STATE OF RAJASTHAN versus MEHRAM & ORS.
[2020] 5 S.C.R. 234, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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STATE OF RAJASTHAN
v.
MEHRAM & ORS.
(Criminal Appeal No. 1894 of 2010)
MAY 06,  2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Penal Code, 1860 – Conversion of conviction from s.302 IPC
to s.326 IPC – The complainant’s case that they used an old way
passing through the fields of accused persons to go to their field
– There was a dispute between the parties for using the fields as
a passage – On the day of incident, the accused persons armed
with ‘Kassies’ and lathies come out from the back of the bushes
and surrounded the complainant when he was passing through
fields – The accused tried to strike the complainant, however, the
victim and other persons arrived from their fields – Thereafter, the
accused No. 5/respondent no. 1 struck a ‘kassi’ blow on the head
of the victim, due which he fell and later on died – There were
beatings from both sides and after the intervention of other
villagers, the accused persons ran away – The case was committed
by the Sessions Court and the accused no. 5/respondent no. 1 came
to be convicted u/ss. 148, 302, 324/149 IPC and sentenced to
undergo life imprisonment – All the five accused including accused
no. 5 preferred appeal before the High Court – As regards, accused
no. 5/respondent no. 1, the High Court converted the conviction
u/s. 302 IPC into one under s. 326 IPC on the finding that the said
accused had exceeded his right of private defence – On appeal,
held: On perusal of
the relevant evidence and the judgments of
the Trial Court and the High Court, there is no reason to depart
from the conclusion reached by the Trial Court that there were
tangible circumstances and evidence to indicate that the accused
party was the aggressor, who was hiding in the bushes and appeared
only after the complainant party arrived on the spot – The accused
party armed with lethal weapons assaulted the complainant party
– The blows inflicted by the concerned accused, in particular
accused No. 5, here with intention to kill the victim/deceased – The
High Court proceeded on the erroneous assumption that the
accused party were provoked due to the unauthorized entry of the
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complainant party on their fields and to defend their possession,
they had to resort to right of private defence – In the instant case,
there was no evidence produced to substantiate the plea of exercise
of private defence – The incident in question occurred due to
provocation and spiralled into a free fight – Further, once it is a
case of accused party being the aggressors and they commenced
assault on the complainant party and the accused No. 5/respondent
No. 1 having been found to have assaulted victim/deceased with
intention to kill him the question of invoking the right of private
defence does not arise – Insofar the conviction of the accused
no.5/respondent no.1 is concerned, the sequence of events would
indicate that provocation was not invited by the accused party, but
was obviously at the instance of the complainant party, who entered
the fields unauthorisedly despite the objection taken by the
complainant party in that regard on the same day earlier – The
death of the victim was caused by the one fatal blow on the head,
which was with the intention of causing his death or causing such
bodily injury as is likely to cause death, therefore, the case would
be covered by s. 304-I, IPC – Accordingly, the impugned judgment
of the High Court and that of the Trial Court are modified by
convicting the accused no. 5/respondent no. 1 for offence
punishable u/s. 304-I and s. 148 IPC.
Disposing of the appeal, the Court
HELD: 1. After having gone through the
relevant evidence
and judgments of the trial  Court and the appeal Court (High
Court), this Court has no reason to depart from the conclusion
reached by the trial Court that there were tangible
circumstances and evidence to indicate that the accused party
was the aggressor, who was hiding in the bushes and appeared
only after the complainant party arrived on the spot. The accused
party had assembled at the spot with lethal weapon(s) and all
the accused were waiting for the complainant party to arrive at
the spot and started assaulting the complainant party. The blows
inflicted by the concerned accused, in particular accused No. 5,
were with an intention to kill victim (deceased). The death of
victim was caused due to the blow  inflicted by accused No. 5
and was a homicidal death. There is no reason to depart from
the said findings recorded by the trial Court and the same
STATE OF RAJASTHAN v. MEHRAM & ORS.
