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2004 DIGILAW 1449 (RAJ)

Lallu Ram v. State of Rajasthan

2004-10-01

RAJENDRA PRASAD VYAS, SHIV KUMAR SHARMA

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Honble SHARMA, J.–The act of obstructing diggers of soil followed by a wrangle resulted in the death of Shiv Sahai. The appellants 24 in number (herein after referred as accused) were arrayed before the learned Additional Sessions Judge (Fast Track) Jaipur District Jaipur for having committed murder of Shiv Sahai. The learned Judge vide judgment dated September 05, 2001 convicted and sentenced the accused as under:- Accused Lallu Ram: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer. One Month Simple Imprisonment. U/s. 324/149 IPC: To suffer Simple Imprisonment for One Year and fine of Rs. 200/-, in default to further suffer Seven Days Simple Imprisonment. U/s. 325/149 IPC: To suffer Simple Imprisonment for Two Years and fine of Rs. 400/-. in default to further suffer Fifteen Days Simple Impriso- nment. U/s. 323/149 IPC: To suffer Simple Imprisonment for Six Months and fine of Rs. 100/-, in default to further suffer Three Days Simple Impris- onment. Accused Bhonrilal, Bodu Ram, Kalu S/o Manna Ram, Chhotu S/o Ramdhan, Mangal Chand, Gopal, Chhotu S/o Bhonrilal, Kaluram s/o Luna Ram and Kishore: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 2000/- in default to further suffer One Months Simple Imprisonment. U/s. 324/149 IPC: To suffer Simple Imprisonment for One Year and fine of Rs. 200/-. in default to further suffer Seven Days Simple Imprisonment. U/s. 325/149 IPC: To suffer Simple Imprisonment for Two Years and fine of Rs.400/-, in default to further suffer Fifteen Days Simple Imprisonment. U/s. 323/149 IPC: To suffer Simple Imprisonment for Six Months and fine of Rs. 100/-, in default to further suffer Three Days Simple Impris- onment. All the substantive sentences were directed to run concurrently. (2). In brief the prosecution case is that the informant Kajod when restrained Bodu Ram from making obstruction in the public way, Chhotu Ram S/o Ramdhan, Mangla, Gopal, Hukam Chand. Lallu Ram, Chhotu Ram S/o Bhonri Lal, Nehnu, Bhonri Lal, Kalu and Kishore Kumar inflicted blows with axe, sword and Barchchi on the person of Kajod. The other persons who had also sustained injuries were Shiv Sahai, Kalu, Phool Singh, Gyarsi, Kanha, Nangi, Chothi. Jamna and Mewa. Shiv Sahai succumbed to the injuries. On the basis of written report (Ex.P-1) a lodged with the police station Andhi District Jaipur on October 22, 1998 at 7.30 PM. The other persons who had also sustained injuries were Shiv Sahai, Kalu, Phool Singh, Gyarsi, Kanha, Nangi, Chothi. Jamna and Mewa. Shiv Sahai succumbed to the injuries. On the basis of written report (Ex.P-1) a lodged with the police station Andhi District Jaipur on October 22, 1998 at 7.30 PM. a case under Sections 147, 148, 149, 307, 302 and 323 IPC came to be registered and investigation commenced. Autopsy on the dead body of Shiv Sahai was performed. The injured persons were medically examined, statements of witnesses under Section 161 Cr.P.C. were recorded, site plan was drawn, weapons of offence allegedly used in the commission of crime got recovered and on completion of investigation charge sheet was filed. In due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jaipur District Jaipur. Charges under Sections 147, 302, 324/149, 325/149 and 323/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 19 witnesses and got exhibited 44 documents. In the explanation under Sec. 313 Cr.P.C. the accused claimed innocence. No witness in defence was however examined. The learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. (3). The prosecution case is founded mainly on the testimony of eye witnesses Kalu Ram, Ram Phool, Mewa Ram, Kajod, Smt. Jamna, Gyarsi Lal, Kanhaiya Lal and Smt. Chothi. Then comes the evidence of Dr. Rajendra Sharma who performed autopsy on the dead body and examined the injured persons. (4). The post mortem report (Ex.P-35) shows following ante mortem injuries on the dead body of Shiv Sahai:- ``1. Lacerated wound 4 x 1 x bone depth present over left parietal bone. 2. Lacerated wound 2 x 1/2 x 1/2 cm obliquely present over medical aspect of left forearm (lower part) 3. bruise 6 x 2 cm obliquely present over left side of post abdominal wall (Middle). 