1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Brijlal D.B.CRIMINAL APPEAL NO.227/1985 against the judgment dt.22.1.1985 passed by the Sessions Judge, Sri Ganganagar, in Sessions Case No.6/84. Date of Judgment: Nov.17, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.K.R.Bishnoi, Public Prosecutor. Mr.M.K.Garg, for accused respondent. REPORTABLE BY THE COURT : (PER THANVI J.) 1. By the instant appeal filed under Section 378 of the Code of Criminal Procedure by the State against the judgment and order of the learned Sessions Judge, Sri Ganganagar dt.22.1.1985 in Sessions Case No.6/84, the acquittal of accused respondent Brijlal for the charges levelled against him under ss.302, 302/34 and 307/34 2 IPC as also u/ss.25 & 27 of the Arms Act, has been challenged. 2. Facts leading to this appeal are that one FIR, Ex.P.1 was filed on 1.10.83 at Police Station, Chunawadh, Distt.Sri Ganganagar by Mohan Ram, PW 1 that Mohanlal, PW 15 and accused respondent Brijlal were Gauge Readers in the Irrigation Department and were residing at the Govt. quarters adjacent to Suleman Ki Head. It is alleged in the FIR that the accused respondent Brijlal was in the habit of consuming liquor and used to abuse off and on to Mohanlal, PW 15, who was residing with his family. It is also alleged that many persons used to visit at accused Brijlal's house, one of whom was Kashi Ram. They often used filthy language against Mohanlal, PW 15. Despite persuasion, there was no change in the habit of accused Brijal. Mohanlal, PW 15 called the `Panchayat' but despite persuasion of the panchayat members, there was no change in the conduct of the accused respondent Brijlal. A complaint was also filed by Mohanlal, PW 15 on 18.8.83 before the Assistant Engineer of the Department. Thereupon, accused Brijlal started giving threats to Mohanlal. Ultimately, Mohanlal had to quit 3 the Govt. quarter and he started residing with Mohan Ram Naik, PW 1 at 25 ML. 3. The story of the prosecution is that on 30.9.83 at about 9 PM, when Mohanlal, PW 15 was sitting with his wife and children in the house of Mohan Ram Naik, PW 1, accused Brijlal and Kashi Ram came there and gave abuses to the complainant Mohan Ram Naik, PW 1, who was also sitting outside his house and asked him to call out Mohanlal, PW 15 from the house, as they wanted to kill him. Upon this, the complainant Mohan Ram Naik, PW 1 requested the accused respondent Brijlal and Kashi Ram not to kill Mohanlal, PW 15 in his house and they can achieve their object at some other place. He also requested the accused to leave his house but they started abusing loudly. Both the accused Brijlal and Kashi Ram were having pistols in their hands. Upon seeing the conduct of the accused Brijlal and Kashi Ram, Mohanlal got himself hidden in the flour mill of Milkha Singh. After leaving the house by Mohanlal PW 15, Mohan Ram Naik PW 1 gave a call to the neighbours, whereupon Badri, Basant Singh, Nihal Singh, Nathu Singh, Milkha Singh and Mani Ram Naik came there and asked the accused to go away from that 4 place but instead of leaving, they insisted to kill Mohanlal, PW 15. Thereafter, the accused Brijlal and Kashi Ram went in front of the house of Sultan Bhat on the strip of the Canal and continued to abuse Mohanlal, PW 15. Complainant Mohan Ram, PW 1 and the neighbours went to the accused Brijlal and Kashi Ram and again requested not to hurl abuses but in vain. It is alleged that at the instance of Kashi Ram, accused respondent Brijlal fired towards the people, who came to rescue, with his pistol, whereby Omprakash and Sultan Bhat were hit and Mst.Munni Devi, Labh Singh and Seriya were injured. Munni Devi and Omprakash died on the spot, whereas Sultan became unconscious and was taken to the hospital, where he died on 1.10.83. After firing, Overseer Ranveer Singh reached on the spot and Mohan Ram, PW 1 came to Ganganagar and informed about the incident to the SDO, Irrigation Shri Ghanshyam Singh and Executive Engineer, Irrigation Shri Gurdayal Singh, who asked him to lodge the FIR at the Police Station, Chunawadh. 