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Judgment
This appeal has been filed by the appellants, being aggrieved by the judgment dated 22.10.2007, passed by Sessions Judge, Damoh in S.T. No.
147/2002, whereby all appellants have been found guilty for the offence punishable under Sections 302/149, 148 and 324/149 of the Indian Penal Code
and have been sentenced to imprisonment for life and fine of Rs.2,000/-, under Section 302/149 of the I.P.C. with a stipulation for four months
rigorous imprisonment in case of default, rigorous imprisonment of 3 years and fine of Rs.1,000/- under Section 148 of the I.P.C. with a stipulation for
2 months rigorous imprisonment in case of default, rigorous imprisonment for 3 years and fine of Rs.1,000/- under Section 324/149 of the I.P.C. with a
stipulation for 2 months rigorous imprisonment in case of default. Appellant Nos. 3 to 5 have been further found guilty for the offence punishable
under Sections 25 and 27 of the Arms Act and have been sentenced to rigorous imprisonment for 1 year and fine of Rs.1,000/- under Section 25 of
the Arms Act with a stipulation for 2 months rigorous imprisonment in case of default and rigorous imprisonment for 3 years and fine of Rs.1,000/-
under Section 27 of the Arms Act with a stipulation for 2 months rigorous imprisonment in case of default.
The prosecution story, in brief, is that, on 03.03.2002 at 5.00 P.M., the accused persons armed with deadly weapons formed an unlawful assembly
with common object to commit the murder of deceased Kamal and to cause grievous hurt to Sudama on account of previous enmity due to the land
dispute. In pursuance of their common object, they assaulted Kamal with axe, katarna, farsa, ballam and lathi, which resulted in his death.
As per prosecution, Gulabrani had no sons, so she gave her 9 acres of land to one of her daughters Kashibai, wife of appellant No.1, Ujyar Singh.Â
Due to this, her other two daughters, Imrati and Rati Bai, raised a dispute and asked for their share. It is alleged that deceased Kamal, who was
the nephew of late husband of Gulab bai supported the case of Imrati and Ratibai and on account of the fact, enmity ensued between appellant No.1
Ujyar Singh and Kamal.
It is alleged on 03.03.2002, at 5.00 P.M., when Kamal Singh was going towards the field of Kanhai Choudhary, Ujyar Singh, armed with axe, Karan
Singh, armed with katarna, Veeran Singh, armed with farsa, Sunder Singh, armed with ballam, Nandu, Budde and Chain Singh, armed with lathies,
stopped and attacked the deceased due to the previous land dispute. It is alleged that Ujyar Singh struck a blow with axe on the head of Kamal
Singh. Karan Singh also hit with katarna on the head of the deceased, whereas, Veeran and Sunder struck him with farasa and ballam respectively
in his chest. Nandu struck a blow with Khabda in the naval region. It is further alleged that hearing the shouts of deceased Kamal Singh,Â
Sudama, who rushed to intervene and save Kamal Singh, was stalled by Gulabrani, Kashibai and Halki Bahu and assaulted by Ujyar Singh on his back
side. Thereafter, Ujyar Singh dealt a blow with axe on the neck of deceased, which resulted in partial severance of his neck, as a result, Kamal
Singh fell down and died. Thereafter, Ujyar Singh struck a blow on his left arm, as a result, his left arm got severed. Even after the deceased
died, the assailants kept striking on the legs and back with axe, farsa and lathi.  As per prosecution, the incident was witnessed by Raghuveer
Singh, Ghansa Singh, Sone Singh, Ajmer and Rajendra, who came to the spot hearing the shouts for help.
Report of the incident was lodged at police station Batiyagarh by Sudama (P.W.-4), on the basis of this report (Ex.P-20), criminal law was set into
motion. Sport map was prepared and photographs of the deceased were taken. Rubber slipper, small plastic bag of gram, one 12 bore live
catridge, napkin, old broken watch were seized from the spot. The body of the deceased was sent for postmortem. Injured Sudama was also
examined by Dr. K.L. Adarsh (P.W.19).
During the course of investigation, theaccused persons were arrested and pursuant to the disclosure made by them, offending weapons were
recovered and sent for forensic examination. Ujyar Singh, Sundar Singh and Veeran Singh were also medically examined.
Dr. K.L. Adarsh (P.W.-19), who conducted the postmortem, found the following injuries on the body of the deceased:-
(1) Incised wound 15 cm x 2 cm x upto cervicalvertebra over front of neck extended both sides, muscles, esophagus, trachea, blood vessels, cervical
vertebra cut, horizontal in direction. Clot blood present, margin clear cut.
