Rajasthan High Court - Jodhpur
State Of Rajasthan vs Shiv Narayan And Ors on 13 December, 2022
Bench: Vijay Bishnoi, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 250/1992
State Of Rajasthan
----Appellant
Versus
1. Shiv Narayan S/o Shri Baldeva Ram
2. ShyamSunder son of Shri Bhanwar Lal
3. Chagan Lal S/o Baldeva Ram (Abated: 12.09.2022)
4. Baldeva Ram S/o Panchi Ram (Abated: 12.09.2022)
5. Prem Kumar S/o Chagan lal
6. Ashok Kumar S/o Rameshwarlal
7. Jeeta Ram S/o Chagan Lal (Abated: 12.09.2022)
all by caste Nai
all are residents of Arjunsar, P.S. Mahajan, District Bikaner
----Respondents
For Appellant(s) : Mr. B.R. Bishnoi, PP
For Respondent(s) : Mr. Shyam S. Khatri
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
JUDGMENT RESERVED ON ::: 18.10.2022
JUDGMENT PRONOUNCED ON ::: 13.12.2022
BY THE COURT : (Per Hon'ble Farjand Ali, J.)
Reportable The instant appeal has been preferred by the State under Section 378(3) of Cr.P.C. against the judgment of acquittal dated 11.12.1989 passed by learned District and Sessions Judge, Bikaner, in Sessions Case No. 104/1988 whereby the accused- respondents were acquitted for the offences under Sections 147, 148 and 302 read with Section 149 of I.P.C.
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(2 of 40) [CRLA-250/1992] During the course of the appeal, three out of the seven appellants, namely appellant No. 3 Chhagan Lal S/o Baldeva Ram, appellant No. 4 Baldeva Ram S/o Panchi Ram and appellant No. 7 Jeeta Ram S/o Chhagan Lal, have passed away and thus, the appeal has been abated to their extent by this Court vide order dated 12.09.2022. As per the police report dated 21.08.2022, appellant No.1-Shiv Narayan S/o Baldeva Ram, appellant No.2- Shyam Sunder S/o Shri Bhanwar Lal, appellant No.5-Prem Kumar S/o Chhagan Lal and appellant No.6-Ashok Kumar S/o Rameshwarlal survive and are residing in Arjunsar, Police Station Mahajan, District Bikaner presently. Thus, the appeal is now being heard to the extent of appellant No.1-Shiv Narayan S/o Baldeva Ram, appellant No.2-Shyam Sunder S/o Shri Bhanwar Lal, appellant No.5-Prem Kumar S/o Chhagan Lal and appellant No.6- Ashok Kumar S/o Rameshwarlal.
Briefly stated, the facts of the case are that the first informant Brij Lal lodged a report at the Police Station, Mahajan on 23.10.1988 expressing that he was going to Sahjarasar from Ganganagar in a jeep with his brother Chanan Ram and they had stopped to pour water near Arjunsar Bus Stand as their jeep was overheating. He started putting water in the vehicle while his brother Chanan Ram went to his relative Satyanarayan's place where a wall was being raised. When he heard the clamour of people, he went towards the bada (plot) of Satyanarayan where Liladhar and Radhakisan were also present. It is stated in the report that his brother Chanan Ram was encircled by the seven accused persons and his (Chanan Ram) gun was taken away by (Downloaded on 14/12/2022 at 12:15:02 AM) (3 of 40) [CRLA-250/1992] accused Shiv Narayan. They took him inside the bada and Shiv Narayan hit him with the butt of the gun he was holding. Accused Baldeva Ram said that Chanan Ram is the root cause of the fight and spurred the others to finish him off and at that moment, accused Shyam Sunder brought a spade, accused Shiv Narayan brought a shovel, accused Chhagan Lal brought a black tyre rope and accused Ashok brought a lathi. Thereafter, Chanan Ram was restrained and tied up by all the accused except Baldeva Ram. It is further stated in the report that while accused Chhagan Lal, Prem Kumar and Jeeta Ram were holding Chanan Ram, accused Shyam Sunder, Shiv Narayan and Ashok were assaulting him and accused Baldeva Ram was encouraging them from outside by saying that he should not be left alive and his life should be ended. This brouhaha led to more people assembling there to see what had happened. It is also stated in the report that the accused persons left the place of incident with their weapons and left the gun belonging to Chanan Ram in the bada and that when Liladhar and Radhakishan went into the saal (lounge) and saw Chanan Ram, his throat was cut, he was drenched in blood and had succumbed to his injuries.
On the basis of the said report, FIR No. 55/1988 came to be registered under Sections 147, 148, 302 and 149 of IPC at Police Station, Mahajan. As part of their usual investigation, the police inspected the crime scene, recorded the testimonies of witnesses, detained the accused persons and on the basis of the disclosure statements made by the accused under Section 27 of the Indian Evidence Act, recoveries of weapons were made. The police also (Downloaded on 14/12/2022 at 12:15:02 AM) (4 of 40) [CRLA-250/1992] conducted investigation regarding ownership of the site where the alleged incident took place. After conclusion of the investigation, challan came to be submitted by the police against the afore- mentioned accused for the offences under Sections 302, 147, 148, 149, 341, 342, 114/149 of IPC. As the offence of murder under Section 302 IPC is exclusively triable by Court of Sessions, the case was committed to learned District and Sessions Judge, Bikaner on 07.12.1988 and the trial was set into motion. Charges were framed against the accused by the learned trial court for the offences under Sections 147, 148 and 302 r/w 149 of IPC to which they pleaded not guilty and requested trial.
The statements of as many as 11 witnesses were recorded during examination in the trial and 44 documents were tendered into evidence by the prosecution. Thereafter, when explanation was sought from the accused under Section 313 of Cr.P.C., they refuted the allegations levelled against them and four documents were produced in their defense.
The accused Baldeva Ram stated in his statement under Section 313 CrPC that the bada where the alleged incident took place was under the name of his wife Mathura; the plot where the bada was constructed belonged to Mathura as well; the electricity and water connections installed at the bada had also been issued in her name and sarpanch Maniram had attested to this fact as per Exhibit D-4. It is further stated therein that he had initiated proceedings under Section 107 of IPC against Chanan Ram and Satyanarayan but they were in cahoots with the Sarpanch Maniram and thus, a fabricated patta was made in favour of (Downloaded on 14/12/2022 at 12:15:02 AM) (5 of 40) [CRLA-250/1992] Satyanarayan despite the fact that the result of the appellate proceedings pending in respect of the plot where the alleged crime took place was delivered in favour of Baldeva Ram and Mathura. He further stated in his 313 CrPC statement that the behaviour of Chanan Ram was akin to that of a rowdy hooligan and that he used to snatch lands away from poor people. There are many cases pending against Chanan Ram. All the three, alleged eye- witnesses of the incident, namely Liladhar, Radhakishan and Brijlal are close relatives of the deceased Chanan Ram.