4. The report Ex.P.1 was lodged in the night at 12.05 AM on 1.10.83 by Mohan Ram Naik, PW 1. The police registered a case and commenced investigation. Both 5 the accused viz; Brijlal and Kashi Ram got themselves admitted in the hospital but as soon as they heard about the death of Sultan, they ran away from the hospital. Accused respondent Brijlal was arrested on 10.10.83 near Elnabad on tubewell and on his information, the recoveries of 12 bore pistol and empty cartridge were made. Accused Kashi Ram was absconding, therefore, a chargesheet u/s.299 CrPC was filed against him. The autopsy of the dead bodies was also conducted by the doctors. After usual investigation, accused Brijlal was chargesheeted u/ss.302, 307 and 324/34 IPC and ss.25 and 27 of the Indian Arms Act in the court of learned Judicial Magistrate No.1, Sri Ganganagar, who committed the case to the court of Sessions. Learned Sessions Judge framed charges against the accused Brijlal u/ss.302, 302/34 & 307/34 IPC and under Sec.27 of the Indian Arms Act. Accused Brijlal pleaded not guilty to the charges and claimed trial. The prosecution examined 17 witnesses. The statement of the accused was recorded u/s.313 CrPC. He led no defence. After hearing the arguments, the learned Sessions Judge acquitted the accused respondent Brijlal for the charges levelled against him on the plea of self defence. 6 5. We have heard learned Public Prosecutor as well as the learned counsel for the accused respondent and re- appreciated the evidence brought on record. 6. While assailing the judgment of the learned trial Judge, it has been vehemently argued by the learned Public Prosecutor that despite there being ample evidence of eye witnesses viz; Mohan Ram PW 1, Basant Singh PW 2, Mani Ram PW 3, Labh Singh PW 5 and Mohanlal PW 15, the learned trial Judge purely on the basis of hypothetical and misconceived notions, arrived at the conclusion of acquittal of the accused on the plea of self defence, which has not at all been established. According to the learned Public Prosecutor, the approach of the learned trial Judge is not only erroneous and perverse but contrary to the established principles of appreciation of evidence in a Criminal trial. The approach of the learned trial Judge by discarding the evidence of eye witnesses on flimsy grounds and not relying upon the recovery of pistol on the information of the accused, is again contrary to facts brought on record, particularly when there was a strong motive of killing on account of filing complaint against 7 accused by Mohanlal, PW 15 before the higher authorities as also calling Panchayat at the instance of Mohanlal, PW 15 for the reason that accused Brijlal was a drunkard and he used to abuse Mohanlal, PW 15 and because of this, Mohanlal, PW 15 had to quit his Govt. quarter and had to shift in the private house of complainant Mohan Ram Naik, PW 1. The law relied upon by the learned trial Judge is also not applicable to the facts of the present case and in the last, he has urged to set aside the judgment of acquittal of the learned trial Judge by convicting the accused respondent with severe punishment in a case of triple murder. 7. Per contra, learned counsel for the accused respondent Brijlal has submitted that the testimony of the eye witnesses with regard to firing either by accused Kashi Ram or by the present accused Brijlal is un-corroborative vis-a-vis the recovery of pistol and empty cartridges. According to the learned counsel, there was no strong motive to kill the deceased persons with whom the accused was having no enmity. When the villagers, who were 50 to 60 in number, started running towards the accused and gave beating resulting in 8 multiple injuries, then Kashi Ram fired in self defence wherein three persons died. It is also not known as to who fired upon the deceased persons, whether accused Brijlal or Kashi Ram, who is said to be accompanying him. According to the learned counsel, Kashi Ram, who was absconding and against whom, chargesheet u/s.299 CrPC was filed, was later on arrested and has been acquitted by the learned Addl.Sessions Judge No.2, Sri Ganganagar on 18.3.94 in Sessions Case No.26/93, therefore, the acquittal of present accused by the learned trial Judge deserves to be affirmed by this Court. 8. The most important feature in the present case is the plea of right of private defence. It is undisputed that during firing, two persons died on the spot and one died in the hospital on the intervening night and two persons also received fire arm injuries, who tried to intervene. Accused respondent Brijlal in his statement u/s.313 CrPC has also stated that on the intervening night, he and Kashi Ram were consuming `Bidi'. People of the village ran towards him and Kashi Ram, then they ran away. They were beaten by villagers with lathis. Then Kashi Ram fired with pistol but he did not 9 remember as to how many fires were made but he did not fire on anyone. 