IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Govinda & Another Vs. State of Rajasthan (D.B. CRIMINAL APPEAL No.1012/2005) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 25-10-2005 in Sessions Case No.34/2005 passed by Shri Brijesh Kumar Dangra, RHJS, Additional Sessions Judge (Fast Track) Bandikui Head Quarter Dausa, District Dausa. Date of Judgment: April 29, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Mr. Suresh Sahni, for the appellants. Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Two groups indulged in mutual fight resulting in death of Jagdish and injuries to the members of both the sides. Govinda and Ram Ratan, appellants herein, along with fourteen co-accused, were put to trial before learned Additional Sessions Judge (Fast Track) Bandikui, District Dausa, for having committed murder of Jagdish, learned Judge vide judgment dated October 25, 2005 while acquitting co-accused persons convicted and sentenced the appellants as under:- Govinda U/s.302 and Ram Ratan u/s.302/34 IPC: Both to suffer imprisonment for life and fine of Rs.4000/-, in default to further suffer imprisonment for six months. U/s.148 IPC: Both to suffer simple imprisonment for one month. Sentences were ordered to run concurrently. 2. Informant Kanhaiya Lal (Pw.1) submitted a written report (Ex.P-1) on November 8, 1994 at 10.15 AM to the SHO Police Station Nangal Rajawatan at the place of incident stating therein that around 4.00 AM some miscreants armed with Guns, Dharia, Gandasa and lathis came over to village Gudha Kiratwas, got the villagers ousted from the houses, marched them to the field and started beating them when Jagdish Meena intervened, he was done to death. Nanag Ram, Jansi Ram, Lohu Ram, Chhotu Lal, Kanhaiya Lal Sharma, Arjun, Ramji Lal, Nehnu Ram, Prem, Dhapa and Nehna received injuries. The names of miscreants were Rampal Meena, Govinda, Phaili Ram, Somani, Gopi, Ram Ratan Sharma, Lallu Ram, Babu Lal Sharma, Pappu, Prem Sharma, Ghisi, Gayatri, Laxma, Kailashi, Kamla and Badam. On that report case under sections 147, 148, 149, 323, 325, 302, 307 and 447 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the accused. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Bandikui District Dausa. Charges under sections 147, 148, 324, 325, 326, 307, 302, 302/149 and 427 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence and stated that on July 25, 1991 Ramesh, Babu, Suresh and Mahesh purchased a land. After the revenue suit decided in their favour, Tehsildar handed over possession of land to them on September 8, 1994. It was the complainant party that tried to dispossess the appellants on the date of incident. Five witnesses were examined in support of defence. Informant Kanhaiya Lal and other injured persons viz. Laxman, Chhotu, Naina, Jansi, Lohadi Ram, Dhapa and Prem entered into compromise with the appellants and filed compromise deed in the trial court. Learned trial court acquitted the appellants under sections 323, 324, 325 and 427 IPC on the basis of compromise. Thereafter on hearing final submissions, learned trial Judge, while acquitting co-accused persons, convicted and sentenced the appellants as indicated above. 3. We have heard rival submissions and scanned the material on record. 4. A look at Postmortem Report (Ex.P-19) demonstrates that the deceased Jagdish sustained antemortem lacerated wound on the head and according to Autopsy Surgeon Dr. O.P.Bansal (Pw.16) the cause of death was coma due to head injury. 5. Details of injuries received by other injured persons are these:- Bishram vide injury report (Ex.P25) received one lacerated wound 1 x .5 x .4cm over middle of forehead. Naina vide injury report (Ex.P-26) received one swelling with tenderness over Rt.buttock. Laxman vide injury report (Ex.P-27) received following injuries:- 1. Lacerated wound 3 x 1 x bone deep on Rt.side fronto parietal region. 2. Lacerated wound 1.3 x 0.5 x 0.5cm medial side Rt.little finger 3. Abrasion 1 x 0.5cm over front Rt.lower leg. 4. Diffuse swelling with tenderness over Rt.shoulder. 