The statement of accused Jeeta Ram under Section 313 reveals that Ashok had gone to his grandmother's house for masonry work along with Bhanwar Singh (mistri/mason) and labour Sheraram. While they were working, Brijlal and Chanan Ram had arrived; while Brijlal went to Satyanarayan's house, Chanan Ram came over to them and threatened them to leave the plot. He asked the workers to stop working and leave otherwise he would kill them. Both the workers fled from the scene. Then, Chanan Ram took out his gun and started inserting the cartridge into it while approaching the two accused, namely Jeeta Ram and Ashok. Jeeta Ram and Ashok ran towards the room out of fear and picked up a wooden stick and a spade to protect themselves. When Chanan Ram who was following them into the room entered therein, they hit him with their respective tools. Jeeta Ram has further stated that he inflicted injuries upon Chanan Ram and as a result thereof, he fell to the ground; the gun and cartridge that he was holding also fell onto the ground due to his fall and at that moment, Jeeta Ram picked the gun and cartridge and threw them (Downloaded on 14/12/2022 at 12:15:02 AM) (6 of 40) [CRLA-250/1992] out so that Chanan Ram was unable to get up and attack them with the same. When both of them were leaving, he noticed Chanan Ram's footwear outside the kotha and mentioned that when Chanan Ram had run to kill them, there was no one around out of the three eye-witnesses, namely, Liladhar, Brijlal and Radhakishan. In fact, he goes on to state that there except him and Ashok, the other accused persons were not even present at the scene. The rope was just lying in the kotha and Chanan Ram was neither tied nor restrained by the two accused persons according to Jeeta Ram's statement. Thereafter, he went and told about the incident to the police station officer (thanedar), Mahajan. The police officer took a doctor from the Mahajan Hospital and Jeeta Ram along with him in a private jeep and reached the place of incident. The doctor declared that Chanan Ram had died and by that time, a lot of people had gathered there. The police officer said that since he has died now, someone needs to lodge a report regarding the same to which the people present there replied that his brother would do the same. Within the next 10-15 minutes, Brijlal arrived at the scene and he went to the police station along with the officer. They came back after about an hour and a half and Jeeta Ram and Ashok were asked to remain there till then. They were taken to the police station as soon as the police officer came back at the place of incident. Lastly, Jeeta Ram has stated in his explanation that nothing has been recovered from him and that a false case has been foisted against him.
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(7 of 40) [CRLA-250/1992] The explanation provided by Ashok under Section 313 of CrPC matches with the details of the incident as narrated by Jeeta Ram in his statement.
Subsequently, after hearing learned counsel for the accused and the public prosecutor and examining the testimonies of the witnesses and other documentary evidence produced before the court in detail, the learned trial court acquitted all the accused persons vide impugned judgment as the case of the prosecution was not found proved beyond reasonable doubt. Aggrieved by the said judgment, the present leave to appeal was preferred by the State under Section 378(3) of CrPC.
The application for Special Leave to Appeal was allowed by this Court and was directed to be treated as a memo of appeal and bailable warrants were issued to the accused-respondents by order dated 06.07.1992.
Mr. B.R. Bishnoi, learned counsel appearing for the appellant- State, submits that the lower court has failed to appreciate the evidence produced before it by the prosecution and did not consider the factual and legal aspects of the matter accurately. The judgment of acquittal passed by the trial court is erroneous as the testimonies of the three eye witnesses have been wrongly disbelieved owing to the reasons that they had received no injuries and that they were interested witnesses. He submits that it was wrongly observed by the trial court that the FIR (Exhibit P-
31) was a post-investigation document rather it was lodged by the witness Brij Lal by going to the Police Station himself and that it was the deceased Chanan Ram who was the aggressor. The plea (Downloaded on 14/12/2022 at 12:15:02 AM) (8 of 40) [CRLA-250/1992] of right to private defence raised by two accused, namely Jeeta Ram and Ashok, was accepted by the trial court without cogent reasons. The recoveries made at the instance of accused Shyam Sunder, Ashok and Shiv Narayan have been proved by the prosecution witnesses. As per the testimony of the doctor, there were no ligature marks on the person of Chanan Ram and thus, it was concluded that the hands and legs of the deceased Chanan Ram were not tied. It is submitted that it is a matter of chance that ligature marks would appear or not because the rope used by the accused was made of tyre and was softer than other ropes. It was wrongly observed in the impugned judgment that there was no involvement of accused Shyam Sunder whereas his involvement has been duly proved by the prosecution evidence. He further submits that had the deceased Chanan Ram intended to inflict injuries to the accused persons, he would have not left 11 cartridges in the jeep while picking up a quarrel with a group of people. The prosecution had succeeded to prove its case beyond reasonable doubt and the judgement of acquittal passed by the trial court is liable to be set aside.
Per contra, Mr. Shyam S. Khatri, learned counsel appearing for the respondents, submits that the trial court has not passed the judgment of acquittal in error and the same does not call for any interference by this appellate Court.
Heard learned counsel for the parties and perused the material available on record.
We begin with the testimony of the medical officer, Dr. Omprakash Modi, who was examined as PW-5 in the trial. He (Downloaded on 14/12/2022 at 12:15:02 AM) (9 of 40) [CRLA-250/1992] examined the body of the deceased at the place of occurrence and noted a total of twelve injuries on his body, out of which, injury Nos. 1, 4, 9, 10, 11 and 12 were caused by a blunt weapon and the rest of the injuries were caused by a sharp weapon. There were no ligature marks found on the neck of the deceased. The injuries caused loss of blood which led to a state of syncope and caused the death of the deceased. There was loss of blood owing to the injuries inflicted on the head and neck of the deceased. He affirmed that he prepared and signed the post mortem report (Exhibit P-18) and verified that the same is accurate. He further stated that injury no. 7, which was a 15x1.5 cm x 4 cm wound caused by a sharp weapon located little towards the right side of the neck which had cut the larynx and the carotid vessel from the right side, was sufficient in the ordinary course of nature to cause death. Injury Nos. 2 and 3 were sharp-weapon injuries and could also prove to be dangerous to life. Injury No. 2 was a 15 x 1.5 cm bone deep injury which went from the left side of the occipital bone till the left ear lobe through the middle of the mastoid process located on the left side but the brain did not receive any injury; the dura mater was intact but there was blood collected outside the the dura mater. Injury No. 3 was a 12 x 1.5 cm semi- bone-deep wound on the right side of the occipital bone of the head which did not cut the bone completely. The doctor has further testified before the court regarding injury No. 3 that though it was not evidently fatal but if left untreated and there is loss of blood, then it may or may not prove to be fatal. For injury No. 2, he stated that there are multiple reasons for accumulation of blood over the dura mater and that it is even possible that a (Downloaded on 14/12/2022 at 12:15:02 AM) (10 of 40) [CRLA-250/1992] person can go on to live for days while being injured with injury no. 2. He has further deposed that if the deceased was not injured with injury No. 7 then it was possible that he could have survived. He does not agree to the fact that since all the four chambers of his heart had emptied out, he must have bled for long; rather, he must have bled for around five minutes and died. Lastly, PW-5 stated that injury No. 4 could have been caused due to falling on any blunt surface and that there were no ligature marks found on the body of the deceased which means that there were no marks found on his body which could show that he was tied down by the rope. A close scrutiny of the statement of the doctor reflects a conflict between medical and ocular evidence and thus, weakens the case of the prosecution.
