Rajasthan High Court - Jaipur
Kehar Singh vs State Of Rajasthan on 2 December, 1996
Equivalent citations: 1997CRILJ1753
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. This is an appeal against the conviction of the accused-appellant under Section 302, IPC and the consequent sentence of life-imprisonment. According to the prosecution, complainant Veer Singh lodged oral report on 21 -5-82 at 9.30 a.m. stating that, yesterday he irrigated his field after the turn of Kehar Singh and, there being no further fields of other persons to be irrigated through that water-channel, water continued to flow into their field. Today, he along with his brother Atma Singh came to their field to carry away fodder. They found that Kehar Singh (accused-appellant) with his elder brother Gurmail Singh and brother-in-law Bunta Singh was standing at the naka (inlet) and had diverted the water of their share to their (Kehar Singh and Gurmail Singh's) field. They (Veer Singh and Atma Singh) stopped the cart at the naka. Veer Singh was armed with a kasi and Tangali. Atma Singh was carrying a Tangali with him. They asked Gurmail Singh why they (Gurmail Singh and Kehar Singh) had diverted the water of their share when it was no longer their turn, and proceeded to plug the naka. Thereupon, Gurmail Singh Kehar Singh and Bunta Singh came ahead shouting. Bunta Singh with a kasi and Gurmail Singh with a tangali having iron spokes proceeded towards Veer Singh in aggression. Kehar Singh armed with a kasiya in his hand proceeded to hit Atma Singh. Bunta Singh inflicted injuries upon Veer Singh with kasi and Gurmail Singh hit him with tangali. Kehar Sinh hit Atma Singh with kasiya who, shielding himself with tangali he was carrying, ran towards the field of Megha Ram. Gurmail Singh exhorted Kehar Singh to finish Atma Singh and. said that he and Bunta Singh would kill Veer Singh. Veer Singh fled through the freshly irrigated field of Megha Ram where Gurmail Singh and Bunta Singh got stuck in the mud. Kehar Singh hit Atma Singh with kasiya in the field of Megha Ram, where Atma Singh fell down. Gurmail Singh approaching near Atma Singh hit him with tangali 2-3 times. Kehar Singh then hit Atma Singh with kasiya 2-3 times, in the meantime, Jogendra Singh alias Bhura Singh who was coming up from the side of 4 MSR on hearing their voice proceeded towards them running; on this, Gurmail Singh and Kehar Singh started dragging away Atma Singh towards their field. On their shouting, they (Kehar Singh and Gurmail Singh) dropped the body of Atma Singh in the Khala. All three of them ran away towards their dhani. When Veer Singh saw Atma Singh he found him dead. Complainant Veer Singh reported that Bunta Singh, Gurmail Singh and Kehar Singh have murdered his brother Atma Singh. The police registered case against the accused persons under Sections 302, and 307/34, IPC and proceeded with the investigation. After filing of the challan, the accused-appellant along with the other accused was charged and tried under Sections 302/34 and 323/34, IPC. The prosecution examined 10 witnesses.
2. The accused pleaded not guilty and took up the defence that the complainant party was the aggressor and caused injuries to them. In Section 313, Cr. P. C. statement, the accused took the defence that on Friday they had taken the standing water for irrigation from the water-channel; on that, the complainant party attacked them with tangali and kasi and they have defended themselves; the incident took place at the opening (inlet) of the channel; the field of the complainant is situated at height and, therefore, water remains in the channel and, for that, the complainant party gets extra 15 minutes" lime for irrigation than the time given to them; the water which could not be used for irrigation was used by them by opening an inlet to their field. Thus it is the case of the accused in defence that the incident took place but the injuries were caused in exercise of right of self-defence of person and property.
3. PW-6 Satya Prakash Sharma is the doctor who has conducted the autopsy on the dead-body of deceased Atma Singh and found: the following injuries :
" 1. Incised wound 12 x 2 x 2 cm on the cheek and left side of neck - left side of mandible fractured, left external carotid artery, vein and facial artery (sic) ruptured.
2. Incised wound 5 x 2 x 2 on chin (sic) is fractured.
3. Incised wound 5 x 1 x 1 cm on left (sic).
4. Incised wound 4 x 1 x 1 cm on the upper posterior triangle.
5. Incised wound 4 x 1 x 1 cm on the back of left shoulder.
6. Incised wound 5 x 1 x 1 cm on the back of left shoulder.
7. Incised wound 5 x 2 x 1 cm on the back of left shoulder - near axilla.
8. Incised wound 6 x 2 x 1 cm on the left upper arm near insertion of deltend muscle.
9. Incised wound 5 x 2 x 1 cm on the back of right shoulder.
10. Incised would 6 x 2 x 1 cm on the upper and outer part of left thigh."
According to the doctor, the cause of death was due to excess Weeding from the wounds on the neck and face. The wounds were caused with sharp-edged weapon. The injuries on the neck and face were sufficient in the ordinary course of nature to cause death. On the same day, the doctor examined PW-7 Veer Singh, brother of the deceased, and found five injuries on his person caused with blunt weapon. These injuries were found to be simple in nature. The doctor examined accused-appellant Kehar Singh on 21-5-82 and found two injuries, abrasion and swelling on left cheek. The injuries were found to be simple in nature caused with blunt weapon.
