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CASE NO.: Appeal (crl.)  773 of 2005

PETITIONER: Jalaram

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 24/11/2005

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA,  :  

       This appeal is directed against the judgment and order dated  19.03.2004 passed by  Rajasthan High Court whereby and whereunder an  appeal preferred by the Appellant herein against the judgment and order of  conviction and sentence passed against him under Sections 147, 302 and  323/149 of the Indian Penal Code (for short, ’IPC’) was converted to  conviction under Section 302  IPC simpliciter.    

       The prosecution case as disclosed in the First Information Report is as  under :

       One Pratapa (PW-5) lodged a written report at about 2.00 p.m. on  14.3.1998 before the S.H.O., Police Station Bagoda, District Jalore, stating  that at about 9.00 a.m. on the said day while he was going with his brothers  Hanja (PW-1), Vasna (deceased) and Raimal (PW-4) from his dhani towards  Oran for the purpose of grazing the cattle and when they had been passing  through the field of the accused Sonaram, the Appellant herein together with   Bhagirath, Kisana Ram, Naringa, Poonmaram and Bhikhram, who were  hiding themselves in the field, assaulted  them with lathies.  Whereas the  Appellant Jalaram is said to have given a lathi blow on the  head of the  deceased, Bhagirath gave a lathi blow on the head of PW-1 and Kisana Ram  gave a lathi blow on the informant’s leg.

       Although the Appellant herein was named in the First Information  Report, no charge-sheet was submitted against him as also against  Bhagirath, Poonmaram and Bhikharam.  A charge-sheet for commission of  offences punishable under Sections 147, 148, 302, 323 read with Section  149 IPC was submitted against Kisana Ram, Naringa, Sonaram, Ghamanda  and Deva Ram. However, after examination of  five prosecution witnesses  and on an application made in this behalf, the Appellant herein and others  were summoned by the Trial Judge in terms of Section 319 of the Code of  Criminal Procedure, whereafter charges were amended against all the  accused.   

       The prosecution examined 11 witnesses in support of its case..  The  learned Trial Court acquitted Sonaram, Ghamanda and Deva Ram (Accused  Nos.1, 4 and 5 respectively) but found the Appellant guilty for commission  of offences punishable under Sections 147, 302 and 323/149 IPC and the  other accused, namely, Kisana Ram, Naringa, Bhagirath, Poonmaram  and  Bhikharam for offences punishable under Sections 147, 302/149 and  325/149 IPC.

       Two appeals  preferred thereagainst by the accused were heard by a  Division Bench of the Rajasthan High Court and, as noticed hereinbefore, by

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reason of the impugned judgment the Appellant alone was held guilty for  commission of an offence punishable  under Section 302 IPC and the other  accused persons were acquitted.  The High Court, however, held Kisana  Ram and Naringa guilty of commission of an offence punishable under  Section 323 IPC for causing hurt to Pratapa (PW-5) and Hanja (PW-1) and  sentenced them to the period already undergone.   

       The High Court in its judgment held :    

       "Thus from the statements of star witnesses p.w. 5  Pratapa and p.w.1 Hanja, the following facts have  emerged :

       (i)     That at the time of alleged incident, six  accused appellants, namely, Jalaram, Bhagirath, Kisana  Ram, Bhikaram, Poonmaram and Naringa were present.

       (ii)    That the alleged incident took place when  p.w. 1 Hanja, p.w. 5 Pratapa and deceased along with  their revar (cattle) were passing through the way, which  was in the field of accused Sonaram (who has been  acquitted by the learned trial Judge).

       (iii)   That accused appellant Jalaram caused lathi  blow on the head of the deceased.

       (iv)    That except accused appellant Jalaram, no  other accused persons caused any injury to the deceased.

       (v)     That accused appellant Kisana Ram caused  lathi blow to p.w. 5 Pratapa.

       (vi)    That accused appellant Naringa caused lathi  blow to p.w. 1 Hanja.

       (vii)   That p.w. 1 Hanja and p.w. 5  Pratapa have  not explained the injuries received by accused appellant  Kisana Ram and accused Sonaram (who has been  acquitted by the learned trial judge).

       (viii)  That there is a way in the field of accused  Sonaram (who has been acquitted by the learned trial  judge) for reaching gochar land of Punasa and that fact  has also been stated by other prosecution witnesses."