4. Abrasion 2 x 2 cm irregular Ant. aspect of left knee joint. 5. Haemotoma 4 x 2 cm irregular present over left partietal region. Inj. No. 1 to 5 blunt object. The cause of death was syncope due to head injury and excessive haemorrhage. (5). 4. Abrasion 2 x 2 cm irregular Ant. aspect of left knee joint. 5. Haemotoma 4 x 2 cm irregular present over left partietal region. Inj. No. 1 to 5 blunt object. The cause of death was syncope due to head injury and excessive haemorrhage. (5). The injuries sustained by informant Kajod (PW.4), Kalu Ram (PW.5), Ram Phool (PW.7), Kanhaiya Lal (PW.8), Mewa Ram (PW.1), Gyarsi Lal (PW.6), Smt. Nangi (PW.3) Smt. Chothi (PW.9) and Smt. Jamna (PW.2) were respectively examined vide injury reports Ex.P- 24, Ex.P-25, Ex.P-26, Ex.P-27, Ex.P-28, Ex.P-29, Ex.P-30, Ex.P-31 and Ex.P-32. (6). Dr. Rajendra Sharma (PW.13) also examined the injuries sustained by the accused Kalu, who vide injury report Ex.D-14 sustained following injuries:- ``(i) Lacerated wound 3 x 1/2 x 1/2cm obliquely present over left Parietal bone (middle) simple blunt. (ii) Abrasion 2 x 1cm oval present over left side of post chest wall (middle) simple blunt. (iii) Swelling 2 x 2 cm irregular present over lat. aspect of right forearm (middle) simple blunt. Injuries received by accused Mangal Ram vide injury report Ex.D- 15 were as under:- ``(i) Lacerated wound 4 x 1 x bone deposing shape present over left parietal bone simple blunt. (ii) Lacerated wound 4 x 1/2 x 1/2cm obliquely present over side right occipital bone simple blunt. (iii) Abrasion 3 x 1cm obliquely present over right scapular region simple blunt. (iv) C/o pain (Lrt) Lat. aspect of forearm, no sign of wound is present. Injuries of accused Gopal were examined vide injury report (Ex.D- 16) and as per X-ray report (Ex.D-20) injury No. 1 was found grievous. Injury reports Ex.D-17, Ex.D-18 and Ex.D-19 of accused Lallu Ram, Bodu Ram and Bhonri Lal were also placed on record. (7). Mr. A.K. Gupta, learned counsel appearing for the accused criticised the prosecution case form various angles and contended that deceased Shiv Sahai along with the complainant party obstructed and attacked the accused while they were digging the wet clay of the pond. Since the accused had apprehension that grievous injuries might be caused, they exercised the right of private defence and in that process if some blows with Babool stick by accused Lallu Ram might have dealt which resulted in death of deceased Shiv Sahai, no crime is said to have committed by him. Reliance is placed on the case of Jai Singh and Another vs. State of Rajasthan (1). (8). Reliance is placed on the case of Jai Singh and Another vs. State of Rajasthan (1). (8). Per contra, Mr. Sandhu, learned Public Prosecutor supported the impugned judgment and canvassed that the accused formed unlawful assembly and they intended to kill Shiv Sahai, therefore, no interference s called for in the case. (9). In order to appreciate the rival submissions we have carefully weighed the material on record. Mewa Ram (PW.1) deposed that accused Lallu Ram inflicted blow with Babool stick on the head of Shiv Sahai when he reached near the `Bad. According to Smt Jamna (PW.2) dead body was found lying near the pond. Kailash Sharma (PW.19) the Investigation Officer in his deposition stated that in the site plan (Ex.P-2) the pits shown near the pond were suggestive that clay was removed. The I.O. further stated that he got registered a cross case bearing No. 113/1998 against Kajod, Gyarsa. Kanhaiya Lal, Phool Chand, Kalu Ram, Mewa Ram and Shiv Sahai (deceased) and submitted the charge sheet. (10). The factual situation emerges from the material on record may be summarised