5. Diffuse swelling with tenderness over Rt.illiac crest region. 6. Abrasion 1 x 0.5cm back of lt.forearm lower 1/3 back of lt.forearm. 7. Diffuse swelling over middle 1/3 back of lt.forearm. Kanhaiya Lal vide injury report (Ex.P-28) received following injuries:- 1. Incised wound 2 x 0.5cm x bone deep over lt.lower leg. 2. Abrasion 1 x 0.5cm middle 1/3 lat.aspect Rt.forearm. 3. Abrasion 2 x 1cm over medial side of lt.knee 4. Abrasion 1 x 0.5cm over back of Rt.index finger. Chothu Ram vide injury report (Ex.P-29) received following injuries:- 1. Incised wound 6 x 1cm x bone deep over scalp 2. Diffuse swelling with tenderness Rt.side buttock. 3. Diffuse swelling lt.side buttock. 4. Diffuse swelling over lt.lower leg. Jansi vide injury report (Ex.P-30) received following injuries:- 1. Lacerated wound 1.5 x 1cm x bone deep Rt.lower leg. 2. Lacerated wound 1 x 0.5cm x 0.5cm over back of Rt.shoulder 3. Lacerated wound 4 x 0.5cm x bone deep over scalp upper part. Nanga vide injury report (Ex.P-31) received following injuries:- 1. Incised wound 4 x 1cm x 0.5cm over back of Rt.hand. 2. Incised wound 2 x 0.5 x 0.5cm Rt.hand. 3. Incised wound 4.5 x 0.5 x 1cm bone deep over front of lower leg. 4. Abrasion with diffuse swelling 1 x 0.5cm Rt.knee 5. Abrasion 4 x 3cm left side of left forearm. Lohadi Ram vide injury report (Ex.P-32) received following injuries:- 1. Lacerated wound 2.5 x 1cm x bone deep over Rt.lower leg. 2. Lacerated wound 3 x 2cm x bone deep medial side of Rt.lower leg. 3. Lacerated wound 1 x 1cm x bone deep medial side Rt.lower leg. Dhapa vide injury report (Ex.P-33) received following injuries:- 1. Lacerated wound 1 x 0.5 x 0.5cm middle of forehead. 2. Abrasion back of lt.forearm. Prem Devi vide injury report (Ex.P-34) received following injuries:- 1. Incised wound 1.5 x 0.5cm x bone deep over back Rt.arm 2. Abrasion 1.5 x 1cm back of Rt.hand index finger. 3. Diffuse swelling over back of Rt.hand 4. Diffuse swelling with tenderness Lt.knee. Ramji Lal vide injury report (Ex.P-35) received following injuries:- 1. Multiple abrasions from 0.5 x 0.3 to 0.3 to 0.2cm over front of lt.lower leg 2. Multiple abrasions from 1 x 0.5 to 0.5 x 0.2cm over dorsum of lt.foot. 3. Bruise 9 x 3.5cm over front of chest lower ½ 4. Abrasion 1.5 x 0.5cm over back of Rt.elbow 5. Bruise 4 x 3cm over lt.shoulder. 6. Bruise 4 x 3cm over lt.side back of chest 7. Lacerated wound 5 x 0.5cm x bone deep over rt. Parietal region. 6. Members of the accused party also sustained injuries, details of which are as under:- Lallu Prasad vide injury report (Ex.D-20) received following injuries:- 1. Hematoma 8” x 4½” over Rt.side of back 2. Abrasion 2cm x 2cm over left iliac crest. Ram Ratan vide injury report (Ex.D-21) received following injuries:- 1. LW 2.5cm x 2cm x muscle deep lower end of lt.arm. 2. LW 2cm x ½cm x subcuteneous deep upper part of lt.forearm. 3. Diffuse swelling over front of medial of left thigh. 4. Pain and tenderness over front of left ankle. 5. Swelling with abrasion over front of middle of rt.leg. (6cm x 4cm) (3cm x1cm) 6. Bruise with swelling (7cm x 4cm) (6cm x 3cm) Rt.chest. 7. Three bruises over middle of back overlaping each other left chest in lower portion 12cm x 4cm, 10cm x 4cm, 10cm x 4cm. 8. Abrasion 2cm x 2cm over Rt.shoulder. Vide X-ray report (Ex.D-30) fracture of 9th and 10th ribs were found. Prem vide injury report (Ex.D-22) received following injuries:- 1. LW 3.5cm x 0.5cm x muscle deep over Rt.parietal region. 2. Swelling of elbow movement restricted. 3. LW 2cm x 1cm x muscle deep scar dorsum of proximal phalynx of middle finger (Lt.) 4. Swelling of proximal phalynx of Lt.index finger. 5. C/o pain over lower back. Lalita vide injury report (Ex.D-23) received following injuries:- 1. Abrasion 2cm x 1cm over vertex to Rt.of mid line Scalp. 