Rajasthan High Court - Jaipur
Birdhi Lal And Ors vs State Of Rajasthan Through Pp on 2 February, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 65 / 2013
Birdhi Lal and Others
----Appellant
Versus
State of Rajasthan Through PP.
----Respondent
Connected With D.B. CRIMINAL APPEAL No. 150 / 2013 Ram Kalyan and Another
----Appellant Versus State of Rajasthan Through P P
----Respondent _____________________________________________________ For Appellant (s) : Mr. A.K. Gupta, with Ms. Sakshi Swami, in CRLA No.65/2013 Mr. Ashvin Garg, with Ms. Mudita Sharma, in CRLA No.150/2013 For the State (s) : Mr. N.S. Dhakad, P.P. _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 02/02/2017 :
Per : Kanwaljit Singh Ahluwalia J. (Oral) :
The present appellants, namely (i) Birdhilal S/o Ramgopal,
(ii) Dhannalal @ Dhanraj S/o Birdhilal, (iii) Jagannath S/o Madholal, (iv) Kanhaiyalal S/o Dhulilal, (v) Durgalal S/o Dhulilal, (vi) Hansraj S/o Latoorlal and (vii) Smt. Rambharosi Bai @ Bharosi Bai W/o Birdhilal, along with (viii) Ramkalyan S/o Radhakishan and (ix) Rambharos S/o Ramkalyan, have directed instant two separate appeals, being D.B. (2 of 18) [ CRLA-65/2013] Criminal Appeal No.65 of 2013 and D.B. Criminal Appeal No.150 of 2013 respectively in order to assail the common impugned judgment dated 16.01.2013 rendered by the Court of Additional Sessions Judge, No.6, Kota, whereby the said Court held all the above said nine accused-appellants guilty of the offences punishable under Sections 302/149, 323/149 and 147 of Indian Penal Code.
Having convicted the appellants for the above said offences, the trial Judge, vide a separate order of even date, sentenced the appellants as under :-
"For offence u/s. 302/149 I.P.C. The appellants were sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- each.
For offence u/s. 323/149 I.P.C. The appellants were sentenced to undergo six months rigorous imprisonment and in default of payment of fine to further undergo one month's additional simple imprisonment each.
For offence u/s.147 I.P.C. The appellants were sentenced to undergo six months rigorous imprisonment and in default of payment of fine to further undergo one month's additional simple imprisonment each.
The trial Court further ordered that all the sentences awarded upon each of the appellant shall run concurrently."
In both the above said two appeals, a common impugned judgment dated 16.01.2013 has been questioned.
Mr. Arvind Kumar Gupta, duly assisted by Ms. Sakshi Swami, learned counsel appearing for the accused-appellants, in D.B. Criminal Appeal No.65/2013 and Mr. Ashvin Garg, duly assisted by Ms. Mudita Sharma, learned counsel appearing for the accused-appellants, in D.B. Criminal Appeal No.150/2013, have jointly urged that the impugned judgment is not legally tenable, as the ld. trial Judge having noted that the field, in question was in possession of the accused and the complainant-party in the dead of night had trespassed into the field to (3 of 18) [ CRLA-65/2013] harvest the mustard crops sown by the accused, has gravely erred not to extend the right of private defence of property and person to the accused-appellants.
It has been contended by the learned advocates appearing for the accused-appellants that four accused, namely Dhannalal @ Dhanraj, Smt. Rambharosi Bai @ Bharosi Bai, Jagannath and Birdhilal have suffered injuries in the alleged occurrence. All the four accused have suffered injuries on the head and furthermore, Jagannath had suffered fracture of forearm and hip, whereas Birdhilal suffered fracture of radius of both forearms.
It has been further contended by the learned advocates appearing for the accused-appellants that since the prosecution has failed to explain the injuries on the person of the accused, the ld. trial Court has not appreciated the law of self-defence in right perspective, and gravely erred to hold that the accused, at first instance should have reported to the Police that the complainant-party has committed theft of the mustard crop sown by the accused-party.
