IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 855 of 1994 with CRIMINAL APPEAL No 1084 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO Criminal Appeal No. 855 of 1994 THAKOR DAYALSING DOHJI, THAKOR MANDANSING DOHJI, THAKOR BALVANTSING GUMANSING ......Petitioners Versus STATE OF GUJARAT ......Respondent Criminal Appeal No. 1084 of 1994 STATE OF GUJARAT .......Petitioner V e r s u s THAKOR BALVANTSING GUMANSING ......Respondent -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 855 of 1994 MR S.R.DIVETIA for MR RAJESH M AGRAWAL & MS KRISHNA U MISHRA for Petitioner Nos. 1 to 3 MR K.G.SHETH, Addl.PUBLIC PROSECUTOR for Respondent 2. Criminal Appeal No. 1084 of 1994 MR K.G.SHETH, Addl.PUBLIC PROSECUTOR for Petitioner MS SADHANA SAGAR for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 03/08/2001 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. These two appeals arise out of the judgment and order dated 3rd August, 1994 of the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case no. 4 of 1993 by which the accused nos. 1 and 2 were convicted for the offences under Sec. 302 of the Indian Penal Code and both of them were sentenced to imprisonment for life and fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of three months for the offence under Sec. 302 of the Indian Penal Code. The accused no. 1 was further convicted for the offence under Sec. 326 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of five years and a fine of Rs.2,000/-, in default to undergo simple imprisonment for a further period of one month. The accused no. 3 was convicted for the offence under Sec. 326 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of five years and a fine of Rs.2,000/-, in default to undergo simple imprisonment for a further period of one month. 2. Criminal Appeal No. 855 of 1994 has been preferred by all the three accused persons against their convictions while Criminal Appeal No. 1084 of 1994 has been filed by the State against the acquittal of the original accused no. 3 for the offence under Sec. 302 of the Indian Penal Code. 3. The prosecution case was that the accused no. 1 Dayalsing and the accused no. 2 Mandansing, who were real brothers, along with the accused no. 3 Balvantsing, who was their cousin brother, had, on 13th July, 1992 in the evening at about 6 o' clock, gone to the field of Fulsing who was their uncle where their cousin Thansing Dungarsing was ploughing the field bearing survey no. 74 and stopped him from ploughing the same. Thansing was asked to plough the field on hire basis by his cousin Ransing, son of Fulsing. At that time, Ransing was also present. All the three accused persons had come armed with swords. On hearing the exchange of words, Thansing's father Dungarsing and brother Champaksing came there from their adjoining field and Dungarsing asked the accused persons not to quarrel with his son Thansing as Thansing had come only at the instance of Ransing to plough the land and it was open for them to cultivate the same. The accused, thereupon, got excited and the accused no. 1 Dayalsing gave a sword blow on the forehead of Dungarsing and the accused no. 2 Mandansing also gave a sword blow on the right shoulder and scapular region of Dungarsing. Thereupon, Champaksing and Ransing intervened to save Dungarsing and, at that time, the accused no. 3 Balvantsing gave a sword blow to Champaksing on his head, as a result of which Champaksing fell down. The accused no. 1 Dayalsing also gave a sword blow to Champaksing on his left ankle. On the cries being raised by the complainant Thansing, his younger brother Vijesing came there and thereafter all the three accused persons ran away towards their village with swords in their hands. The complainant Thansing, thereafter, took his father Dungarsing and brother Champaksing to the hospital in a tractor, where Dungarsing was declared dead while Champaksing was admitted for treatment. Thansing, thereafter, proceeded to file his complaint exh. 13. 3.1. The charges were framed against the accused persons at exh. 3 as per which the accused nos. 1 and 2 were charged for the offence under Sec. 302 of the Indian Penal Code for having intentionally caused death of Dungarsing by giving him sword blows. All the accused were charged for the offence under Sec. 307 read with Sec. 34 in respect of the sword injuries caused by the accused nos. 1 and 3 to Champaksing. All the accused were also charged for the offences under Sec.302 and Sec. 307 read with Sec. 34 of the Indian Penal Code on the allegation that they had done the criminal act of intentionally causing death of Dungarsing by giving him sword blows and causing grievous hurt in an attempt to murder Champaksing by giving him sword blows, in furtherance of common intention of all the accused persons. The accused were also charged for the offence under Sec. 135 of the Bombay Police Act for having carried swords in violation of the notification, prohibiting carrying of weapons in public places. 