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2023 DIGILAW 2272 (RAJ)

Harna @ Harnath Singh v. State of Rajasthan

2023-12-18

BHUWAN GOYAL, PANKAJ BHANDARI

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JUDGMENT : (Pankaj Bhandari, J.) Accused appellants have filed the instant appeal aggrieved by the judgment of conviction and order of sentence dated 03.04.1993 passed by the Additional Sessions Judge, Hindaun City whereby all the accused appellants were acquitted for offence under Sections 147, 148, 302/149, 324/149, 323/149 of the Indian Penal Code (hereinafter referred to as "IPC") and appellant - Harna @ Harnath Singh has been convicted for offence under Section 302 of IPC and has been sentenced to life imprisonment along with a fine of Rs.1 Lac and in default of payment of fine, to further undergo rigorous imprisonment of 7 years and accused appellants - Shyam Singh, Shivbhan, Shiv Singh and Babu Singh have been convicted for offence under Section 323 of IPC and have been sentenced to rigorous imprisonment for 6 months each. 2. During the pendency of the appeal, appellant No.4 - Shiv Singh has expired and the appeal stands abated qua appellant No.4 - Shiv Singh. Now, the appeal survives qua appellant Nos.1, 2, 3 and 5 - Harna @ Harnath Singh, Shyam Singh, Shivbhan and Babu Singh. 3. Succinctly stated the facts of the case are that on 27.10.1990 at 7:00 PM a written report (Exhibit-P1) was submitted at Police Station, Hindaun City by one Bharat Singh. It was inter-alia stated therein that some dispute took place between Rajendra son of Harna & Harnath Singh and Narsi - brother of complainant. Thereafter, Harna Singh fired his gun at Janak Singh, who expired and Harna Singh opened other fire towards persons, who came to intervene. In the FIR, allegations were levelled against 12 persons and Janak Singh expired. On the basis of said written report, police registered an FIR for offence punishable under Sections 147, 148, 149, 302 307 & 323 of IPC. The police after due investigation charge-sheeted 12 persons. The accused appellants and other co-accused denied the charges levelled against them and sought trial, upon which, on behalf of the prosecution, 14 witnesses were examined and 49 documents were exhibited. In defence, 1 witness was produced and as many as 20 documents were exhibited. The Court after examining the accused under Section 313 Cr.P.C. and after hearing the arguments has acquitted 7 of the accused and has convicted the present 5 accused appellants. In defence, 1 witness was produced and as many as 20 documents were exhibited. The Court after examining the accused under Section 313 Cr.P.C. and after hearing the arguments has acquitted 7 of the accused and has convicted the present 5 accused appellants. Appellant No.1 - Harna @ Harnath Singh has been convicted for offence under Section 302 of IPC and rest of the appellants have been convicted for offence under Section 323 of IPC. Learned Trial Court has acquitted the accused appellants for rest of the offences. Aggrieved by the judgment of conviction and order of sentence, the appellants have preferred the present appeal before this Court. 4. It is contended by learned Senior Advocate, Mr. V.R. Bajwa, assisted by Ms. Savita Nathawat, Adv., appearing on behalf of the accused appellants that there was a cross-FIR and in fact, complainant side was the aggressor. They were convicted by learned Trial Court in cross-case and in appeal, the conviction order was upheld by the High Court and they were given benefit of probation. It is also contended that dispute took place in font of house of appellant No.1 - Harna Singh. All the persons from complainant side armed with weapons including firearms came to the house of Harna @ Harnath Singh and started the quarrel. Deceased - Janak Singh opened fire and Udai Singh received gunshot injuries. In self-defence, appellant No.1 - Harna @ Harnath Singh has also fired, which hit deceased- Janak Singh. 5. It is contended that learned Trial Court has acquitted seven of the accused. The acquittal of the seven accused is not challenged by the State. Similarly, the acquittal of the present accused appellants for offences under Sections 147, 148, 324/149 & 323/149 of IPC and appellant Nos.2, 3 & 5 for offence under Section 302/149 of IPC also has not been challenged. Thus, it has attained finality. 6. It is contended that Exhibit-D14 to Exhibit-D20 are the injury reports of the accused side. The accused side were also examined by the doctor on the same day. Udai Singh received a gunshot injury. The prosecution has failed to establish as to how the accused side sustained injuries. Thus, it has attained finality. 