Before we notice the evidence led by the prosecution, since the arguments advanced before us revolve around the findings returned by the ld. trial Judge in the impugned judgment, we at the outset, will reproduce hereunder the findings given by the ld. trial Court :-
"27. bl izdkj i=koyh ij vk;h mijksDr leLr lk{; ij iw.kZ euu djus o mlds mijksDr fo'ys"k.k ls ;g Li"V gksrk gS fd nksuksa i{kksa ds e/; tehu laca/kh fookn Fkk vkSj ml tehu ds laca/k esa nksuksa i{kksa ds e/; jktLo okn Hkh mi[kaM vf/kdkjh lkaxksn ds U;k;ky; esa yafcr Fkk ftlesa ;FkkfLFkfr ds vkns'k Hkh ikfjr fd;s gq;s FksA vfHk;kstu lk{khx.k ds l'kiFk dFkuksa ls gh Li"V gS fd fookfnr tehu yEch vof/k ls vfHk;qDr i{k ds dCts esa Fkh vkSj ?kVuk ls iwoZ ljlksa dh Qly Hkh vfHk;qDr i{k us cksbZ Fkh ftls dkVus ds fy, jkf= ds yxHkx nks cts ifjoknh i{k ds dkywyky] c`tjkt] jkepUnz] vkfn vk;s vkSj VsªDVj Fkz's kj ls Qly fudkyus yxs ml oDr nksuksa i{kksa esa >xM-k gqvkA ........................ ...........................................................................
(4 of 18) [ CRLA-65/2013]
38. bl izdkj i=koyh ij vk;h leLr vfHk;kstu lk{; ij iw.kZ euu djus o mlds mijksDr fo'ys"k.k ls Li"V gS fd ifjoknh i{k gh vfHk;qDr i{k ds dCts dk'r dh Hkwfe ij vk;k Fkk vkSj ogka dVh iM+h gq;h ljlksa fudky jgk Fkk ,slh fLFkfr esa fuf'pr :i ls vfHk;qDr i{k dks viuh laifRr dh izfrj{kk dk vf/kdkj izkIr Fkk ysfdu 8 ch?kk [ksr dh ljlksa fudkyus ds nkSjku vfHk;qDr i{k vklkuh ls iqfyl dh lgk;rk izkIr dj ldrk Fkk vkSj ekSds ij ,slh izfrdwy ifjfLFkfr ugha Fkh tks izfrj{kk ds vf/kdkj dks e`R;q rd foLrkfjr djrhA vf/koDrkx.k vfHk;qDrx.k dh vksj ls izkbZosV izfrj{kk ds vf/kdkj ds laca/k esa tks U;kf;d n`"Vkar is'k fd;s gSa mUgsa iw.kZ lEeku nsrs gq;s esjh fouez jk; esa ;s U;kf;d n`"Vkar gLrxr izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa esa rF;kRed fHkUurk ds dkj.k vfHk;qDr i{k dh dksbZ enn ugha djrs D;ksafd i=koyh ij ,slh dksbZ lk{; ugha gS ftlls ;g nf'kZr gks fd ifjoknh i{k us ekSds ij vkdj vfHk;qDr i{k dks tcju dCtkghu djus dk dksbZ iz;kl fd;k gks ;k vkrs gh vfHk;qDr i{k ij geyk cksy fn;k gksA." (Emphasis supplied).
In view of the above findings given, we have been called upon to dilate the law, as enumerated in Sections 96, 97 and 103 of Indian Penal Code to find whether the right of self-defence to the extent of causing murder shall accrue to the accused or not.
In the present case, Kallulal (PW-7) on 19.02.2009 at 10:30 A.M. had presented a written-report (Exhibit-P/14) before Rajpal Singh (PW-20), who was then posted as A.S.I. at Police Station, Sangod.
