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2004 DIGILAW 1585 (RAJ)

Hari Singh v. State of Rajasthan

2004-10-29

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This criminal appeal by appellant-Hari Singh arises out of the judgment and order dated 22.2.2002 passed by the learned Additional Sessions Judge Hindaun City, thereby convicting the appellant for offence u/s. 304-I IPC and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,000/-, in default thereof, to further undergo simple imprisonment for three month. 2. On 22.7.1999, PW-2 Ram Kailash submitted a written report, Ex.P/2 at Police Station, Todabhim, inter alia alleging therein that on 21.7.1999 at about 1.00 p.m. His uncle Manohari (since deceased) had gone to plough his field. On his return, he came to know that his field was being ploughed by the appellant and his son Mohan. Thereafter Manohari went to the field at 2.00 p.m. and found that accused persons were ploughing the said field. When Manohari objected to it, the appellant and his son assautled the deceased by giving lathi blows on his head, as a result thereof, Manohari fell down and became unconscious. According to the written report, the incident was witnessed by the complainant and PW-3, Kadu, PW-5 Jal Ram and PW-8 Bhoor Singh, who were working in the neighbouring fields at the time of incident. The injured was removed to the hospital, where he died in the night at 2.00 a.m. 3. On the basis of above written report, police registered a case for offence u/ss. 302, 34 & 447 IPC and proceeded with the investigation and having completed investigation, submitted challan against the appellant and co-accused-Mohan. 4. The learned trial Court, on the basis of evidence and material collected during investigation and placed before it, framed charge u/s. 302 IPC against the accused. The accused denied the charge and claimed trial. 5. In order to prove its case, the prosecution examined as many as 9 witnesses and got exhibited some documents. After the prosecution evidence was complete, the accused were examined u/s. 313 Cr.P.C. None was examined in defence. 6. At the conclusion of trial the learned trial Court did not find the charge established against the co-accused and accordingly acquitted him of the charge. However, the learned Judge found the appellant guilty of having committed offence u/s. 304-I IPC and accordingly convicted and sentenced him in the manner stated herein above. 7. 6. At the conclusion of trial the learned trial Court did not find the charge established against the co-accused and accordingly acquitted him of the charge. However, the learned Judge found the appellant guilty of having committed offence u/s. 304-I IPC and accordingly convicted and sentenced him in the manner stated herein above. 7. I have heard learned Amicus Curiae and the learned Public Prosecutor and gone through the impugned judgment and the evidence on record. 8. In assailing the conviction, Mr. Bajwa, learned counsel for the appellant has strenuously contended that the appellant was in possession of the field in question where the incident took place. According to him the deceased himself was an aggressor who came at the field of appellant duly armed with lathi and struck lathi blows on the appellant. The appellant in exercise of his right of private defence inflicted a blow, which unfortunately proved fatal. Learned counsel further argued that as per the prosecution case only a single blow by lathi was allegedly inflicted by the appellant on the head of deceased. In these circumstances, it was highly erroneous on the part of learned trial Court to have considered the case to be one of exceeding the right of private defence more particularly when the appellant himself suffered injuries at the hands of deceased. 9. Per contra, learned Public Prosecutor has supported the finding arrived at by the trial Court and has submitted that conviction of the appellant is based on proper appreciation of evidence and it does not call for any interference. 10. I have given my anxious consideration to the rival submissions. Undisputedly, the deceased and the appellant are cousion brothers and the dispute between them related only to 2 1/2 bighas of land. The trial Court, considering the evidence, in particular the statements of PW-2 Ram Kailash and . PW-6 Shivlal has come to a finding that appellant was in possession over the land in dispute and therefore, the right of private defence of person and property was available to the appellant. However, the trial Judge was of the view that appellant exceeded the right of private defence. Having gone through the impugned judgment it appears that the trial Judge has not assigned any reason as to whom the offence committed by the appellant falls within the purview of Section 304 Part I IPC. However, the trial Judge was of the view that appellant exceeded the right of private defence. Having gone through the impugned judgment it appears that the trial Judge has not assigned any reason as to whom the offence committed by the appellant falls within the purview of Section 304 Part I IPC. Learned Judge has also not assigned any reason as to what extent the appellant exceeded the right of private defence available to him. 11. The right of private defence of person commences as soon as a reasonable apprehension of danger to the body arises from an assault or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. Similarly the right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. In other words, the right of private defence is purely preventive and not punitive or retributive. It is not a right to take revenge nor is right of reprisal. 12. In the case at hand, the finding arrived at by the trial Court that the appellant was in possession over the land in question, the deceased came there and appellant also sustained injuries in the incident and, therefore, the appellant in exercise of his right of private defence of person and property inflicted lathi blow on the head of deceased has not been challenged by the prosecution. Thus, the only question that emerges for consideration of this Court is whether the appellant exceeded the right of private defence or not? 13. In considering a plea of self defence it is not triviality of the injuries inflicted upon the accused that has to be taken into consideration, but the question which requires consideration is as to whether the attempt made on the accused is one which reasonably causes the apprehension of death or grievous hurt in the mind of the accused. 