6. It is contended that Exhibit-D14 to Exhibit-D20 are the injury reports of the accused side. The accused side were also examined by the doctor on the same day. Udai Singh received a gunshot injury. The prosecution has failed to establish as to how the accused side sustained injuries. It is argued that once the conviction of the complainant side has been upheld up to the High Court and the dispute took place at the house of Harna Singh, it is evident that the complainant side was the aggressor. It is argued that since gunshot injury was received by Udai Singh, accused appellant No.1 - Harna & Harnath Singh had, in exercise of his right to private defence, opened fire from short distance, which hit Janak Singh. Thus, this case would fall within the purview of Section 100 of IPC. 7. It is also contended by learned Senior Advocate that as per the prosecution version, Harna Singh opened two fires, which hit Janak Singh on his stomach. It is argued that said evidence is not tallying with the medical evidence. As per the medical evidence, deceased has sustained one gunshot injury on his stomach. It is further contended that as per the prosecution version, after receiving of first wound, deceased put his hands on the said wound, which is a natural reaction of a person receiving gunshot wound. The possibility of the second gunshot injury hitting the same place is not possible, when the deceased had put his hands over the wound. It is argued that the theory of Harna Singh discharging two gunshots has been made after seeking opinion, as there is no allegation in the FIR with regard to opening second fire by Harna Singh upon the deceased. 8. Learned Additional Government Advocate as well as learned counsel appearing for the complainant have opposed the appeal. It is admitted by learned counsel appearing for the complainant that a cross-case was registered against the complainant party, in which, five persons were convicted by learned Trial Court and the conviction was upheld by the High Court, however, they were all given benefit of probation. 9. We have considered the contentions raised by the learned counsel for the parties and have carefully gone through the material on record. 10. 9. We have considered the contentions raised by the learned counsel for the parties and have carefully gone through the material on record. 10. For consideration of the present matter, it is relevant to quote the following Sections of the Indian Penal Code, 1860:- "100. When the right of private defense of the body extends to causing death:- The right of private defense of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly- An assault with the intention of committing rape; Fourthly- An assault with the intention of gratifying unnatural lust; Fifthly- An assault with the intention of kidnapping or abducting; Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. 102. Commencement and continuance of the right of private defense of the body: The right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues." 11. As to whether the injuries, which have been caused to the complainant side, were caused in exercise of the right of private defence, is to be seen by this Court. In Deo Narain v. The State of U.P.: 1973 SCC (1) 347, the Apex Court was dealing with a case wherein injuries were caused to the accused side by lathis and the accused side used spears, as a result of which, one of the persons of the complainant side expired. In Deo Narain v. The State of U.P.: 1973 SCC (1) 347, the Apex Court was dealing with a case wherein injuries were caused to the accused side by lathis and the accused side used spears, as a result of which, one of the persons of the complainant side expired. The Apex Court after elaborately dealing with the provisions of Sections 100 & 102 of IPC came to the conclusion that when a blow of lathi is caused on the head, it gives a rise to the other side to exercise his/her right of private defence. Even use of the lathi by one side gives right to the other side, as there is a reasonable apprehension of danger to the body. The Apex Court in that case gave the benefit to the accused side and held that the accused had caused injuries exercising their right of private defence and as a result, the accused was acquitted. 12. This Court in case of State of Rajasthan v. Shyoraj: D.B. Criminal Appeal No.13/1990 & connected matters, decided on 07.02.2023 faced a similar situation wherein, right of private defence was exercised. The Court held that rustic villagers gave blows to the complainant side on being attacked with lathis and gandasis. Thus, their case would squarely be covered under Section 100 (clause first and second) of IPC. The Court also held that while exercising the right of private defence, it is not required that defence be modulated step by step as held by the Apex Court in Deo Narain v. State of U.P. (supra). In State of Rajasthan v. Bharat Lal: D.B. Criminal Appeal No.327/1986 decided by this Court on 11.05.2023, the Court held that the accused have rightly exercised their right of private defence of body as enumerated under Section 100 of IPC. 13. The defence of the appellants that Janak Singh opened fire and it hit Udai Singh as also the fact that other persons in the complainant party caused injuries to the accused side is established from the very fact that 5 persons from the complainant side have been convicted and their conviction has been upheld by the High Court. 