In his deposition before the trial Court, A.S.I. Rajpal Singh stated that he was directed by Ramniwas (PW-19), Station House Officer, Police Station, Sangod to proceed to M.B.S. Hospital, Kota to record the statement of injured - Kalulal (PW-7). Rajpal Singh (PW-20) deposed that in pursuance of the directions issued by Station House Officer, Police Station, Sangod, he reached at M.B.S. Hospital, Kota, where Kalulal (PW-7) presented him a written-report (Exhibit-P/14).
The above said written-report (Exhibit-P/14), when translated into English reads as under :-
"To, The Station House Officer, Police Station, Sangod District Kota Subject : Registration of the case.
(5 of 18) [ CRLA-65/2013] It is submitted that in the night at 02:00 A.M., we had gone to harvest the mustard crop in the field falling to our share in Khata's Khet situated at Rajgarh's Mall and known as Bheruji- wala. Nandbihari, Kalulal and Brijraj, father of Ramchandra with our tractor & thrasher were harvesting the mustard crop. In the night at about 02:00/02:30 A.M. residents of Rajgarh, namely Birdhilal S/o Ramgopal Meena, Durgalal S/o Dhulilal Meena, Kanhaiyalal S/o Dhulilal Meena, Kailashbai W/o Ramkalyan Meena residents of Kanaphal, Ramkalyan Meena resident Kanaphal, two sons of Ramkalyan resident of Kanaphal, Keshrilal S/o Ramgopal Meena resident of Rajargh, Mahaveer S/o Keshrilal Meena, resident of Rajgarh, Latoorlal S/o Dhulilal Meena, resident of Rajgarh, Mohanlal S/o Birdhilal, Dhanraj S/o Birdhilal, Gulabchand S/o Ramkaran Meena, resident of Rajgarh, Chandraprakash S/o Ramkaran, resident of Rajgarh, Prabhulal S/o Ramkaran Meena, resident of Rajgarh, Jagannath S/o Madholal Meena, resident of Rajgarh and Bharosi W/o Birdhilal, along with one other person, suddenly arrived at the filed armed with the gandasi, sword, lathi and stone and other equipment. Immediately on arrival, they opened the attack upon us. They had damaged the tractor and burnt the thrasher. They caused injuries to Nandbihari with the lathies and stones. I also suffered injury on my head and on the right elbow. My father Ramchandra also suffered injuries on the eye. After receipt of the injuries, we came to our Village. We brought our brother for treatment to Kota. Doctor after medical check-up declared him dead. The above said persons with the common intention had given beating to my brother, as a result of which my brother Nandbihari S/o Ramchandra Meena died. I am presenting the report. The legal action be taken.
Sd/ applicant Kalulal S/o Ramchandraji, by caste Meena, resident of Guhavada, Police Station Sangod.
Dated 19.02.2009".
On the basis of above said written-report (Exhibit-P/14), a formal First Information Report (Exhibit-P/26) bearing No.42/2009 was registered at Police Station, Sangod District Kota Rural for offences (6 of 18) [ CRLA-65/2013] punishable under Sections 147, 148, 149 and 302 I.P.C.
We may notice here that in the First Information Report (Exhibit-P/26), complainant had named as many as eighteen-persons as accused. However, only nine persons were sent for the trial, they were convicted and sentenced by the trial Court in the manner already noticed. Accused have preferred two separate appeals, as enumerated by us herein above.
In the occurrence, from the side of the complainant-party, Nandbihari deceased sustained three injuries. Out of said three injuries, two were abrasions and injury on the head proved fatal. Kalulal (PW-7) and his father Ramchandra (PW-11) suffered one abrasion each, whereas from the side of the accused, as we have already noticed, Dhannalal @ Dhanraj, Smt. Rambharasi @ Rambharos, Jagannath and Birdhilal have suffered injuries.
Therefore, at first instance, we shall note here the medical evidence.
Dr. Arun Sharma (PW-3) on 19.02.2009 at about 11:40 A.M. conducted autopsy on the dead-body of Nandbihari. In the Post Mortem Report (Exhibit-P/1), Doctor noted that Injury No.1 was abrasion of 5 x 1cm on the left side below the waist. Injury No.2 was diffused swelling on the left side of head fronto parietal region. Injury No.3 was 8 x 1 cm abrasion on the right shoulder and arm. Injury Nos.1 and 3 were declared simple in nature. On opening of the skull, it was found that beneath Injury No.2, there was presence of 3 x 2 cm haematoma towards left fronto region. This injury had proved fatal.