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remained undisturbed by the High Court. The High Court by
its cryptic judgment, proceeded on the erroneous assumption
that the accused party had been provoked due to the
unauthorised entry of the complainant party on their fields and
to defend their possession, they had to resort to right of private
defence. While doing so, the accused party, in particular, accused
No. 5, exceeded his right of private defence. There was no
common object because the incident in question occurred due
to provocation and spiralled into a free fight, causing injuries to
both sides. The fallacy in the reasoning of the High Court is
palpable from the evidence of prosecution witnesses, which has
been elaborately analysed and rightly accepted as truthful by the
trial Court, substantiating the allegations against the accused
party of being the aggressors. Once it is a case of accused party
being the aggressors and they commenced assault on the
complainant party and further, the accused No. 5 having been
found to have assaulted victim (deceased) with intention to kill
him, the question of invoking the right of private defence does
not arise. In fact, no defence evidence was produced to
substantiate the plea of exercise of private defence. The two
theories (of being aggressors as opposed to exercise of right of
private defence) are antithesis to each other. [Para 9] [249-E-
H; 250-A-D]
2. From the description of injuries, it is amply clear that
these injuries are superficial and as rightly found by the trial
Court, will have no bearing on the prosecution case, even if the
same remain unexplained. The fact that some of the accused had
received  grievous injuries, does not belie the prosecution case
that the accused were the aggressors. There was no reason for
the accused to remain in hiding position equipped with lethal
weapon(s), waiting for the arrival of the complainant party and
on their arrival, to immediately commence attack and cause fatal
injuries to the complainant party. Such being the factual matrix,
it is unfathomable as to how the plea of right of private defence
could be invoked by the accused. If such a plea is not available,
the question of answering the plea in favour of the accused that
it was a case of excessive exercise of right of private defence
does not arise at all. The basis of the High Court judgment being
flawed in this regard, the conclusion recorded by it cannot stand
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the test of judicial scrutiny. For the same reason, the question
of converting the offence under Section 302 to one under Section
326 cannot be countenanced, both on facts and in law. [Para 11]
[251-E-H; 252-A-B]
3. Indeed, the trial Court’s finding of guilt recorded against
accused No. 5, is unexceptionable. However, on the nature of
offence, the trial Court considered the plea of the accused only
in reference to offence falling under Section 304 Part II of the
IPC. The trial Court rejected that argument and this Court must
uphold that conclusion, because the finding of fact is that the act
was done by the accused with the knowledge that it is likely to
cause death, and with intention to kill victim (deceased). But
before final opinion is expressed, it is necessary to examine as
to whether the case in hand would be covered under the
exceptions predicated in Section 300, IPC, so as to apply Section
304, IPC – be it Part I or Part II thereof. The facts of the present
case would indicate that the accused, in particular accused No.
5, at the relevant time, was deprived of the power of self-control
by grave and sudden provocation due to repeated unauthorised
entry on the fields belonging to accused party. Further,the
solitary fatal blow on the vital part of the head by accused No. 5
caused the death of victim (deceased). The provocation was not
invited by the accused party, but was obviously at the instance
of the complainant party,who entered the fields
unauthorizedly
despite the objection taken by the complainant party in that
regard on the same day earlier. However, as the death of victim
(deceased) was caused by the act of accused No. 5 giving one
fatal blow on the head, which was with the intention of causing
his death or causing such bodily injury as is likely to cause death,
the case would be covered by Section 304 Part I, IPC. It is
certainly not a case to simply proceed under Section 326 of the
IPC, as held by the High Court. This Court disapproves that
approach  of the High Court. Even if the High Court had justly
applied Section 326, IPC, this Court fails to appreciate as to how
the High Court could have imposed sentence only for a period
(about five months) undergone considering the nature and
gravity of the offence and the background in which it is
committed by the accused party, in particular, accused No. 5.
[Para 12] [252-A-H]
STATE OF RAJASTHAN v. MEHRAM & ORS.
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Chandrakant Patil v. State through CBI (1998) 3 SCC
38 : [1998] 1 SCR 447 ; Sumer Singh v. Surajbhan
Singh & Ors. (2014) 7 SCC 323 : [2014] 5 SCR
882 ; State of Rajasthan v. Ramanand (2017) 5 SCC
695 : [2017] 3 SCR 981 ; Gottipulla Venkatasiva
Subbrayanam & Ors. v. the State of Andhra Pradesh
& Anr. (1970) 1 SCC 235 : [1970] 3 SCR 423 ; Deo
Narain v. The State of Uttar Pradesh (1973) 1 SCC
347 : [1973] 3 SCR 57 ; Subramani & Ors. v. State of
Tamil Nadu (2002) 7 SCC 210 : [2002] 1 Suppl. SCR
718 ; State of Uttar Pradesh v. Gajey Singh &
Anr. (2009) 11 SCC 414 : [2009] 2 SCR 998 –
referred to.
Case Law Reference
[1998] 1 SCR 447
referred to
Para 4
[2014] 5 SCR 882
referred to
Para 4
[2017] 3 SCR 981
referred to
Para 4
[1970] 3 SCR 423
referred to
Para 4
[1973] 3 SCR 57
referred to
Para 4
[2002] 1 Suppl. SCR 718
referred to
Para 4
[2009] 2 SCR 998
referred to
Para 4
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1894 of 2010
From the Judgment and Order dated 05.11.2007 of the High
Court of  Judicature  for Rajasthan at Jodhpur in D.B. Criminal Appeal
No. 271 of 1982.
 Dr. Manish Singhvi, Sr. Adv., D.K. Devesh, Milind Kumar, Advs.
for the Appellant.
Sushil Kumar Jain, Sr. Adv., H.D. Thanvi, Rishi Matoliya (for
Sarad Kumar Singhania), Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. This appeal takes exception to the judgment and order dated
5.11.2007 passed by the High
Court of Judicature for Rajasthan at
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Jodhpur1 in D.B. Criminal Appeal No. 271/1982, whereby the conviction
of the respondent No. 1/original accused No. 5 (Mehram S/o Mr.
ChhagnaRam)under Section 302 of the Indian Penal Code2 has been
converted into one under Section 326, IPC and the substantive sentence
awarded therefor is reduced only to the period already undergone
(about five months) by the accused No. 5.  At the outset, the learned
counsel for the appellant-State had made it amply clear that the State
was pursuing this appeal only against the accused No. 5 (Mehram
S/o Chhagna Ram)for restoration of his conviction under Section 302,
IPC and to award him sentence of life imprisonment.
