Bhagwanlal and Others vs State of Rajasthan

M.B. Sharma, J.—This judgment will deal with above numbered four criminal appeals as they arise out of same judgment dated January 5, 1982 of the learned Addl. Sessions Judge, Gangapur City, delivered in the Sessions case No. 12/1981.

The learned Addl. Sessions Judge under his aforesaid judgment convicted the accused appellant Bhagwan Lal Under Sections 147, 447, 323, 323/149 and 302 IPC. The said accused for the aforesaid offences have been sentenced for six months'' simple imprisonment and imprisonment for life and to pay a fine of Rs. 3000/-, or in default of payment of fine, to six months'' further rigorous imprisonment, respectively. Vimla Devi accused-appellant was convicted Under Sections 147, 447, 323, 323/149 IPC and accused-appellant Narain Lal, Bhagwati Lal, Inder Kumar and Pradeep Kumar were convicted Under Sections 147, 447, 323 IPC. Accused-appellant Vimla, Inder Kumar, Narain were sentenced Under Sections 147, 447, 323, 323/149, IPC to 6 months'' simple imprisonment, one month simple imprisonment, one month''s simple imprisonment respectively. So far as Pradeep Kumar is concerned instead of being sentenced, he was given the benefit of the provision of Section 4 of Probation of Offenders Act, he was below 18 years of age and the offences for which he was convicted could have been dealt with under the provisions of the Probation of Offenders Act. He was ordered to be released on probation for two years on his furnishing personal bond in the sum of Rs. 2000/- and one surety in the like amount to the satisfaction of the trial court. Learned Addl. Sessions Judge also ordered that in case the amount of fine is recovered, then a sum of Rs. 2000/- shall be paid to the legal representatives of the deceased.

Appeal No. 20 of 1982 has been filed by Bhagwanlal, and three others, namely Inder Kumar, Pradeep Kumar and Smt. Vimla Devi against the aforesaid judgment. Appeal No. 22/1982 has been filed by Narain Lal, Appeal No. 39/1982 has been filed by Bhagwati Prasad Dubey and Appeal No. 144/1983 has been filed by the State of Rajasthan against the acquittal of the accused, other than Bhagwanlal, so far as their acquittal of the offences u/s 302/149 IPC is concerned and also against the benefit extended to Pradeep Kumar u/s 4 of the Probation of Offenders Act.

The facts of the case as appear from a persual of the record are these. The dispute relates to some land situated at Udai Road Gangapur. The said land is said to have been purchased by Gangapur Karmchar Grah Nirman Sahkari Samiti. Adjoining the land which was purchased by the Karmchari Sahkari Samiti is undisputedly the land belonging to Bhagwan Lal of the accused-appellants. Karmchari Grah Nirman Sahkari Samiti had demarcated certain plots and one of those plots is said to have been purchased by Ram Gopal PW 13. It is the case of the prosecution that on December 11,1980 the said Karmchari Grah Nirman Sahkari Samiti had deputed Ramkhiladi PW 5 as a Chowkidar to keep a watch over its land and Moti, deceased, real brother of Ramgopal to whom the aforesaid plot was allotted was also there, and guarding the plot alloted to Ram Gopal. It is alleged that at about 4.30 P.M. the accused-appellants came armed with lathis and started making an attempt to fix ''pator'' on the land which had been allotted to Ramgopal Ramkhiladi and Moti deceased asked them not to do so and it is alleged that they attacked Moti. Narain Lal who is said to be the relative of Bhagwanlal and also a constable in the police and was at the relevant time posted at the Gangapur Police Station gave a lathi blow on the head of Ramkhiladi and Inder Kumar and Pradeep also caused injuries to him. So far as Moti deceased is concerned, it is alleged that it was Bhagwati accused who gave lathi blow on his shoulder and Bhagwanlal gave a blow on his head. The occurrence was witnessed by Gyansingh, Chiman Singh, Kamal Singh and Mansingh etc. A report in writing was lodged by Ramkhiladi PW 5 at the Police Station Gangapur City on the basis of which a case was registered and investigation was set in motion. The said report was handed over in the hospital to the Investigating Officer.

It appears that Moti died of his injuries in the hospital and post-mortem was conduct on his dead body Ramkhiladi received the following injuries:

Lacerated wound bleeding present suspected fracture, 2-1/2" x 1/4" x 1/2" on the left parietal region.

Lacerated wound, bleeding present, 3/4" x 118" x 2/8" on the occipital region.

Lacerated wound, bleeding present, 1-1/4", x 1/8" x 1/4/" on the right parietal region.

Lacerated wound, bleeding present, 1-1/2" x 1/4" x 1/4" both parietal horizontal and central.

