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2017 DIGILAW 751 (RAJ)

Roodmal Son v. State of Rajasthan

2017-03-10

PRASHANT KUMAR AGARWAL

body2017
JUDGMENT : Prashant Kumar Agarwal, J. Aggrieved with the judgment of conviction and order of sentence dated 2.11.1987 passed by the Additional Sessions Judge, Neem Ka Thana (District Sikar) in Sessions Case No. 5/1986, the accused-appellant is before this Court by way of this Criminal Appeal under Section 374 Cr.P.C. The learned trial Court after finding the appellant guilty for offence under Section 307 I.P.C. has sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- and in default thereof to further suffer simple imprisonment for six months. It is to be noted that learned trial Court has acquitted the appellant for offences under Sections 147, 148, 325/149 and 323/149 IPC and co-accused, five in number, for offences under Sections 147, 148, 325/149, 323/149 and 307/149 IPC after giving them benefit of doubt. 2. Brief relevant facts for the disposal of this appeal are that complainant-Shri Chhotelal submitted a written report Ex.P1 before Police Station Thoi on 30.10.1983 alleging therein that on the same day about 10.00 a.m. in the morning while his brother-Shri Nemi Chand was going to his well by a tractor as many as eleven persons including appellant and the acquitted accused attacked him with lathi, rapan and jelies in pursuance of their common object and on hue and cry being made by Shri Nemi Chand, when his father-Shri Khyalidass and brother-Shri Pooran reached at the place of incident, they were also beaten. It was further alleged in the report that he and some other persons took the injured persons Shri Nemi Chand, Shri Khyalidass and Shri Pooran to Kanwat hospital where they were admitted for treatment. On the basis of this written report, FIR No. 140/1983 came to be registered for the offences under Sections 147, 148, 149, 341, 323 and 427 and investigation was undertaken. After usual investigation charge-sheet for offences under Sections 147, 148, 325 and Section 307 read with Section 149 I.P.C. was filed against six persons including appellant and the learned trial Court after committal of the case to it framed charge for offences under Sections 147, 148, 325/149, 323/149 and 307/149 IPC against five accused whereas against appellant, apart from above offences, charge for offence under Section 307 I.P.C. was also separately framed. In order to prove the charges prosecution produced oral as well as documentary evidence. In order to prove the charges prosecution produced oral as well as documentary evidence. In their statements recorded under Section 313 Cr.P.C. appellant and acquitted accused denied the evidence produced on behalf of the prosecution. In defence appellant-Shri Roodmal and and acquitted accused-Shri Boduram appeared as witness and also produced documentary evidence. Learned trial Court after hearing the respective parties and considering the evidence available on the record passed the impugned judgment and order. 3. On the basis of evidence made available on record by the parties, learned trial Court has arrived to the following findings : (1) The place of incident is not a way situated near the agriculture land of one Shri Sunda Dass as alleged and claimed by the prosecution. (2) It is a case of "free-fight" and, therefore, the accused-party had no right of self defence. Otherwise also, the prosecution was not obliged to furnish explanation about injuries received by the accused persons as their injuries are of minor and superficial nature. Accused have failed to show and explain in what circumstances they caused injuries to complainant party which are grievous in nature and one of the injury has been opined to be dangerous to life. Benefit of right of private defence of the body and of property cannot be granted to accused. (3) The prosecution has failed to prove that the accused persons constituted an unlawful assembly having a common object to cause death of Shri Nemi Chand and, therefore, all of them cannot be held liable for causing injury to Shri Nemi Chand with the aid of Section 149 I.P.C. (4) The prosecution has failed to prove, except appellant-Shri Roodmal, which accused caused which injury to the remaining injured persons and, therefore, none of them can be held guilty for any of the offence for which they were charged. (5) The appellant caused injury to the head of Shri Nemi Chand with a lathi with a knowledge that it may cause his death and, therefore, he is guilty of offence under Section 307 I.P.C. 4. In support of the appeal, learned counsel for the appellant raised the following grounds. (1) When on the basis of same set of evidence five out of six accused have been acquitted by the trial Court appellant alone could not have been convicted on the basis of same evidence. In support of the appeal, learned counsel for the appellant raised the following grounds. (1) When on the basis of same set of evidence five out of six accused have been acquitted by the trial Court appellant alone could not have been convicted on the basis of same evidence. (2) Only one blow was given by the appellant on the head of Shri Nemi Chand causing grievous injury and, therefore, at the most offence under Section 325 I.P.C. is made out but he has been held guilty for offence under Section 307 I.P.C. although no reasons have been recorded by the doctor to support his opinion that the head injury is dangerous to life. (3) The prosecution/complainant party concealed the genesis of the incident in which appellant and acquitted accused-Shri Bodu Ram also sustained injuries by a blunt weapon for which explanation was not furnished by the prosecution which indicates that even if appellant caused injury to Shri Nemi Chand it was in his right of private defence of his person as well as property as it is clear from the evidence available on record that complainant party after arming itself with lathis entered into the agriculture land of accused party in order to dispossess them from it and, therefore, accused party was entitled to protect them and if in that process some injury has been caused to the complainant party no offence of any kind can be said to be committed by the appellant. (4) No independent witness produced on behalf of the prosecution supported the prosecution case and the appellant has been held guilty only on the basis of statements made by the witnesses who are highly interested in getting the appellant convicted. 