2. Briefly stated, five accused were named in the First
Information Report (FIR) registered on 14.8.1981 at P.S. Nagaur in
relation to an incident at village Gowa Khurd.  The case set out in the
stated FIR, as noted by the trial Court, reads thus: -
“2. …
“On 14.08.1981 at 9:30 p.m. in the evening Complainant injured
Mangilal, lodged an oral report with the Officer Incharge, Police
Station Nagaur to the effect that he has four fields at Village
Gowa Khurd, out of which one field is situated about a distance
of one km. away from the village. Complainant has further stated
that for going to that field they have to use an old way passing
through the fields of Heera, Chhagna and Jeevan. However, this
way is not recorded in Government record. In the report,
Complainant has further stated that last year sons of
accused
Heera obstructed the sons of the complainant party from going
to their field by that unrecorded way. But upon intervention of
Anna Kaka, they were pacified. Thereafter, this year after rainy
season, accused Heera and Chhagna closed that way. Therefore,
they had to cultivate their field having gone through Basni. In
the report, complainant has further stated that at about dusk when
he along with his wife were going for removing the weeds to
another fields and at that time his younger brother Ghewar and
Sawanta were grazing goats at a distance. At that time quarrel
was taken place between accused Ramnarayan and Ghewar on
account of way and they went to village. At 5 o’ clock in the
evening, his wife had also gone to village. Complainant has further
1 For short, “the High Court”
2 For short, “IPC”
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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stated that at the time of sunset while he alone was coming
towards the village from the field. And when he reached the
village near pond, then accused persons- Mehram and
Baksharam, having armed with ‘Kassies’ and accused persons-
Ramnarayan, Heeraram and Ramniwas, having lathies in their
hands came out from the back of ‘Kai’ (bushes) and surrounded
the Complainant. Accused Baksharam with the intention to kill
struck ‘Kassi’ blow from the sharpen side on the head of Mangilal,
but Mangilal managed to prevent it by lifting the hand, due to
which Mangilal sustained injury over his palm. Accused
Baksharam tried to inflict another ‘Kassi’ blow to Mangilal,
whereupon Bhuraram caught hold the ‘Kassi’. And Mehram,
Moti and Annaram arrived at the place of occurrence from their
fields. Thereafter, accused Mehram S/o Chhagana struck a
‘Kassi’ blow from sharpen side on the head of Bhura from the
backside, due to which Bhura fell down, accused Ramniwas
inflicted a lathi blow over the head of Mehram S/o Annaram.
Thereafter, all the accused persons gave beatings. Then Ratna,
Moti and Annaram had intervened after reaching on the spot.
Accused persons having assumed Bhura died ran away.
Complainant has further stated that accused persons have given
beatings with the intention of taking revenge on account of way
dispute…”
On the basis of the above complaint, investigation was
commenced for offences punishable under Sections 147, 148,
149, 323,
307 and 302, IPC.  The case was committed to the Sessions Court by
the Chief Judicial Magistrate in February, 1982, which was numbered
as Sessions Case No. 9/1982.  After a full-fledged trial, in which
fourteen (14)prosecution witnesses came to be examined, the trial Court,
on extensive analysis of the evidence on record, vide judgment and order
dated 21.7.1982, running into around 115 loosely typed pages, found the
named accused guilty of the concerned offences, and passed the
following order: -
“ORDER
Hence, accused Mehram son of Chhagna is hereby held guilty
of committing offence under Section 148, 302, 324/149 Indian
Penal Code.
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Accused Ramniwas is hereby held guilty of committing
offence under Section 147, 323, 324/149 India Penal Code and
accused persons- Heera Lal, Ramnarayan under Section 323,
324/149 Indian Penal Code and accused Baksharam is hereby
convicted under Section 148, 324 I.P.C.
Accused persons Heeraram, Ramnarayan, Ramniwas and
Baksharam are not found guilty of committing offence under
Section 302 and 302/149 Indian Penal Code.
Hence, accused Mehram is hereby sentenced to undergo life
imprisonment and to pay fine of Rs.100/- in default of payment
of fine to undergo additional three months rigorous imprisonment
under Section 302 Indian Penal Code.
Accused persons- Mehram and Baksharam each of them is
hereby sentenced to undergo six months simple imprisonment and
to pay fine of Rs.100/- in default of payment of fine to undergo
15 days additional simple imprisonment for committing offence
under Section 148 and accused persons Ramnarayan and
Ramniwas for committing offence under Section 147 I.P.C.
Accused Baksharam for committing offence under Section
324 and accused persons- Ramniwas, Heeraram, Ramnarayan
and Mehram for committing offence under Section 324/149 I.P.C.
each of them is hereby sentenced to undergo six months and to
pay fine of Rs.100/- in default to undergo 15 days simple
imprisonment. Accused Ramniwas is further sentenced to
undergo three months simple imprisonment under Section 323
I.P.C. All the sentences shall run concurrently.
Accused
persons-Heeraram, Ramnarayan, Ramniwas and
Baksharam shall be entitled to get benefit under Section 428
I.P.C.
Clothes and arms (Art.1 to Art.10) shall be destroyed after
the expiry of period of limitation for appeal. Copy of the judgment
be made available to accused persons.”
