Ram Swaroop and Others vs State of Rajasthan

Shiv Kumar Sharma, J.—The appellants (hereinafter described as ''accused'') who were convicted and sentenced as under by the learned Additional Sessions Judge, (Fast Tract), Gangapur City in Sessions Case Nos. 6/2001 and 45/2002 respectively vide judgments dated July 20, 2001 and May 31, 2003, have impugned the said findings in the instant appeals.

In Sessions Case No. 6/2001 decided on July 20. 2001 :

Accused Ramswaroop :

Under Section 302, IPC :

To suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Simple Imprisonment for Six Months.

Under Section 307, IPC :

To suffer Rigorous Imprisonment for Four Years and fine of Rs. 1000/-, in default to further suffer Simple Imprisonment for Three Months.

Under Section 148, IPC :

To suffer Rigorous Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer Simple Imprisonment for One Month.

Accused Om Prakash, Ramlal, Girraj, Kalla, Mulya alias Moolchand, Radhey alias Radheshyam, Jailal and Pyarelal :

Under Section 302/149, IPC :

To suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Simple Imprisonment for Six Months.

Under Section 307/149, IPC :

To suffer Rigorous Imprisonment for Four Years and fine of Rs. 1000/-, in default to further suffer Simple Imprisonment for Three Months.

Under Section 148, IPC :

To suffer Rigorous Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer Simple Imprisonment for One Month.

In Sessions Case No. 45/2002 decided on May 31, 2003 :

Accused Moti :

Under Section 302, IPC :

To suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Simple Imprisonment for Six Months.

Under Section 307/149, IPC :

To suffer Rigorous Imprisonment for Four Years and fine of Rs. 1000/-, in default to further suffer Simple Imprisonment for Three Months.

Under Section 148, IPC :

To suffer Rigorous Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer Simple Imprisonment for One Month.

Under Section 452, IPC :

To suffer Simple Imprisonment for One Month and fine of Rs. 500/-, in default to further suffer Simple Imprisonment for One Month.

Under Section 324/149, IPC :

To suffer Simple Imprisonment for One Year and fine of Rs. 1000/-, in default to further suffer Simple Imprisonment for Three Months.

Under Section 323/149. IPC :

To suffer Simple Imprisonment for Three Months and fine of Rs. 500/-, in default to further suffer Simple Imprisonment for One Month.

Substantive sentence were directed to run concurrently.

Since both these appeals arise out of the same incident, we proceed to decide them by a common judgment.

It is the prosecution story that a written report was submitted by informant Raghunandan with the Police Station Gangapur City implicating 28 persons including the accused. It was inter alia stated in the report that the assailants entered the house of informant, dragged his father Nanga out of the house and killed him. Other members of the complainant party also sustained injuries with axe, sword, dharta and iron rod. Case under Sections 147, 148, 149, 323, 302, 307, 452, 427 and 336, IPC was registered and investigation commenced. On completion of investigation charge-sheet was filed against 23 persons. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track), Gangapur City hearing Sessions Case No. 6/2001. Charges under Sections 148, 323/ 149, 452, 307, 302, 427, 302/149, 307/ 149, 324/149 and 336, IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation u/s 313, Cr. P.C., the accused claimed innocence. Two witnesses in defence were examined on be-half of the accused. Learned trial Judge on hearing the final submissions convicted and sentenced nine accused as indicated herein-above.

Since accused Moti was arrested afterwards, separate trial was conducted against him on the basis of supplementary charge-sheet. The learned Additional Sessions Judge (Fast Track), Gangapur City vide judgment dated May 31, 2003 convicted and sentenced the accused Moti as noticed earlier.

Considering at the outset the postmortem report (Ex, P-33) we find that deceased Nanga sustained following ante-mortem injuries :--

(1) Incised wound size 8 cm x 2 cm x MS cut, Anterior vessels fascia cut. Carotid vessels cut.

(2) Incised wound 7 cm x 1 cm x muscle deep lateral aspect left shoulder vertically.