9. To examine the plea of self defence, we have to first re-appreciate the evidence of the eye witnesses. Mohan Ram, PW 1, is the complainant in the case and has proved the FIR with regard to enmity between Mohanlal PW 15 and accused respondent Brijlal, who were working together as Gauge Reader in the Irrigation Department and were living in the Govt. quarters, where accused Brijlal used to abuse Mohanlal, therefore, he left the Govt. quarter and started living in his house on rental basis at 25 ML fifteen days prior to the incident. He has categorically stated that on the date of incident between 8-30 PM to 9 PM, accused Brijlal and Kashi Ram came to his house. He was sitting outside the house and Mohanlal and his family members were inside. Both the accused were having pistols in their hands and they told him to call out Mohanlal, as they wanted to kill him. He asked them to leave the place but they did not leave. Then, Mohanlal by crossing his boundary, went to the flour mill of Milkha Singh. He called neighbours. Thereupon, Badri, Basant Singh, Nihal Singh, Nathu Singh, Milkha Singh and Mani Ram 10 Naik came there. They all asked accused Brijlal and Kashi Ram to leave but both insisted to kill Mohanlal. They were standing 20ft away from the accused. Then Kashi Ram told accused Brijlal to kill them, upon which accused Brijlal started firing which hit Omprakash and Sultan Bhat and Kashi Ram fired at Munni Devi, Labh Singh and Seriya. Omprakash and Munni Devi died on the spot and Sultan Bhat died in the hospital. Meanwhile, Ranveer Singh, Overseer came there. He went with him to the SDO, Irrigation Ghanshyam Singh and the Executive Engineer Gurdayal Singh, who asked them to report the matter to the police, which he reported vide Ex.P.1 at Police Station, Chunawadh. It is true that in the cross examination, this witness has said that he cannot see with one eye but he has clearly stated that fire was made at the distance of 20 ft. away. According to him, his house is ofcourse at a distance of one to one and half bighas from where accused Brijlal and Kashi Ram fired but the pistol was fired by accused Brijlal not from the house of Mohan Ram but in front of the house of Sultan and on the way to Canal from where they started abusing, which distance is said to be 20 ft. Even if for the sake of argument, it is assumed that Mohan Ram's house is at a 11 distance of one and half bighas, then it cannot be more than 150 ft. to 200 ft. If this statement of Mohan Ram is read with the site plan Ex.P.2, then the place from where accused Brijlal fired is shown as “D” and blood was found at portions “A”, “B” and “C”. “A” is the place where Omprakash was fired, “B” is the place where Munni Devi was fired and “C” is the place where Sultan Bhat was fired and the distance of “A”, “B” and “C” portion is 18ft. to 20ft. and the house of Sultan Bhat, where deceased went is at point “10” and the houses of Mohanlal and Mohan Ram are at point “16” and “17” respectively. This site inspection note and the site plan, if read with the testimony of Mohan Ram, PW 1, it is clear that even if the villagers followed the accused, they were not beyond the distance of 150ft. to 200 ft. The approach of the learned trial Judge that the villagers followed upto a distance of one and half bighas to cause grievous hurt or death of the accused persons, is misconceived because nowhere this Mohan Ram PW 1 or other witnesses have said that the villagers were armed with lathis or other deadly weapons. 10. Likewise, Basant Singh, PW 2 is another eye witness, who has corroborated the testimony of Mohan 12 Ram, PW 1 in which he has categorically denied in his cross examination that the villagers went to inflict injuries to accused Brijlal and Kashi Ram or to cause their death. He has categorically stated that accused Brijlal fired on Sultan and Omprakash and Kashi Ram fired at Munni Devi, Seriya and Labh Singh. 