As regards theaccused No. 5 (Mehram S/o Chhagna Ram), he
came to be convicted for offences punishable under Sections 148, 302,
324/149, IPC and sentenced to undergo life imprisonment with fine of
Rs.100/- for the offence punishable under Section 302, six months’
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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simple imprisonment with fine of Rs.100/- for offence punishable under
Section 148, IPC and six months’ simple imprisonment with fine of
Rs.100/- for offence punishable under Section 324/149, IPC.
3. All the five accused preferred appeal before the High Court
being D.B. Criminal Appeal No. 271/1982.  The appeal filed by Ram
Niwas (respondent No. 2/original accused No. 3), Heera Ram
(respondent No. 3/original accused No. 1), Ram Narayan (respondent
No. 4/original accused No. 2) and Laxa Ram(respondent No. 5/original
accused No. 4) came to be partly allowed and their conviction under
Section 149, IPC was set aside, but under Sections 323, 324, 147 and
148, IPC, the conviction was maintained.  They were sentenced for
the period already undergone for the stated offences.  As regards
Mehram S/o Chhagna Ram (respondent No. 1/accused No. 5), the High
Court converted the conviction under Section 302, IPC into one under
Section 326, IPCon the finding that the said accused had exceeded his
right of private defence.  Additionally, the High Court confirmed his
conviction under Section 148, IPC.  Despite the charge of murder and
intentionally causing death of Bhura Ram (deceased), the High Court
awarded sentence of period already undergone (around five months)
by the accused No. 5 and directed him to pay compensation of
Rs.50,000/- (Rupees fifty thousand only) to the next of kin of the
deceased –Bhura Ram.
4. As aforesaid, even
though the State has filed the present
appeal against all the five accused persons, at the outset, it was made
clear by the counsel for the State that the appeal is being pursued only
against the respondent No. 1/accused No. 5 (Mehram S/o Chhagna
Ram) in respect of nature of offence and on the point of sentence.The
counsel for accused No. 5, however, urged that the said accused had
a right to challenge the finding of guilt and conviction under Section
326 and 148, IPC, recorded against him, even though the said accused
had not preferred a formal appeal against the impugned judgment.  To
make good this submission, reliance is placed on Chandrakant Patil
vs. State through CBI3, Sumer Singh vs. Surajbhan Singh & Ors.4,
State of Rajasthan vs. Ramanand5 and Section 377(3) of the Code
of Criminal Procedure, 19736.  According to him, the accused No. 5
3 (1998) 3 SCC 38
4 (2014) 7 SCC 323
5 (2017) 5 SCC 695
6 For short, “Cr.P.C.”
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was entitled to acquittal, as the prosecution had failed to substantiate
the charges framed against him.  In any case, in the alternative it is
submitted, that the incident had occurred on the spur of the moment
due to provocation given to the accused No. 5and the said accused in
retaliation and in exercise of his right of private defence, ended up in
causing single injury to the deceased (Bhura Ram) without any intention
to cause his death.  Even for that reason, the accused No. 5 was entitled
to benefit of doubt and it was not a fit case for conviction even under
Section 326/148, IPC.  It is urged that the accused No. 5 is a senior
citizen (aged about 70-75 years) and suffering from various old age
diseasesand due toefflux of time, the Court ought not to entertain this
appeal filed by the State.  Learned counsel contends that even if it is
a case of excessive exercise of right of private defence, the benefit
should be given to the accused.  In support of the said contention, the
learned counsel has placed reliance on the decisions of this Court in
Gottipulla Venkatasiva Subbrayanam & Ors. vs. the State of
Andhra Pradesh & Anr.7, Deo Narain vs. The State of Uttar
Pradesh8, Subramani & Ors. vs. State of Tamil Nadu9 and State of
Uttar Pradesh vs. Gajey Singh & Anr.10.
5. We have heard Dr. Manish Singhvi, learned senior counsel
for the appellant and Mr. Sushil Kumar Jain, learned senior counsel for
the respondent.
6. The accused No. 5 (Mehram S/o Chhagna
Ram) is justified
in contending that it is open to the said accused to challenge the finding
and order of conviction under Section 326/148, IPC recorded against
him in the appeal filed by the State, assailing the impugned judgment
of the High Court.  That being the settled legal position, as expounded
in Chandrakant Patil (supra), Sumer Singh(supra) and Ramanand
(supra) including Section 377(3) of the Cr.P.C., which predicates that
in the appeal filed against the sentence on the ground of its inadequacy,
the accused may plead for his acquittal or for reduction of the sentence.
Resultantly, we may have to consider the correctness of the finding of
fact recorded by the trial Court and the appeal Court (High Court)
against the accused No. 5 (Mehram S/o Chhagna Ram).