Dr. Jaswant Singh Chauhan (PW-10) on 20.02.2009 had examined Ramchandra s/o Prabhulal and had noticed one abrasion of size ½ x ¼ inch on the left eyebrow. This injury was declared simple in (7 of 18) [ CRLA-65/2013] nature. This witness had also examined Kalulal (PW-7), and as per Injury Report (Exhibit-P/21), he had found one swelling on the head accompanied with complain of pain. Injury No.2 was abrasion on the right elbow. Both the injuries were declared as simple in nature.
From the reproduction of the above injuries, it is to be concluded that there were in all six injuries on the person of two injured and deceased from the side of complainant-party. All the injuries were simple in nature caused by blunt weapon and only injury No.2 on the person of deceased Nandbihari, which was swelling on the head had proved fatal, as beneath the said injury there was a haematoma.
Now we shall notice injuries on the person of the accused. Dhannalal @ Dhanraj, whose Injury Report has been exhibited by trial Court as Exhibit-D/13, was examined on 19.02.2009 and only injury noticed on his person was an abrasion of 6 x ½ on the occipital region of scalp.
Smt. Rambharosi Bai @ Bharosi Bai was examined on 19.02.2009 at 09:15 A.M. and as per Injury Report (Exhibit-D/14), she had suffered four injuries. Injury No.1 was incised wound on the head. Injury No.2 was stitched wound. Injury No.3 was swelling on the upper lip and the Injury No.4 was an abrasion on elbow.
Jagannath was examined on 19.02.2009 at 09:00 A.M. and as per Injury Report (Exhibit-D/15), he had suffered three injuries. Injury No.1 was incised wound 4½ x ½ on the occipital region, which was having clean margins. Injury No.2 was incised wound 2½ x ½ cm on the left forearm and elbow and Injury No.3 was pain and tenderness on the left hip. Doctor while examining Jagannath kept his opinion regarding Injury Nos.2 and 3 pending to obtain report of the Radiologist. As per x-ray report, Jagannath had suffered fracture of (8 of 18) [ CRLA-65/2013] neck of the femur and left iliac bone.
Birdhilal was also examined on 19.02.2009 at 09:30 A.M. and as per Injury Report (Exhibit-D/16), he had suffered four injuries. Injuries No.1, 2 and 3 were incised wounds. Injury No.1 was on the left forearm. Injury Nos.2 and 3 were on the right and left leg respectively. Injury No.4 was an abrasion on the left forearm. As per x-ray report, Birdhilal had suffered fracture of left radius and right radius. Thus, injuries No.1 and 4 suffered by him were declared grievous in nature.
From the reproduction of the above injuries, it is discernible that from the side of the accused, Jagannath and Birdhilal have suffered two grievous injuries each. Thus, accused-party had suffered, in all, twelve injuries, out of which four were grievous in nature. Thus, number of injuries suffered by the accused party were more than the injuries suffered by the complainant-party and furthermore, the nature of injuries on the person of accused is more serious than the injuries on the person of the complainant, except one injury on the person of Nandbihari, which had proved fatal, all other injuries were simple in nature. During same duration when the injury was caused to the complainant-party, accused have suffered more harm so far injuries caused in the occurrence are concerned.
Admittedly, in the written-report (Exhibit-P/14) leading to registration of a formal First Information Report (Exhibit-P/26), no explanation has been furnished by the prosecution regarding the injuries on the person of the accused.
In the present case, the prosecution has examined Kalulal (PW-7) and Ramchandra (PW-11), both injured, along with Brijraj (PW-
8) brother of the deceased, as eye-witnesses.
We shall first notice the testimony of the eye-witnesses.