       In arriving at the said finding, the High Court held : (i)   as the fight  took place without premeditation, the same can be said to be a sudden one  and by reason thereof no unlawful assembly can be said to have been  formed; (ii) In the case of group rivalry enmity, it often happens that the  tendency develops to rope in as many as persons as possible having  participated in the assault and applying the said principle, the finding of the  trial court that the accused persons formed a common intention was not  correct; (iii) As no accused instigated the Appellant Jalaram to inflict  injuries on the deceased,  and, thus, no unlawful assembly  was formed with  a common object to commit the murder of the deceased; (iv) The Appellant  Jalaram alone was responsible for causing the death of the deceased, as his  presence on the scene of occurrence cannot be doubted in any manner; (v)  The Appellant has failed to prove his plea of alibi; (vi) He has also failed to  prove that he,  in the peculiar facts and circumstances of the case , could  exercise his right of private defence; (vii)  As a right of way was claimed in  the field of Sonaram,  there was no reasonable apprehension of danger either  to the body or the crops of the Appellant; and (viii) Although accused  Kisana Ram and Sonaram had received one injury each but the injury  suffered by them being simple in nature, it would reasonably be inferred that

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there had been no reason for apprehension of danger to the body of the  accused leading to exercise of their right of private defence. (ix) The injury  on the person of Kisana Ram and Sonaram being minor in nature were not  required to be explained.

       Mr. Uday U. Lalit, the learned Senior Counsel appearing on behalf of  the Appellant, has raised a short question in support of this appeal.  The  learned counsel contended that having regard to the fact that ten simple  injuries had been inflicted by the parties on each other; only because the  Appellant herein has inflicted an injury causing death of the deceased would  not lead to the conclusion  that the Appellant herein had any motive therefor.   It was pointed out that it is not a case where several blows were hurled on  the deceased or other prosecution witnesses so as to arrive at a conclusion  that the Appellant had the requisite mens rea.

       Mr. Kumar Kartikay, the learned counsel appearing on behalf of the  State, however, would draw our attention to the situs of the injury as also the  force with which the same was inflicted by the Appellant herein to support  the judgment of conviction and sentence passed by the High Court.   

       The short question, therefore, which arises for consideration is as to  whether in the facts and circumstances of the case, the Appellant herein can  be said to have committed an offence punishable under Section 302 IPC.   Hanja (PW-1) had received four injuries and Informant Pratapa (PW- 5) had received five simple injuries.   It is also not in dispute that the accused  Sonaram and Kisana Ram had also received one injury each.   The injuries  found on the body of the deceased upon  post-mortem  are as under  :

       "(i)    Lacerated wound 7 cm x 3 cm x bone deep  with fracture of bone on right side of parieto temporal  region.

       (ii)    Abrasion 4" x 4" on left thigh on anterior  side."

It is not in dispute that the occurrence took place in the field of  Sonaram who has been acquitted by the trial court.  It is also not in dispute  that Jalaram had agricultural land nearby.  It is furthermore not in dispute  that no right of way by way of path/passage between the lands appurtenant  to Khasra nos. 865, 866 and 1006 and the boundaries of village Punasa was  found to have been recorded in the records of rights.

The defence had examined seven witnesses including DW-6 who was  the Investigating Officer in the case.  He stated that upon investigation   carried out by him, he came to the opinion that  no offence was made out  against the accused Jalaram, Bhikharam and Poonmaram.  DW-7 Udda Ram,  who is an independent witness stated that there had been a free fight between  ’Bishnois’ and ’Rebaris’ on the field of Sonaram Bishnoi.  It has further not  been disputed that the deceased and other on the date of the incident were  proceeding with about 60 numbers of cattle for grazing to the field of  Sonaram and Bhagirath.  It also deserves to be noticed that the eye-witnesses  Hanja (PW-1), Raimal (PW-4) and Pratapa (PW-5) although deposed that  the accused persons gave indiscriminate beatings to the deceased but, the  same has been, in view of the medical evidence, found to be not correct.                         The right of way on the agricultural land belonging to Sonaram has  not been established.  If there was no established right of way by way of  easement or otherwise and if there had been an apprehension in the mind of  the accused that there was a threat  of trespass in their land, indisputably  they could exercise their right of private defence.  In any event, such an  apprehension on the part of the Appellant and other accused persons cannot  be ruled out.