7 (1970) 1 SCC 235 (paragraphs 17 and 18)
8 (1973) 1 SCC 347 (paragraph 5)
9 (2002) 7 SCC 210 (paragraphs 19 to 27)
10 (2009) 11 SCC 414 (paragraph 30)
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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7. Reverting to the judgment of the trial Court, it is noticed that
the trial Court vide judgment and order dated 21.7.1982, extensively
analysed the evidence of each witness and the stand taken by the rival
parties.  On the basis of that analysis, the trial Court proceeded to hold
that the prosecution had succeeded in substantiating the allegation that
the accused party was hiding behind the ‘Kair’bushes and on arrival
of the complainant party at the scene of occurrence, came out of the
bushes and assaulted the complainant party including Bhura Ram
(deceased).  The trial Court recorded the following finding: -
“24. …Hence, it is established that place of occurrence was the
‘Kair’ bushes land, the height of ‘Kair’ bushes was 5 to 6 ft.
and by the depositions of witness Mangilal (PW-11) and spot
inspection report (Ex. P-21) and accused persons were hiding
behind the ‘Kair’ bushes. Accordingly, the fact of accused
persons duly armed with weapons hiding behind the ‘Kair’ bushes
has also been established and that accused persons were the
assailants, otherwise they would not have hidden behind the
‘Kair’ bushes.”
It then proceeded to find that before the incident, some quarrel
had taken place between accused No. 2 – Ram Narayan, Ghewar and
Motaram on account of grazing goats, in which Ram Narayan had
assaulted Ghewar, who belonged to complainant side.  The
circumstances clearly indicate that the accused persons intended to
take
revenge and due to which they had arrived at the place of occurrence
from the village armed with lethal weapon(s) for assaulting the
complainant party at an opportune moment.  The trial Court then found
that the accused persons had not been able to give any explanation for
coming together at the place of incident nor about the bringing of lethal
weapon(s) like “kassi” at the site.  The trial Court in that context
observed thus: -
“25.  ...  Fourthly, accused persons have not been able to give
any explanation of coming all the five accused persons altogether.
Nor they have given any explanation of bringing lethal weapon
like – ‘Kassi’ with them. Therefore, by the fact viz. going of
accused persons from village, having armed with deadly
weapons, giving beatings to Ghewarram belonging to complainant
side by Ramnarayan amongst accused persons prior to the
occurrence, it has been fully established that accused persons in
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order to take revenge, duly armed with lathies and ‘Kassies’ had
arrived at the place of occurrence, therefore, accused persons
are proved to be the aggressor.
26. In my opinion, the arguments of learned counsel appearing
for the accused persons to the effect that by the prosecution
evidence, revolving lathi by Mangilal is proved and, therefore,
Complainant side was the assailant, does not appear having any
substance. Firstly, in view of the aforesaid discussion, accused
persons have been proved to be the aggressor, therefore, first
revolving lathi by Mangilal after having surrounded, it cannot be
said that Mangilal was assailants. Secondly, by the depositions
of prosecution witnesses viz. Ramratan (PW-5), Motiram (PW-
6), Annaram (PW-7), Mehram (PW-8) and Mangilal (PW-11), it
has been established that Mangilal was revolving lathi while he
was surrounded and was raising alarm that ‘Maare Marre’.
Therefore, revolving lathi by the complainant side after assaulting
was in defence and, therefore, accused persons do not get the
right of private defence.”
The trial Court then went on to find that the complainant side
and accused persons, both, had sustained injuries in the incident in
question.  The trial Court, however, opined that in the present case,
non-explanation of injuries sustained by accused persons by the
prosecution had no vital impact on the prosecution case, and observed
thus: –
“28. …  Firstly, in the present case it has been established that
accused persons were the aggressor. It has also been established
that accused persons have started the occurrence. Therefore,
prosecution side has given explicit evidence with regard to the
genesis of the occurrence. The prosecution evidence is
unambiguous and, therefore, non-submission of explanation of the
injuries sustained by accused persons, does not have any effect
on the prosecution case. …”
The trial Court unambiguously noted that the injuries sustained
by the accused persons are superficial and minor.  After analysing the
medical and ocular evidence, the trial Court found that during the scuffle,
deceased Bhura Ram had caught hold of “kassi” blow inflicted by Laxa
Ram (accused No. 4) and thereafter, Mehram S/o Chhagna Ram
(accused No. 5) inflicted “kassi” blow from the sharpen side on the
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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head of Bhura Ram (deceased) with intention to kill him, which blow
struck on the vital part of his head.  And as per the medical evidence,
that injury was sufficient to cause death of Bhura Ram.  The trial Court
then proceeded to analyse the evidence on record and noted as
follows: -
“39. Hence, depositions of witness Mangilal (PW-11) gets
corroboration by the depositions of eyewitnesses- PW-5, 6, 7 and
8,Injury Reports Ex.P-9, 10 and PW-11 Post mortem report of
deceased Bhura, Report (Ex.P-13) lodged by Mangilal
immediately after the incident, spot condition memo (Ex.P-1),
site-plan of the place of occurrence (Ex.P-14), recovery of blood
stained lathi (Article-8) from the possession of accused
Ramniwas, recovery of clothes of injured and deceased which
have been found to be stained with human blood and accused
persons being the aggressor and by giving beatings by accused
Ramnarayan to Ghewar and Motaram belong to complainant side,
prior to the occurrence and by the depositions of PW-1 it is also
proved that on 14.08.81 in the evening time at village Gowa
Khurd, accused persons-Heeraram, Ramnarayan, Ramniwas,
Baksharam and Mehram formed an unlawful assembly and at
that time accused Baksharam and Mehram were duly armed with
lethal weapons like ‘Kassies’ and amongst the accused persons,
in furtherance to their common object, accused Baksharam
intentionally inflicted simple injuries with ‘Kassi’ from sharpen
side on the
hand of Mangilal and when Bhura came to rescue,
then accused Mehram inflicted a ‘Kassi’ blow from sharpen side
over the head of Bhura. It is also established that when Mehram
came to rescue Bhura, then Ramniwas caused injuries with lathi
over the head and shoulder of Mehram.
