HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 351 / 1986 1. [ENTITY], aged 63 years, son of Shri Onkar Lal (died) 2. [ENTITY], aged 68 years son of Shri Onkar Lal (died) 3. [ENTITY], aged 27 years son of Shri Mathura Lal. 4. [ENTITY], aged 26 years son of Shri Mathura Lal. 5. [ENTITY], aged 45 years son of Shri [ENTITY]. 6. [ENTITY], aged 30 years son of Shri [ENTITY]. 7. [ENTITY], aged 28 years son of Shri [ENTITY]. 8. [ENTITY], aged 28 years son of Shri [ENTITY]. All by caste Meena, residents of Village Khedli Saharan, Police Station, Bdhadit, District Kota. Appellants Versus The [ENTITY] Respondent
For Appellants : Mr. [ENTITY] with Ms.[ENTITY] For Respondent : Mr. [ENTITY], Public Prosecutor with Mr. [ENTITY] HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE VIJAY KUMAR VYAS Judgment on Board PER : HON'BLE THE CHIEF JUSTICE 14/02/2017 The appeal stood abated against Appellant No.1 and 2 on 10.02.2010 consequent to their demise during the pendency of the appeal.
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2. The remaining Appellants stand convicted under [SECTION] [ACT] to one year's rigorous imprisonment, 302/[SECTION] [ACT] to life imprisonment with fine and default stipulation. Appellants No.3 and 4 further stand convicted under [SECTION] [ACT] to one year rigorous imprisonment and Appellant No.6 and 8 to three months rigorous imprisonment under [SECTION] [ACT] by the Sessions Judge, Kota in [CASE NUMBER] dated 15.07.1986.
3. PW-1 [ENTITY] in his written report to police dated 28.10.1984, Exhibit P/1 stated that he was working in his fields at about 10:00-11:00 am when he heard commotion. On reaching the place of occurrence he saw the Appellants who were variously armed with axe and garasi assaulting PW-2, [ENTITY], PW-4, [ENTITY], PW-5, [ENTITY], PW-6, [ENTITY] and the deceased [ENTITY]. The Appellants chased the witness to assault him also. The occurrence took place because of a previous dispute with regard to passage through the fields. PW-3, [ENTITY] wife of the deceased came and gave him water to drink. Formal FIR Exhibit P/11 was registered at 4:00 PM. The post-mortem Exhibit P/10 was conducted on 29.10.1984 at about 9:00 AM by PW-11 Dr.[ENTITY], who found the following injuries on the body:-
"(i) 2-1/2"x1"x bone deep- Brain deep- Brain- 1/2"
deep- left parietal bone- 1/2" above zygomatic arch- Dir- transverse cutting of pinna of ear in middle transversely with massive bleeding signs.
(ii) Incised wound 1-1/2"x1/4"x skin deep - left parietal region- 3" above pinna of ear.
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(iii) Lacerated wound 1/4"x1/8"x skin deep- 3" above right leg medial region.
On dissection, bleeding was found from sub clavicle tissue, left parietal bone was cut 3"x1", membrane was cut with massive bleeding- intracranial, left parietal lobe of brain was cut 2-1/2"x1/2"x1/2x deep with massive intracranial haemorrhage."
Death was opined by shock due to cutting of cranial bone and brain (parietal lobe).
4. Learned Counsel for the Appellants submitted that the prosecution has suppressed the real genesis and origin of the occurrence and the manner in which the assault was initiated by PW-5, [ENTITY] and his deceased brother by forcibly trying to cross the fields of the Appellants with a bullock cart damaging the standing crops also despite the request not to do so. The first two bullock carts were forcibly taken through their fields in the morning in their absence damaging standing crops also. The Appellants having come to know of it told them not to do so. The assault was first made by them insisting on crossing the fields. The Appellants acted in self defence of person and property but have wrongly been portrayed as the aggressors. The Trial Judge on appreciation of evidence has held that the fields in question through which the bullock carts were being taken were in lawful possession of the Appellants on which there stood crops sown by them. The contention of the prosecution that there existed a general passage through the fields to justify their action has been repelled including from the evidence of PW-10, [ENTITY], the Patwari.
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5. The Appellants were arrested the next day on 29.10.1984. Their arrest memos demonstrate injuries on their person. Their medical examination was also done on 30.10.1984. The injuries on the Appellants including head injuries have not been explained by the prosecution. This report prepared during investigation though available in the case diary were sought to be suppressed by the Investigating Officer PW-12, [ENTITY] and were produced only when the Appellants protested and the Court directed it to be placed on record.
