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2005 DIGILAW 419 (RAJ)

Mangi Lal v. State of Rajasthan

2005-02-09

JITENDRA RAY GOYAL, SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–As many as thirteen persons along with the appellant were accused on the file of learned Additional Sessions Judge (Fast Track) Bandikui District Dausa bearing Sessions Case No. 21/2001. Learned Judge vide judgment dated June 24, 2002 convicted only the appellant for the offence under Section 302 IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer one month simple imprisonment. (2). The prosecution story as unfolded during trial is that on June 18, 1998 the informant Prem Chand (PW. 2) submitted a written report (Ex. P. 3) at police station Bandikui stating therein that on the said day at about 7.00 AM the informant along with Bhola Ram, Pooran, Mukesh, Sukhram and Bhagwan Sahai were sitting in their Bada and puffing Biri and Tobacco, in the meantime Mangilal, Pappu Mohanlal, Ramdhan Kanji, Budhya, Shravan, Prabhat, Ramlal, Mangiya and Girraj came armed with lathi farsi and Kulhadi and entered into the Bada, Mangi Lal then gave barchhi-blow on the head of Bhola Ram. Mangla gave kulhadi- blow on the head of Pooran and others gave beating with lathis. Bholaram became unconscious. On the basis of the said report a case under Sections 147, 447 and 307 IPC was registered and investigation commenced. On the death of Bhola Ram, the case was converted into one under Section 302 IPC. After conducting usual investigation the charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Bandikui District Dausa. Charges under Sections 147, 148, 302, 324/149 and 323/149 were framed against the appellant and other co-accused were charged for the offences under Sections 147, 148, 302/149, 324/149 and 323/149 IPC. The charges were denied and trial was claimed. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence and denied the prosecution case and stated that the incident took place when the complainant party tried to cut the tree in the field of accused party. In defence the accused examined three witnesses. On hearing final submissions the learned trial Judge acquitted all the co-accused but convicted and sentenced the appellant as indicated herein above. (3). In defence the accused examined three witnesses. On hearing final submissions the learned trial Judge acquitted all the co-accused but convicted and sentenced the appellant as indicated herein above. (3). Having carefully gone through the record with the assistance of learned counsel for the parties we notice that in the course of the incident complainant party and accused party both sustained injuries. (4). A look at the post mortem report of the deceased Bhola Ram shows that he received following ante mortem injuries:- ``Lacerated Wound 13cm long on Rt. Fronto parietal region near mid line with reddish clotted blood seen with right eye black eye. On dissection sub scalp hematoma on both side fronto parietal region dark red. Skull cut fracture of size 12 cm vertical over (R) fronto parietal region near mind line underneath extra dural hematoma present dura cut under neath the fracture with subdura hematoma over (R) hemspire (fronto parietal lobe) thick larger minimal outer fronto parietal region. Brain- cut would of size 6 cm x 1cm x 3 cm with ante mortem hematoma over (R) fronto parietal lobe at the site of fracture. On further examination on anterior fracture line reaching upto (R) anterior canal fossa on posterior fracture line reaching upto vault of skull (R) parietal bone. In the opinion of Doctor the cause of death was coma brought about as a result of injuries to skull and bone which were sufficient to cause death in the ordinary course of nature. (5). Bhori Lal (PW. 4) vide injury report (Ex. D-9) sustained lacerated wound of 2cm x 1/2 cm x 1/2 cm on left side of forehead. (6). Kherati (PW. 7) vide injury report (Ex. D.10) sustained following injuries:- ``1. Bruise 3 cm x 1cm on mid of left arm anteriorly. 