40. Learned Advocate for the accused persons has also contended
that Bhura was come to rescue, suddenly he sustained this injury,
therefore, by the act of accused Mehram, it cannot be said that
he was having any motive to kill and at the most the case of the
accused falls within the purview of Section 304 Clause II I.P.C.
and, therefore, accused shall be acquitted of the charge under
Section 302 Indian Penal Code.
41. In my opinion, no substance appears in the contention raised
by learned defence counsel, because by the depositions of Dr.
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Ghodawat (PW-9) it is proved that in the ordinary course of nature
injury No.1 on the head of Bhura was sufficient to cause death
and due to this injury Bhura died. Beneath this injury the complete
bone was cut in thickness. All the membranes over the brain were
cut. Accordingly, it is proved that injury No.1 was sufficient to
cause death in the ordinary course of nature, injury No.1 placed
over the vital part of body like head, causing injury with a lethal
weapon like ‘Kassi’ from the sharpen side, arriving of Bhura to
rescue from backside, engaging of accused persons in giving
beatings and causing very deep injuries, by which it is proved
that accused have forcefully inflicted injuries and falling of Bhura
immediately after sustaining injuries, by these facts, it is proved
that accused Mehram was having intention to kill Bhura and he
has caused head injury to Bhura with the intention to kill, due to
which Bhura died. Therefore, accused Mehram S/o Chhagna
caused injury to Bhura with the intention to kill. Thus, he has
committed offence of homicidal death by committing murder of
Bhura and, therefore, charge of committing offence under Section
302 Indian Penal Code has been fully established against accused
Mehram son of Chhagna.
42. In my opinion, no substance appears in the argument of
learned Advocate for the accused persons that the act of accused
falls within the purview of Section 304 Part II I.P.C. Firstly,
Mehram was already assailant, secondly
accused Mehram has
given beatings with weapon, he was standing there after making
preparations and, therefore, it cannot be said that killing of Bhura
by accused Mehram S/o Chhagana was sudden. Rather, it is
proved that Mehram S/o Chhagna has caused injury to Bhura
with the intention to kill, therefore, his case falls within Section
302 I.P.C.”
Indeed, the trial Court went on to hold that the prosecution had
not succeeded in substantiating common object of committing murder
of the person concerned and acquitted the accused of charge under
Section 149, IPC.
8. When the matter travelled to the High Court at the instance
of the accused persons by way of appeal, the Division bench of the
High Court partly allowed the appeal and, if we may say so, by a cryptic
judgment, which reads thus: -
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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“…..
We have heard the learned counsel for the parties and
have given our thoughtful consideration to the material available
on record.
Admittedly the way to field which is being claimed by the
complainant party, is not a sanctioned way, so much so that it is
not even recorded in the revenue record. The complainant party
is claiming it through prescription. If prescription has such
maturity in it that it got converted into an actionable right, the
complainant party could have sought a declaration to that effect.
Without taking recourse to the lawful measures, the complainant
party insisted on sing that way by courtesy only. This puts the
complainant party on the offensive, and in that way the
complainants stand on a weaker footing when they assert that
the accused assaulted them. There were enough provocations
created by the complainants to the accused persons by asserting
a right, which was not a legally recognized right. In that
background when the complainants and the accused, entered into
a conflict, then the question of common object stands ruled out.
Both the parties have quarrelled, and have inflicted injuries to
each other. It was almost a case of free fight and in that view
of the matter, invoking Section 149 IPC is not considered proper
by us and, therefore, Section 149 IPC deserves to be excluded
from consideration.
When Section 149 IPC is taken out then individual
participation has to be seen to the
deceased it was only accused
Meh Ram, who is said to have caused injuries. All other accused
persons were held guilty with the aid [sic] of Section 149 IPC.
Conviction with the aid of Section 149 IPC, therefore, deserves
to be set aside. After setting aside the conviction of other accused
persons except Meh Ram under Section 302 IPC they stand
convicted under Sections 323, 324, 147 and 148 IPC. For those
offences whatever period they have already undergone can be
considered sufficient and in that view of the matter, the appeal
of the accused Ram Niwas, Heera Ram, Ram Narayan and
Baxa Ram is allowed to the extent that the conviction under
Section 302/149 IPC is set aside. Their conviction under Sections
323, 324, 147 and 148 IPC is maintained and the period already
undergone which is more than 5½ month is considered sufficient
to meet out the ends of justice.
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Now we take up the case of accused Meh Ram. He is
said to have caused the total blow. But that was in the
background that both the parties fought a free fight. Meh Ram
himself has sustained injuries and in that view of the matter it
can be said that he cannot have the intention of causing death
of the deceased. It may be said that he had exceeded his right
of private defence. At best a case under Section 326 IPC can
be said to be made out against him.
In the result, the appeal of accused Ram Niwas, Heera
Ram, Ram Narayan and Boxa Ram accused is partly allowed.