thus:- (i) The incident occurred near the pond while the accused were digging the soil the complainant party went to the pond and made attempt to restrain the accused from digging the soil. (ii) In the course of fight accused Lallu Ram inflicted a blow with babool stick on the head of Shiv Sahai which resulted in his death. (iii) Nine persons belonging to the complainant party had received injures whereas six accused were injured in the incident. One of the injuries sustained by accused Gopal was grievous in nature. (iv) Cross case was registered against the complainant party including the deceased Shiv Sahai. (11). It thus appears that while the accused were digging the soil near the pond, the complainant party reacted violently and aggressively and went fully armed to obstruct the accused from digging the soil. Faced with such a situation, the accused sensed serious threat to their lives and gave strokes with lathis and other weapons on the victims. (12). The question whether in the circumstances of given case,the accused could have had reasonable grounds for apprehending grievous bodily injury is a question of fact to be decided upon the fact of each case. Faced with such a situation, the accused sensed serious threat to their lives and gave strokes with lathis and other weapons on the victims. (12). The question whether in the circumstances of given case,the accused could have had reasonable grounds for apprehending grievous bodily injury is a question of fact to be decided upon the fact of each case. As the illustration appended to Section 300, Exception 2, shows the source of apprehension is not only in the kind of weapon used, but manner of using it. In the instant case when the complainant party attacked the diggers of soil, free fight ensued in which one of the assailants was killed and one the accused was himself grievously hurt. The evidence of case on hand shows that it is quite probable that the accused did the alleged act in exercise of his right of private defence. The prosecution fails in such a state of evidence to establish the guilt of the accused beyond reasonable doubt. (13). Their Lordships of the Supreme Court in Mohd. Ramzani vs. State of Delhi (2), indicated that it is for the accused to prove that the right of private defence as set up by him by at least preponderance of probabilities available in the case of the prosecution. It is well established that a person faced with the imminent peril of life and limb of himself or another, is not expected to weigh ``in golden scales that precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with the precision and exactitude by a colour and unruffled mind, the law makes due allowance for it. (14). In dealing with the right of private defence of the accused the learned trial judge did not properly notice the fact situation of the case and committed illegality in convicting and sentencing the accused. (15). (14). In dealing with the right of private defence of the accused the learned trial judge did not properly notice the fact situation of the case and committed illegality in convicting and sentencing the accused. (15). The result of the aforesaid discussion is that, we allow the appeal and set aside the impugned judgment dated September 5, 2001 passed by the learned Additional Sessions Judge (Fast Tack) Jaipur District Jaipur in Sessions Case No. 22/2001 (10/99), We acquit the appellants Lallu Ram son of Bhonri Lal, Bhonri Lal, Bodu Ram, Kalu sons of Manna Ram, Mangal Chand, Gopal, Chhotu sons of Bhonri Lal, Chhotu son of Ramdhan, Kalu Ram son of Luna Ram and Kishore son of Ghasi Ram of the charges under Sections 302, 324/149, 325/149 and 323/149 IPC. The appellants Bhonri Lal, Bodu Ram, Kalu son of Manna Ram, Mangal Chand, Gopal, Chhotu sons of Bhonri Lal, Chhotu Son of Ramdhan, Kalu Ram son of Luna Ram and Kishore son of Ghasi Ram are on bail and they need not surrender. Their bail bonds are discharged. The appellant Lallu Ram son of Bhonri Lal who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.