2. Abrasion 6 cm x 1cm on back of chest Rt. side. 3. C/o pain lateral side of left knee joint but no visible marking present. (7). Sukh Ram (PW. 8) vide injury report (Ex. D.11) sustained one lacerated wound of 2.5 cm x 1/2 cm on mid of scalp and complaint of pain anterior of both thigh of both lower limb. (8). Smt. Harbai (PW. 9) vide injury report (Ex. D-12) sustained following injuries:- ``1. Abrasion of 3cm x 1/2 cm on back of lower 3rd of left fore arm. 2. D.11) sustained one lacerated wound of 2.5 cm x 1/2 cm on mid of scalp and complaint of pain anterior of both thigh of both lower limb. (8). Smt. Harbai (PW. 9) vide injury report (Ex. D-12) sustained following injuries:- ``1. Abrasion of 3cm x 1/2 cm on back of lower 3rd of left fore arm. 2. Abrasion of 2 1/2 cm x 1 cm on back of lower 3rd of Rt. fore arm. 3. Abrasion 1 cm x 1 cm on back of left ankle joint. 4. Bruise 3 x 2 cm on back of left shoulder joint. (9). Bhagwan Sahai (PW 17) vide injury report (Ex. D-13) sustained following injuries:- ``1. Abrasion 3 cm x 2 cm on back of Rt. shoulder 2. Abrasion 2 x 1 cm on top of Rt. shoulder joint. 3. Abrasion 1/2 x 1/2 on back on proxym phaxynx of ring finger of left hand. 4. C/o of pain on medial malel of left foot but no visible marking present. (10). Smt. Prabhati (PW. 5) vide injury report (Ex. D-14) sustained following injuries:- ``1. Bruise 4 cm x 2 cm on back of left shoulder joint. 2. Bruise 3 cm x 1cm on back of thigh left. 3. Swelling 2 cm x 1 cm on lateral aspect of Rt. Wrist. (11). Bimla (PW 13) vide injury report (Ex. D-15) sustained following injuries:- ``1. Abrasion 3 cm x 1.5 cm on lateral aspect of front of Rt. wrist joint 2. Bruise 3 cm x 2cm in upper 3rd of Rt. leg back C/o pain on left thigh but no visible marking present. (12). Smt. Meera (PW. 11) injury report (Ex. D-16) sustained incised wound of 2cm x 2 cm x 2 cm on Rt. side of scalp and C/o pain at Rt. glutral area but no visible marking present. (13). Smt. Somoti (PW. 16) vide injury report (Ex. D-17) sustained Abrasion 1 cm x 1cm above and lateral aspect of Rt. knee joint and C/o pain on both shoulder back but no visible marking. (14). Chanda Lal (PW. 27) vide injury report (Ex. D.18) sustained following injuries:- ``1. Lacerated wound 2 cm x 1 cm x 2cm in mid of scalp. 2. Bruise 4 cm x 2cm on back of Rt. side of lower 3rd of Rt. fore arm. Swelling 3 cm x 2cm on back of Rt. hand below little ring finger. (15). (14). Chanda Lal (PW. 27) vide injury report (Ex. D.18) sustained following injuries:- ``1. Lacerated wound 2 cm x 1 cm x 2cm in mid of scalp. 2. Bruise 4 cm x 2cm on back of Rt. side of lower 3rd of Rt. fore arm. Swelling 3 cm x 2cm on back of Rt. hand below little ring finger. (15). Ram Karan (PW. 18) vide injury report (Ex. D.19) sustained incised wound of 1.5 cm x 4 cm x 2 cm below neck on back and C/o pain on left side of neck but no visible marking present. (16). Ishwar vide injury report (Ex. D-20) sustained Abrasion 2 cm x 1 cm on back of upper 3rd of left forearm and Bruise 2 cm x 1 cm on medical side of Rt. elbow. (17). Mukesh (PW. 20) vide injury report (Ex. D-21) sustained swelling 4 cm x 3 cm on lower 3rd of left fore arm. (18). Pooran Chand (PW. 1) vide injury report (Ex. D.21) sustained following injuries:- ``1. Incised wound 4 cm x 2cm x 2cm on Rt. Side of scalp 4 above Rt. ear. 2. Incised wound 3 cm x 2cm x 2cm on Rt. side of scalp 4 1/2 inch above Rt. ear. 3. Abrasion 2cm x 1cm Back of upper 3rd of Rt. forearm. 4. Bruise 3cm x 2cm on top of left shoulder joint. 5. C/o pain on both gluteal area but no visible marking present. (19). The accused party also sustained injuries in the same incident. The accused Hari Ram vide injury report (Ex. D.17) sustained following injuries:- ``1. Incised wound 2.5 cm x 3 cm x 1cm Slightly left to mid scalp (skull). 2. Incised wound 6 cm x 1/2 cm x 1 cm one inch left to mid scalp line above left ear. 3. Incised wound 2 1/2 cm x 1/2 cm x 1cm near back of 3rd left foot finger. 4. Abrasion 6 cm x 1 cm back of left elbow joint. 5. Abrasion 2 x 1cm on back of Rt. scapula bone. (20). The accused Ram Chandra vide injury report (Ex.D-18) sustained following injuries:- ``1. Incised wound 6 cm x 1/2 cm x 1 cm on left side of mid scalp line (skull). 