Their conviction and sentence under Section 149 IPC is set aside
and their conviction under Sections 323, 324, 147 and 148 IPC
is maintained. As regards the sentence, the period already
undergone is considered sufficient to meet the ends of justice.
So far as accused Meh Ram is concerned, his conviction
under Section 302 IPC is converted into one under Section 326
IPC and his conviction under Section 148 IPC is maintained.
However, he is sentenced to the period already undergone. Meh
Ram is directed to pay compensation to the tune of Rs.50,000/-
to the next of kin of the deceased.”
9. After having gone through the relevant evidence and
judgments of the trial Court and the appeal Court (High Court), we have
no reason to depart from the conclusion reached by the trial Court that
there weretangible circumstances and evidence to indicate that the
accused party was the aggressor, who was hiding in the
bushes and
appeared only after the complainant party arrived on the spot.  The
accused party had assembled at the spot with lethal weapon(s) and all
the accused were waiting for the complainant party to arrive at the
spot and started assaulting the complainant party.  The blows inflicted
by the concerned accused, in particular accused No. 5, were with an
intention to kill Bhura Ram (deceased).  The death of Bhura Ram was
caused due to the blow inflicted by accused No. 5 and was a homicidal
death.  We have no reason to depart from the said findings recorded
by the trial Court and if we may say so, the same remained undisturbed
by the High Court.  The High Court by its cryptic judgment, proceeded
on the erroneous assumption that the accused party had been provoked
due to the unauthorised entry of the complainant partyon their fields
and to defend their possession, they had to resort to right of private
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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defence.  While doing so, the accused party, in particular, accused No.
5 (Mehram S/o Chhagna Ram), exceededhis right of private defence.
There was no common object because the incident in question occurred
due to provocation andspiralled into a free fight, causing injuries to both
sides.  The fallacy in the reasoning of the High Court is palpable from
the evidence of prosecution witnesses, which has been elaborately
analysed and rightly accepted as truthful by the trial Court, substantiating
the allegationsagainst the accused party of being the aggressors.  Once
it is a case of accused party being the aggressors and they commenced
assault on the complainant party andfurther, the accused No. 5
(Mehram S/o Chhagna Ram) having been found to have assaulted
Bhura Ram (deceased) with intention to kill him, the question of invoking
the right of private defence does not arise.  In fact, no defence evidence
was produced to substantiate the plea of exercise of private defence.
The two theories (of being aggressors as opposed to exercise of right
of private defence) are antithesis to each other.
10. Had it been a case of complainant party being the aggressor,
the accused party andaccused No. 5 (Mehram S/o Chhagna Ram) in
particular, could be heard on the factum of right of private defence.
The nature of injuries caused to the complainant party and to the
accused party are also indicative of the fact that the accused party was
the aggressor.  As regards the injuries caused to the deceased (Bhura
Ram) due to the assault by the accused No. 5 (Mehram S/o Chhagna
Ram), as noted in the post-mortem examination (Exhibit P-11) by Dr.
Ghodawat, the same reads thus:-
“1.Incised wound of size 5.1 cm. x bone deep. This injury was
in the middle parietal region of head. Underneath which
bone was fully cut in obesity. All membranes covering brain
were cut. Brain matter was appearing from the deepness
of wound.
2.One bruise of size 3.x2 cm. which was in the middle of left
foot on front portion. Injury was ante mortem in nature. Brain
matter was also cut parallel to the deepness of wound, which
was cut up to half cm.”
(emphasis supplied)
In the opinion of the doctor, the cause of death of Bhura Ram
(deceased) was brain injury and due to the injury No. 1. The fact that
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the death was caused by the injury No. 1 alone, does not mean that it
was not a case of homicidal death.  Nor there can be presumption that
there was no intention to cause death by inflicting such injury.  The
evidence on record has been duly analysed by the trial Court and it
has been held that accused No. 5 (Mehram S/o Chhagna Ram) had
caused injury No. 1 with intention to cause death of Bhura Ram
(deceased) to teach lesson to the complainant party for their repeated
unauthorised entry on the fields belonging to the accused party despite
warnings and obstructions caused in that behalf in the past.
11. We may now usefully refer to the injury report (Exhibit D-7)
of accused No. 5 (Mehram S/o Chhagna Ram), who had suffered
simple injuries on his person caused by blunt weapon.  The description
of injuries therein reads thus: -
“1. Abrasion 1 x 1 cm which was in the middle posterior
region of left fore-finger;
2. Abrasion 1 x .3 cm. in the middle top portion of left index
finger;
3. Bruise 6 x 1 cm. over Rt. Shoulder oblique placed.
4. Two abrasions 1.5 x 4 cm. in the lower portion of Rt.
Thigh, both were placed at a distance of 0.5 cm. each
other.
5. Injured was complaining pain in his left foot.”
From the description of injuries, it is amply clear that these injuries
are superficial and as rightly found by the trial Court, will have no
bearing on the prosecution case, even if the same remain unexplained.
The fact that some of the accusedhad received
grievous injuries, does
not belie the prosecution case that the accused were the aggressors.