2. Swelling with bruise over outer aspect (5cm x 3cm) (3cm x 2cm) of upper part of left arm. 3. abrasion 2cm x 2cm over post aspect of lower part of Lt.arm. 4. Swelling (3cm x 2cm) over Rt.wrist. Ghisi vide injury report (Ex.D-24) received following injuries:- 1. Swelling with tenderness (5cm x 4cm) over lower half of Rt.forearm. 2. C/o pain left shoulder and left elbow. Anil Kumar vide injury report (Ex.D-25) received following injuries:- 1. LW 3cm x 1cm over middle of vertex 2. LW 2cm x ½cm over Rt.side of occipital clotted & dried blood Babu Lal vide injury report (Ex.D-26) received following injuries:- 1. LW 4.5cm x 1cm x bone deep over Rt.parietal region 2. LW 2.5cm x 0.5cm x bone deep over Rt.parietal region. 3. LW 3cm x ½cm x bone deep margins irregular. 4. Abrasion 3.5cm x 2cm over middle of back of Rt.chest. 5. Bruise with swelling (5cm x 3cm) (7cm x 4cm) buttock. Somani vide injury report (Ex.D-27) received one abrasion 1.5cm x 0.25cm on junction of middle & lower third of the Rt.forearm. Phaili Ram vide injury report (Ex.D-28) received lacerated wound 4.25cm x 0.5cm on posterior part of mid parietal region & adjoining occipital region of scalp. Ram Pal vide injury report (Ex.D-29) received one swelling with tenderness on body of left hand, lower half. 7. Sampat Singh (Pw.21), who was investigating officer, admitted in his cross examination that cross case bearing FIR No.286/94 was registered by him and both the groups were litigating in the revenue courts. The bone of contention was agricultural land. 8. It is contended by learned counsel for the appellants that the accused party had possession over the land and the complainant party was aggressor. We have been taken through the statements of Ramesh Chand Patwari (Dw.3) and Kamal Singh Tehsildar (Dw.5) to show that land in question had been owned and possessed by the accused party and when the complainant party made attempt to forcibly oust the accused party it had right of private defence. It is further contended that the injuries sustained by the accused party and the origin and genesis of the incident has been withheld by the prosecution, therefore the appellants are entitled to benefit of doubt. 9. Coming to the contention of learned counsel for the appellants that complainant party was the aggressor and the appellants had right of private defence, we find that section 97 IPC recognises the right of a person to defend his own or another's body. Their Lordships of the Supreme Court in Mahabir Chaudhary Vs. State of Bihar (1996)5 SCC 107, indicated two measures of right of private defence, one is the first degree which shall not reach up to causing of death of the wrong doer, the other is the full measure which may go upto causing death. Both measures are however subjected to the restriction enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right upto the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure. The emerging position is that unless one has reasonable cause to fear that otherwise death or grievous hurt might ensure, the right of private defence cannot be used to kill the wrong doer. It was held that when the acts are amounted to mischief the accused had a right of private defence to thwart the same. In the course of exercise of such right of private defence, the accused who gunned-down the mischief-makers, has obviously acted far in excess of right of private defence. Nonetheless the first degree of right of private defence cannot be denied to the accused. 10. In Subramani Vs. State of T.N. (2002)7 SCC 210 the Apex Court propounded that if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because section 96 makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But it cannot be said that the murder was committed pursuant to a common intention to commit such crime. The intention of the appellants was not to cause death of the deceased, but they had acted in exercise of their right of private defence. While acting in exercise of the right of private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence. 11. Their Lordships of Supreme Court in Subramani Vs. State of T.N. (supra) in regard to non explanation of injuries sustained by the accused indicated as under:- “The appellants suffered injuries on vital parts of the body, even though simple but the prosecution failed to give any explanation for such injuries. The prosecution feigned ignorance about the injuries suffered by the appellants. It is not possible to accept the submission that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version.” 