6. The Appellants while in custody, at the request of the jail authority, were again medically examined on 09.11.1984 by DW-1 Dr. [ENTITY] who proved their injury reports Exhibit D/12 to D/15. Appellant [ENTITY] suffered grievous injuries and remained hospitalised from 30.11.1984 to 05.12.1984.
7. The Appellants under [SECTION] [ACT] took the specific defence that when they protested and requested the deceased [ENTITY] not to take the bullock carts through their fields, the deceased insisted on doing so and assaulted Appellant [ENTITY] who then acted in self defence. The Trial Judge has grossly erred in dealing with the defence of the Appellants by holding that there was no evidence to suggest that the deceased and others had come armed and that the medical examination of the Appellants done two days later was not reliable as the injuries could well have been caused in this interval and in some other manner when in fact it stated that the injuries were two days old corroborating the date of occurrence. There is no consideration of the fact that the prosecution had completely failed to offer any (5 of 15) [[CASE NUMBER]] explanation for the injuries on the Appellants and the prosecution witnesses blatantly denying any knowledge of the same.
8. The FIR does not mention any injuries caused to the Appellants in the attempt to show them as the aggressors when they were in fact acting in self defence. Reliance was placed on [PRECEDENT] in support of the submission that if the real genesis of the occurrence was suppressed and the prosecution had failed to explain the injuries on the accused it would make the prosecution case doubtful and plea of private defence acceptable.
9. Placing reliance on [PRECEDENT], it was submitted that if the Appellants were in lawful possession of their lands and had sown crops on them and their was forcible intrusion damaging the crops, the question of the Appellants forming an unlawful assembly invoking [SECTION] [ACT] did not arise.
10. PW-5 [ENTITY], the brother of deceased was present with the deceased [ENTITY] alone when hot words were exchanged followed by assault by the latter and action in self defence by [ENTITY]. PW-2, [ENTITY] and PW-6, [ENTITY] are chance witnesses. They cannot be relied upon merely because they were injured in the same incident in the fracas that followed. They were not stating the truth when they denied any injuries on the person of the Appellants. Any statement by an injured witness cannot be treated as gospel truth and if there are materials which make it suspicious it may lose its credibility when benefit of doubt will have to be given to the accused. PW-3 [ENTITY], wife of the (6 of 15) [[CASE NUMBER]] deceased [ENTITY] though stated to be an injured witness, has not been mentioned as present during the assault either by PW-1, [ENTITY] or PW-5, [ENTITY]. PW-4, [ENTITY] himself stated that he was prevented from proceeding to the place where the assault was actually taking place.
11. If the Appellants had acted in the right of private defence, and they suffered injuries in the process also along with the others, the right of private defence cannot be weighed in golden scale with regard to the manner of assault which should or ought to have been made at the spur of the moment to determine if it was exceeded or not.
12. Learned Counsel for the State submitted that it was not a case for exercise of the right of private defence. The Appellants themselves acknowledge that bullock carts had earlier also been taken through their fields. There were other lawful means by which the Appellants could have prevented the passing of the bullock carts if they were of the opinion that the prosecution witnesses could not do so it being the sole property of the Appellants. There was no justification for the murderous assault when none of the Appellants suffered any serious or grievous injury on any vital part of the body which itself makes it evident that the Appellants are taking a frivolous plea of private defence which they have grossly exceeded.
13. PW-3 [ENTITY] is the wife of the deceased injured in the same occurrence. There is no reason why she should be speaking falsehood and protecting the real assailants of her husband. The Trial Judge has held that there is no evidence whatsoever to hold (7 of 15) [[CASE NUMBER]] that the prosecution witnesses were armed. Therefore the question of the prosecution having to explain any injuries on the Appellants does not arise considering the time gap between the date of occurrence and the medical reports of the Appellants. The Trial Judge has adequately discussed that it was difficult to hold that the injuries found on their person had actually been occasioned in the same occurrence and therefore the Appellants can derive no benefit from the same. PW-2 [ENTITY], PW-4 [ENTITY], PW-5 [ENTITY], PW-6 [ENTITY] are all injured witnesses in the same occurrence, their evidence with regard to the manner of assault upon the deceased and that the Appellants exceeded the right of private defence cannot be brushed aside lightly. The conviction therefore calls for no interference.
14. We have considered the submissions on behalf of the parties and also perused the evidence on record also.
15. The Appellants have been held to be in lawful possession of the lands in question and had sown crops on them. The Learned Trial Judge has disbelieved the prosecution case that there existed a passage through the fields of the Appellants. We find no reason to interfere with the findings. In the morning PW-5, [ENTITY] and his deceased brother [ENTITY] had forcibly taken two bullock carts through the fields in absence of the Appellants damaging the standing crops. Having learnt of the same the Appellants came and objected. A specific defence was taken under [SECTION] [ACT] that the deceased made the first assault whereafter [ENTITY] acted in self defence and a fracas followed.