Next, we move on to examine the testimonies of the eye- witnesses examined by the prosecution.
Liladhar was examined as PW-1 in the trial. According to him, a verbal spat took place between Baldeva Ram and Chanan Ram when Chanan Ram approached the wall where the mason and the labourer were working at. He stated that the bada belonged to Baldeva Ram and the other accused persons and that there was a dispute going on between the parties regarding the said land on which the bada was constructed. As per PW-1, Chanan Ram was holding a gun in his hand and the seven accused persons, who were standing on the other side of the wall, came out and dragged Chanan Ram towards the other side of the wall. They surrounded Chanan Ram and snatched his gun. It is stated by Liladhar that accused Shivnarayan was the one who snatched (Downloaded on 14/12/2022 at 12:15:02 AM) (11 of 40) [CRLA-250/1992] the gun of the deceased and hit him on the side of forehead with the wooden butt of the gun which broke off. Accused Chhagan Lal brought a black rope and all of them together tied the hands and legs of the deceased. There is an outhouse on the same plot where they took Chanan Ram while accused Baldeva Ram stood outside the outhouse and shouted to the other accused to kill Chanan Ram. It is further stated by PW-1 Liladhar that accused Shivnarayan brought a shovel ('kasiya') and attacked at Chanan Ram's neck as well as the side of his forehead; accused Ashok brought a spade ('kassi') and he, too, attacked Chanan Ram's neck; accused Jeetaram beat Chanan Ram with a wooden stick ('lathi') repeatedly. During this time, other accused were holding the legs of Chanan Ram and Baldeva Ram was standing outside and inciting others to hit Chanan Ram. According to PW-1, other people had also gathered over there but he did not recognize any of them. He and Radhakishan had urged the accused not to hit Chanan Ram many times but they did not listen; rather, they threatened both of them that if they will come near, they would also be treated in the same manner. The accused ran away after thrashing up Chanan Ram and took the wooden stick and shovel with them but left the gun at the place of incident. Chanan Ram's condition was not good and his clothes were soaked in blood. It was further deposed that the rope with which Chanan Ram was tied was found lying in a corner in the outhouse and by the time they went inside, Chanan Ram had passed away. Brijlal went to lodge a report with the police while Liladhar and Radhakishan waited there. The police arrived at the scene after 45 minutes along with the doctor and started investigating and collecting (Downloaded on 14/12/2022 at 12:15:02 AM) (12 of 40) [CRLA-250/1992] samples. PW-1 Liladhar was also made a witness to the alleged recovery of lathi effected from accused Ashok (Exhibit P-14).
During cross-examination by counsel for the accused in the trial, PW-1 Liladhar admitted that he was Chanan Ram's cousin and that Chanan Ram wanted to oust Baldeva Ram and get the possession of the plot from him in favour of Satyanarayan and his son Poonamchand as Chanan Ram's sister was married to Poonamchand. Thus, PW-1 was an interested witness whose testimony needs to be corroborated and treated with caution; also, he accepted that his relative (deceased) wanted to dispossess the accused which means that the accused were in possession of the disputed property when the alleged incident took place. The admission of the star prosecution witness regarding the possession of the accused over the disputed plot casts a serious doubt in the story of the prosecution and it can be presumed that the genesis of the occurrence has been suppressed and the prosecution was not launched honestly.
It seems strange that both Liladhar and Radhakishan happened to walk by the plot at the same time naturally when the series of events were starting to take place.
The next eye-witness projected by the prosecution, namely Radhakishan, was examined as PW-4 in the trial and he was accompanying PW-1 Liladhar when both of them had witnessed the incident. In addition to what PW-1 Liladhar had deposed before the court, PW-4 stated that the accused took Chanan Ram to the plot from over the wall that was being constructed and a few of the bricks had fallen due to the same. He stated that (Downloaded on 14/12/2022 at 12:15:02 AM) (13 of 40) [CRLA-250/1992] accused Shiv and Shyam Sunder were carrying spades and another accused whom he could not identify was carrying a wooden stick. As per PW-4, accused Shivnarayan had attacked Chanan Ram with his spade and hit his neck as well as the side of his forehead; accused Shyam Sunder had hit the other side of Chanan Ram's forehead; and another accused who he could not name had hit the deceased with the wooden stick. It is further stated that he, Brijlal and Liladhar were requesting the accused not to hit Chanan Ram; by that time, more people had assembled there, the accused had run away and Chanan Ram had died. It is also stated in the testimony of PW-4 that when the three accused were beating Chanan Ram, other accused persons were holding Chanan Ram back and Baldeva Ram was shouting at the other accused to kill Chanan Ram. Furthermore, at that time, there was a gun in Chanan Ram's hand which was snatched by Shivnarayan on the road and the accused threw the gun while running away from the scene of crime.
PW-4 Radhakishan admitted in his cross-examination that Brijlal was not present at the place of incident when the police had arrived there. The police had reached at the crime scene at around 12 p.m. and were present there till evening but Brijlal had not come by then. The above admission made by this witness gets fortification from the plea of defence that the first informant Brijlal was not present at the crime scene and the substratum of the prosecution is based on the hollow foundation of a false report. The genesis of the case comes under a heavy pall of doubt. Some facts are emerging from the record which indicate that the first (Downloaded on 14/12/2022 at 12:15:02 AM) (14 of 40) [CRLA-250/1992] informant Brijlal (PW-9) was not present at the crime scene and came to police station after a long interval of the incident and till his arrival, the police waited for lodging of the FIR. The very presence of PW-9 Brijlal at the crime scene is doubtful and thus, it can safely be inferred that right from the inception, that is, from lodging of the FIR, true facts were concealed and this very facet further creates distrust in the story of the prosecution.
