an unfortunate case in which two persons appear to have lost their lives over a very petty trivial dispute. On a perusal of the evidence and the circumstances of the case we feel that the prosecution has not come out with the true version and the result is that the murder of the two persons has to go unpunished, and this is yet another misfortune of the case, but the prosecution does not choose to put forward the true version, it is to be itself squarely blamed for the failure of the case. This observation in squarely applicable in the instant case. (23). For these reasons therefore, we are of the opinion that the appellants are protected by the right of private defence of their persons and the prosecution has miserably failed to prove the case against the accused appellants beyond reasonable doubt. The learned trial judge appears to have overlooked the propositions of fact that have emerged in the instant case. The statements of the eye witnesses were not properly considered. Admissions made by witnesses Moti Lal, Prem Chand and Bheru Lal that deceased nand Lal had a gun and he opened fire with it but could not get success were ignored. The right of private defence of the appellants was casually discussed by the learned trial Judge. Provision contained in sections 96 to 106 and clause fourth of Sec. 141 IPC were not taken into consideration. The right of private defence of the appellants was casually discussed by the learned trial Judge. Provision contained in sections 96 to 106 and clause fourth of Sec. 141 IPC were not taken into consideration. The effect of grievous injuries sustained by the four accused was not gone into. The learned trial judge did not make attempt to know as to what was the origin and genesis of the occurrence. (24). The appeal is, therefore, allowed, the conviction and sentence passed on the appellants `Laxman, Heera Lal, Birdhi Lal, Kanhaiya Lal, Ram Chandra and Gopal are set aside and the appellants are directed to be set at liberty forthwith if not required in any other case.