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16. The occurrence took place on 28.10.1984. The Appellants were arrested on 29.10.1984. The arrest memo of [ENTITY], Exhibit-P/32 mentions a fresh bleeding wound on the front of the head and another bleeding wound on the left side of the head apart from swelling on the right hand and abrasions. That of [ENTITY], Exhibit-P/30 mentions a fresh bleeding wound on the finger next to the right thumb. The arrest memo of [ENTITY], Exhibit-P/35 mentions a fresh bleeding wound on the rear left side of the head and swelling on the right eye and that of [ENTITY], Exhibit-P/28 notices abrasions and bleeding wound on the left hand apart from a fresh bleeding wound on the right side of the head. PW-12, [ENTITY] the Investigating Officer in cross examination has confirmed the injuries on the Appellants mentioned in the arrest memo but has offered no explanation with regard to the same. The Appellants were medically examined on 30.10.1984 and the injuries confirmed. The injury reports though available in the case diary was not produced by the Investigating officer and it was only after the Appellants protested and the Court directed its production that it was brought on record. PW-1, [ENTITY] claims he was chased by the Appellants but surprisingly does not mention of any injuries upon any of the Appellants. Patently some of the Appellants had been injured and yet there is no mention of this fact in the First Information Report.
17. The Learned Trial Judge has accepted that the Appellants had injuries at the time of arrest but has brushed it aside holding that no case had been filed by them with regard to any assault upon them and that because they were arrested 36 (9 of 15) [[CASE NUMBER]] hours after the occurrence the possibility that the injury may have been caused by some other and at a different time could not be ruled out. The fact that the medical report dated 30.10.1984 stated that the injuries were two days old which coincides with the day of occurrence has been glossed over by improper appreciation of evidence.
18. The Appellants were again medically examined while in custody on 09.11.1984 by DW-1, Dr. [ENTITY] who proved their injury reports. [ENTITY] had to remain hospitalised from 30.11.1984 to 5.12.1984 because the fracture of the right zygomatic bone was grievous in nature, a fact that speaks for itself regarding the nature and intensity of the assault by the deceased [ENTITY] when the Appellant acted in self defence.
19. The aforesaid materials leads to the conclusion that manifestly the real genesis of the occurrence and the manner in which it may have occurred has been suppressed which creates serious doubts about the prosecution case including that the Appellants were the aggressors and therefore the right of private defence was not available to them. In [PRECEDENT] it was observed as follows :-
"12 It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence "
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20. According to PW-5 [ENTITY] he was travelling on the bullock cart and the deceased [ENTITY] was walking behind him. The witness did not talk of the presence of any other person at that time. PW-2, [ENTITY] and PW-6, [ENTITY] stated that they were grazing their cattle in the nearby fields. They were thus chance witnesses and not natural witness. Evidently from their evidence they were not present when the deceased first assaulted [ENTITY] but came later after the fracas escalated. Merely because they may have suffered injuries in the fracas and fell in the category of an injured witnesses their deposition cannot be accepted as a gospel truth. If [ENTITY] had already suffered injuries due to the assault by the deceased and subsequently others were also injured in the fracas that followed the two witnesses must have noticed the injuries on their person but yet in their cross-examination have denied having seen any injuries on Appellants [ENTITY], [ENTITY], [ENTITY] or [ENTITY]. This is sufficient to create doubts about the truthfulness of their evidence. In the aforesaid background the plea of private defence taken by the Appellants cannot be easily brushed aside. Significantly PW-3 [ENTITY], wife of the deceased has not been mentioned as having been present by PW-5, [ENTITY] when the assault by deceased [ENTITY] first took place. Merely because she may have been the wife of the deceased but came subsequently and was also injured in the fracas will not lend credibility to her evidence to the extent of holding the Appellants to be the aggressors to wipe off the plea of private defence. Significantly if she reached after the initial assault, the Appellants (11 of 15) [[CASE NUMBER]] who had already suffered injuries by then would have readily been visible to her also but she specifically denies any injuries on the person of the Appellants which is contrary to the evidence on record.
21. It therefore stands established that the Appellants had suffered injuries in the same occurrence and which the prosecution has failed to explain. On the contrary it is apparent that there has been a conscious effort on part of the Investigating Officer and the prosecution to suppress the fact of an assault upon the Appellants causing injuries to them also including grievous and on a sensitive part of the head to more than one of the Appellants. If the prosecution has deliberately sought to suppress this fact, it creates grave doubts with regard to the manner in which the occurrence may have taken place and originated. The failure to consider the defence under 313 [ACT] and the conclusion that there was no material to hold that PW-5, [ENTITY] and others were not possessed of any weapons and therefore could not have assaulted becomes unsustainable.