It seems convenient that when they took Chanan Ram inside and thrashed him up, it was visible to this witness; if there was clear visibility to this extent, then why could he not see if the rope was untied by the accused and how it came to be accumulated in a corner of the room. It is also stated that Chanan Ram had bled to the extent that blood had spilled till 2-3 foot from both the sides of the body yet there was no blood on the rope. The above- mentioned observations cast a dark shadow of doubt over the testimony of PW-4.
The brother of the deceased, Brijlal, who was accompanying him in the jeep on the day of the incident was examined as PW-9 in the trial. According to his testimony, he tried telling the accused to leave Chanan Ram alone but they did not do so. As per the allegations levelled by the prosecution, after the accused had beaten Chanan Ram to death and left, PW-9 Brijlal went to the police station and registered a report against the accused.
One of the things that is off-centre in the testimony of PW-9 is that he stated that the accused had surrounded Chanan Ram who was holding a gun in his hand; though the accused were allegedly seven and thus, more in number yet how did they not (Downloaded on 14/12/2022 at 12:15:02 AM) (15 of 40) [CRLA-250/1992] fear that Chanan Ram would use the weapon that he was holding in his hands against them if they would hurt him. Two live and usable cartridges were recovered by the police from the place of incident which goes on to show that Chanan Ram had the cartridges ready to load and shoot or at least he was threatening the accused while keeping the gun and the cartridges handy in his hands.
During his cross-examination, PW-9 revealed that Chanan Ram and he used to come to Arjunsar to help PW-3 Satyanarayan regarding the dispute related to the plot. It is also revealed that he went to the police station in his jeep approximately between 11.30 a.m. or 12.00 p.m. and that the police stayed at the place of incident for about an hour and left by 03.00 p.m. which is contradictory to what PW-4 Radhakishan had deposed before the court. In light of the above-mentioned facts, the very presence of the witness PW-9 Brijlal becomes doubtful at the relevant point of time at the crime scene and at the same time, the defense version is closer to the truth.
PW-9 also disclosed in his cross-examination that he signed on a document at the police station after the police had gone back after the first round of investigation at the place of incident. He also claimed that Chanan Ram had called him, Liladhar and Radhakishan for help when the accused were taking him into the plot but they neither made any physical attempt to help him get released nor did they call anybody from nearby as they could not spot any body at that time. The accused Shivnarayan had hit the deceased with the butt of the gun multiple times and he had hurt (Downloaded on 14/12/2022 at 12:15:02 AM) (16 of 40) [CRLA-250/1992] his waist and back. It is also stated that there were 15-20 people standing on the road near to the plot and they were also witnessing the incident.
It is peculiar and unobvious to any man of common prudence that one's brother is being beaten to death and there are people present in near vicinity, yet, neither he seeks help from those present nearby nor does he himself intervene and save his brother. The medical evidence available on record does not corroborate the statement of this witness regarding causing of injuries on the back and waist of the deceased with a blunt object. This fact further corroborates the plea of defense that this witness was not present at the crime scene.
According to the testimonies of the above three eyewitnesses, it is stated that Chanan Ram was tied with rope by the accused. If it is supposed that the hands and legs of the deceased were tied with the black tyre rope which was found lying in the corner of the room constructed on the plot later, then why was there a need for three out of the six accused who were allegedly inside the room to hold back and restrain the accused; and if the deceased was resisting to such an extent that three people were required to hold him back then how can it be so that there were no ligature marks on the body of the deceased to mark his resistance during the attack on him. The medical evidence and the testimony of PW-5 Dr. Omprakash Modi does not support this aspect of the story of the prosecution; rather, it debunks it. It is an admitted fact of the prosecution that neither the rope was cut from anywhere nor were there any blood stains on the rope. If the (Downloaded on 14/12/2022 at 12:15:02 AM) (17 of 40) [CRLA-250/1992] accused was being attacked so brutally by multiple people then the rope should have also borne the brunt of the blows that landed on the accused, especially those caused by sharp-edged weapons. PW-4 Radhakishan has stated in his on-oath statement that when he, along with Brijlal and Liladhar, came inside the room, he saw that Chanan Ram had lost a lot of blood; in fact, he elaborately mentioned that there was blood spilled on either sides of the body upto two-three feet. It is bizarre that there was loss of blood to such an extent but the rope was left unblemished and then, after battering Chanan Ram, the accused were so quick and efficient in removing the rope and tucking it away in a corner of the room that it did not get slashed, nicked or blotted with blood.
According to the eye-witnesses, the butt of the gun, with which it was alleged that accused had hit the deceased, had broken off but PW-10 Investigating Officer has revealed in his cross-examination before the court that the gun was undamaged and in one piece. In the seizure memo of the 12 bore double barrel gun (Exhibit P-6), there is no mention regarding the alleged damaged part of the gun. The statement of PW-9 Brijlal reveals allegations of hitting the deceased at his waist and back 4-5 times with the butt of the gun against accused Shivnarayan but the Post Mortem Report (Exhibit P-18) revealed no blunt weapon injuries on the back and neck of the deceased. The above-stated fact further casts a serious doubt over the genuineness of the story of the prosecution and puts a question-mark over the credibility of the eye-witnesses. Further, the prosecution witnesses have belied in view of the gun found undamaged.
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(18 of 40) [CRLA-250/1992] The number of people that gathered at the place of incident varied in the testimonies of the three eye-witnesses from 50-60 to 15-20 and if certain number of people were present at the place of incident or nearby and had witnesses the occurrence to a some extent, then why were none of them made eye-witnesses or why did no one come forward to report a murder that they had witnesses in their village. It is disclosed by perusal of cross- examination of PW-4 Radhakishan that there are around 200 houses in the village of Arjunsar. It seems really odd that so many people gathered there according to the eye-witnesses projected by the prosecution but none of them came forward to tell the facts regarding the same and even PW-4 Radhakishan did not know anyone from the people assembled over there despite of the fact that it is a small village and it is commonplace in such villages that most of the people, if not all, know each other.
It is manifested from the record of the case that there was a paan shop and a water kiosk (piyau) just near to the plot but still the prosecution has failed to bring the testimonies of these shopkeepers on record. Thus, non-production of independent witnesses despite their availability further puts a dent in the veracity of the story of the prosecution. We do not hesitate from remarking that the independent witnesses have been deliberately withheld by the prosecution and an endeavor has been made to hide the true version of the incident that took place.