Abrasions 1/2" x 1/4" on the vertibral column lung region.

Abrasion 1/4" x 1/4" on the right wrist.

Bruise reddish 4" x 1" on the back right scapula region.

Bruise reddish 2" x 1" on the back right scalar region inferior angle of scapula.

Bruise reddish 3" x 1" on the right upper arm and shoulder joint.

Bruise reddish 2" x 1" on the left shoulder.

Bruise reddish 2" x 1" on the left fore-arm middle portion.

In the opinion of the doctor, injury No. 1 was caused by blunt object and with regard to the nature of injury opinion was reserved until after X-ray examination. But it does not appear that there was any X-ray examination and therefore the injury will be taken as simple.

On examining Moti, the doctor found two injuries on his person:

Lacerated wound, bleeding present, suspected fracture 2-1/2" x 1/4" on the left parietal region.

Bruise reddish 3" x 1" on the right shoulder joint. Both the above injuries were inflicted by blunt object and injury No. 2 was simple in nature whereas opinion with regard to injury No. 1 was resreved till X-ray report.

Condition of Moti at the time of examination was not serious. He had one vomitting only and that too without blood. At 11.30 p.m. condition of Moti suddenly became detoriated and the police was informed vide Ex. P/10 at 11.55 p.m. He referred Moti to S.M.S. Hospital, Jaipur vide Ex. P. 13, but Moti died on the way and on December 12, 1990, the doctor conducted post-mortem on his dead body. The doctor found clot in the size of 4" x 3" on the left parieto temporal region of the brain. There was extra-haemorrhage present and brain was found compressed on the left side. The doctor found linear fracture of the parietal bone of the left side. The cause of death in the opinion of the doctor was shock and severe haemorrhage extra-dural leading into the compression of the brain due to head injury inflicted by blunt object. The doctor also examined Vimla Devi and found the following injuries on her person

Lacerated wound, bleeding present, 3" x 1/4" x 1/4" on the left parietal region.

Bruise reddish with abrasion 3" x 2", 1/2", x 1/4" on the dorsal aspect of left palm, 2nd, 3rd, and 4th meta capralbones.

Contusion 2" x 1" on the left temporal region.

All the injuries found on the person of Vimla Devi were simple in nature and were caused by blunt object. On examining Bhagwan Lal, the doctor found the following injuries on his person:

Lacerated wound, bleeding present, 2" x 1/4" x 1/4" on the left parietal region.

Bruise reddish 3/4" x 1/2" on the left index finger tip portion.

Bruise reddish 3/4" x 1/2" on the left thumb.

Bruise reddish 1 1/2" x 1/2" on the left middle finger first and 2nd phlanx.

All these injuries were simple in nature and were caused by blunt object.

On the same day the doctor also examined Inder Kumar and found the following injuries on his person:

Incised wound, bleeding present, 1" x 1/4" x 1/4" on the left parietal region obliquely.

Bruise blue eye 2" x 1" on the left upper and lower eye lid.

Bruise reddish 2" x 1" on the left upper arm elbow.

According to the doctor injuries of Ex. P/3 and Ex. P/9, as well as Ex. D/8 to Ex. D/10 could have been caused at the same time.

The prosecution examined as many as 17 witnesses and thereafter each of the accused was examined u/s 313 Cr. P.C. to explain the circumstances appearing against them in the statements of the prosecution witnesses. Except accused persons Bhagwanlal, Inder Kumar and Vimla Devi, who received injuries, all other accused persons pleaded that they were not present at the spot and have been falsely implicated in the case. So far as accused Narainlal is concerned, in his statement u/s 313 Cr. P.C., besides pleading that he was not present, he also came out with a statement. That it was in the market that he heard that an accident took place with his relative (Bhagwanlal) and he went to enquire about his welfare. He took Bhagwanlal, Inder Kumar and Vimla Devi to the hospital and Ramkhiladi and Brahm Dutt had seen him there. He was posted at Gangapur Police Station and Ramkhiladi etc. thought that he could help Bhagwanlal and therefore he has been falsely implicated in this case. So far as Inder Kumar is concerned, as per prosecution case, it was he who caused injuries to Moti and Ramkhiladi. The accused persons examined Yogvir Singh DW 1 in their defence and they also filed some documents in order to show that in fact Bhagwanlal was in possession of the land in dispute and complainant party was the aggressor. It may be stated that a complaint was filed on behalf of the accused party against Ramkhiladi and others on which cognizance was taken against Ramkhiladi for offence Under Sections 323 and 324 IPC. A certified copy of the order dated July 22, 1981, taking cognizance against Ramkhiladi has been placed on the record.