(9 of 18) [ CRLA-65/2013] Complainant - Kalulal (PW-7), brother of deceased, in the Court deposed that on 19.02.2009 at about 02:30 A.M. they were harvesting the mustard crop with the tractor and thrasher, along with his companions consisting of Brijraj (PW-8), Kalulal (PW-7), Ramchandra (PW-11) and Nandbihari (deceased) etc. Suddenly, accused-party consisting of Birdhilal, Jagannath, Kanhaiyalal, Durgalal, Dhanraj, Chandraprakash, Latoorlal, Hansraj, Ramkalyan, Rambharos, Bharosibai and Keshrilal came and opened the attack. They damaged the tractor. The accused were armed with stick, gandasi and sword etc. They caused injuries to his brother Nandbihari with stick and stone. They had burnt the thrasher. This witness stated that had they not intervened, they would also have been killed. They brought their brother Nandbihari to the Village and from there in a Jeep to Kota Hospital, where Nandbihari was declared dead. In the Court, this witness stated that Ramkalyan and Rambharos were armed with sword.
During cross-examination, this witness (PW-7) admitted that Birdhilal had lodged a cross-case against them for offence punishable under Section 307 I.P.C. and in the same, charge-sheet was filed. This witness stated that he is not aware, whether Birdhilal, Dhannalal @ Dhanraj, Bharosi and Jagannath had suffered injuries in the alleged occurrence or not. The exact words stated by this witness are "eq>s irk ugha fd ?kVuk esa fcj/khyky] /kUukyky] HkjkslhckbZ] txUukFk ds pksVsa vkbZ gksaA ."
Regarding the possession of the field, this witness (PW-7) admitted to be correct that the opposite party had instituted a suit against them in the Court of Sub Divisional Collector, Sangod. However, the witness stated that he is not aware whether on 23.12.2008 i.e. before occurrence, an order of status-quo was passed in favour of the (10 of 18) [ CRLA-65/2013] accused or not. The witness admitted that Court of S.D.M. Sangod had appointed a Receiver and thereafter, said order was set aside by the Court. This witness admitted that the accused had sown the crops in the field.
It is relevant to reproduce here following portion from the testimony of this witness (PW-7) :-
";g dguk lgh gS fd fnukad 17-12-2008 dks fcj/khyky] nqxkZyky] dUgS;kyky o dSyk'k ckbZ us yVwjyky] dUgS;kyky o vkSj yksxksa ds fo:) mi&ftyk dysDVj] lkaxksn ds ;gka nkok fd;k FkkA ;g eq>s irk ugha fd fnukad 23-12-08 dks bl U;k;ky; us HkS: th okys [ksr ds ckcr fcj/khyky oxSjk ds i{k esa ;FkkfLFkfr dj nh gksA ;g esjh tkudkjh esa gS fd bl tehu dks ysdj eSaus ,l0Mh0,e0 lkaxksn U;k;ky; esa fjlhojh dh dk;Zokgh dh Fkh] tks fd U;k;ky; }kjk gVk nh xbZ gSA bl tehu esa eqyfteku us tcnZLrh frYyh cks nh gSA ;g lgh gS fd eSa dksVk jktLo U;k;ky; esa fjlhojh dh fuxjkuh dh dk;Zokgh esa mifLFkr gqvk FkkA ;g esjh tkudkjh esa gS fd fuxjkuh esa dksVk U;k;ky; }kjk mDr tehu ds ckcr fjlhojh vkns'k fujLr djds ekeys dks lkaxksn Hkst fn;kA ;g dguk lgh gS fd lkaxksn vnkyr us fjlhojh gVk nhA"
This witness (PW-7) further admitted that in the night at 02:00 A.M. or 02:30 A.M. when they were harvesting the crops, then only accused came. The exact words stated by this witness are that "tc ge Qly fudkyus yxs Fks] rc gh eqyfteku nks <kbZ cts xkao jktx<+ ls vk;s FksA ge [ksr ij jkr dks 2 cts igqap x;s FksA." However, this witness (PW-7) admitted that he and Mannalal had purchased the land. This witness further stated that the said land was purchased on the name of deceased Nandbihari and Raghuveer. This witness denied that after the occurrence, they had left the tractor and trolley at the spot. However, this witness denied that the mustard crop sown in the field belonged to the accused.