It is also observed that there are various discrepancies in the testimonies of the eye witnesses regarding facts like amount of blood loss, number of people present at the place of incident, (Downloaded on 14/12/2022 at 12:15:02 AM) (19 of 40) [CRLA-250/1992] injuries caused using the rear end of the gun etc. Additionally, there are a lot of instances where these alleged eye-witnesses have stated in their cross-questioning that they had mentioned certain details to the police but the police failed to jot down the same in their statements recorded under Section 161 of CrPC. This leads us to believe that the prosecution witnesses, specifically PW-1 Liladhar, PW-4 Radhakishan and PW-9 Brijlal, made up and narrated stories while deposing before the Court and could only narrate to the best of their story-telling abilities, as a result of which there are major contradictions apparent in their on-oath statements. The discrepancies mentioned above reflect discordance in the testimonies of the eye-witnesses and make them unreliable.
Another point that baffles us is that the brother of the deceased, cousin of the deceased and another known person were present at the scene and did not initiate contact at all to save the deceased. There were so many people who later assembled after the commotion, thus, if the alleged eye witnesses would have expressed their furore or would have pleaded with the people living and conducting business nearby, they may have been able to reach in time to help the victim. It is difficult to understand that they never tried to intervene and stop the accused from killing the deceased and did not receive any injuries despite being present there throughout the commission of crime. In addition to the other facts previously mentioned, no reliance can be placed on their testimonies based on the afore-stated fact too. (Downloaded on 14/12/2022 at 12:15:02 AM)
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Thus, in light of above observations regarding the
testimonies of eye witnesses, it cannot be said that these witnesses were actually present there at the time of incident and witnessed the series of events unfold in front of their eyes. There are two narratives presented in this case and since the narrative presented by the prosecution cannot be relied upon beyond reasonable doubt, the account provided by the accused and their defense needs to be considered.
It is well-nigh settled that the burden to prove the case always lies upon the prosecution and it is required to be shed by proving the case beyond every shred of reasonable doubt. On the other hand, the same degree of proof is not required to be sufficed by the defense. If any plea is raised in defence, then, it is sufficient that the same is proved to the extent of preponderance of probability. In the present case, the plea raised by the defense seems to be closer to the truth. This aspect has been discussed by a co-ordinate bench of this Court in Satish Kumar Vs. State of Rajasthan reported in 2005 (2) WLC 638 wherein it was observed as under:
"86. There is, therefore, a subtle but fundamental line of distinction between the degree of certainty required where the burden of proving a fact is on the prosecution and where the burden is on the accused. Where the burden of the issue is on the prosecution, it must be proved beyond reasonable doubt. Where it is one the accused, he is not required to prove it beyond reasonable doubt or in default to incur a verdict of "guilty"; for, even if he fails to prove definitely the existence of those circumstances, he can still claim to be governed by the general principles of the criminal law that an accused is presumed to innocent till he is proved to be guilty and that the benefit of any doubt that (Downloaded on 14/12/2022 at 12:15:02 AM) (21 of 40) [CRLA-250/1992] exists in the mind of the Court should be given to him. If upon a review of all the evidence, the Court is left in doubt whether the circumstances bringing the case of the accused within exception exist or not, the accused is entitled to acquittal.
87. Thus, the general burden of prosecution to prove its case beyond reasonable doubt never shifts and it always rests on the prosecution."
The Apex Court has recapitulated in Mohinder Pal Jolly Vs. State of Punjab reported in AIR 1979 SC 577 that the plea of right to private defense raised by the accused needs to be defended to the extent of preponderance of probability. It is deemed relevant to quote the following paragraphs from the aforesaid precedent:
"The onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability, he might or might not take this plea explicitly or might or might not adduce any evidence is support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in Section 99 of the Penal Code."
Another aspect worth considering is that some independent witnesses who could shed light on the unfolding of the events and the beginning of the incident were not produced before the court by the prosecution. A mason named Bhanwar Singh and a labourer named Sheraram were present at the plot at the time of (Downloaded on 14/12/2022 at 12:15:02 AM) (22 of 40) [CRLA-250/1992] starting of the alleged incident was common between the two contradictory narratives presented by the prosecution and the accused. Thus, there is no reason to dispute the presence of these two persons at the place of incident when the alleged fight must have started brewing and the same could have been used to learn which party was the aggressor in the present set of facts but the statements of these two persons were not recorded before the learned court below despite recording of their statements under Section 161 of CrPC. This reflects badly on the case of the prosecution and puts serious dents on the reliability of the story of the prosecution. Thus, this Court is persuaded to draw an adverse inference regarding the genuineness of the story set out by the prosecution. In our considered opinion, non-production of the mason and the labourer as witnesses is fatal to the case of the prosecution as they were independent witnesses and on this count, there seems no perversity in the judgment of acquittal passed by the learned court below.
Satyanarayan, who claimed ownership of the land where the incident took place, was examined as PW-3 in the trial. He had a patta issued in his and his son's favour by the Panchayat (Exhibits P-16 & P-17). His testimony reveals that he had executed a Power of Attorney in favour of Chanan Ram so that he could act on his behalf. On the day of the incident, he was on his farm and he came back to Arjunsar in the evening when he got to know about the incident and the fact that Baldeva Ram and his sons had intruded upon his property and taken illegal possession of his land.
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(23 of 40) [CRLA-250/1992] Upon being cross-examined, PW-3 Satyanarayan revealed that he wanted to get the possession of the disputed land from accused Baldeva Ram and that proceedings under Section 107 and 151 of CrPC had been initiated against him by accused Baldeva Ram and his wife Mathura. The facts emerging from the testimony of the afore-mentioned witness PW-3 Satyanarayan show that he was not in possession of the plot and this further fortifies the claim of the defense that in order to take the possession of the plot forcibly from the accused, the said witness took assistance of the deceased.
It is manifesting from the testimonies of prosecution witnesses that Chanan Ram was the sort of person who could strong-arm people into agreeing to the terms of his desire. It seems that said Satyanarayan wanted to chuck the accused out and take possession of the plot by hook or by crook and he hired the deceased to take up his cause. It is emanating from the record that the deceased was a person having a slippery personality and questionable character. There were around seven cases registered against him up-till 1980 and as per the submissions made by learned counsel for the appellants, his criminal antecedents consist of approximately twenty cases. It is probable that the deceased was a known muscleman who could bully or intimidate people and Satyanarayan had approached him to do the same in order to eject the accused party and get the possession of the plot.