In assailing the judgment of the learned trial court, learned Counsel for the accused-appellants has contended that there was sufficient material on record to show that Bhagwanlal was in possession of the land and it was the complainant party which was aggressor. It was also contended that on December 4, 1980 injunction application was also filed by none-else but by the society who is said to have allotted the plot to Ram Gopal PW 13 which had been dismissed, to which Bhagwanlal was a party. Therefore, if there was any cause for taking law in hand it was with the complainant party and not with accused party, who had won from the civil court: The accused persons also received injuries which were not explained by the prosecution and the possibility cannot be excluded that they were received at the hands of the complainant party and therefore, the prosecution has not come out with true story. Learned Counsel for Narain Lal accused also contended that Narain lal was a Constable in the Police and he was posted at the Police Station Gangapur City where a case was ultimately to be registered and the complainant party believed that Narainlal being a Constable in the Police may held Bhagwanlal and other and therefore his name has been falsely written in the FIR. According to the learned Counsel, there is-sufficient material on record from which it can be said that Narainlal was not and could not be present at the time and place of the occurrence and he has been falsely implicated in the case. It was contended that FIR was lodged after deliberations and it was by none-else but an advocate and if therefore, the entire case is looked in this background it will show that the name of Narainlal was falsely implicated.

The first question which arises for determination is as to the truth of the prosecution case, whether the occurrence took place in the manner as alleged by the prosecution or in some other manner. In other words the genesis of the incident is to be taken first. The case of the prosecution is that Gangapur Karmchari Sahkari Samiti had allotted a plot of land for shop to Ramgopal PW 13 and it was on that plot that Bhagwan Lal who had his land adjacent of that plot wanted to encroach by placing pator on the date of occurrence and put the stone-slabs. It appears from the record that an application under Order 39 Rules 1 and 2 in the suit filed by Gangapur Karmchari Sahkari Samiti against Bhagwanlal, Inder Kumar and others that land of various khasra numbers including the part of khasra No. 2602 was purchased in the month of May, 1979 by the Society. It appears that adjoining plot of Khasra No. 2603 is in the khatedari of Bhagwanlal. It will further appear that in that suit the injunction application filed by the Samiti against Bhagwanlal was dismissed. In this connection, a reference may be made to order dated December 4, 1980 which is a certified copy of the order of the learned Munsif in civil Misc. case No. 100/1980 Gangapur Karmchari Sahkari Samiti v. Bhagwan Sahai and Ors. Learned Munsif did not find prima faice case in favour of the Society and the application for injuction filed by the Society was dismissed. A perusal of the aforesaid order will show that learned trial court held that because the suit is in respect of khatedari rights in the land, therefore, it is exclusively triable by revenue court and the civil court has no jurisdiction. Plot of land for shop is said to have been allotted to Ramgopal on December 7, 1980 and the occurrence is said to have taken place on December 11, 1980. A reference in this connection may be made to the site-plan Ex. P/25 which was prepared by the Investigating Officer immediately after the occurrence when the case had been registered in the Police Station. A look at Ex. P/25 will show that the occurrence is said to have taken place at the place marked ''A'' and it is mentioned there in that place is said to be belonging to the accused persons. The Investigating Officer has been examined as PW 15 and in his cross-examination, last line, he admitted that at the site he did not find any signs of attempting to fix pator. It can therefore be said that the story with which the prosecution has come does not appear to be correct. In the earlier part of this judgment, it has already been said that the injuries received by some of the accused person have not been explained by the prosecution. It has already been said that injunction application filed by the Society for temporary injunction had been dismissed by the learned trial court. Palta was granted to Ramgopal on December 7, 1980 and the occurrence is said to have taken place on December 11, 1980. It can therefore, be said that it was the complainant party either allottee Ramgopal or Moti, who is said to be keeping watch and Ramkhiladi Chowkidar, were the aggressors and the case of the prosecution that the accused persons wanted to encroach upon the portion of plot No. 2602 a portion of which had been allotted to Ramgopal, then occurrence took place, does not appear to be correct. Learned Sessions Judge while examining the question of right of private defence of property and person which was raised before him appears to have been impressed by the number of injuries received by the members of the complainant party. Three accused persons, namely, Vimla Devi, Inder Kumar and Bhagwanlal, received injuries, which have not been explained by the prosecution. In such a case where both sides received injuries, the number of injuries cannot furnish criteria to come to the conclusion as to who was the aggressor, and it has already been said that the prosecution has not cared to explain the injuries received by the accused-persons. We are therefore of the opinion that the occurrence did not take place in the manner as alleged by the prosecution. In case of Rishi Kesh Singh and Others Vs. The State, a Full Bench of 9 Judges approved the view taken in the case of Prabhoo v. Emperor AIR 1941 All. 402, and said that the accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused. Therefore, as and when the accused either raised plea of right of private defence or even if he does not raise, it appears to the court such a right may be available to the accused it is the duty of the court to see as to whether the same can be extended to the accused or not. This has been the view of the Apex Court and it can be said to be settled law that burden no doubt to prove that the case falls under the exception is on the accused, but the burden is not so heavy as the burden of the prosecution to prove its case beyond reasonable doubt. The accused has to prove that the case falls under any of the exceptions by prepondence of evidence. In the instant case three accused namely Vimla Devi, Bhagwanlal and Inder Kumar received injuries, who are none-else but the owners of the plot Khasra No. 2603 adjoining to the plot of Khasra No. 2602, a part of which is said to have been allotted to Ramgopal. Thus, it appears that the occurrence did not take place as alleged by the prosecution, and as such it can be said that the prosecution has not come out with a true version of the Case & the case of the prosecution is rendered doubtful. It may be stated that there is material on record that the house of Bhagwanlal is nearby the place of occurrence, rather it can be said that the occurrence took place in a place which is in possession of the accused persons. Thus, to us, it can be said that the accused persons are entitled to an order of acquittal on a consideration of evidence, including the evidence in support of plea of general exceptions, and a reasonable doubt is created in the mind of the court about the prosecution case.