       We have noticed hereinbefore, that the only one blow was hurled by

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the Appellant herein was on the forehead of the deceased.  The genesis of  the occurrence, appears also not to have been disclosed by the prosecution.   It is not the case of the prosecution that the Appellant herein and other  accused persons had been nurturing any grudge against the deceased or the  informant from before or had any motive to commit the aforementioned  offence.  Any motive on the part of the Appellant and other accused persons  for hiding themselves near the place of occurrence and committing the  offence has not been established.  It is, thus, difficult to accept that part of  the prosecution case.

       Sonaram and Kisana Ram had also received one injury each.  It is  true, as has been held by the High Court, that the nature of injuries was  simple one but it was, in the peculiar facts and circumstances of this case,  obligatory on the part of the prosecution to prove as to how they received the  same.  It is also true that in all situations the injuries received by the accused  persons need not be explained but a different situation may arise when a  right of private defence is claimed.  The prosecution has not placed any  material before this Court to prove that it was the Appellant and other  accused persons who were aggressors.  If they were not the aggressors, the  plea of right of private defence was available to them.  Non-explanation of  injuries on the person of Sonaram and Kisana Ram, thus, gains significance.   Injuries on the persons of the accused persons having not been explained by  the prosecution gives rise to the credibility to the defence put forth by the  Appellant as regard exercise of his right of private defence.

       In Triloki Nath & Ors. Vs. State of U.P. [2005 (9) SCALE 76], it has  been held: "No decision relied upon by the Appellants lays down a  law in absolute terms that in all situations injuries on the  persons of the accused have to be explained.  Each case  depends upon the fact situation obtaining therein."

       In Bishna @ Bhiswadeb Mahato & Ors. Vs. State of West Bengal  [JT  2005 (9) SC 290 : 2005 (9) SCALE 204], a Division Bench of this Court has  recently noticed the nuances of the said right wherein it was held:

"In a large number of cases, this Court, however, has laid  down the law that a person who is apprehending death or  bodily injury cannot weigh in golden scales on the spur  of the moment and in the heat of circumstances, the  number of injuries required to disarm the assailants who  were armed with weapons.  In moments of excitement  and disturbed equilibrium it is often difficult to expect  the parties to preserve composure and use exactly only so  much force in retaliation commensurate with the danger  apprehended to him where assault is imminent by use of  force.  All circumstances are required to be viewed with  pragmatism and any hyper-technical approach  should be  avoided.            To put it simply , if a defence is made out, the accused is  entitled to be acquitted and if not he will be convicted of  murder.  But in case of use of excessive force, he would  be convicted under Section 304 IPC."      

       It was further observed: "Private defence can be used to ward off unlawful force,  to prevent unlawful force, to avoid unlawful detention  and to escape from such detention.  So far as defence of  land against trespasser is concerned, a person is entitled  to use necessary and moderate force both for preventing  the trespass or to eject the trespasser.  For the said  purposes, the use of force must be the minimum

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necessary or reasonably believed to be necessary.  A  reasonable defence would mean a proportionate defence.   Ordinarily, a trespasser would be first asked to leave and  if the trespasser fights back, a reasonable force can be  used."

       In Sekar alias Raja Sekharan vs. State Represented by Inspector of  Police,T.N. [(2002) 8 SCC 354], it was observed : "10. In order to find whether right of private defence  is available or not, the injuries received by the accused,  the imminence of threat to his safety, the injuries caused  by the accused and the circumstances whether the  accused had time to have recourse to public authorities  are all relevant factors to be considered."

       The Appellant herein also has raised a plea of private defence.  He,  however, has not been able to show that the threat on the person of Sonaram  and Kisana Ram was such or even threat of dispossession was such, he had  to hit the deceased at such place and with such force that he would breathe  his last on the spot itself.  He, therefore, in our considered opinion, exceeded  his right of private defence.

       We, therefore, are of the considered view that the Appellant is guilty  of commission of an offence under Section 304, Part I of the Indian Penal  Code and not under Section 302 thereof.

       Keeping in view of the facts and circumstances of this case, we are of  the opinion that imposition of a sentence of 10 years Rigorous Imprisonment  under the aforementioned provision shall meet the ends of justice.  The  Appellant shall also pay a fine of Rs. 500/- in default whereof he will  undergo simple imprisonment of three months.  The Appeal is allowed in  part and to the extent mentioned hereinbefore.