4. The Sessions Judge has found that the author of the injuries on, the person of the deceased was the accused-appellant Kehar Singh. The right of self-defence to the accused-appellant was denied by the Sessions Judge on the ground that the standing water belonged to the complainant-party and, therefore, the accused-party had no right of irrigation of their fields with the standing water left in the channel and thus was not within their right to stop the complainant-party from plugging the inlet; and, convicted the appellant under Section 302, IPC and sentenced him to undergo life-imprisonment and pay a fine of Rs. 3,000/-, in default, further undergo three years' RI. However, the other accused viz., Bunta Singh and Gurmail Singh were convicted under Section 323, IPC only sentence of 3 months' simple imprisonment was awarded to each of them. Kehar Singh has filed the present appeal.
5. PW-14 Mahendra Singh who has been named in the FIR has been examined by the prosecution and was declared hostile. He has supported the case of the prosecution only to the extent that on the fateful day, at about 7 in the morning, he was working in the field of Megha Ram. He saw Bunta Singh along with accused-appellant Kehar Singh coming to the naka and opening an inlet at the water-channel to their field for irrigation. At that time, Atma Singh (deceased) and his brother Veer Singh came to the spot in their cart. When they approached the naka, Bunta Singh and Kehar Singh were standing there. Some exchange of words took place, and, therefore, the quarrel occurred. This witness has not supported the prosecution about the manner in which the incident took place/According to him, Atma Singh and Veer Singh were the first to attack Kehar Singh, Gurmail Singh and Bunta Singh. Thus this witness can be relied upon only for the purpose that the accused-appellant had opened the inlet to his field for irrigation with the standing water left in the channel which is the case put forth by the accused in his defence.
6. PW-3 Jogendra Singh who is said to have seen the incident from distance has stated that he was returning to Anopgarh. On hearing the hue and cry, he witnessed Kehar Singh, Gurmail Singh and Bunta Singh inflicting injuries to Veer Singh. Gurmail Singh was having tangali, Kehar Singh was armed with kasiya. All the three persons were causing injuries to Atma Singh and Veer Singh both. He challenged them and all the three accused dragged Atma Singh to their field. In cross-examination, this witness has admitted that he is resident of Anopgarh which 4-5 km. away. He has lent Rs. 200/- to Vichitra Singh and, therefore, in the previous day, he had come to 4 MSR and stayed through the night there. He saw the incident while returning from the house of Vichitra Singh to his house at Anopgarh. Further, he has admitted in the cross-examination that he has not seen the accused persons inflicting injuries to the complainant party; he only saw that Atma Singh was being dragged. This witnesses has further said that after seeing injured Atma Singh he proceeded to his house at Anopgarh. On minute scrutiny of the statement of this witness, we find that we cannot place reliance upon his testimony. The person who went to fetch money lent to Vichitra Singh in the afternoon was not expected to stay at night at the house of Vichitra Singh particularly so when he is resident of nearby village and even if this part of his testimony is believed, it is entirely uncommon and incredible to believe that after witnessing the incident he "went away to his house at Anopgarh and had not cared to stay to console the bereaved family on the death of the son of a person with whom he had stayed previous night. Moreover, the witness himself has admitted that he has not seen the actual incident. This witness is a chance witness and his presence at the spot at the time of the incident is not beyond reasonable doubts. We cannot believe the testimony of this witness examined by the prosecution.