14. Section 96 IPC provides that nothing is an offence which is done in the exercise of right of private defence. Section 97 provides that subject to the restrictions contained in Section 99, every person has a right to defend. 14. Section 96 IPC provides that nothing is an offence which is done in the exercise of right of private defence. Section 97 provides that subject to the restrictions contained in Section 99, every person has a right to defend. Section 100 enumerates the offence in which the right of private defence of body extends to the voluntary causing of death or of any other harm to the assailants if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof. Section 101 IPC provides as to when such right extends to causing any harm other than death. It provides that "if the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of body does not extend to the voluntary causing of death to the assailants, but does extend under the restrictions mentioned in Section 99 to the voluntarily causing to the assailant of any harm other than death." 15. Now coming to the question whether or not the accused exceeded the right of private defence available to him, it would be profitable to have a glance at the evidence on record. Ex.D/5 is the injury report of appellant-Hari Singh, which indicates that he had four injuries of superficial nature. The head injury has been stated to be abroded swelling on left parietal region. The appellant in his explanation u/s. 313 Cr.P.C. has simply stated that deceased came to the field in his possession and did `marpeet'. He has not stated a word that because of infliction of lathi blows by the deceased he apprehended that he may sustain grievous injuries or that such blows by deceased may cause his death and as a consequence thereof he inflicted lathi blow on his head. Keeping in mind that the right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him, I am of the considered view that the appellant had no cause for reasonable apprehension that death or grievous hurt will otherwise be the consequence of such assault by the deceased, and therefore, it must be hold that the appellant has exceeded right of private defence. 16. 16. Having held that right of private defence was available to the appellant, but he exceeded that right, the question which now remains to be adjudicated upon is as to what offence the appellant has committed. 17. Learned trial Court has found the appellant guilty for offence u/s. 304 IPC and has convicted him under Part I of Section 304 IPC. But surprisingly enough the trial Court has not assigned any reason whatsoever in convicting the appellant under Part I of Section 304 IPC. 18. Exception 2 of Section 300 IPC provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such offence. 19. Section 304 IPC deals with punishment for culpable homicide not amounting to murder. It is divided in two part. Part I applies when the act by which the death is' caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. The IInd part of Section 304 IPC applies when the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Therefore, it is evident that for convicting a person under Part I of Section 304 IPC, it must be proved that the act by which the death was caused was done with the intention to cause death or that causing of such bodily injury was likely to cause death. 20. Undisputedly, appellant-Hari Singh struck only one blow on the head of deceased. The appellant did not repeat the blow. PW-1 Dr. M.L. Kanvath who conducted autopsy on the dead body has stated that there was no external injury on the head of deceased. He further stated that in the event of there being lathi blow on the head with force, there is bound to be laceration, but in the present case there was no laceration and therefore, according to him comparatively less force was used. He further stated that in the event of there being lathi blow on the head with force, there is bound to be laceration, but in the present case there was no laceration and therefore, according to him comparatively less force was used. It is thus proved that it is a case for single injury caused by lathi with less force and there was no repetition of further blows. Therefore, it must be held that appellant had no intention to cause death of deceased. The basic ingredients of Part I of Section 304 IPC that the act done must be with the intention of causing death or of causing such bodily injury as is likely to cause death is completely missing in the instant case. The conviction of appellant u/s. 304-I IPC is, therefore, not sustainable in the eye of law. 21. There cannot be any dispute that deceased died of head injury suffered at the hands of appellant. However, as already concluded above, the appellant had no intention to cause death of deceased. It is now to be seen as to for what offence the appellant should be held guilty. The circumstances, viz., (i) the appellant in exercise of his right of private defence struck one lathi blow on the head of deceased (ii) did not repeat further blow clearly suggest that appellant had the knowledge that striking lathi blow on the head of deceased is likely to cause his death or to cause such bodily injury as is likely to cause death. In the circumstances therefore, the appellant can be attributed knowledge that his act of inflicting lathi blow on the head of deceased is likely to cause death or such bodily injury as is likely to cause death. The appellant is thus held guilty of having committed offence punishable under Part II of Section 304 IPC. 22. Now remains the question of sentence to be awarded to the appellant. Keeping in view the facts and circumstances of the case, the relation between the appellant and the deceased, the manner in which incident took place and the fact that appellant has already undergone nearly about 5 years' of imprisonment, I am of the view that the appellant deserves leniency in the matter of sentence. The ends of justice would be met, if the appellant is sentenced to the period already undergone by him. 23. The ends of justice would be met, if the appellant is sentenced to the period already undergone by him. 23. In the result, this appeal is partly allowed. The conviction of appellant- Hari Singh u/s. 304 Part I IPC and the sentence awarded thereunder are set side. Instead, the appellant is convicted for offence u/s. 304 Part II IPC and is sentenced to the period already undergone by him. Appellant-Hari Singh is in jail and he be set at liberty, if not required in any other case.Appeal allowed. *******