13. The defence of the appellants that Janak Singh opened fire and it hit Udai Singh as also the fact that other persons in the complainant party caused injuries to the accused side is established from the very fact that 5 persons from the complainant side have been convicted and their conviction has been upheld by the High Court. None of the prosecution witnesses before the police have stated about the injuries caused to the accused side and they have tried to make up a case that two gunshots were discharged by Harna Singh, which hit the deceased on his stomach, however, this theory is not supported by the evidence of Dr. Narayan Lal Bhardwaj (PW-14), who has stated that the injury was caused from a short distance i.e. within a range of 3 feet as there was blackening. He has also stated that injury Nos.1 & 2 are caused by one gunshot wound. He has specifically stated that there is no possibility of injury No.1 being caused by a separate firearm discharge. The entire prosecution version initially in FIR before the police was with regard to causing of one gunshot injury by Harna Singh upon the deceased, however, since there were two gunshot wounds, they tried to make up a story that Harna Singh opened fire twice upon the deceased. 14. Bharat Singh (PW-1) in his cross-examination has admitted that in written report (Exhibit-P1), he had mentioned about Harna Singh firing twice upon Janak Singh, but the same is not written in Exhibit-P1. As per this witness, when Harna Singh opened fire, Janak Singh was at a distance of more than 20 yards, however, this is not tallying with the statement of Dr. Narayan Lal Bhardwaj (PW-14), who has stated that the fire was discharged from a distance of just 3 feet. The defence version that Janak Singh opened fire, which hit Udai Singh and in self-defence, Harna Singh opened fire, seems to be more probable. Prakash (PW-6) has admitted that when he heard the first gunshot sound, he was at his house and he was not aware as to who opened the first round of fire. This witness has also stated that when Harna Singh opened fire, at that time, he himself, Janak Singh and Girriraj were standing adjacent to each other. Prakash (PW-6) has admitted that when he heard the first gunshot sound, he was at his house and he was not aware as to who opened the first round of fire. This witness has also stated that when Harna Singh opened fire, at that time, he himself, Janak Singh and Girriraj were standing adjacent to each other. This also establishes that all the persons of the complainant side were together and they had come to attack the accused side. None of the prosecution witnesses in their police statements have given any explanation with regard to the injuries caused to the accused side including the gunshot injury caused to Udai Singh. 15. Kadam (PW-4) has stated that when he heard the first gunshot sound, he was at his house and when he reached the place, he saw Janak Singh was moving backwards, at that time Harna Singh opened fire, which hit Janak Singh at his stomach. Since Janak Singh has received only 1 gunshot wound at his stomach as per Dr. Narayan Lal Bhardwaj (PW-14), it is evident that the first fire sound, which was heard by the witnesses, when they were at their respective houses, was fired by Janak Singh. The story of the defence that after Janak Singh opened fire, Harna Singh in self-defence opened fire, which hit Janak Singh thus appears to be more plausible. 16. Learned Trial Court has convicted accused appellant - Harna @ Harnath Singh for offence under Section 302 of IPC without considering his defence. Learned Trial Court has also convicted other accused appellants only because they have sustained injuries during the fight. Learned Trial Court has not taken note of the fact that in the cross-case, the complainant side has been convicted. Learned Trial Court has thus committed grave error in not considering the defence as set up by the accused party as Harna Singh in his examination under Section 313 of Cr.P.C. has stated that Janak Singh opened fire which hit Udai Singh and in self-defence, he opened fire from a short distance, however, the prosecution has made up a case that the firearm was discharged from a distance of 20-25 yards. 17. In light of the above, we are of the considered view that the accused - appellants have rightly exercised their right of private defence and the case would fall within the ambit of Section 100 of IPC. 17. In light of the above, we are of the considered view that the accused - appellants have rightly exercised their right of private defence and the case would fall within the ambit of Section 100 of IPC. Learned Trial Court has clearly erred in convicting the accused appellants for the alleged offences and has also erred in sentencing them. For the foregoing reasons, we are inclined to set aside the judgment of conviction and order of sentence dated 03.04.1993 passed against the accused appellants. Consequently, the appeal succeeds and the same is, accordingly, allowed. The judgment of conviction and order of sentence dated 03.04.1993 is set aside. The accused appellants are acquitted from the charges levelled against them. The bail bonds of the accused appellants, who are on bail, shall be treated as cancelled. 18. Appellants are directed to furnish personal bond in the sum of Rs.50,000/- each and a surety bond in the like amount in accordance with Section 437A of Cr.P.C. before the Registrar (Judicial) within two weeks from today to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 19. A copy of this order along with record of the learned Trial Court be sent forthwith.