(3) Incised wound 8 cm x 1 cm x muscle deep Lt. side bruise upper clavical bone.

(4) Incised wound 2 cm x 1/2 cm x bone deep left side face 3 cm below left eye.

(5) Incised wound 3 cm x 1/2 x bone deep left side face above left eye.

(6) Incised wound 2, 1/2 x 1/2 x muscle deep mid part upper part forehead.

(7) Incised wound 3, 1/2 x 1/2 x muscle deep fronto-parietal part skull,

(8) Incised wound 5 cm x 1/2 cm x muscle deep fronto temporal side of skull.

(9) Incised wound 4 cm x 1/2 x muscle deep parietal side of skull.

(10) Abrasion 1 cm x 1 cm x mid part skull.

(11) Incised wound 3 cm x 1/2 cm x bone deep Rt. side of chest 4em above nipple.

(12) Abrasion 3, 1/2 x 2 cm upper side of chest at nipple.

(13) Contusion swelling 8 cm x 6 cm left upper 1/3 upper arm.

(14) Abrasion 3 cm x 2, 1/2 cm lower 1/3 left arm,

(15) Abrasion 1 cm x 1 cm dorsal and left hand Index finger.

(16) Incised wound 1,1/2 x 1/2 x muscle deep left shoulder.

(17) Abrasion 3,1/2 x 1 cm x anterior to Rt. Shoulder.

(18) Incised wound 12 x 2 x muscle deep back of left shoulder.

(19) Incised wound 8 cm x 1/2 cm x skin deep Rt. Scapular region back.

(20) Abrasion 6 cm x 1 below 3 cm to inj. No. 19.

(21) Incised wound 6 cm x 2 cm x bone cut anterior side left leg.

(22) Incised wound 4 cm x �2 x muscle deep 2 cm interior to Inj. No. 21

(23) Abrasion 1,1/2 x 1 long left iliac crest.

Dr. Satya Narain Sharma (PW. 9), who performed autopsy on the dead body stated that the cause of death was haemorrhage and shock on account of cutting carotid vessels of neck. The injuries were sufficient in the ordinary course of nature to cause death. Dr. Satya Narain Sharma further stated that witnesses Raghunandan, Mukesh, Smt. Sanno and Smt. Guddo also sustained injuries vide injury reports Ex. D-14, Ex. D-16. Ex. D-17 and Ex. D-18. We have carefully gone through the statements of these witnesses and other material on record.

It appears from the record that accused Kalla and Radheyshyam instituted Civil Suit No. 198/92 in the Court of Assistant Collector, Gangapur City against the deceased-Nanga, Mukesh, Ramesh and Smt. Sanno and the interim injunction order was passed in favour of the accused restraining the deceased and complainant party from interfering in peaceful possession over the land in dispute by the accused. As per the defence version the deceased and complainant party had grudge against the accused and the deceased and complainant party therefore attacked the accused and inflicted injuries on the person of accused-Jailal, Moolchand and Jai Narain. Accused Jai Narain lodged cross FIR against the deceased, Ramesh, Ranghunandan and Smt. Sanno, copy of which was placed on record as Ex. D-9. In the incident accused Jailal sustained following injuries vide injury report (Ex. D-13A) :--

Lacerated wound 1,1/2 x 14 x bone deep on right parietal region scalp vertically.

Bruise 1/2 x 1/2 cm on parietal on left medlia."

Accused Moolchand vide injury report Ex. D-14A sustained following injuries :--

Incised wound 3/4" x 1/2" x skin deep on right parietal of scalp vertically placed 3" above right eyebrow.

Abrasion 1/2" x 1/4" x right parietal skull.

Incised wound 1" x 1/2" cm center x bone deep on back of left elbow.

Bruise 1/2 x 1/4" on back of right elbow.

Abrasion 1/2" x 1/4" on lateral aspect of left arm."

Accused Jai Narain vide injury report Ex. D-15A received following injuries :--

Incised wound 5" x 1/2" bone deep or dorsum aspect of left hand and joint downward between index finger and thumb.