(2) Incised wound 9 cm x 2 cm x 6 cm over leftside of neck oblique in direction. Margin clear cut and regular. Left carotid artery, jugular vein,
left sterno mastoid muscle cut. Clot blood present.
(3) Incised wound over lower one third of left forearm with amputation from lower one third at left forearm with clot blood present, margin clear cut
and regular, amputated portion is brought with body.
(4) Incised wound 6 cm x 2 cm x muscle deep.Lower stricture with lower portion of right humerus bone cut, clot blood present.
(5) Incised wound 6 cm x 2 cm x muscle deep over lower one third of right vertical, 7th rib is cut clot blood present.
(6) Incised wound 4 cm x 1 cm over anterior aspect of upper one third of left leg, clot blood present, simple.
(7) Incised wound 4 cm x 1 cm x muscle deep over lower one third of left chest, clot blood present.
(8) Incised wound 3 cm x 1 cm x 1/6 cm on lower one third of left chest, 3 cm below injury No.7 clot blood present.
(9) Incised wound 10 cm x 2 cm x muscle deep on upper half of left scapula. Scapula cut, clot blood present.
(10) Incised wound 13 cm x 2 cm x muscle deep on anterior aspect of left knee, bone cut.
Clot blood not present.
(11) Incised wound 13 cm x 1/2 cm x muscle deep over left knee, bone cut, below injury No.10. Clot blood not present.
(12) Incised wound 9 cm x 1 cm x 1/4 cm over anterior aspect of upper portion of left leg. Anterior aspect. Blood clot not present. (13) Â
Incised wound 12 cm x 2 cm x muscle deep over anterior aspect of right knee, bone cut. Horizontal. Blood clot not present.
(14) Incised wound 9 cm x 1 cm over lower portion of right knee anterior aspect, horizontal, no blood clot.
(15) Incised wound 8 cm x 1 cm x muscle deep over lower portion of right knee, horizontal on anterior aspect, no blood clot.
(16) Incised wound 8 cm x 1/2 cm over anterior aspect of upper portion of right leg.
Bone cut, no blood clot.
(17) Incised wound 9 cm x 1/2 cm over upper portion of right leg, bone cut, no blood clot.
(18) Incised wound 8 cm x 1/2 cm over anterior aspect of upper one third of right leg.
Horizontal., no blood clot.
Injury No. 1 to 9, ante-mortem in nature. Injury No. 10 to 18 postmortem in nature. Injury No.1 is sufficient to cause death. All injuries are caused
by sharp weapon.
From the postmortem examination, the doctor was of the opinion that the death in this case is due to shock caused by haemorrhage. Time passed
since death within 18-24 hours.
On the same day, injured Sudama (P.W.-4) was also examined by Dr. K.L. Adarsh (P.W.-19), who found the following injuries:-
“Incised wound 7 cm x 1/2 cm x muscle deep on right scapular near axilla, margin clearly cut and regular. Clot blood present.â€
In the opinion of the doctor, the injury was caused by sharp edged weapon with 12 hours of the examination.
Accused Ujyar Singh was medically examined by Dr. K.L. Adarsh (P.W.-19) on 06.03.2002, found the following injuries:-
Abrasion 7 cm x 1/2 cm on left side backupper part of scapula, partially healed.
Contusion 15 cm x 9 cm left arm bluish blackin colour.
Contusion 3 cm x 2 1/2 cm upper one thirdof right arm bluish black.
Contusion 18 cm x 6 cm on lower portion ofright abdominal region lateral to Iliac region bluish black in colour caused by hard and blunt object.Â
Simple in nature. Duration about three days.
Accused Veeran Singh was medically examined by Dr. L.R. Khisaniya (D.W.-3) on 13.03.2002, found the following injuries:-
Contusion 3 cm x 1/2 cm over right occipitalregion oblique in direction. The colour is fade and tint.
Partially healed injury 2 cm x 1/4 cm overright frontal region oblique in direction.
Partially healed injury 3 cm x 1/2 cm overleft occipital region oblique in direction.
All injuries caused by hard and blunt object. All are simple in nature.  Duration within 12 to 15 days.
Accused Sundar Singh was medically examined by Dr. L.R. Khisaniya (D.W.-3) on 13.03.2002, found the following injuries:-
Contusion 5 cm x 1/2 cm over lateral aspectof middle of left forearm, oblique in direction.
The colour is fade and tint.