4. The defence of all the three accused persons, in their statements under Sec. 313 of the Criminal Procedure Code, was of total denial. However, the defence which emerges from the cross-examination of these witnesses, was that the field bearing survey no. 74 was handed over in the past to the accused nos. 1 and 2 and they were actually cultivating the same. When they saw Thansing ploughing the field with his tractor, they asked him not to do so. According to the defence version, thereupon, Dungarsing and his sons Champaksing and Thansing as well as Ransing attacked the accused persons with an axe and lathis, as a result of which they received injuries and Haliba-mother of the accused nos. 1 and 2 also received a fracture in her hand in trying to ward off a blow aimed by Dungarsing. The defence version also was that in the past, about five to six years prior to this incident, Dungarsing had given a stick blow to Haliba. The defence version in short was that the accused were trying to protect their property from the complainant and his party and when they attacked these accused persons, they tried to defend themselves with "vansis" which Haliba and Kasumba had brought for felling the branches of trees to feed their cattle. 5. The trial court, on the basis of the material on record, held that all the accused had on 13th July, 1992, armed with swords gone to the field of Fulsing at about 6 O' clock in the evening and attacked the complainant and the accused nos. 1 and 2 intentionally caused death of Dungarsing by giving sword blows, while the accused nos. 1 and 3 caused grievous hurt to Champaksing by giving him sword blows. The trial court negatived the defence version that they were acting in private defence. It appears that the cross-case which was filed by these three accused persons on the strength of the F.I.R., a copy of which is at exh. 51 of the present proceedings, was also heard and decided on 3rd August, 1994 by the learned trial Judge and in that case, Thansing, Ransing and Champaksing were all acquitted for the offences under Secs. 323, 324, 504 read with Sec. 114 of the Indian Penal Code with which they were charged. 6. The learned counsel appearing for the appellants-accused persons contended that there was ample material on record to indicate that all the three accused persons had acted in order to exercise their right of private defence of their property when they prevented Thansing from ploughing the field which, according to the accused persons, was in their possession. It was submitted that when Thansing was ploughing the field with his tractor at the instance of Ransing, the accused persons became entitled to defend their property by ousting Thansing and others. It was submitted that Thansing, Ransing and others were trying to take forcible possession of the said field and therefore the accused persons were justified in preventing them from doing so. It was submitted that once it is held that the accused persons were exercising their right of private defence, the case would fall within the general exception under Sec. 97 read with Sec. 96 of the Indian Penal Code. The counsel further contended that the material on record indicates that there was a sudden quarrel and a fight between the rival groups which resulted in injuries on both the sides. It was submitted that the learned trial Judge has not taken into account this aspect and has not considered the applicability of Exception 4 to Sec. 300 of the Indian Penal Code. It was also submitted that the version of the eye witnesses was inconsistent and there were material improvements made by them before the court which indicated that the prosecution version cannot be safely relied upon. It was also submitted that the prosecution has not been able to explain the injuries which were caused to the accused persons. 6.1. In support of his contentions, the learned counsel relied upon the decision of the Supreme Court in the case of Ram Phal and others V/s State of Haryana reported in A.I.R.1993 S.C.1979, where, in a case in which the accused persons received a number of injuries and some of which on vital parts and no plausible explanation was given by the prosecution, the Supreme Court held that in such a situation the plea put forward by the accused that they acted in exercise of their right of private defence cannot be rejected. The accused were, therefore, given benefit of doubt. Reliance was also placed on Kesha and others V/s State of Rajasthan reported in A.I.R. 1993 S.C. 2651 in which it was held by the Supreme Court that it is the duty of the prosecution to explain the injuries on the accused persons, and, in case where the accused set a plea of self-defence and relied on the medical evidence in support of the fact that they had injuries on their persons and thus justify their right of self-defence, that creats a doubt. 7. The learned Additional Public Prosecutor strongly contended that the eye witnesses have given the correct account of the prosecution version as per which all the three accused had come to the field of Fulsing armed with open swords which indicated that their attack was premeditated. It was submitted that the version of the eye witnesses was corroborated by medical evidence and also by the discovery panchanama as well as the report of the medical analyzer and the serologist. It was argued that the acquittal of the original accused no. 3 for the offence under Sec. 302 of the Indian Penal Code was not at all justified in view of the concerted manner in which all the accused had acted. It was submitted that even the accused no. 3 had participated in the crime and was constructively liable for the murder of Dungarsing, which had resulted due to the sword blows inflicted by the accused nos. 1 and 2. The learned counsel also argued that