Brijraj (PW-8) has also supported the testimony of Kalulal (PW-7). In cross-examination, this witness admitted that the field was purchased by Latoor and his brother. He had seen the sale-deed, but this witness stated that he cannot say that Latoor was in possession of the land.
(11 of 18) [ CRLA-65/2013] Ramchandra (PW-11) has also supported the testimony of Kalulal (PW-7). He denied that they were being prosecuted in a cross case for offence punishable under Section 307 I.P.C.
Thus, from the testimony of the above said eye-witnesses, it is also apparent that they have not taken stand that they had caused injuries to the accused when they purportedly came to the field, in question.
During cross-examination, Gaindilal (PW-1) admitted that the field where the alleged occurrence had taken place was in possession of the accused-party and he also saw that accused had suffered injuries in the occurrence. We reproduce here following portion from the cross-examination of this witness (PW-1) :-
"eSa fcj/khyky] dUgS;kyky] nqxkZyky o yVwjyky dks tkurk gwWaqA ;g lHkh yksx iVsy ek/kksyky ds ifjokj ds gh gSAa ;g ckr lgh gS fd HkS: th okyk 28 ch?kk [ksr esa fcj/khyky] dUgS;kyky] nqxkZyky o yVwjyky us gh Qly cksbZ Fkh vkSj bUgksaus gh dkVh FkhA ;g ckr lgh gS fd 8 ch?kk tehu esa ljlksa jkedY;k.k eh.kk us cksbZ FkhA mDr HkS:
th okys [ksr esa fcj/khyky] dUgS;kyky] nqxkZyky o yVwjyky us gh Qly cksbZ FkhA eSa yxHkx 48 lky ls HkS: th okys [ksr ij fcj/khyky rFkk mlds ifjokj okyksa dks gh [ksrh djrs gq, ns[krk gqvk vk;k gwWAw ;g lgh gS fd xqgkon okys ekfy;ksa dks dHkh Hkh [ksrh djrs gq, ugh ns[kkA ;g lgh gS fd eSua s fcj/khyky eh.kk o mlds ifjokj okyksa ds Hkh xkao vkus ij pksVsa ns[kh FkhaA eSaus tks jktx<+ ds eh.kkvksa }kjk bl [ksr esa Qly cksus] gadkbZ] tqrkbZ dh ckr dgh Fkh] mlls esjk vk'k; gS fd fcj/khyky] dUgS;kyky] yVwjyky o nqxkZyky us gh Qly cksbZ o dkVh gSA". (Emphasis supplied).
Banshilal (PW-2), who is having an adjoining field, has also admitted the possession of the accused over the disputed field. In cross-examination, this witness (PW-2) stated as under :-
";g lgh gS fd jkexksiky th ds HkkbZ /kqyhyky o ek/kksyky FksA ;g Hkh lgh gS fd jkexksiky th ds gh ifjokj ds dUgS;kyky o nqxkZyky gSaA ;g ckr lgh gS fd fcj/khyky] dUgS;kyky th mDr 28 ch?kk HkS: th okyh tehu ij cksbZ o Qly dkVrs FksA ;g ckr lgh gS fd 28 ch?kk HkS: th okyh tehu ij xqgkonk okyksa eh.kk us u rks bl tehu ij dHkh gadkbZ tqrkbZ dh gS] vkSj u gh Qly dkVh gSA From the above, it is apparent that the prosecution witnesses have also admitted the possession of the accused.
(12 of 18) [ CRLA-65/2013] We may also notice here that Banshilal (PW-25) in the Court has specifically stated that "eqyfteku 50 lkyks ls ml tehu ij dk'r djrs vk jgs FksA ."
The accused-party has also proved on record filing of suit Exhibit-D/17 by them. In the suit, they have specifically stated that they were in possession of the land and the complainant-party, who had purchased the said land intended to take possession of the same by dispossessing the accused-party.