We do not hesitate from observing that the execution of Power of Attorney by Satyanarayan in favour of the deceased is (Downloaded on 14/12/2022 at 12:15:02 AM) (24 of 40) [CRLA-250/1992] equivalent to hiring of or entering into an illegal contract with the deceased to overpower the accused persons either by bullying them or by creating such a dreadful atmosphere so as to compel the accused persons to leave possession of their place. Our observations in this regard are made on the basis of the fact emanating from the testimonies of the prosecution witnesses that PW-3 Satyanarayan was not in possession of the plot and he somehow wanted to get the possession.
It is revealed by the sworn statement of Satyanarayan that Brijlal and the deceased Chanan Ram lived in Rawatsar area which was 70-80 kms away from the place of incident. The stance of the prosecution that Brijlal and Chanan Ram were travelling to Sahjarasar and their vehicle had broken down due to over-heating of engine seems to be an excuse as they stopped exactly near the disputed property. On the contrary, the more plausible reasoning is that looking to his negative reputation and fame, he was called from far away with the clear motive to effectuate the eviction of the accused-respondents and settle the dispute of the plot. Moreover, it may not be incidental that Chanan Ram arrived at the plot at the same time when there was a wall being constructed on the plot by the accused party.
The Investigating Officer was examined in the trial as PW-10 and he stated that he arrived at the place of occurrence and conducted investigation after Brijlal came to the police station and lodged a report regarding the alleged incident. He prepared the site plan of the crime scene, recovered the gun, cartridges, footwear of the deceased etc. from the crime scene and arrested (Downloaded on 14/12/2022 at 12:15:02 AM) (25 of 40) [CRLA-250/1992] the seven accused persons on 25.10.1988. PW-10 effected recoveries of lathi, kassi and kasiya at the instances of Ashok (Exhibit P-14), Shyam Sunder (Exhibit P-36) and Shivnarayan (Exhibit P-38) respectively. As blood was found on the shoes and shirt of accused Shyam Sunder when he was getting arrested, his shoes and shirt were also seized by PW-10 Rajpal vide Exhibit P-
26. Upon being questioned by the lawyer of the accused in the trial, PW-10 stated that Brijlal had gone to the place of incident with the police in the private jeep arranged by the police. He further deposed that the gun recovered from the crime scene was not broken and the rope that was recovered was neither cut from anywhere nor did it have any blood spots. he accepted that he had filed a case against Chanan Ram under Section 107 IPC.
There is strong possibility of the FIR (Exhibit P-31) being a post-investigation document as PW-4 Radhakishan has stated in his sworn statement that Brijlal, who was the first informant as per prosecution, was not present at the crime scene when the police arrived there and was not seen till evening when the police left after conducting investigation whereas according to the investigating officer Rajpal (PW-10) and Brijlal, Brijlal arrived with the police at the place where the incident occurred. It is also manifested from Brijlal's testimony before the court that when he had gone to the police station with the police after the first round of investigation, he was asked to sign a document whereas PW-10 has clearly stated before the Court that he went back to the police station late at night and not before that. It appears that the investigation conducted in the present matter was not fair and (Downloaded on 14/12/2022 at 12:15:02 AM) (26 of 40) [CRLA-250/1992] unprejudiced as there were faults in the site plans; for example, it was not shown where the eye witnesses were standing or where the wall was being constructed; and the FIR was not sent to the magistrate on the same day when it was filed. If the FIR was signed in the afternoon itself when the incident was reported by Brijlal then why was it not sent to the magistrate on the very same day.
As per the mandate of Section 157 of CrPC, the report should be sent to the magistrate "forthwith". The delay in sending the same to the concerned magistrate casts a serious doubt on the objectivity of the investigating agency and the possibility of embellishments and concoction cannot be ruled out. In a recent judgment titled Chotkau Vs. State of Uttar Pradesh reported in AIR 2022 SC 4688, a slew of judgments were referred by the Apex Court on abidance of the provision of Section 157(1) of CrPC and the delay of 5 days in transmitting the FIR to the jurisdictional court, especially in the facts and circumstances of that particular case, was held to be fatal. In Jafarudheen and Ors. v. State of Kerala reported in AIR 2022 SC 3627, the aspect of promptitude in transmission of FIR to the magistrate as per Section 157 of CrPC has been reiterated and the relevant paragraphs are as follows:
"26. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The Investigating Officer is to keep the Magistrate in the loop of his ongoing investigation. The object is to avoid a possible foul play. The Magistrate has a role to play Under Section 159 of Code of Criminal Procedure (Downloaded on 14/12/2022 at 12:15:02 AM) (27 of 40) [CRLA-250/1992]
27. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to convict the Accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the Court concerned to take a call. Such a view is expected to be taken after considering the relevant materials."
Let us now proceed to consider the plea of right to private defense raised by the accused as in the firm opinion of this Court, the prosecution has not been able to discharge the conventional burden of establishing the complicity of the accused in commission of the alleged offences, thus, now, a question arises before this Court that whether the accused had acted in the exercise of his right of private defence or not. It is emanating from the record that the deceased was a notorious person and numerous criminal cases have been registered against him. It seems that Satyanarayan was having a claim over the suit property but was not in possession of the disputed property and therefore, he took assistance of the deceased with an ulterior object to get the possession over the said property forcefully from the accused- respondents. On the fateful day, the accused-respondents were present at the crime scene and a mason and a labourer were (Downloaded on 14/12/2022 at 12:15:02 AM) (28 of 40) [CRLA-250/1992] constructing a wall on the disputed plot. At that time, Chanan Ram arrived at the crime scene and he was having a gun in his hands. He probably tried to put the accused into fear with a view to eject them from the suit property. He forced the mason and the labourer to run away from the crime scene. Thereafter, he tried to eject the accused-respondents and in the course of the same, they scuffled and he received some injuries which proved fatal to his life.
Sections 96 to 106 of the Indian Penal Code set forth the law governing the right to private defense. Section 96 IPC prescribes that nothing qualifies as an offence if it has been done in the exercise of right to private defense. Section 97 elaborates upon the meaning of right to private defense with regard to the body as well as the property of a person and provides that every person has a right to defend his body and the body of any other person against any offence affecting the human body as well as defend his property or the property of any other person, be it movable or immovable property, against any act which constitutes an offence that comes under the definitions of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. This right is subject to the restrictions contained in Section 99 of IPC. It categorises three acts for which the right to private defense is not available. The restriction relevant to the present matter is the one where it is stated that there is no right of private defence available in cases where there was time to have recourse to protection of public authorities. As has been observed herein above, there was no (Downloaded on 14/12/2022 at 12:15:02 AM) (29 of 40) [CRLA-250/1992] opportunity or option present before the accused wherein they could have sought protection from public authorities or even secure access to move outside their property without encountering Chanan Ram. Section 99 also provides the scope of right to private defense and lays down that the right does not extend to inflicting more harm, in any case, than what is necessary to inflict for the purpose of defense. Whether the act of the accused of causing grave injuries that led to the death of Chanan Ram was necessary for the purpose of defending themselves or not has been analysed in the forthcoming paragraphs.