2. C/o pain on Rt. gluteal area but no visible marking present. (21). The accused Budha Ram vide injury report (Ex.D.19) sustained following injuries:- ``1. scapula bone. (20). The accused Ram Chandra vide injury report (Ex.D-18) sustained following injuries:- ``1. Incised wound 6 cm x 1/2 cm x 1 cm on left side of mid scalp line (skull). 2. C/o pain on Rt. gluteal area but no visible marking present. (21). The accused Budha Ram vide injury report (Ex.D.19) sustained following injuries:- ``1. Lacerated wound 4 cm x 1/2 cm x 1/2 cm on back of scalp. 2. Lacerated wound 6 cm x 1/2 cm x 1/2 cm in mid of scalp to mid line anteriorly. 3. Abrasion 2 cm x 1cm Back of lower 3rd of Rt. upper arm. 4. Lacerated wound 1 cm x 1cm x 3 cm on lateral aspect of mid of Rt. forearm. 5. Lacerated wound 1 cm x 1/2 cm x 3cm on back of left shoulder joint. 6. Abrasion 3 x 1cm on top of left shoulder joint. 7. Lacerated wound 6 cm x 1/2 cm x 2 cm on back of Rt. shoulder joint. Lacerated wound 2 x 1/2 cm x 2 cm on back of chest on left side. On X-ray three fractures were found. (22). The accused Prabhya vide injury report (Ex.D-20) sustained following injuries:- ``1. Incised wound 4 cm x 2cm x 1/2 cm on Rt. Side of forehead angle of Rt. eye brow. 2. Incised wound 3 cm x 2cm x 1/2 cm in transver aspect of mid of forehead. 3. Incised wound 4 cm x 2cm x 4 cm on Rt. side of nose. 4. Incised wound 3 cm x 2cm x 1/2 cm on Rt. side of scalp in mid line. 5. Incised wound 2.5 cm x 2cm x 2cm on lateral aspect of lower 3rd of left arm. 6. Lacerated wound 2cm x 1 cm x 2 cm on lateral aspect of left hand thumb. On X-ray two fractures were found. (23). The accused Manohar vide injury report Ex.D-9) sustained following injuries:- ``1. Incised wound 4 cm x 2cm x 2cm on lateral aspect of upper 3rd of left thigh. 2. Bruise 10cm x 2cm below left scapula on back runing from left to Rt. 3. Swelling 3 cm x 1cm on lower 3rd of Rt. forearm above wrist joint. 4. C/o pain on both thigh anterior but no visible marking present. (24). The accused Shankar vide injury report (Ex.D-24) sustained following injuries:- ``1. 2. Bruise 10cm x 2cm below left scapula on back runing from left to Rt. 3. Swelling 3 cm x 1cm on lower 3rd of Rt. forearm above wrist joint. 4. C/o pain on both thigh anterior but no visible marking present. (24). The accused Shankar vide injury report (Ex.D-24) sustained following injuries:- ``1. lacerated wound 1.5 cm x 4 cm x 2cm on back of scalp. 2. Bruise 8 cm x 4 cm in mid of back of left side. 3. Abrasion 1 cm x 1cm on lateral aspect of mid of left foot. 4. Swelling 3 cm x 2cm in upper 3rd of left forearm & elbow. (25). The accused Lalloo vide injury report (Ex. D-25) sustained following injuries:- ``1. Incised wound 2 cm x 1cm x 1 cm in front of left elbow joint. 2. Lacerated wound 1 cm x 1cm x 2cm on back of index finger of left hand. 3. Bruise 4 cm x 1 cm on lower 3rd of back of Rt. upper arm. 4. Abrasion 3 cm x 2cm on back of left shoulder joint. (26). The accused Pappu vide injury report (Ex. D-27) sustained one Abrasion of 2.5 cm x 1.5 cm on lateral aspect of left writ joint and C/o pain on back of Rt. shoulder but no visible marking present. (27). The accused Girraj vide injury report (Ex.D.28) sustained following injuries:- ``1. Lacerated wound 2 cm x 2cm x 2 cm mid of scalp of Rt. side. 2. Bruise 4 cm x 1 cm in mid of back of chest Rt. side. 3. Abrasion 1 cm x 1cm on back of left forearm in upper 3rd. (28). The accused Ramdhan vide injury report (Ex. D-29) sustained C/o pain on left side of scalp and back of chest. (29). It is contended by learned counsel for the appellant that this fact was established by producing the judgments Ex. D-2, Ex. D-6 and Ex. D-8 of the competent courts that the land where the dispute occurred had been in the possession of accused party. From the site plan of the case Ex. P-1 it was evident that the land where the dispute arose was in possession of appellant. It is further contended that the complainant party was the aggressor and it made attempt to dispossess the appellant and other accused persons from the land where the incident occurred. From the site