5. In the alternate, learned counsel for the appellant submitted that if the appeal filed by the appellant is dismissed on merit, benefit of probation may be granted to the appellant who presently is about the age of 75 years and the incident is of the year 1983. It was also submitted that the appellant has remained in custody from 25.11.1983 to 7.12.1983 and thereafter from 2.11.1987 to 12.11.1987 and, therefore, his sentence may be reduced for the period of imprisonment already undergone by him. 6. In support of his submissions, learned counsel for the appellant relied upon the case of Joginder Singh v. State of Haryana reported in (2014) 11 SCC 335 . 7. 6. In support of his submissions, learned counsel for the appellant relied upon the case of Joginder Singh v. State of Haryana reported in (2014) 11 SCC 335 . 7. On the other hand, learned Public Prosecutor supported by counsel for the complainant submitted that the learned trial Court after appreciating and evaluating the evidence available on record and considering the relevant legal provisions and the well settled legal position held the appellant guilty for offence under Section 307 I.P.C. and there is no reason to interfere in the same in this appeal. It was further submitted that the statements of prosecution witnesses supporting the prosecution case cannot be doubted and rejected merely because they belong to the complainant-party as three of them including Shri Nemi Chand sustained injuries in the incident which fact has not been disputed even by the appellant. It was also submitted that benefit of right of private defence of body and property has not rightly been given to the appellant by the trial Court as the injuries found on the body of the appellant and acquitted accused-Shri Bodu Ram were minor and superficial in nature requiring no explanation from the prosecution. No evidence is available on record to show that complainant party was aggressor giving rise to the accused-party to exercise their right of private defence. So far as offence under Section 307 I.P.C. is concerned, it has rightly been concluded by the trial Court that appellant was having knowledge that if a blow is made by a lathi on a vital part like head of a person it is likely to cause death of that person more particularly in view of the fact that the blow made by the appellant was so severe that it resulted into multiple fractures of various bones of head of Shri Nemi Chand. It was further submitted that looking to the gravity of offence appellant is entitled neither to benefit of probation nor the period of sentence is liable to be reduced to the period of imprisonment already undergone by him. The plea made by the appellant cannot be accepted merely by the reason that the incident is of the year 1983 and presently appellant is of old age more particularly in view of the fact that time was sought on behalf of the appellant to argue the appeal. 8. The plea made by the appellant cannot be accepted merely by the reason that the incident is of the year 1983 and presently appellant is of old age more particularly in view of the fact that time was sought on behalf of the appellant to argue the appeal. 8. On consideration of submissions made on behalf of the respective parties and the evidence made available on record during the course of trial and also the reasons recorded by the trial Court in support of the impugned judgment, I do not find any illegality, infirmity or perversity in the same requiring interference by this Court and each of the ground raised on behalf of the appellant in support of the appeal is liable to be rejected being not tenable in law. Although, from the evidence available on record it is shown that the accused party was in the possession of the land in dispute for several past years and it stood in their name in the revenue record as khatedartenant but there is no evidence to show definitely that the complainant party actually entered into it to dispossess the accused-party giving rise apprehension in their mind that the complainant party may dispossess them by force and in absence of the same, the accused party had no right of private defence of body as well as property, rather it is a case of "free-fight" as found by the learned trial Court. There is no evidence available on record to show that it is the complainant party who initiated the fight and they were the aggressor. Merely because the complainant party armed with lathis reached at the place of incident by a tractor, it cannot be presumed that they were bent upon to illegally enter into the land in dispute and dispossess the accused-party. Where two individuals or two party fight with one another using unlawful force against each other, the fight has been characterized as a "free-fight". In a "free-fight" where parties are determined to vindicate their right or supposed right by using unlawful force, no question of exercise by any party of the right of private defence arise. In a case of "free-fight" the question of who attacks and who defends is wholly immaterial and depends upon the tactics adopted by the rival commanders. In a "free-fight" where parties are determined to vindicate their right or supposed right by using unlawful force, no question of exercise by any party of the right of private defence arise. In a case