there was no question of any right of private defence being exercised because the accused persons have not been able to bring on record anything which would suggest that they were in possession of the field in question which, as per the prosecution evidence, was running in the name of Fulsing. It was submitted that there was absolutely nothing to suggest that Dungarsing or Thansing were trying to dispossess the accused persons of the said field. The learned counsel further argued that in view of the cruel manner in which the three accused acted by using their swords on their own kith and kin, they were not entitled to the benefit of Exception 4 to Sec. 300 of the Indian Penal Code. The learned counsel, therefore, submitted that while confirming the decision of the trial court in respect of the original accused nos. 1 and 2 as well as the conviction of accused nos. 1 and 3 for the offence under Sec. 326 of the Indian Penal Code, the acquittal appeal should be allowed against the accused no. 3 and he should also be convicted for the offence under Sec. 302 read with Sec. 34 of the Indian Penal Code. 7.1. The learned Additional Public Prosecutor relied upon the decision in case of Munshi Ram and others V/s Delhi Administration reported in A.I.R. 1968 Supreme Court 702, in which it was held that the possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. In the same decision, it was held that it is well settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea, if the same arises from the material on record, and the burden of establishing that plea is on the accused, which can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. 7.2. The learned counsel also relied upon the decision of the Supreme Court in case of Ramashish Yadav and others V/s State of Bihar reported in 2000 S.C.C.(Cri.) 9 in which in context of the provisions of Sec. 34 of the Indian Penal Code, it was held that prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert. 8. The incident is said to have occurred on 13th July, 1992 in the evening at 6 O' clock in the field of Fulsing. The map of the scene of offence is at exh. 40. It was prepared by the Circle Inspector Nathubhai of the Vadgam Village Panchayat who, in his deposition exh. 39, has stated that the said survey no. 74 runs in the name of Fulsing Hemsing. In his cross-examination, he has denied the suggestion that he had no personal knowledge about the possession of that field. The accused persons have tried to raise a plea that in the past, in 1966, the possession of that field was handed over to them, but have not been able to establish the same. The incident occurred because the complainant Thansing had started ploughing the said field at the instance of his cousin Ransing Fulsing. In his deposition exh. 12, the complainant Thansing has stated that the incident took place on 13th July, 1992 in the evening at about 6 O' clock. Prior to that he was ploughing his own field when his cousin Ransing had requested him to plough his field also. He, therefore, went with his tractor in that adjoining field survey no. 74 for ploughing it. While this witness was doing so, the accused nos. 1,2 and 3 came there and stopped his tractor telling him that this field was to be cultivated by them. All the accused persons were also his cousins. He stopped the tractor at their instance. According to him, all the three accused persons were having swords in their hands. Though they quarrelled with him over the ploughing of the field, this witness did not say anything. In the meanwhile, his father Dungarsing who was in the adjoining field came there and told the accused persons that whoever wanted to cultivate the field may do so but they should not quarrel with this witness Thansing. Thereupon, the accused no. 1 Dayalsing gave a sword blow on the forehead of his father Dungarsing. Thereafter, the accused no. 2 Mandansing also inflicted a sword blow on the right scapular region of Dungarsing. Thereafter, this witness, his brother Champaksing and Ransing intervened to save Dungarsing. At that time, the accused no. 3 Balvantsing gave a sword blow to Champaksing on his head and thereafter the accused no. 1 Dayalsing gave a sword blow to Champaksing on his left ankle. Thereafter, when this witness raised cries, the accused persons ran away from the spot with their swords towards the village. Thereafter, Dungarsing and Champaksing were carried from the field in a tractor and then from the bus stand in a jeep and taken to Civil Hospital at Palanpur where the doctor declared that his father Dungarsing was dead. Thereafter, he had gone to lodge the F.I.R. to Palanpur police station where he was directed to go to Vadgam police station within whose jurisdiction the offence had taken place and he therefore went to Vadgam and lodged the F.I.R. exh. 13 at 12 O'clock in the midnight. In his cross-examination, he has denied that any part of survey no. 74 belong to the accused persons. In para 10 of his deposition, he has admitted that Dungarsing was having a walking stick. He has stated that the accused persons had an altercation with him but none of the accused persons had beaten him till his father came there from the land bearing survey no. 73. He has admitted that none of the accused had beaten Ransing till his father reached there. His father and Champaksing had come together. He then admitted that throughout the incident, the