Though, we have said above that the right of private defnce arises to other accused persons, but so far as Narainlal is concerned we shall presently show that his name appears to have been included in the FIR because he is a Constable in the Police and was posted at the Police Station Gangapur City, which had the jurisdiction in the case. The occurrence took place at about 4.30 P.M. on December 11, 1980 and a perusal of FIR will show that the distance of Police Station is not far from the place of occurrence. It has come in the evidence that the FIR was lodged at 1.40 P.M. i.e. almost after 7 hours of the occurrence and that too not by Ramkhiladi by going to the Police Station but after consulting an advocate PW 1 Brahm Singh, who was present in the hospital and who has clearly said that Moti was unconscious. He was told about the incident by Ramkhiladi. From his statement it is clear that the report was written after consulting him who was an advocate.

Let us first take the statement of Ramkhiladi who has stated that all the accused persons had come empty handed and made an attempt to fix pator on a portion of the plot Of Ramgopal. When they were asked not to do, it was Narain who abused, then all the accused persons went to the house and returned with lathis. Narain caught hold of Moti. It was a fact which was not stated in the FIR. Even the learned Sessions Judge did not acquitted of the charge u/s 302/149 IPC. He states that when he went to rescue Moti, Narainlal gave a lathi blow on his head and he admits that he did not see Narainlal taking any action on the plot. He also stated that it was at the behest of Narainlal that injuries were caused to Moti, but such a statement was not made to the Police and when he was confronted, he could not explain the omission. PW 6 Chiman Singh states that all the accused persons were empty handed and earlier there was exchange of abuses. He also states that Narain caught hold of Moti from his waist and Bhagwanlal gave lathi blow on his head. He admits that Ramkhiladi is his friend. He knew Narainlal from 15 to 20 days before the day of incident because he had seen the accused Narainlal at the house of Bhagwanlal and people were calling his name at the time of incident. No reliance can be placed on his statement so far as Narain Lal is concerned. Learned trial court has said that his statement is shaking, but still reliance was placed by him on his statement. Coming to the statement of Mansingh, PW 7 he slates that Narainlal gave a lathi blow on the head of Ramkhiladi and 4 or 5 persons were also giving lathi blow to Ramkhiladi. He states that when Narainlal caught hold of Moti he was unarmed and was not carrying any weapon. When he made a false statement in respect of Narainlal in so far as he attributed to his holding Moti by his waist, what is guarantee that he will speak the truth in respect of others. We have already said that there is delay of 7 hours in lodging the FIR which was lodged after consulting an advocate. So far as Narainlal is concerned, we arc of the opinion that the learned trial court committed error in holding that the prosecution has proved its against him. We have already said that it is a clear case where the right of private defence is fully established.

Consequently, we hereby allow the Appeals Nos. 20/82 Bhagwan Lal and Ors. v. State, 22/82, Narainlal V State, No. 39/1982, Bhagwati Prasad v. State and quash and set aside the judgment of the learned trial court dated January 5, 1982 and acquit all the accused persons of all the charges levelled against them. They are on bail. They need not surrender to their bail bonds. The Appeal No. 144/1983, State of Raj. v. Narainlal and Ors. is dismissed.