Partially healed injury 5 cm x 1/4 cm overcentral and frontal region, oblique in position. Both injuries caused by hard and blunt object. Both are
simple in nature. Duration with 12 to 15 days.
After completion of investigation, charge sheet was submitted against 9 accused persons. To prove his case, prosecution has produced 20
witnesses. The accused persons were examined under Section 313 Cr.P.C. They abjured their guilt and pleaded false implication. Their stand
was that they had acted in private defence. According to the accused persons, when they were carrying their gram crops in the bullock cart, Kamal
Singh, Sudama, Ajmer, Ghansu Singh and Raghuveer Singh had attacked them on account of the previous land dispute and tried to take away their
crop, as a result of which quarrel ensued. Kamal Singh fired from katta, which missed Ujyar Singh, and to save themselves, they have assaulted
Kamal Singh and Sudama in private defence.
The trial Court after detailed scrutiny of the evidence of the injured eye witness and documents brought on record, recorded a finding of guilt
against Ujyar Singh, Chain Singh, Sunder Singh, Veeran Singh and Karan Singh and convicted and sentenced them as aforesaid, rejecting their plea of
self defence, whereas Bhukki Singh, Kashibai, Gulabbai and Halki Bahu were acquitted, due to lack of evidence.
We have heard the learned counsel for the parties at length and perused the record.
The strained relationship between the deceased and accused persons is admitted. Ujyar Singh, Veeran Singh and Sunder Singh have also
admitted their presence at the place of occurrence and assaulting the deceased.
P.W.-4 Sudama Singh, who is also an injured witness and whose presence at the place of occurrence cannot be denied, has categorically stated
that on the fateful day, he was working in his field and hearing the sound of fight, he reached to the field of Kanhai Choudhary, where he saw Ujyar
struck a blow of axe on the head of deceased Kamal Singh. Thereafter Veeran Singh struck a blow with katarna on his neck. Nandu assaulted him
with Khabda in stomach. Ujyar also struck with axe on the hand of the deceased which resulted in severing of his left hand. He has further
stated that the accused persons repeatedly struck with the deadly weapons and kept on assaulting the deceased till he died. His statement find
corroboration from the evidence of P.W.-7 Ghansu, P.W.-10 Ajmer Singh, P.W.-11 Sone Singh , P.W.-12 Rajendra and P.W.-17 Raghuveer Singh,
who have all clearly stated that they saw the accused persons assaulting the deceased. The evidence on record establishes that FIR (Ex. P-20) was
lodged promptly at 10.50 P.M. on 03.03.2002 by Sudama Singh (P.W.-4).
The appellants have come with a case of having acted in private defence. According to the appellants, they were returning from their field,
carrying the crops of gram in their bullock cart, when Kamal, Sudama, Ajmer, Ghansu and Raghuveer came suddenly and attacked them on account
of the previous land dispute between the parties. It is urged that the deceased alongwith with the above named persons tried to take away the
crops, as a result of which a quarrel ensued between them. It is stated that Kamal took out a katta and fired a shot, which missed Ujyar Singh. In
order to save themselves, they have assaulted Kamal Singh and Sudama. It is their further contention that Ujyar Singh, Veeran Singh and Sundar
Singh have also received injuries in the same incident. It is also contented that a day prior to the incident, there was an altercation between the
deceased and Ujyar Singh and a report (Ex.D-7) to that effect had been lodged by him in Police Station, Batiyagarh.
The right of private defence is contemplated by Section 97 of the I.P.C., which reads as follows:-
“Section 97. Right of private defence of the body and of property.â€" Every person has a right, subject to the restrictions contained in section 99, to
defendâ€" First â€" His own body, and the body of any other person, against any offence affecting the human body;
Secondly â€"The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.â€
In (2012) 1 SCC 414 Ranjitham Vs. Basavaraj and others, the Supreme Court has held :-Â
In V. Subramani V. State of T.N. (2005) 10 SCC 358 this Court examined the nature of this right. This Court held that whether a person
legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case. In a
given case it is open to the court to consider such a plea even if the accused has not taken it, but the surrounding circumstances establish that it was
available to him. The burden is on the accused to establish his plea.
The burden is discharged by showing preponderance of probabilities in favour of that plea. The injuries received by the accused, the imminence of
threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors
to be considered.