22. The next issue for consideration is the plea of private defence by the Appellants. They were the lawful owners of the lands having sown crops on them. There existed no passage through their fields. PW-5, [ENTITY] and the deceased [ENTITY] insisted on driving bullock carts through their fields damaging the crops also. The Appellants tried to persuade them not to do so. The deceased insisted and assaulted [ENTITY] when he acted in self defence. The other Appellants came running and a fracas followed. The Appellants exercise of the right of (12 of 15) [[CASE NUMBER]] private defence therefore was justified and they were not the aggressors.
23. Whether a plea of private defence is sustainable and if it was exceeded has to be considered in the facts and circumstances of a particular case on a cumulative assessment of the entirety of the evidence including the manner in which the assault originated, nature of injuries and other circumstances. Whether this right was exceeded in a particular case or not will again have to be examined in the facts and circumstances of each case. For exercise of the right of private defence what is important is the genuine apprehension in the mind of the accused of a real threat to their life and property from the manner in which the assault takes place on them and therefore while deciphering if the right was exceeded or not the matter cannot be weighed on a golden scale and has to be considered in the background of normal human reactions on the spur of moment about the apprehended danger and the human instinct for survival and then related to the nature of the assault made in self defence.
24. In [PRECEDENT] it was observed as follows :-
"9. 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 hypertechnical approach should be avoided.
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80. 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] [ACT]."
25. [SECTION] of the [ACT] provides that nothing is an offence which is done in the exercise of the right of private defence. That it extends to the protection of one's own body and also property is provided in [SECTION] subject to the provisions of [SECTION] which stipulates that this right shall not be available when the act complained of does not reasonably cause apprehension of death or of grievous hurt or when there is time to have recourse to the protection of the public authorities. [SECTION] of the [ACT] provides that the right of private defence subject to restrictions hereinbefore extends to voluntary causing death or other harm if the assault reasonably causes an apprehension that death will otherwise be the consequence of such assault or that grievous hurt will otherwise be the consequence of such assault. Likewise [SECTION] of the [ACT] provides that the right of private defence of property extends to causing death in a case of mischief or a house-trespass as may reasonably cause apprehension of death or grievous hurt if such right was not exercised. Section 300 clause Thirdly provides that culpable homicide is not murder if it is committed by anything done in the lawful exercise of the right of private defence. Therefore it is not necessary that there must be an actual threat that death will ensue or grievous injury must necessarily be caused before the right of private defence can extend to causing death or grievous hurt but that there must be a genuine apprehension from the sequence of the events and the (14 of 15) [[CASE NUMBER]] manner of assault which is relevant.
26. Examining the evidence in the backdrop of the aforesaid legal position, it is revealed that from the injuries caused to more than one of the Appellants on the head, a sensitive part of the human body appearing fresh in its nature even two days later including grievous on one of them leading to hospitalisation for a prolonged period that there was a reasonable basis for genuine apprehension in the minds of the Appellants that unless they acted in self defence they ran a serious risk to their life and property due to the aggression by PW-5 [ENTITY] and his brother in persisting and driving their bullock carts through their fields willing to assault in a deadly manner for that purpose. If the Appellants were the lawful owners of the lands and the crops thereupon, the question of invoking [SECTION] or [SECTION] [ACT] to describe them as an unlawful assembly indulging in riotous behaviour or persecution of a common object does not arise.
27. It was only injury No.2 on the deceased which proved to be fatal. The deceased is stated to have assaulted first when [ENTITY] acted in self defence. The injury on the latter was also grievous requiring prolonged hospitalisation. In the facts and circumstances of the present case, holding that the Appellants acted in self defence it is not possible to weigh their acts on a golden scale to hold that they exceeded the right of private defence. The other injuries were simple in nature. There has been complete non appreciation of their defence under [SECTION] [ACT] to reject it on conjectures and surmises.
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28. In conclusion, the prosecution having suppressed the genesis of the occurrence, the non consideration of the defence under [SECTION] [ACT] the conviction is held to be unsustainable and is set aside. The Appellants are acquitted.
29. The Appellants shall execute bail bonds of the value of Rs.20,000/- with two sureties of the like amount to the satisfaction of the Trail Court within a period of four weeks as required by [SECTION] [ACT]
30. The appeal is allowed.
([ENTITY] ([ENTITY] KKC/s-1 NAFR