accused had not beaten him nor was Ransing beaten by any of them. He has denied the suggestion that his father Dungarsing along with this witness, Ransing and Champaksing had come to dispossess the accused persons of survey no. 74. He has also denied that Champaksing was having an axe and others were having sticks at that time. He has further denied that when they were trying to take the possession of survey no. 74, Haliba, mother of the accused no. 1 had asked Ganpatsing, who is the son of accused no. 1 to call the accused no. 1. It is denied that when the three accused persons came there, this witness, his father Dungarsisng, Champaksing and Ransing got excited and that Champaksing gave an axe blow on the right arm of the accused no. 1 Dayalsing. It is also denied that Dungarsing had given a stick blow on the head of accused no. 2 Mandansing and that Champaksing had given an axe blow to Mandansing. He has denied the suggestion that he gave a stick blow to Balvantsing or that he and his father Dungarsing had given a stick blow to Haliba and caused fracture in her hand. It is denied that since the accused persons had felt that the complainant's party intended to kill them, they took "vansis" and wielded them in self-defence and in that process, Dungarsing and Champaksing were injured. This witness denied the suggestion that if the accused had not acted in self-defence, the complainant's party would have killed them. This witness admitted the suggestion that about five to seven years prior to this incident, his father Dungarsing had broken the hand of Haliba and a complaint was filed in that regard. From the tenor of the cross-examination of this witness, it becomes abundantly clear that the accused are not disputing their presence at the time of the incident nor are they disputing the incident itself. According to them, they had acted in self-defence by wielding the "vansis" fearing that otherwise they would have been killed by the complainant's party. "Vansi" was explained to us at the Bar to be an instrument which has a long pole with a blade for cutting down small branches or leaves from a tree for feeding the cattle. There are no "vansis" recovered in these proceedings. Moreover, though as per the defence version Haliba and Kasumba were having "vansis", all the three accused persons are said to be having swords and three swords have been recovered from their residences. The complainant's version that these three accused persons had come at the place of the incident armed with swords and that they caused injuries with their swords is fully corroborated by his F.I.R. exh. 13 which was lodged by him at midnight, after the incident. 8.1. From the deposition of Thansing, it transpires that when he was ploughing the field of Ransing Fulsing at his request, in the evening at about 6 O' clock on 13th July, 1992, these three accused persons had come there armed with open swords and stopped him from ploughing the field. When they were asked by Dungarsing, father of this witness, not to quarrel with him, the accused no. 1 Dayalsing gave a sword blow on the forehead of Dungarsing and the accused no. 2 gave a blow with his sword on the right scapular region of Dungarsing. The accused no. 3, thereafter, gave a sword blow on the head of Champaksing and the accused no. 1 also gave him a blow with his sword. The injuries corresponding to all these blows are borne out from the medical evidence. 9. Dr.Jashwantsingh Jadeja in his deposition exh. 17 has stated that he had performed the post-mortem examination on the body of Dungarsing at 9 O' clock on 14th July, 1992. He has described the external and internal injuries which were found on the body of Dungarsing and proved the post-mortem notes exh. 18. In column no. 17 of the post-mortem notes exh. 18, the following external injuries found on the body of Dungarsing were noted : " 1. About 7 x 1 cm. x bone cut incised wound on right side fronto-parietal, oblique and 5 cm. above right eye. 2. About 20 x 4 cm. x muscle And Arteries and Veins cut, incised wound on right shoulder posterior upto upper and lateral chest wall lateral of humerus to chest wall. 3. About 3 x 1 cm x muscle deep incised wound on right wrist joint laterally 4. About 5 x 1 cm. x muscle deep cut on right leg 10 cm. below knee joint laterally. 5. About 5.5 x 1cm. x muscle deep cut on right leg laterally just about ankle joint. 6. Fracture on right frontal and parietal bone 7. Fracture on right humerus and scapula " 9.1. As stated by Dr.Jadeja in para 8 of his deposition, the injuries no. 1 and 2 were both sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem. He has stated that the injuries no. 1, 2 and 3 could be caused by sword blows and injuries no. 3, 4 and 5 were possible by a sharp cutting instrument. 9.2. Dr.Dipak Pranami, in his deposition, exh. 43 has proved the injuries which were found by him while examining Champakbhai at 7.40 p.m. on 13th July, 1992 and has proved the certificate exh. 45 which was issued by him, in respect of these injuries. The certificate exh. 45 show that the following injuries were found by the medical expert on Champaksing. " 1. Incised wound over left parietal region of scalp about 4" x 1/2" size bone deep, bleeding present transverte in direction 2. Incised wound over right forearm on posterior aspect about 2cm x 1cm size skin deep 3. Incised wound over base of right great toe about 3