11. Mani Ram PW 3, while supporting the version of arrival of the accused at the house of Mohan Ram to kill Mohanlal and firing by accused Brijlal on Sultan and Omprakash and also firing by Kashi Ram on Munni Devi, Labh Singh and Seriya, has ofcourse stated in his cross examination that they guessed as to who fired on whom. He has specifically denied that Kashi Ram fired to save himself. According to him, accused fired at a distance of 10 to 12 ft. 12. Ghanshyam Singh, PW 4 is the Assistant Engineer, who has proved motive through Ex.P.12, whereby Mohanlal made a complaint on 18.8.83 against accused respondent Brijlal, which was forwarded by him to the Executive Engineer. In this complaint, Mohanlal PW 15 had levelled allegation against accused Brijlal, who was working with him. It was stated in it that accused Brijlal 13 and others were drinking liquor and were abusing him when he was out. When he came to the house, his wife narrated the story. In the last line of complaint, Mohanlal sought his transfer or of Brijlal. Ghanshyam Singh, PW 4, has further stated that in the night of 30.9.83, Mohan Ram Beldar and Ranveer Singh, Junior Engineer came to him and stated about killing of three persons by Brijlal and Kashi Ram by fire arm. This shows the motive of accused Brijlal to kill Mohanlal. 13. Labh Singh, PW 5 is the another injured eye witness, who has also supported the case of the prosecution but in the cross, he has said that he cannot say as to who fired but on court question, he said that he identified Brijlal and Kashi Ram near “Keekar” tree but did not see pistol in their hands. 14. The next important witness is Mohanlal, PW 15, who while proving enmity with accused Brijlal with the aid of complaint Ex.P.12 to superior officer, has stated that on account of accused Brijlal's continuous abusing, he left Govt. quarter and started living in the house of Mohan Ram, PW 1, where again accused Brijlal and Kashi Ram came to abuse him and on the intervening 14 night, when he left the house of Mohan Ram, they followed him and fired on the villagers, who came to his rescue, whereby Omprakash and Sultan died on firing by accused Brijlal & Kashi Ram fired on Munni Devi, Labh Singh and Seriya. Nothing from his testimony can be revealed that the villagers were armed with any weapons. 15. This evidence coupled with the conduct of the accused in getting himself admitted in the hospital in the intervening night for simple injuries, shows that it was accused Brijlal, who fired on Sultan and Omprakash, whereby both died alongwith Munni Devi, who is said to have been hit by Kashi Ram's fire. Though Kashi Ram has been acquitted in Sessions Case No.26/93 on 18.3.94 by the learned Addl.Sessions Judge No.2, Sri Ganganagar but the grounds of acquittal are altogether different in which the witness of recovery Bahadar Ram was turned hostile and Basant Singh, PW 10 did not identify Kashi Ram in the court. The important witness Mohanlal was not produced in the court. There was no recovery from him. In view of this, the learned counsel for the present accused respondent cannot take benefit from the order of acquittal passed 15 in the case of Kashi Ram by the learned trial Judge, whose trial was conducted separately and was acquitted ten years later on altogether different evidence, whereas in the present case, as discussed above, apart from there being a strong motive, there is ample evidence of eye witnesses that accused respondent Brijlal fired, whereby Omprakash and Sultan died. 16. In addition to the evidence of the eye witnesses, there is recovery of pistol, Art.1 and cartridge, Art.2 vide Ex.P.13 made at the instance of the accused and proved by Bahadar Ram, PW 6 and investigating officer Ghadsi Ram, PW 16. According to Chandra Nath Bhattacharya, PW 14, 12 bore fired cartridge case has been fired through the country made pistol marked “M” & it could not have been fired through any other firearm because every firearm has its own individual characteristic marks. From the perusal of this report of the Central F.S.L., Ex.P.29, it reveals that one country made pistol marked “M-1” was fired with cartridge marked “K”, which was recovered by the investigating officer Ghadsi Ram, PW 16. As proved by Shiv Bhagwan Joshi, PW 17, accused was having no licence for the pistol, which was used and the sanction for prosecution 16 was accorded under Sec.3 read with S.25(1)(a) of the the Arms Act. 17. Next is the medical evidence of deceased and injured accused. Prithvi Singh Choudhary, PW 7 is the doctor, who examined both the accused vide bed head tickets Ex.P.16 and Ex.P.17. According to him, both the injuries were simple in nature. According to this doctor, both were admitted in the hospital in the intervening