The facts and circumstances of the current case bring the matter within the purview of Section 100 of IPC. Section 100 of IPC is reproduced below for easy reference:
100. When the right of private defence of the body extends to causing death.--The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--
First.--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly.--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly.--An assault with the intention of committing rape; Fourthly.--An assault with the intention of gratifying unnatural lust;
Fifthly.--An assault with the intention of kidnapping or abducting;
Sixthly.--An assault with the intention of wrongfully
confining a person, under circumstances which may
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reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Seventhly.--An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
The first and the second categories of assault mentioned in Section 100 that occasion the exercise of right to private defense to the extent of voluntarily causing death of the assailant are germane to the facts and circumstances of the present case. Since Chanan Ram was armed with a gun and was running after the accused while endeavouring to intimidate them into leaving the possession of property, it is reasonable that the accused would perceive that they are in grave danger and that death would be the consequence if they are assaulted given the infamy attached to the name and reputation of the deceased. Going by this logic, the exercise of right to private defense of the body by the accused qualifies in the second category too as if not death, it was a reasonable discernment on the part of the accused that Chanan Ram may cause them grievous hurt by the way he chased them with a gun and usable cartridges in his hand.
It is imperative to note here that as per the narrative of the accused Ashok and Jeetaram, they went inside the room while Chanan Ram was hot on their heels. They must have had an apprehension to the point of belief that he may fire his weapon at them given his notoriety and the facts that he was in pursuit while possessing a gun in his hand and was threatening them to leave the disputed property. They must have entered the room, picked up the tools they could find lying in the room and stood on either (Downloaded on 14/12/2022 at 12:15:02 AM) (31 of 40) [CRLA-250/1992] sides of the entrance so as to attack and stop Chanan Ram immediately. That is why the injuries inflicted on Chanan Ram are all above the torso and targeting the head, neck and facial region of the deceased.
The record of the case reveals that a complaint was filed against the deceased Chanan Ram under Section 3 of the Rajasthan Control of Goondas Act, 1975. The order dated 23.02.1987 reveals that although the concerned District Magistrate deemed it fit to cancel the notice issued against Chanan Ram under the Act at that point in time in the proceedings, however, it is observed that by 1980 itself, there were seven criminal cases registered against the deceased. A person's retaliation is dependent on and proportional to the amount of fear he/she/they hold(s) in their minds. In the present set of facts, it was known to the accused that Chanan Ram was notorious and had criminal antecedents, thus, they had all the more reason to perceive that there is grave danger to their lives when Chanan Ram followed them with a gun in his hand and two usable cartridges.
It seems that with a view to thwart the possible, imminent danger, the only option left with the accused-respondents was to disarm Chanan Ram. In the course of disarming Chanan Ram, some injuries were inflicted upon him by the accused which unfortunately proved fatal to the life of Chanan Ram. It is pertinent to note here that the accused had no ample opportunity or sufficient time to take the recourse of legal proceedings or the assistance of public authorities because they were in a walled area (Downloaded on 14/12/2022 at 12:15:02 AM) (32 of 40) [CRLA-250/1992] and there was no way out without an encounter with Chanan Ram who was armed with a gun, thus, their only option was to cause harm to the deceased in order to protect themselves as they could not egress the area. If they were present in the outer area without boundaries, it would have been possible for them to escape or call for help but once they entered the room, all other options of escape ceased to exist. The feeling of being trapped in the room while being chased by Chanan Ram who had a gun in his hand coupled with the apprehension that the perception of Chanan Ram's personality and character must have created in the minds of the accused persons must have been devastating to the state of mind of the accused at that point of time. In Bishna and Ors. Vs. State of West Bengal reported in AIR 2006 SC 302, it was held by Hon'ble the Supreme Court that it cannot be expected from the people who are in danger and apprehending death or bodily injury that they will weigh the pros and cons of their actions or be able to remain level-minded while retaliating in their defense. The relevant portion of the judgment referred above is quotes below:
"27. In a large number of cases, this Court, however, has laid down the law that a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force. All circumstances are required to be viewed with pragmatism and any hyper- technical approach should be avoided. To put (Downloaded on 14/12/2022 at 12:15:02 AM) (33 of 40) [CRLA-250/1992] it simply , if a defence is made out, the accused is entitled to be acquitted and if not he will be convicted of murder. But in case of use of excessive force, he would be convicted under Section 304 IPC."
There cannot be expectation of arithmetical exactitude from a person under assault and self-preservation is a basic human instinct.
Like the right to private defense of the body extends to causing death of the assailant, similarly, the right to private defense of property also extends to the voluntary causing of death or of any other harm to the wrong-doer, subject to the restrictions mentioned in Section 99, when commission of an offence or attempt to commit an offence that is part of the offences enumerated under Section 103 IPC occasions the exercise of the right. This right is specified under Section 103 of IPC and the description of offence that can allow the right to private defense of property to be extended to causing death of the wrong-doer and is germane to the factual matrix of the current matter is the fourth category which is mentioned below for reference:
"Fourthly.--Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."
Section 102 of IPC talks about commencement and continuance of the right of private defence of the body. It provides that the said right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have (Downloaded on 14/12/2022 at 12:15:02 AM) (34 of 40) [CRLA-250/1992] been committed and it continues as long as such an apprehension of danger to the body continues.
It is the stance of the accused Ashok and Jeeta Ram that they hit Chanan Ram when he entered the room and when he fell to the ground and at that moment, accused Jeeta Ram picked up the gun and cartridges which Chanan Ram was holding and threw them out so that he could not get up and attack them again. When Chanan Ram entered the room that the accused ran into with a gun in his hand while asking them to leave the place, it must have created a reasonable apprehension in the minds of the accused that Chanan Ram might shoot them and thus, they feared that there was danger to their person. The right of private defense of body ensued when the apprehension began and Section 102 does not require that an offence needs to be committed in order to exercise right to private defense; it ensues when an apprehension arises from an attempt or threat to commit the offence. It appears that they attacked the deceased only till there was an apprehension and as soon as he fell down, they stopped hitting the deceased. It seems that owing to the imminent and emergent nature of apprehension, everything must have happened in a matter of minutes and the act of inflicting injuries upon the deceased must have taken place within a fraction of seconds. The above observation is supported by the medical opinion of Dr. Modi (PW-5) who stated that the deceased must have bled for about five minutes before giving in to his injuries and dying which goes on to show that the incident took place within a span of few minutes.
