SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Harkha Ram and others. vs. State of Rajasthan. S.B.CRIMINAL APPEAL NO.682/2000 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 15.11.2000 PASSED BY SHRI H.S. SAXENA, ADDITIONAL SESSIONS JUDGE, RATANGARH (CHURU) IN SESSIONS CASE NO.54/1992 (34/1990). DATE OF JUDGMENT ::: July 18th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.SG Ojha, for the appellants. Mr.VR Mehta, Public Prosecutor. Mr.Niranjan Singh for Mr.MK Garg, for the complainant. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): REPORTABLE Heard learned counsel for the parties. SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 2 This appeal is against the judgment and order of conviction and sentence dated 15.11.2000 passed by the Court of learned Additional Sessions Judge, Ratangarh (Churu) in Sessions Case No.54/1992 (34/1990). There was a cross case and that was Sessions case no.42/1992 (91/1989) wherein the accused persons, members of the complainant party in the present case, were convicted by the same Court i.e. Court of learned Additional Sessions Judge, Ratangarh (Churu) by judgment and order dated 15.11.2000. The appeal against cross case being D.B. Criminal Appeal No.679/2000 is also being decided today by separate judgment. In this sessions case no.54/1992 (34/1990), as per the prosecution case, on 30.6.1989 at 10:00 PM, complainant Ram Chandra PW1 submitted a written FIR Ex.P/1 to the S.H.O., Police Station Rajaldesar – Shri Roshan Ali at Ratangarh which was sent through HC Shera Ram at Rajaldesar Police Station, upon which at 11:00 PM, FIR No.11/1989 (Ex.P/21) was registered. In the said complaint, complainant Ram Chandra stated that he is resident of Village Dassusar of Tehsil Ratangarh and he is agriculturist. His father's agricultural land is situated in the Village Dassusar for which a litigation is going on in the Court of SDO, Ratangarh since last SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 3 8-9 months. In the said litigation, complainant's father Jetha Ram and Chokha Ram's sons are parties and the complainant's father obtained interim stay order in his favour against Chokha Ram's sons. The complainant stated that since generations, the land in question is in their possession. Today, at 8:00 AM, when he with his family members were digging soil from the agricultural land to bring it to their house, accused Gordhan Ram, Harkha Ram, Tiku Ram, Narayan Ram, Bhagawana Ram s/o Chokha Ram r/o Village Simsiya along with Bhagwana Ram s/o Nyola Ram, Jugal Singh s/o Bhoor Singh, Sugana Ram s/o Uda Ram, Shera Ram, Bhera Ram, Mohan Ram s/o Adu Ram, Godha Ram, Dula Ram, Mana Ram s/o Bhera Ram, Thakar Ram s/o Bhagwana Ram, Sohan Ram s/o Mala Ram, Surja Ram Sinwal, Moolki w/o Mana Ram, Kundani w/o Adu Ram and 10-15 more persons (men and women) all came with Iron Singhon Ki Jelly (iron fork) used as agricultural implement, Chausangiya, agricultural implement which can also be used as weapon, Barchiyan, lathies, pistols and fire arms and attacked upon the complainant, Gopal Ram, Amra Ram, Likhma Ram, Deva Ram, Kundan Ram and Tulcha Ram with intention to kill them and caused severe and grave injuries and because of those injuries, any one would have died. The report was submitted when the complaint was already in the hospital. SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 4 On this report, FIR no.11/1989 was registered at Police Station Rajaldesar and investigation started. During investigation, the injured persons were got examined from the doctors and their injury reports and X-rays were obtained. Accused Surja Ram, Bhagwana Ram, Thakur Ram, Bhagwana Ram s/o Nyola Ram and Jugal Singh were arrested. On the basis of the information given by them, the weapons of offence were recovered. On the basis of Jugal Singh's information, a local pistol was recovered, site was inspected and site report and map were prepared. The pistol was got examined. The victim Likhma Ram, who was admitted in SMS Hospital, Jaipur, his bed head ticket was also obtained and the revenue record which was collected in cross case was also produced in this case and thereafter, the challan was filed against the appellant accused. Against all the accused except Jugal Singh, charge for offences under Sections 148, 307/149, 326/149, 324/149 and 323/149 IPC were framed. Against accused Jugal Singh, along with the above charges, one more charge i.e. under Section 3(25) of the Arms Act was also framed. All the accused denied the charges and sought trial. At the trial, the prosecution produced PW1 Ram Chandra, PW2 Gopal Ram, PW3 Bhagwana Ram, PW4 Indra SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 5 Ram, PW5 Shriram, PW6 Kunana Ram, PW7 Deva Ram, PW8 Tulcha Ram, PW9 Dr.Bhanwar Lal Verma, PW10 Mohan Ram, PW11 Deda Ram, PW12 Badridan, PW13 Jaisa Ram, PW14 Bhoor Singh, PW15 Bega Ram, PW16 Nawab Ali, PW17 Shera Ram, PW18 Bhanwar Singh, PW19 Poorna Ram, PW20 Mohan Singh, PW21 Gaje Singh, PW22 Pravin Sunda, PW23 Richpal Singh, PW24 Madho Dan, PW25 Suresh and PW26 Roshan Ali and exhibited 27 documents. The statements of accused appellants were recorded under Section 313 CrPC and they gave their own explanation. The accused produced DW1 Harkha Ram and exhibited 13 documents. The trial court, by the