Mr. Arvind Kumar Gupta, the learned counsel appearing for the accused-appellants, has urged that the defence has proved on record the order passed by the S.D.M. Sangod granting status-quo in favour of the accused. Counsel appearing for the accused-appellants has further referred to the last line of the cross-examination of Raghuveer (PW-15), brother of the deceased that he was aware of the pendency of the suit and the fact that the Court of S.D.M. had passed the order of status-quo.
In the light of the above evidence noticed by us, we have no hesitation to hold that the trial Judge has rightly held that the accused were in possession of the field and the mustard crop therein was sown by them. The trial Court has also rightly held that the complainant-party had trespassed into the field to take possession of the land, which was with the accused and in order to assert their possession, they had resorted to harvest the mustard crop, which was sown by the accused.
Having upheld the finding returned by the trial Court that over the field in which occurrence had taken place accused were in possession of the same and the complainant-party had trespassed into the field in possession of the accused to cut the crop sown by them, we have to examine, whether the trial Judge was justified to say that the (13 of 18) [ CRLA-65/2013] accused, at first instance ought to have approached the Police authorities, then to take the law into their own hands.
To return the above finding, the trial Judge has heavily relied upon Section 103 of Indian Penal Code. It is true that Section 103 I.P.C. specifically states that right to cause death shall accrue only in case of robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel, and in case of theft only, if it may cause reasonable apprehension that death or grievous hurt will be the consequence.
We reproduce here Section 103 of Indian Penal Code, which has already been reproduced by the trial Court.
"103. When the right of private defence of property extends to causing death.--The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:--
(First) -- Robbery;
(Secondly) --House-breaking by night;
(Thirdly) -- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
(Fourthly) --Theft, mischief, or house-trespass, under such circum- stances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."
In the present case, as we have already noted herein above that the accused -Jaggnath and Birdhilal have suffered two grievous injuries each. Birdhilal had suffered fracture of left and right radius of both the arms. Jagannath had suffered fracture of neck of the femur and forearm. Jagannath had also suffered injury on parietal region i.e (14 of 18) [ CRLA-65/2013] head. Dhannalal @ Dhanraj had suffered simple injuries on the occipital region.
The trial Court having returned the finding that the complainant-party had gone to commit theft, lost sight of the fact that in the occurrence, injuries were also caused to the accused. Therefore, Clause Fourthly of Section 103 of Indian Penal Code is attracted, as same states that when the theft is accompanied by apprehension that death or grievous hurt can be consequence then accused have a complete right of self- defence of property and person to the extent of causing death.
The trial Court in Para 33 of the impugned judgment has observed as under :-
"fo}ku vf/koDrkx.k vfHk;qDrx.k us ;g Hkh rdZ izLrqr fd;k gS fd lHkh O;fDr;ksa dk ?kkrd gfFk;kjksa ls lfTtr gksdj ?kVuk esa 'kkfey gksuk lkfcr ugha gksrk blfy, mu lHkh dks fof/k fo:) teko dk lnL; ugha ekuk tk ldrkA bl laca/k esa mUgksaus U;kf;d n`"Vkar 2011 ¼iwjd½ Cr.L.R (S.C) 99s dqynhi ;kno o vU;@fcgkj jkT; Hkh izLrqr fd;k gS ijUrq ;g U;kf;d n`"Vkar Hkh rF;kRed fHkUurk ds dkj.k vfHk;qDr i{k dh dksbZ enn ugha djrk D;ksafd mDr U;kf;d n`"Vkar esa ;g izfrikfnr fd;k gS fd vfHk;qDr dk ek= 'kL= /kkj.k dj [kM+s jguk i;kZIr ugha gS mudk dksbZ izR;{k d`R; gksuk pkfg,A gLrxr izdj.k esa i=koyh ij vk;h vfHk;kstu lk{; ,oa Lo;a vfHk;qDr fcj/khyky Mh0M01 ls l'kiFk dFkuksa ls gh Li"V gS fd lHkh vfHk;qDrx.k us ,d lkFk feydj [ksr ij ljlksa fudky jgs ifjoknh i{k ds lkFk ekjihV djus ds lkekU; mn~ns'; ls fof/k fo:) teko dk xBu fd;k vkSj vius lc ds lkekU; mn~ns'; ds vxzlj.k esa ifjoknh i{k esa ekjihV dj dkywyky] jkepUnz dks lk/kkj.k pksVsa dkfjr dh vkSj mlh ekjihV esa vk;h pksVksa ds ifj.kkeLo:i uanfcgkjh dh e`R;q gq;hA ;g lgh gS fd i=koyh ij ,slh dksbZ fo'oluh; lk{; ugha gS ftlls ;g nf'kZr gks fd oDr ?kVuk vfHk;qDrx.k ?kkrd gfFk;kjksa ls lfTtr FksA."