Incised wound 4" x 1/2" bone deep on dorsal aspect of right thumb up to hand and metacorpal and joining clavical nail.

Incised wound 3" x 1/2" x bone deep upper part of right side of chest and shoulder vertical margin even clean cut.

Incised wound 1/4" x 1/8" x skin deep on left side of forehead just above eye brow.

Abrasion 1/8" x 1/8" on ring finger of Rt. Hand.

Abrasion 1/2 x 1/2" x brain of right side of chest."

The injury of Jai Narain on left hand was found grievous vide X-ray report Ex. D-12.

Having carefully scanned the statements of the prosecution witnesses, we find that the witnesses have not been able to explain the injuries sustained by three accused persons. Non-explanation of injuries on the person of the accused is a factor which is to be taken into account in judging the veracity of the prosecution witnesses. It may strengthen the plea of private defence set up by the accused. In Makwana Takhat Singh Ratan Singh Vs. State of Gujarat, their Lordships of Supreme Court indicated as under :--

"The fact that some incised injuries were found on one of the accused itself shows that one of the members of the prosecution party used the sharp edged weapon. There is also no material to show at what stage of the occurrence the appellant, A-1 came to attack the deceased. No doubt some of the prosecution witnesses are also injured but likewise some of the accused persons also received injuries. In this state of affairs, the view taken by the trial Court that the accused party acted in exercise of right of private defence is not unreasonable as to warrant interference in an appeal against acquittal. Having given our earnest consideration and particularly in view of the fact that the High Court also confirmed the acquittal of four out of five accused, we think it is not safe to convict the appellant alone. In the result the conviction and sentence passed against the appellant are set aside. If he is on bail his bail bonds shall stand cancelled. The appeal is allowed accordingly."

In a similar situation of Patori Devi and Another Vs. Amar Nath and Others, their Lordships of Supreme Court held that in view of the intrinsic evidence on record and the number of injuries suffered by the accused, we are of the view that there was a soft pedaling in the investigation, if not suppression of a part of the incident. If the prosecution had revealed the entire story, we would have been able to find the nugget of truth.

It is well settled that what would be an offence by reason of constructive liability would cease to be so if the act constituting the offence was done in exercise of the right of private defence. In Kashi Ram and Others Vs. State of M.P., their Lordships of Supreme Court held that so long as an assembly of persons is acting in exercise of right of private defence it cannot be an unlawful assembly. In Indian Statistical Institute Vs. Associated Builders and Others, their Lordships of Supreme Court observed that in a mutual fight there is no common object and none of the accused can be convicted by having recourse of Section 149, IPC.

In Dev Raj and another Vs. State of Himachal Pradesh, their Lordships of the Supreme Court indicated that the accused persons sustained injuries during the same occurrence, in which complainant "party was injured. When they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible the accused should be given the benefit of doubt.

In Mohd. Ramzani Vs. State of Delhi, the Hon''ble Supreme Court pointed out that the onus which rests on an accused person u/s 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in "golden scales" the precise force needed to repeal 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 precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.

In Mohinder Pal Jolly Vs. State of Punjab, the Hon''ble Supreme Court indicated as under:--

"The onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in Section 99 of the Penal Code."

In Chuhar Singh Vs. State of Punjab, wherein the quarrel was between the accused and deceased, the accused received injuries during the course of occurrence causing death of deceased by gun shot, the accused could be said to have exceeded his right of private defence and convicted u/s 304, Part I, IPC. Their Lordships of Supreme Court observed as under (Para 6) :--

"Now the question that arises for our consideration is whether the appellant would be entitled for a complete acquittal on the plea of right of private defence of his person. We have no hesitation in coming to the conclusion that the appellant had exceeded his right of private defence of his body when causing the death of the deceased by using the dangerous weapon, namely the gun and hence he is not entitled for complete acquittal but would be liable to be convicted u/s 304, Part-I, IPC."