7. It is the case of the accused-appellant that the injuries were caused to the complainant in exercise of the right of self-defence. To find out whether the accused had a right of self-defence available it would be necessary to ascertain whether the accused-appellant had right to use the standing water left in the channel, as to how the incident had started, and who were the aggressors because the right of self-defence depends upon the right to hold the property and has to be exercised under certain limitations. If there is sufficient time for recourse to public authorities the right is not available; more hurt than necessary could not be caused; and, there should be reasonable apprehension of grievous hurt to person or damage to the property. The right is recognised under Section 97, IPC subject to the restrictions contained in Section 99, IPC to defend one's own body or body of another person or property of his own or of any other person. To find out whether the injuries were caused in exercise of the right of self-defence we have to look into the evidence of PW-7 Veer Singh who has deposed that Gurmail Singh, Bunta Singh and Kehar Singh had opened the water channel and were utilising the standing water belonging to them for irrigating their fields. He requested them not to do so and asked them as to why they had opened the inlet to their field. When they did not say anything he tried to open inlet to his field from the water-channel. On that, Bunta Singh attacked him. He tried to escape and was chased by Gurmail Singh who caused injuries to him. He ran towards the field of Megha Ram. He saw Kehar Singh (accused-appellant) attack Atma Singh with kasiya and his brother tried toward off the attack with the tangali he was carrying. In the process, Atma Singh lied towards Kila No. 22 of Megha Ram. Gurmail Singh also inflicted 2-3 injuries on the person of Atma Singh. Kehar Singh again caused injuries to him with kasiya. Thereafter, Gurmail Singh and Kehar Singh dragged Atma Singh to their field and ran away from the place of incident. This witness has further deposed that he had water-turn to irrigate his field from 2.44 to 7.16 and they were entitled to further irrigate their field with the standing water of the channel which used to percolate for 2-3 days. The incident took place because he had cut open an inlet to his field. This witness has admitted that the 'standing water in the channel could have been taken by the accused party and had the accused persons told him that they would be using that water he would that have objected nor would he have tried to open the water-inlet. As the accused persons did not say anything he opened the inlet to his field. When he was opening the inlet the incident took place. From the statement of this witness it appears that there was no exclusive right of the complainant party over the standing water left in the channel and the incident took place because the witness had tried to open the water-inlet for irrigating his field. When the accused appellant was irrigating the field the irrigation of his field was disturbed by the complainant party and as such the accused-appellant had a right to resist the interference caused by the complainant party in the irrigation of his field and. for the said purpose, the accused-appellant was justified in using force.
8. The question is whether the right has been so used by the accused-appellant within the permissible limit or he has exceeded the right of self-defence. While considering this question and appreciating the conduct of the person whose right of self-defence is involved, it is true that some allowance has necessarily to be made for his apprehensions and that the law permits user of force. But, at the same time, it has to be kept in mind that law does not permit use of force more than what is necessary. The Court while dealing with the question as to whether more force is justified has to take into consideration all relevant facts and circumstances.
It has been argued by the counsel for the appellant that the statement of PW-7 Veer Singh is note worthy of reliance to prove the fact that it is the accused-appellant who has attacked Atma Singh in view of the fact he has falsely implicated Gurmail Singh as the person who has attacked Atma Singh. It is true that the statement of Veer Singh is not free from exaggeration nor can be said to be free from prevarication; and, that he has tried to implicate Gurmail Singh also being the person who has inflicted injuries to Atma Singh. But, the Court has to separate the chaff from the corn and find out the truth. Even if the statement of this witness regarding Gurmail Singh is discarded there is nothing to indicate that he has falsely implicated the accused-appellant. Considering Veer Singh's statement, the evidence of the doctor, and the defence taken by the accused-appellant, it is proved that the deceased was attacked by the appellant and the accused caused injuries to the person of Atma Singh which ultimately resulted in his death.
9. From the injuries caused on the body of the deceased we are satisfied that although the appellant had a right of self-defence he has exceeded that right. There was no necessity of causing as many as 10 injuries to the deceased even in self-defence. The nature of the injuries caused to the deceased even in self-defence was such that clearly exhibit that the accused-appellant exceeded the right of private defence of person and property. Under Section 300, culpable homicide is murder if the act by which the death is caused is with the intention of causing death. But, as the explanation-2, the culpable homicide is not murder if the offender has exercised in good faith the right of private defence of person and property exceeding the power given by law and causes death of a person against whom such right is exercised. Thus the accused-appellant exercising the right of private defence of person and property, exceeded the same in good faith and caused death of a person and, therefore, the act of the accused-appellant would not be culpable homicide amounting to murder. The appellant had a right of private defence which he has exceeded.
10. In the result, this appeal is partly allowed. The accused-appellant is convicted under Sections 304, Pt. I, IPC instead of 302, IPC and accordingly the sentence of life-imprisonment awarded to him is set aside and instead accused-appellant Kehar Singh is sentenced to undergo rigorous imprisonment for six years. He is on bail. His bail bonds shall stand cancelled and he shall be taken into custody to serve out the sentence. The sentence already undergone by him of imprisonment shall be duly set off. The sentence of fine awarded to the accused-appellant shall, however, remain unchanged, and, in default of payment of fine, he shall undergo sentence of 6 months rigorous imprisonment further.