We cannot become oblivious of the fact that in the present case, the complainant-party purposely have not explained the injuries on the person of accused in the written-report (Exhibit-P/14), which led to the registration of a formal First Information Report (Exhibit-P/26) and in their testimony before the Court. They have suppressed the origin and genesis of the occurrence by not explaining the injuries on (15 of 18) [ CRLA-65/2013] the person of accused. They have not narrated truthful version of the occurrence. Therefore, the complainant party was well aware that since they had committed trespass, they have taken law into their own hands, hence, they were not justified to cause injuries to the accused.
Mr. Gupta, learned counsel appearing for the accused- appellants, has rightly placed reliance upon the judgment of the Supreme Court in the case of Lakshmi Singh and Others Vs. State of Bihar, reported in (1996) 4 Supreme Court Cases 394, to contend that if the injuries on the person of accused are not explained, it is to be assumed that prosecution has suppressed genesis and origin of the occurrence and, thus, they have not presented the true version.
It is relevant to mention here relevant Paras of the aforesaid judgment :-
"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:
In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows:
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(16 of 18) [ CRLA-65/2013] (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
It seems to us that in a murder case, the non-
explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
Therefore, we are convinced that by not explaining the injuries on the person of accused, the complainant party has not followed the path of the truth.
In the present case, the mustard crop sown by the accused was being harvested by the complainant-party. The crop is butter and bread of the farmer. Once theft of the crop is committed, accused-party is very well within their rights to go at the spot and restrain the complainant party not to cut and steal their crop. Once accused had restrained the complainant-party, the complainant-party had resorted to cause injuries to the accused-party. At that moment, accused entertained apprehension that grievous injuries will be caused to them (17 of 18) [ CRLA-65/2013] and in present case, indeed grievous injuries were caused, thus, accused were entitled to exercise complete right of self-defence.
To borrow the golden words from the judgment rendered by the Supreme Court in the case of Munshi Ram and Others Vs. Delhi Administration, reported as A.I.R. 1968 S.C. 702, we can also say that the law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.
The relevant portion of the above said judgment reads as under :-
"5. It is true that appellants in their statement under Section 342 Cr.P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross- examination of the prosecution witnesses as well as by adducing defence evidence. It is well-settled that even if an accused does not plead self defence, it is open to the court to consider such a plea if the same arises from the material on record - see In re, Jogali Bhaigo Naiks, AIR 1927 Mad. 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."
Taking totality of circumstances, as spelt out by us, we are of the considered opinion that the accused had complete right of self- defence of property and person to cause death of Nandbihari.
Having extended the complete right of self-defence to the accused or person of the property, we accept both these appeals. As a (18 of 18) [ CRLA-65/2013] consequence of acceptance of these appeals, conviction pronounced and sentence awarded upon the appellants by the trial Court is, hereby, set aside and they are acquitted of the charges.
In view of above, we order that the appellants be released forthwith, if in custody and not required in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount each, before the trial Court. The bonds, so furnished shall be effective for a period of six- months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.
(PRAKASH GUPTA) J. (KANWALJIT SINGH AHLUWALIA) J. ashok/