12. In Vajrapu Sambayya Naidu Vs. State of A.P. (2004)10 SCC 152 the Apex Court held that where the injuries sustained by the accused were not explained by the prosecution it probabilise the case of defence that the prosecution party was the aggressor. 13. It is well settled that where the charge against the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. 14. In Mohd. Ramzani Vs. State of Delhi (AIR 1980 SC 1341), the Hon'ble Supreme Court indicated that the onus which rests on an accused person under Section 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. 15. In Mohinder Pal Jolly Vs. State of Punjab (AIR 1979 SC 577), 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 S.99 of the Penal Code.” 16. In Chuhar Singh Vs. State of Punjab (AIR 1991 SC 1052), where in 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 under Section 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 under Section 304 Part-I IPC.” 17. In Devraj and Another Vs. State of H.P. (1994 Supp.(2) SCC 552), their Lordships of 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 under Section 304 Part II IPC.” 18. Division Bench of this Court in Veera Vs. State of Rajasthan (1981(5) RCC 169) indicated that injuries on the person of the accused found immediately after the occurrence but not explained by the Prosecution, accused alleging that his gun went off during the attack by the deceased, plea of self defence proved by the accused and made out by evidence sufficient to acquit him. 19. In Puran Vs. State of Rajasthan (AIR 1976 SC 912) It was indicated that where sudden mutual fight ensued between the parties, there is no question of invoking the aid of Section 149 IPC for the purpose of imposing constructive criminal liability. The accused can be convicted only for the injuries caused by him by his individual acts. 20. In the case on hand as already noticed that mutual fight between the parties occurred when the complainant party tried to dispossess the accused party from the land in question. Having regard to the facts of the case, omission on the part of prosecution to explain the injuries on the person of accused gives rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence. 21. Appellant Govinda, who as per the prosecution case inflicted single injury on the head of the deceased, in the facts and circumstances of the case does not appear to have intention to cause murder of the deceased. This possibility can not be ruled out that in order to save members of accused party and the land in question Govinda inflicted injury on the head of deceased. Since Govinda exceeded right of private defence he is entitled to the benefit of Exception 2 of Section 300 IPC. The prosecution witnesses attributed another injury on the back side of the deceased to co-appellant Ram Ratan but the ocular testimony did not get corroboration from the post mortem report. There was only one injury on the head of the deceased. Thus charge against Ram Ratan could not be established beyond reasonable doubt. 22. For these reasons, We dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of Govinda and instead of section 302, we convict him under section 304 Part II IPC and sentence him to suffer rigorous imprisonment for five years. We however acquit Govinda of the charge under section 148 IPC. (ii) We allow the appeal of Ram Ratan and acquit him of the charges under sections 302/34 and 148 IPC. Appellant Ram Ratan, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. (Guman Singh),J. (Shiv Kumar Sharma)J. arn/