impugned judgment dated 15.11.2000, in this Sessions Case No.54/1992 (34/1990) acquitted five accused appellants Harkha Ram, Girdhari & Bhagwana Ram all sons of Chokha Ram, Thakur Ram s/o Bhagwana Ram and Bhagwana Ram s/o Nyola Ram of the charge under Section 307/149 IPC, however, convicted them for offence under Sections 148, 326/149, 324/149 and 323/149 and sentenced them as under :- Offence Punishment Section 148 IPC Each appellant to undergo rigorous imprisonment for two years. Section 326 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for five years with a SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 6 fine of Rs.1000/- each and in default to further undergo 3 months' simple imprisonment. Section 324 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for two years. Section 323 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for six months. Rest of the accused Surja Ram s/o Mala Ram, Jugal Singh s/o Bhoor Singh, Godha Ram @ Girdhari, Mana Ram and Dula Ram s/o Bhera Ram, Smt. Mooli w/o Mana Ram, smt. Kunani w/o Adu Ram, Mohan Ram and Bhanwara Ram s/o Adu Ram and Sohan Ram s/o Mala Ram were acquitted from the charges levelled against them. The narration of detail facts may not be necessary for the purpose of deciding this appeal because of the simple reason that the plea of the appellants is based on their right to private defence and their own contention is that the incident occurred because of sudden and grave provocation offered by the complainant party. The undisputed fact is that in this very incident, the accused appellants' five persons died and five were injured. In the cross case being Sessions Case No.42/92 (91/89), the complainant party of this Sessions Case No.54/1992 (34/1990) were accused and SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 7 were convicted along with five other persons for the charge under Sections 302 r/w 149 IPC along with for commission of offence under Section 148 IPC and have been sentenced to undergo life imprisonment. The cause of dispute is also not disputed and it is admitted case that because of the claim over agricultural field which was originally belonging to one Moola Ram who died about 25 years ago from the year 1988, leaving behind his wife Mst.Seu Devi, for which the complainant party of this case is claiming that Mst.Seu Devi adopted their ancestor Jetha Ram and, therefore, they are khatedar tenants of the land in dispute whereas the rival party is claiming that the above agricultural land was purchased by them by registered sale deed from Mst.Seu Devi. PW2 Gopal Ram stated that since generations, the agricultural land was in cultivation of their families and lastly in culviation of his father Jetha Ram who was adopted by Mst.Seu Devi's husband – Moola Ram. Jetha Ram already died about 2½ years ago before the time of the incident as stated by PW3 Bhagwana Ram. PW3 Bhagwana Ram, PW4 Indra Ram, PW6 Kunana Ram, PW7 Deva Ram and PW8 Tulcha Ram in their statements admitted that in this very incident, five persons of the accused party died and for which the above mentioned cross case is pending SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 8 wherein they are accused. All these witnesses admitted that in this very incident, they suffered injuries. Therefore, rest of the issues about the recovery of offence of weapons etc. is not material for the purpose of deciding this appeal nor the injury reports are in dispute either of the accused of this case or of the complainant party who are accused in the cross case. Because of this reason, the thrust of the argument of the learned counsel for the appellants is based on their right to private defence. Undisputedly, 5 persons of the accused party died and those 5 persons died because of, 23 injuries to Sugna Ram, 20 injuries to Shera Ram, 19 injuries to Tiku Ram, 21 injuries to Narayan and 7 injuries to Girdhari. Five more persons from the side of accused party suffered several injuries. In this incident, persons of the complainant party namely, Likhma Ram suffered 2 injuries (as per injury report Ex.P/4) out of which 1 was grievous injury by sharp edged weapon ; Mohan Lal suffered 4 injuries (as per injury report Ex.P/5) out of which 1 was by sharp edged weapon but simple and 3 were simple piercing injuries ; Gopal Ram suffered 5 injuries (as per injury report Ex.P/6) out of which 2 were by sharp edged weapon but simple and 2 were by blunt weapon out of which injury no.2 was grievous ; Deva Ram suffered 5 SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 9 injuries (as per injury report Ex.P/8) which were by pointed weapons and all were simple, one injury by blunt weapon which was also simple and one injury by sharp edged weapon which was also simple ; and Tulchha Ram suffered 1 injury (as per injury report Ex.P/10) by sharp edged weapon which was found to be grievous. Other victims Heera Ram, Amru Ram, Bhagwana Ram, Mst.Bhanwari and Indra Ram suffered injuries by sharp edged weapons and blunt and piercing object. Against the above, the accused party's five persons namely, Gordhan Ram, Tiku Ram & Narayan Ram all three sons of Chokha Ram and Sugana Ram & Shera Ram both sons of Uda Ram died. Furthermore is that deceased Shera Ram had 20 injuries ; deceased Sugna Ram had 28 injuries ; deceased