In Dev Raj and another Vs. State of Himachal Pradesh, their Lordships of the Supreme Court observed in para 9 as under :--

"As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible, the accused should be given the benefit of doubt. Having regard to the nature of the injuries on the two accused persons, we find it difficult to hold that their pleas altogether are unfounded. Then the next question would be whether they had exceeded the right of self-defence. Admittedly, the occurrence is said to have taken place in a sudden manner. Even according to the prosecution, they did not come there armed. A quarrel ensued there and they picked up iron pipes and wooden phattis that were lying there and a clash took place. In such a situation, their plea of right of private defence has to be accepted, but having regard to the injuries inflicted by them on the two deceased persons as well as on PW-23, they have definitely exceeded the right of private defence and the accused are entitled to the benefit of Exception 2 of Section 300 and the offence punishable is one u/s 304, Part II, IPC."

In the case on hand as already noticed three accused persons also received incised wounds and grievous injury in the course of the incident and when they have taken the plea that they acted in self-defence that could not be ignored lightly particularly in the absence of any explanation of their injuries by the prosecution. Having regard to the nature of the injuries on the accused persons we find some merit in their plea. But on a close scrutiny of entire material on record looking to the fact that specific allegations were levelled in the FIR against accused-Ram Swaroop, Girraj, Radhey Shyam and Mool Chand, we have no hesitation in coming to the conclusion that the accused Ramswaroop, Girraj, Radhey alias Radheyshyam and Mulya alias Mool Chand had exceeded their right of private defence and they come under Exception 2 of Section 300, IPC. In regard to other accused persons we only find vague allegations against them.

It is well settled that if any of the accused caused death in exercise of the right of private defence it is his individual act and he alone would be liable for the consequences thereof. In our opinion the prosecution has failed to prove the guilt beyond reasonable doubt against the accused Om Prakash alias Umri, Ramlal, Kalla, Jai Lal, Pyare Lal and Moti. The finding of conviction and sentence of accused Om Prakash alias Umri, Ramlal, Kalla, Jallal, Pyare Lal and Moti under Sections 302/149, 307/149 and 148, IPC is not sustainable. Guilt of accused Ramswaroop, Girraj, Radhey alias Radheshyam, and Mulya alias Moolchand under Sections 302 and 302/149, IPC is also not established. Instead in the fact-situation of the case, we find accused Ram Swaroop guilty u/s 304, Part II, IPC and Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand u/s 304, Part II read with 34 IPC. However, the conviction and sentence of accused Ramswaroop under Sections 307 and 148, IPC and Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand u/s 148, IPC are maintained. The accused Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand are found guilty u/s 307/34, IPC.

As a result of the above discussion we dispose of the instant appeals in the following terms :--

(i) The appeal of appellants Om Prakash alias Umri, Ramlal, Kalla, Jallal, Pyare Lal and Moti stands allowed and they are acquitted of the charges under Sections 302/ 149, 307/149 and 148, IPC. Appellants Om Prakash alias Umri, Ramlal, Kalla and Pyare Lal are on bail, they need not surrender and their bail bonds shall stand discharged. Appellants Jailal and Moti who are in jail shall be set at liberty forthwith, if not required to be detained in any other case.

(ii) The appeal of appellants-Ram Swaroop, Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand is partly allowed and they stand acquitted of the charges under Sections 302 and 302/149, IPC. Instead we convict appellant Ram-swaroop u/s 304, Part II, IPC and the appellants Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand u/s 304, Part II read with 34, IPC and looking to the fact that they are continuously in confinement since July, 1998 we sentence them in the interest of justice to the period already undergone by them in confinement. The conviction and sentence of appellant-Ramswaroop for the offences under Sections 307 and 148, IPC and of appellants-Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand u/s 148, IPC are maintained. We, however, convict the appellants Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand u/s 307/34, IPC and sentenced them to suffer Rigorous Imprisonment for four years and fine of Rs. 1000/-in default to further suffer Simple Imprisonment for three months. The substantive sentences shall run concurrently. Since the appellants-Ramswaroop, Girraj, Radhey alias Radheshyam, and Mulya alias Mool Chand have already served the sentences awarded to them, they shall be set at liberty forthwith, if not required to be detained in any other case.