of "free-fight" the question of who attacks and who defends is wholly immaterial and depends upon the tactics adopted by the rival commanders. It is well settled legal position that no presumption of right of self defence can be raised merely because injuries were found on the body of accused. It is also well settled legal position that if the injuries of accused are minor and superficial, plea of self defence cannot be sustained and prosecution is not oblige to explain the injuries of accused and on failure on the part of prosecution to explain such minor and superficial injuries of accused it cannot be held that the prosecution has concealed the genesis of the incident. It is also well settled legal position that no person exercising his right of private defence can inflict more harm on the assailant than is necessary for the purpose of defence. In the presence case, the appellant in his statement recorded under Section 313 Cr.P.C. and also as a defence witness has stated that Shri Nemi Chand tried to run him over under the tractor and even followed him upto some distance when he fled away from the place of incident, but no suggestion was made to Shri Nemi Chand during the course of his cross-examination to that effect. It is to be noted that although appellant in his statement has stated that Shri Nemi Chand inflicted injury by a lathi on his head, but he did not say that he caused injury to Shri Nemi Chand in defence or to prevent further blow at the hand of Shri Nemi Chand. It is to be noted that injured-Shri Nemi Chand in his cross examination has denied the suggestion that the complainant party as aggressor inflicted injuries to accused-party. 9. It is well settled legal position that in case of "free-fight", each individual accused is liable for the injury particularly caused by him and if the Court is unable to find which particular injury was caused by which particular accused, then that accused cannot be held liable for any of the injuries caused and is entitled to be acquitted. 9. It is well settled legal position that in case of "free-fight", each individual accused is liable for the injury particularly caused by him and if the Court is unable to find which particular injury was caused by which particular accused, then that accused cannot be held liable for any of the injuries caused and is entitled to be acquitted. It is also well settled legal position that in case of "free-fight", an accused cannot be held guilty with the aid of Section 34 or Section 149 I.P.C. In the present case, all co-accused have been acquitted by the trial Court with a finding that prosecution has failed to prove which injuries were caused by them. This finding could be challenged neither by the State nor the complainant party. So far as appellant is concerned, there is ample evidence on record to show that he caused injury on the head of Shri Nemi Chand by a lathi. This version of the incident cannot be rejected merely because some of the prosecution witnesses did not support the prosecution case or because rest of the prosecution witnesses are highly interested. Evidence of injured eye-witness cannot easily be discarded more particularly when injury is severe in nature. 10. So far as offence under Section 307 I.P.C. can be said to be made out or not against the appellant is concerned, there is sufficient evidence available on record showing that appellant was having knowledge that by inflicting blow to the injured-Shri Nemi Chand on a vital part like head by a lathi with sufficient force, he is likely to cause his death. Merely because blow was not repeated, it cannot be held that offence under Section 307 I.P.C. is not made out. The force with which the blow was made can be inferred from the resulted nature of the injury. As per the injury report Ex.P25, injury No. 1 and 3 were found in the frontal and parietal part of the head and according to the X-ray report Ex.P30 several fractures were found. Medical Jurist Dr. Mishra-PW12 who examined the injured has not only opined that the injury was dangerous to life but also that in the normal course it was not easily curable. Medical Jurist Dr. Mishra-PW12 who examined the injured has not only opined that the injury was dangerous to life but also that in the normal course it was not easily curable. In view of the nature of injury and part of the body where it was not caused, I concur with the finding of the trial Court that the appellant is guilty for offence under Section 307 I.P.C. 11. So far as sentence part of the impugned order is concerned, looking to the gravity of the offence and sentence prescribed for the offence for which the appellant has been found guilty, benefit of probation cannot be granted, but looking to the overall facts and circumstances of the case and more particularly looking to the present age of the appellant and the period of time lapsed since the date of the incident, I found that it would be in the interest of justice if the sentence of imprisonment awarded by the trial Court is reduced to a reasonable extent. In the facts and circumstances of the case, the period of imprisonment is reduced to the period of rigorous imprisonment for four years. The fine and the default sentence is maintained. 12. Consequently, the appeal is partly allowed and while maintaining and confirming the conviction of the appellant-Shri Roodmal for offence under Section 307 I.P.C., the substantive sentence awarded by the trial Court is reduced to the extent of rigorous imprisonment for four years. 13. Appellant Shri Roodmal is presently on bail. He is directed to surrender before the trial Court on or before 25.3.2017 so as to undergo the sentence awarded to him. If the appellant fails to surrender within the time granted to him, appropriate steps allowed by law would be taken by the trial Court for his appearance before it so that the appellant can undergo the sentence awarded.