Girdhari had 2 punctured wounds on the vital parts, 4 lacerated wounds and 1 abrasion ; deceased Tiku Ram had 19 injuries which included incised wounds, fracture, piercing wounds, crushed wounds and abrasions including injuries on lungs and deceased Narayan Ram had 21 injuries. Accused party's Harkha Ram, Girdhari, Thakar Ram, Bhagwana Ram s/o Nyola Ram and Bhagwana Ram s/o Chokha Ram had 18, 5, 3, 3 and 6 injuries respectively which were grievous and simple in nature. The dispute occurred because of the rival claims over the immovable property raised by both SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 10 the parties. Section 96 IPC says that nothing is an offence which is done in the exercise of right of private defence. However, “right of private defence” has not been defined as such but in view of Section 96 IPC, it is clear that an offence which is done in exercise of right of private defence, is not an offence, punishable by law. To determine the question of fact about right of private defence, the Court is required to look into all surrounding circumstances and in case, all the circumstances show that the right of private defence was legitimately exercised, then the Court can consider such plea. Section 97 IPC says that every person has a right, subject to the restriction contained in Section 99 IPC, to defend – firstly, his own body, and the body of any other person, against any offence affecting the human body; and secondly, 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. Section 99 IPC says about the acts against which there is no right of private defence available to a person and under Section 99 IPC itself, it is provided that upto what extent the SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 11 right of private defence may be exercised. Section 99 provides that right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Here in this case, admittedly the accused party's 5 persons died and 5 more suffered injuries and there were so many weapons in the hands of the complainant party and the allegation of the accused party is that the complainant party consisted of more than 25 persons. However, 10 out of above more than 25 persons have been convicted for the offence under Section 302 IPC, therefore, it is clear that not only the accused had reasonable apprehension of threat to their life and Section 97 IPC recognises right of a person of private defence. The trial court influenced by number of persons injured of the complainant coupled with number of injuries suffered by 11 persons of the complainant party, rejected the accused persons (appellants) right of private defence on the ground that because of injuries to so many persons and inflicting of so many injuries, the accused persons have exceeded their right of private defence and, therefore, the learned trial court might have taken help of Section 99 IPC for rejecting the accused appellants' plea of right of private defence on the premises that right of private SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 12 defence does not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. We are of the view that the trial court committed serious error in appreciating and in taking account the circumstances in which so many persons were injured by the accused party with so many injuries. 10 persons suffered injuries of the complainant party, then it is clear that they themselves were in large number. They could kill 5 persons and could injure 5 persons more of the accused party, then because of large number of persons, there was threat to life of large number of persons of the accused party and in fact, that threat culminated into actual event of death of 5 persons. In that situation, any person of the accused party lifted any object which can be used as weapon and inflicted injury upon the complainant party of this case, then certainly that was to save the accused themselves from the complainant party's attack. In the cloud of so many persons, atleast 10 persons from the complainant party and 5 persons from the accused party in the situation that could have caused injuries to all and that is the fact position in the present case. Section 100 IPC further says that in certain circumstances, the right of private defence of the body extends to causing death. Here in this case, the accused party have not SB Criminal Appeal No.682/2000 (Harkha Ram and ors. vs. State) 13 caused death of any of the member of the complainant party. Death of so many persons of the accused party may also have provoked the accused party and that was sudden because of the reason that their persons died in fight and spontaneously, the accused reacted. In view of the above reasons, the appellants' conviction for the offences under Sections 148, 326/149, 324/149 and 323/149 IPC cannot be sustained. Consequently, this appeal of the appellants is allowed, the judgment and order of the trial court of conviction and sentence dated 15.11.2000 passed in Sessions Case No.54/1992 (34/1990) is set aside and the appellants are acquitted for the charges referred above. The appellants, who are already enlarged on bail by the order of this Court dated 9.12.2000, need not to surrender. Their bail bonds are cancelled. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. S.Phophaliya