plan of the case Ex. P-1 it was evident that the land where the dispute arose was in possession of appellant. It is further contended that the complainant party was the aggressor and it made attempt to dispossess the appellant and other accused persons from the land where the incident occurred. The prosecution witnesses changed the place of occurrence during trial. As many as 10 accused persons sustained simple and grievous injuries, but the prosecution has failed to explain those injuries. It is lastly contended that the appellant had the right of private defence and the impugned conviction is illegal. (30). Per contra, learned public prosecutor supported the impugned judgment and urged that the appellant was rightly convicted and sentenced. (31). The prosecution case is founded on the testimony of Pooran Chand (PW.1) Bhori Lal (Pw. 4), Kherati (PW. 7), Sukh Ram (PW. 8), Harbai (PW. 9), Prabhati (PW.5), Bimla (PW. 13) Bhagwan Sahai (PW. 17), Meera (PW. 11), Chanda Lal (PW. 27), Ramkaran (PW. 18) and Mukesh (PW. 20). All these witnesses sustained injuries in the course of incident Kailash Chand (PW. 23) in his cross examination admitted that the place of incident, shown in site plan Ex. P.1. belongs to accused party. He further stated that trees shown in site plan (Ex. P-1) were the cause of incident. (32). On scanning the materials on record the factual situation emerges as under:- (i) The place of incident shown in the site plan (Ex. P.1) was in the possession of accused party. (ii) Complainant party including the deceased Bhola Ram went fully armed on the land belonging to accused party, started cutting Babool trees belonging to the accused party and acted violently and aggressively. Faced with such a situation the accused sensed serious threat to their lives and the appellant gave a blow with Barchhi on the head of Bhola Ram which resulted in his death. (iii) Thirteen persons belonging to the complainant party had received injuries whereas ten accused received grievous and simple injuries. (iv) Cross cases under sections 147, 447 and 307 IPC was registered against the complainant party including the deceased Bhola Ram. (33). The question whether in the circumstances of a given case, the accused could have had reasonable grounds for apprehending grievous bodily injury is a question of fact to be decided upon the facts of each case. (iv) Cross cases under sections 147, 447 and 307 IPC was registered against the complainant party including the deceased Bhola Ram. (33). The question whether in the circumstances of a given case, the accused could have had reasonable grounds for apprehending grievous bodily injury is a question of fact to be decided upon the facts 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 as already noticed that complainant party committed trespass over the land belonging to the accused party and started cutting Babool trees. The complainant party acted violently and aggressively. Faced with such a situation the accused party sensed serious threat to their lives and under these circumstances the appellant appears to have inflicted single blow with Barchhi on the head of Bhola Ram which resulted in his death. In the fight the persons from both the sides sustained injuries. The evidence of case on head shows that it is quite probable that the appellant 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 appellant beyond reasonable doubt. (34). Their Lordships of the Supreme Court in Mohd. Ramzani vs. State of Delhi ( AIR 1980 SC 1341 ), 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 the 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. (35). 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. (36). (35). 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. (36). As a result of above discussion we allow the appeal and set aside the impugned judgment dated June 24, 2002 passed by Additional Sessions Judge (Fast Track) Bandikui District Dausa. We acquit the appellant Mangi Lal of the charge under Section 302 IPC. The appellant who is in Jail shall be set at liberty forthwith, if not required to be detained in any other case.