There was no reason for the accused to remain in hiding position
equipped with lethal weapon(s), waiting for the arrival of the complainant
party and on their arrival, to immediately commence attack and cause
fatal injuries to the complainant party.  Such being the factual matrix, it
is unfathomable as to how the plea of right of private defence could
be invoked by the accused.  If such a plea is not available, the question
of answering the plea in favour of the accused that it was a case of
excessive exercise of right of private defence does not arise at all.  The
basis of the High Court judgment being flawed in this regard, the
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]
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conclusion recorded by it cannot stand the test of judicial scrutiny.  For
the same reason, the question of converting the offence under Section
302 to one under Section 326 cannot be countenanced, both on facts
and in law.
12. Indeed, the trial Court’s finding of guilt recorded against
accused No. 5 (Mehram S/o Chhagna Ram), is unexceptionable.
However, on the nature of offence, the trial Court considered the plea
of the accused only in reference to offence falling under Section 304
Part II of the IPC.  The trial Court rejected that argument and we must
uphold that conclusion, because the finding of fact is that the act was
done by the accused with the knowledge that it is likely to cause death,
and with intention to kill Bhura Ram (deceased).  But before we express
our final opinion, it is necessary to examine as to whether the case in
hand would be covered under the exceptions predicated in Section 300,
IPC, so as to apply Section 304, IPC – be it Part I or Part II thereof.
The facts of the present case would indicate that the accused, in
particular accused No. 5, at the relevant time, was deprived of the
power of self-control by grave and sudden provocation due to repeated
unauthorised entry on the fields belonging to accused party.  Further,the
solitary fatal blow on the vital part of the head by accused No. 5 caused
the death of Bhura Ram (deceased).  The provocation was not invited
by the accused party, but was
obviously at the instance of the
complainant party,who entered the fields unauthorizedly despite the
objection taken by the complainant party in that regard on the same
day earlier.  However, as the death of Bhura Ram (deceased) was
caused by the act of accused No. 5 giving one fatal blow on the head,
which was with the intention of causing his death or causing such bodily
injury as is likely to cause death, the case would be covered by Section
304 Part I, IPC.  It is certainly not a case to simply proceed under
Section 326 of the IPC, as held by the High Court.  We disapprove
that approach of the High Court.  Even if the High Court had justly
applied Section 326, IPC, we fail to appreciate as to how the High Court
could have imposed sentence only for a period (about five months)
undergoneconsidering the nature and gravity of the offence and the
background in which it is committed by the accused party, in particular,
accused No. 5.
13. The learned counsel for the accused No. 5 was at pains to
persuade us that the said accused is now about 70-75 years of age
and at this distance of time, it may not be appropriate to send him back
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to jail.  Taking overall view of the matter, we are not impressed by this
submission.  Even in case of offence under Section 326, IPC, which
commended to the High Court, the same was punishable with
imprisonment for life or with imprisonment of either description which
may extend to ten years and also liable to fine.  Had it been a conviction
under Section 326, as aforesaid, the sentence of only about five months
in the facts of the present case, by no stretch of imagination, was
adequate.
14. Be that as it may, in our considered opinion, the accused No.
5 (Mehram S/o Chhagna Ram) deserves to be convicted for the offence
punishable under Section 304 Part I of the IPC.  For the reasons already
recorded, it is unnecessary for us to dilate on the decisions of this Court
pressed into service regarding approach to be adopted by the Court in
respect of cases pertaining to accused exceeding his right of private
defence.
15. Taking overall view of the matter, we are of the considered
opinion that in this case, the accused No. 5 (Mehram S/o Chhagna
Ram) deserves to be awarded sentence of ten (10) years of
simple imprisonment and he must pay compensation to the tune of
Rs.50,000/- (Rupees fifty thousand only) to the next kin of the deceased,
if it is yet to be paid in terms of order of the High Court.
16. Accordingly, we partly allow this appeal. The impugned
judgment of the High Court and that of the trial Court are modified by
convicting the accused No. 5 (Mehram
S/o Chhagna Ram) for offence
punishable under Section 304 Part I and Section 148, IPC. He is
sentenced to undergo simple imprisonment for ten (10) years for offence
punishable under Section 304 Part I and six (6) months’ simple
imprisonment for offence punishable under Section 148 and fine of
Rs.100/- on each count, in default to undergo fifteen (15) days’ additional
simple imprisonment.  Both sentences to run concurrently.  Further, the
period already undergone by accused No. 5 (Mehram S/o Chhagna
Ram) shall be adjusted by giving the benefit under Section 428, Cr.P.C.
In addition, the accused No. 5 (Mehram S/o Chhagna Ram) is directed
to pay compensation to the tune of Rs.50,000/- (Rupees fifty thousand
only) to the next of kin of the deceased (Bhura Ram), if already not
paid.  The bail bonds stand cancelled and the accused No. 5 (Mehram
S/o Chhagna Ram) is directed to surrender within six weeks from the
date on which lockdownin the country due to pandemic COVID-19
STATE OF RAJASTHAN v. MEHRAM & ORS.
[A. M. KHANWILKAR, J.]

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including in the State of Rajasthan is relaxed,  to undergo the remaining
sentence period.
17. The appeal is disposed of in the above terms. Pending
interlocutory applications, if any, shall stand disposed of.
Ankit Gyan
Appeal disposed of.