In (2016) 14 SCC 536, Extra-judicial Execution victim families Association and another Vs. Union of India and another the question before the
Supreme Court was whether to quell this internal disturbance, has there been use of excessive force by Manipur Police and the Armed Forces in the
1528 cases complied by the petitioners through fake encounters or extra-judicial executions during the period of internal disturbance in Manipur as
alleged by the petitioners. Secondly, has the use of force by the Armed Forces been retaliatory to the point of causing death and was the retaliatory
force permissible in law on the ground that the victims were “enemy†as defined in Section 3(x) of the Army Act ?, and the Supreme Court has
held :-
“200. At the outset, a distinction must be drawn between the right of self-defence or private defence and use of excessive force or retaliation.Â
Very simply put, the right of self-defence or private defence is a right that can be exercised to defend oneself but not to retaliate. This view was
reiterated but expressed somewhat differently in Rajesh Kumar Vs. Dharamvir (1997) 4 SCC 496, when it was said :-
“20.......To put it differently, the right is one of defence and not of requital or reprisal. Such being the nature of right, the High Court could not have
exonerated the accused persons of the charges levelled against them by bestowing on them the right to retaliate and attack the complainant party.
Finally, reference may be made to Darshan Singh v. State of Punjab (2010) 2 SCC 333, wherein this Court held:
“31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the
defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also
a settled position of law that a right of self-defence is only a right to defend oneself and not to retaliate. It is not a right to take revenge.â€
The Supreme Court in George Dominic Varkey V. The State of Kerala (1971) 3 SCC 275, has held:
“6……Broadly stated, the right of private defence rests on three ideas: first, that there must be no more harm inflicted than is necessary for the
purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence;
and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to
whether there has been excess of private defence within the meaning of the 4th clause of Section 99 of the Indian Penal Code, namely, that no more
harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case.
Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was
apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled
to stay and overcome the threat.â€
Whether the appellants assaulted the deceased in the right of private defence will have to be considered in the light of the above principle.
The assertion of the appellants that they acted in self defence is further belied by the injuries/postmortem report, which is not challenged by the
appellants. It is apparent from postmortem report (Ex. P-20) that the deceased has received 18 injuries, all grievous in nature. From the
photographs of deceased clearly established the gruesome and brutal manner in which the crime was committed, whereas the injuries found on the
body of the accused persons namely Ujyar Singh, Sundar Singh and Veeran Singh were old and simple in nature and caused by hard and blunt object,
as there is no allegation about use of any other weapon than gun/katta by the deceased, it is highly unlikely that these injuries were the result ofÂ
present incident.
The story put up by the appellants that Kamal and Sudama attacked them and tried to take away the gram crops carried by them in their bullock
cart, and they retaliated when Kamal fired a shot from katta is incorrect as no katta or bullock cart with crops was found on the spot as is clearly
established the crime details form Ex. P-29. Further, there is nothing on record to establish that deceased was carrying a gun/katta and he fired it.
With regard to earlier altercation and report Ex.D-7, it is clear that Ujyar Singh on 01.03.2002 had lodged a report to the effect that at 9.30 P.M. in
the night, four cattle entered his field. He had caught hold two of them and got them locked in kaji house, whereas the other two ran away. After
this Hanmat Singh and Ram Singh had abused him. It is apparent from Ex.D-7 that the same is not connected in any way with the present incident
and does not give rise to any cause of action against the deceased.
From the aforesaid, it is clear that it was the accused persons, who were the aggressors. Hence, the right of private defence is not available to the
appellants. In order to claim right of private defence, the appellants/accused persons have to show necessary material from record, either by
themselves adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.  There is nothing on
record to show that there was reasonable ground for the appellants to apprehend that either death or grievous hurt would be caused to them by
deceased Kamal. It is settled law that right of private defence is not available to a person who himself is an aggressor.
From the aforesaid analysis of material on record and the preposition of law laid down by the Apex Court, the commission of the offence by the
accused persons has been clearly established and the trial Court has rightly considered the statements of the witnesses and the documents on record,
in recording a finding of guilt against the appellants. Therefore, we do not find any illegality or perversity in the finding of guilt recorded by the trial
Court.Â
Accordingly, the appeal filed by the appellants, being devoid of merit is accordingly dismissed. The conviction of all the appellants under
Sections 302/149, 148 and 324/149 of the I.P.C. and the conviction of appellants No.3 to 5 under Sections 25 and 27 of the Arms Act is affirmed and
upheld. Appellant Nos. 2 and 3 namely, Chain Singh and Sundar Singh, are on bail. Their bail bonds shall stand cancelled and they are directed to be
taken into custody forthwith to undergo the remaining part of their jail sentence. Appellants No.1, 4 and 5, namely, Ujyar Singh, Veeran Singh and
Karan Singh are in jail. They shall remain incarcerated to undergo the remaining part of their jail sentence.