night of 30.9.83 and 1.10.83 at 4.30 AM. Dr.Rajesh Kumar Gupta, PW 8 has stated that Dr.Pratap Singh Bhatia gave the requisition on 1.10.83 at 11 AM that accused Brijlal and Kashi Ram, who were admitted vide Ex.P.16 and 17, were absent in the hospital. He is the author of the post mortem reports of Sultan vide Ex.P.18, Omprakash vide Ex.P.19 and Munni Devi vide Ex.P.20. Dr.Pratap Singh Bhatia, court witness No.1 has stated that he admitted both the accused Brijlal and Kashi Ram in the hospital but in the cross examination, he said that there was no grievous injury on their bodies and their injuries were simple in nature and there was also no apprehension that these injuries might be of grievous nature. 17 18. When the case is full of evidence of the eye witnesses, as discussed above, with minor contradictions coupled with recovery of weapons from which the firearms were made and also presence of strong motive of enmity whereby Mohanlal, PW 15 to whom accused Brijlal wanted to kill, had to quite the Govt. quarter and had to shift at the house of Mohan Ram, PW 1, shows that the accused Brijlal wanted to take vengeance from his co service man by killing, who went to the rented house of Mohan Ram, PW 1, where Mohanlal tried to rescue himself and on seeing the villagers, the accused started firing and thereupon got admitted in the hospital and fled away upon hearing the news of death of Sultan in the hospital. From this conduct, by no stretch of imagination, it can be inferred that the accused acted in a self defence, especially when their injuries were simple in nature and they were having no apprehension of death or grievous hurt. 19. Right of self defence as defined u/s.100 IPC is available only if it covers any of the six categories mentioned therein. In the present case, when the villagers were not armed with lathis and the accused had not received any such injury which could have been 18 apprehended to be of grievous nature, it cannot be said that the accused acted in the right of private defence of his body. Even, there was no scuffle between the villagers and the accused, who were hardly at a distance of 20 ft. On the contrary, the villagers went to pacify the accused not to abuse Mohanlal but accused Brijlal wanted to take vengeance on account of complaint, Ex.P.12, filed by Mohanlal, PW 15 to his superior officer and, therefore, he brutally killed two persons and a third person was killed by his companion accused Kashi Ram, who has been acquitted in a different trial on account of absence of legal evidence. 20. The reasonable apprehension of the accused that he may be subjected to death or with grievous injury, cannot be subjected to microscopic scrutiny but has to be looked into from the facts & circumstances of each case emerging from such incriminating evidence, which leads to no other conclusion except the guilt of the accused. Here, in the present case, no other view can be taken except the guilt of the accused but the learned trial Judge while mis-appreciating the evidence, arrived-at the conclusion purely on hypothetical and misconceived notions, which cannot be sustained in the 19 eye of law. 21. In view of the discussion made above, we are left with no other alternative but to dis-agree with the finding of acquittal arrived-at by the learned trial Judge so far as the offence u/s.302 IPC is concerned. As regards the other offences charged, we find no evidence with regard to the offences u/s.307/34 and Sec.27 of the Indian Arms Act because the sanction has been accorded for the offence under Section 3 read with 25 (1)(a) of the Indian Arms Act, for which the learned Sessions did not frame any charge. 22. Consequently, we allow this State Appeal, set aside the judgment and order of the learned Sessions Judge, Sri Ganganagar dt.22.1.1985 acquitting the accused respondent Brijlal for the offence u/s.302 IPC. On the quantum of sentence, we have heard learned counsel for the accused respondent Brijlal. Looking to the incident being of 1983, we are not inclined to award the death sentence. Accused Brijlal is sentenced to imprisonment for life alongwith a fine of Rs.1000/- & in default, to further undergo one year's R.I. for the offence u/s.302 IPC. Learned trial Judge is directed to 20 issue warrant of arrest against accused respondent Brijlal for serving out the sentence, as awarded above. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS