Rajasthan High Court - Jaipur
Girvar Singh And Ors. vs State Of Rajasthan on 19 July, 2006
Equivalent citations: RLW2007(2)RAJ1519, 2006(4)WLC488
JUDGMENT Shiv Kumar Sharma, J.
1. Girvar Singh, Bhanu @ Suraj Bhan, Ratan Singh, Smt. Gita Devi and Smt. Beena, the appellants herein, were put to trial before the learned Additional Sessions Judge (Fast Track) Behror, who vide judgment dated November 28,2002 convicted and sentenced them as under:
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months.
Under Section 326/149 IPC:
Each to suffer rigorous imprisonment for five years and fine of Rs. 300/-, in default to further suffer simple imprisonment for one and a half month.
Under Section 324/149 IPC:
Each to suffer rigorous imprisonment for one year and fine of Rs. 200/-, in default to further suffer simple imprisonment for one month.
Under Section 323 IPC:
Each to suffer imprisonment for three months and fine of Rs. 100/-, in default to further suffer simple imprisonment for fifteen days.
Under Section 148 IPC:
Each to suffer rigorous imprisonment for six months and fine of Rs. 200/-, in default to further suffer simple imprisonment for fifteen days.
The substantive sentences were ordered to run concurrently.
2. Put briefly the prosecution case is, as under:
On October 2, 1999 Smt. Bharpai Bai (PW. 3) submitted a written report (Ex. P. 1) at Police Station Bansoor to the effect that on the said day around 8 AM her husband Shakti Dan Singh (since deceased) and son Dilip Singh were going to their field for cultivating the same on a tractor belonging to Kailash Jat. On the way Girvar Singh, Bhairo Singh, Ratan Singh, Bhanu and their ladies Gita, Kamla Bina and Kunti assaulted Shaktidan Singh and Dilip Singh and started beating them. When Munesh (grant daughter of Shakti Dan Singh) tried to save Shakti Dan Singh she was also beaten up. Shakti Dan Singh died on the spot. On that report police station Bansoor registered a case and investigation commenced. Necessary memos were drawn. Statements of witnesses were recorded. Dead body was subjected to autopsy. The appellants were arrested and on completion of investigation charges sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Behror. Charges under Sections 148, 302, 302/149, 307, 326, 324 and 323 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr. P.C, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard the contentions raised before us and with the assistance of learned Counsel perused the record.
4. Death of deceased Shaktidan Singh was undeniably homicidal in nature. As per autopsy report (Ex. P. 12A) following ante mortem injuries were found on the dead body.-
1. Incised wound 5 cm x 2 cm x 2 cm on Lt. parietal & occipital region there is clear cut fracture of parietal bone.
2. Lacerated wound 5 cm x 1 cm x 1 1/2 cm at junction of Rt. & Lt. Parietal region.
3. Lacerated wound 5 1/2 x 2 cm x 1 cm on Rt. parietal region.
4. Incised wound 6 cm x 1/2 cm x 1cm below the Rt. ear on neck.
5. Incised wound 6 1/2 cm x 2 cm x 1 cm on Lt. side below ear to Lt. mandible Lt. 1 cm. leg there is clear cut fracture of Lt. tibia & Fibula.
6. Lacerated wound 5 cm x 2 cm x 1/2 cm below Rt. knee joint.
7. Incised wound 2 1/2 cm x 1 cm x 1/2 cm on epigestric region.
8. Lacerated wound 3 cm x 3/4 cm x 1/2 cm on Rt. side of abdomen.
9. Bruise, position size 7 cm x 2cm on Rt. scapular region. 6cm x 2 1/2 cm on Lt. scapular region.
1. Incised wound 5 cm x 2cm x 2cm on Lt. parietal region of scalp.
2. Lacerated wound 5 cm x 1 cm x 1 1/2 cm at junction of Rt. & Lt. parietal.
3. Lacerated wound 5 1/2x2cm x l cm on Rt. parietal region of scalp.
4. Incised wound 6 cm x 1 1/2 x 1cm below the Rt. ear of neck.
5. Incised wound 6 1/2 cm x 2cm x 1 cm on Lt side of neck below ear.
6. Incised wound 7 cm x 4 cm x 5 cm on the middle of Lt. lower jaw there is clear cut between tibia.
7. Lacerated wound 5 cm x 2 cm x 1 1/2 cm below Rt. knee.
8. Incised wound 2 1/2 cm x 1 cm x 1/2 cm above the epigestric region.
9. Lacerated wound 3 cm x 3/4 x 1/2 cm on Rt. side of shoulder.
In the opinion of Dr. N.S. Kanwat (PW. 17) the cause of death was head injury and hemorrhagic shock due to rupture of large blood vessels.
5. Dilip Singh (PW. 8) vide injury report (Ex. P. 5) received following injures:
1. Incised wound 7 x 2 cm x bone deep on dorsum of foot just above toe.
2. Incised wound 5 x 1 cm x bone deep on dorsum of right foot in middle.
3. Incised wound 5 x 1 cm x muscle deep on anterior aspect of right ankle
4. Diffuse swelling with pain and tenderness of right ankle & lacerated wound 1 x 1/2 cm x skin deep
5. Incised wound 1 1/2x1 1/2 cm x skin deep on right leg on middle.
6. Incised wound 4 x 1 cm x bone deep lower part of left leg.
7. Diffuse swelling with pain and tenderness of left ankle
8. Incised wound 1 x 1cm x bone deep on left knee.
9. Incised wound 2 cm 1/2 cm x skin deep on forehead.
10. Incised wound 6 x 1cm x muscle deep on dorsum of right
11. Incised wound 2 x 1cm x muscle deep on right anticubital pat
12. Incised wound 2 x 1 1/2 cm x bone deep on termind JP joint of middle finger of right hand.
13. Incised wound 2 x 1/2 cm x bone deep on JP joint of thumb of left hand.
14. Incised wound 15 x 2 cm x bone deep on lower part of back.
6. Munesh (PW. 2) vide injury report (Ex. P. 35) received following injuries:
1. Lacerated wound 2x1 1/2 cm x scalp deep on top of head
2. Bruise 4 x 3 cm on Lt. elbow.
7. At this juncture is will be appropriate to consider the injuries received by accused Surajbhan Singh. He vide injury report (Ex. D.8) received following injuries:
1. Incised wound 3 cm x 3/4 cm x 1 cm Lt. forearm below elbow joint.
2. Old Bruise 5 cm x 2 cm on back of chest of scapular region.
3. Complaint of pain on back of neck.
4. Swelling on Rt. occipital parietal region.
8. The prosecution has examined Kumari Sayal (PW. 1), Munesh (PW. 2), Smt. Bharpai (PW. 3) and Dilip Singh (PW. 8) as eye witnesses of the occurrence. Kumari Sayal (PW. 1), who was 11 years of age on the date of her examination, stated that while she was working in the field of Gwar along with her sister Munesh and her grand father Shakti Dan Singh was sitting and Dilip Singh were also working, Girvar Singh, Bhanu, Ratan, Gita and Bina came armed with weapons and started abusing her grand father, Girvar Singh inflicted blow with Sel (spear) on her grand father. Bhanu and Ratan gave Pharsi-blows and killed her grand father. Munesh was also beaten up by them.
9. Munesh (PW. 2) in her deposition stated that on the date of incident around 8 AM while she along with her sister, father and grand father was working in the field Girvar Singh, Ratan Singh, Bhanu Singh, Gita and Bina came their and started hurling abuses at them. When her grand father forbade them, they made attempt to beat him. Her grand father ran for his life, but the assailants surrounded him. Bhanu and Ratan inflicted blows with Pharsi on his right knee, left leg and head. Bharpai (PW. 3) attributed the injury on the chest of Shakti Dan Singh to Girvar Singh. Other injuries received by Shakti Dan Singh were attributed to Ratan and Bhanu. Dilip Singh (PW. 8) deposed that Girvar Singh gave blow with spear on the chest of Shakti Dan Singh, whereas Bhanu and Ratan caused injuries on legs with Pharsi. When he and Munesh intervened, the they were also beaten up.
10. Banshildhar, Investigating Officer (PW. 18) in his deposition stated that on the day of incident October 2, 1999 he was posted as SHO Bansoor. On receiving telephonic message he reached at the spot where Bharpai submitted written report to him. During the course of investigation he drew site plan (Ex. P. 6) and other memos. In the cross examination he however stated that incident occurred on the field of Girvar Singh. According to Prathvi Singh Yadav Patwari (PW. 23) Girvar Singh was the Khatedar tenant of field bearing khasra No. 350 measuring 4 Bighas and 19 Biswas and crop of Bajra was standing over it.
11. From the material on record salient features of the case may be summarised thus:
(i) The incident occurred on the field belonging to appellant Girvar Singh.
(ii) Dead body of deceased Shakti Dan Singh was found on the field of appellant Girvar Singh. Dilip Singh (PW. 8) although stated that after killing Shakti Dan Singh, the assailants put his dead body on the field of Girvar Singh, but Dilip Singh did not stated this fact in his police statement (Ex. D.6).
(iii) Appellant Bhanu also sustained injuries on his person during the incident, but his injuries were not explained by the prosecution witnesses.
12. Coming to the contention of learned Counsel for the appellants that complainant party was the aggressor, we notice that Section 97 IPC recognises the right of a person not only to defend his own or another's body but to defend his own on another's property even against an attempt to inflict any offensive act as against the property. It is now well settled that if a man's property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt, to protect his property.
13. Their Lordships of the Supreme Court in Mahabir Chaudhary v. State of Bihar , 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.
14. In Subramani v. State T.N. 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 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.
15. In the case on hand as seen earlier that the incident took place in the field belonging to accused party, therefore it cannot be presumed that the appellants had any intention to kill the deceased but it appears that they acted to protect their property. After appellant Bhanu was assaulted by the complainant party with sharp and blunt weapons, he had right to defend himself and his property. One of the injuries received by appellant Bhanu is on the head and the injuries cannot be termed as superficial. Appellants Girvar Singh and Ratan private defence. In the facts and circumstances of the case possibility of over implication of Gita Devi and Beena Devi cannot be ruled out.
16. In the ultimate analysis we find appellants Girvar Singh and Ratan Singh guilty under Sections 304 Part II read with 34, 326/34, 324/34 and 323 IPC. We grant benefit of doubt to appellants Gita Devi and Beena Devi. Charges against appellant Bhanu are also not established since he caused injuries in exercise of right of private defence.
17. For these reasons, we dispose of instant appeal in the following terms:
(i) We allow the appeal of appellants Bhanu @ Suraj Bhan, Gita Devi and Beena Devi and acquit them of the charges under Sections 148, 302/149, 326/149, 324/149 and 323 IPC. They are on bail, they need not surrender and their bail bonds stand discharged.
(ii) We partly allow the appeal of appellants Girvar Singh and Ratan Singh and instead of Section 302/149 we convict them under Section 304 Part II read with 34 IPC. Looking to the fact that the appellants Girvar Singh and Ratan Singh have remained in confinement for a period of more than six years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We instead of Section 326/149 convict them under Section 326/34 IPC and sentence them to suffer rigorous imprisonment for five years and fine of Rs. 300/- in default to further suffer 45 days simple imprisonment. We also instead of Section 324/149 convict them under Section 324/34 IPC and sentence them of suffer rigorous imprisonment for one year and fine of Rs. 200/- in default to further suffer simple imprisonment for one month. We maintain their conviction under Section 323 IPC. We however acquit them of the charge under Section 148 IPC. Since the sentences were ordered to run concurrently, the appellants have already undergone the sentence imposed on them, we therefore direct that the appellants Girvar Singh and Ratan Singh, who are in jail, shall be set at liberty forthwith, if not required to be detained in confinement, in any other case.
(iv) The impugned judgment of learned trial Court stands modified as indicated above.