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(35 of 40) [CRLA-250/1992] Similar to the clauses of Section 102 IPC, Section 105 IPC specifies the commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences and in cases like the present one where there is criminal trespass, it continues as long as the offender continues in the commission of criminal trespass. As the deceased Chanan Ram continued to follow the accused till the room and entered the room built on the plot, it is a safe inference that he trespassed into their property and continued trespassing by chasing them and entering in the room to which they escaped. Section 441 of IPC provides that whoever enters into or upon the property which is in the possession of another with an intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with an intent thereby to intimidate, insult or annoy any such person, or with an intent to commit an offence, is said to commit "criminal trespass". Thus, there is no doubt that the deceased barged into the property of the accused persons wielding a lethal weapon which was sufficient enough for the accused to presume danger to their property and the threat of dispossession.
Now, we come to the point of ownership and possession of the property in question. In this regard, suffice it would be to say that even the prosecution witnesses have admitted possession and ownership of the accused persons over the plot which has been discussed in the previous paragraphs of this judgment. It is the (Downloaded on 14/12/2022 at 12:15:02 AM) (36 of 40) [CRLA-250/1992] legal provision that fact admitted need not be proved as envisaged under Section 58 of the Indian Evidence Act, yet since the record is available, we are discussing the issue.
Vide order dated 24.05.1889, the collector had set aside the order passed by Gram Panchayat, Rambagh dated 15.02.1988 by which the patta of the disputed property was issued in favour of Satyanarayan and Poonamchand, thus, the accused were in lawful possession of the property with proprietary rights at the time of incident. There is signature of Sarpanch Maniram on a document of the office of Gram Panchayat, Rambagh presented by the defense (Exhibit D-4) which attests to the fact that there was possession of Mathura W/o Baldeva Ram on the disputed property and that there was a room constructed on the same. The testimonies of prosecution witnesses also reveal that the possession of the plot where the unfortunate incident took place was with accused Baldeva Ram and his family. It can safely be observed that in fact, the contract was given to the deceased by the witness Satyanarayan (PW-3) to dispossess the accused, thus, there is no dispute over the fact of possession of the accused over the plot in question.
Thus, it is safe to draw an inference that the assailant Chanan Ram trespassed over the property of the accused, which was in their rightful possession, with an intent to intimidate them into leaving the possession of the disputed plot and the accused exercised their right to private defense of property against them and in the given circumstances, we hold that the accused persons did not exceed the right available to them.
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(37 of 40) [CRLA-250/1992] In Mohd. Ramzani Vs. State of Delhi reported in AIR 1980 SC 1341, Hon'ble the Supreme Court discussed Section 105 of the Indian Evidence Act in respect of right to private defense and it was held as under:
"19. It is trite that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence which the accused is charged, beyond reasonable doubt. It is further well-established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in "golden scales" the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind the law makes due allowance for it. Viewed in the light of these principles, the defence, in the instant case had succeeded in establishing with a balance, of probability, that the deceased and Abdul Rashid armed with a Saria and knife respectively, first assaulted Mohd. Shafi and thereupon the appellant assaulted the deceased, to save his father and himself from further injuries, Even if it be assumed for the sake of argument that the material on record fell short of discharging the nature of onus oh the appellant under Section 105, Evidence Act, on account of the non-production of the Doctor who examined Mohd. Shafi and the appellant, and prepared the medico-legal reports Ex. P.W, 15/A and Ex P.W, 15DY, then also, the benefit of that efficiency and the doubt arising therefrom, could not be given to the prosecution. The prosecution case as propounded by its star witness Abdul Rashid, was that both the father (Mohd. Shafi) and (Downloaded on 14/12/2022 at 12:15:02 AM) (38 of 40) [CRLA-250/1992] the son (appellant) actually participated in the assault on the deceased. To support that story, the prosecution went to the length of 'planting the deceased's blood on the clothes of Mohd. Shafi. When this substratum of the story viz. Mohd. Shafi holding the deceased at the time of the fatal assault, was found to be false and no satisfactory explanation was coming forth from the prosecution about the injuries of Mohd. Shafi and the appellant, the only prudent course in the ultimate analysis, for the Court was to hold that the prosecution had failed to discharge its burden of bringing home the guilt to the appellant beyond reasonable doubt."
Looking to the factual matrix of the present case and considering the observations made in Mohd. Ramzani (supra), this Court is of the firm opinion that the plea of right to private defense taken by the accused is the more probable and rational view of the case and their case is sufficiently proved to the degree of certainty required according to the doctrine of preponderance of probability.
In Yogesh Singh Vs. Mahabeer Singh and Ors. reported in AIR 2016 SC 5160, Hon'ble the Supreme Court held that one of the golden threads which runs through the web of administration of justice in criminal cases is that if there are two perspectives arising from the evidence adduced in a matter, one inclining towards the guilt of the accused and another inclining towards the innocence of the accused, the view which is favourable to the accused should be adopted. In a recent judgment dated 28 th July, 2022 passed in Criminal Appeal No. 2119 of 2010 titled State of Rajasthan Vs. Kistoora Ram, the Apex Court has held that the (Downloaded on 14/12/2022 at 12:15:02 AM) (39 of 40) [CRLA-250/1992] scope of interference in an appeal against acquittal is limited unless the view taken by Court is impossible or perverse. It was opined that if two views are possible, then the order of acquittal cannot be discarded only because the Appellate Court is of the view that conviction is more probable. The order of acquittal would warrant interference only when the view taken by the lower court is not possible at all.
In light of the above observations and considering the arguments advanced at the bar, this Court does not find any room for interference in the order passed by the learned trial Court. The story of the prosecution is not found proved beyond reasonable doubt and the plea of the accused regarding right to private defense is found to be reasonable and worth accepting.
We hold that the story narrated by the accused persons Jeeta Ram and Ashok is nearer to the truth; they acted in exercise of their right to private defense and in the atmosphere created by the complainant party, it can safely be held that the right was not exceeded by the accused. It can also safely be held that the other accused were not present at the crime scene when the untoward incident took place.
As an upshot of the discussion made herein above, there is no cause for reversal of judgment of acquittal passed by the court below. We concur with the finding reached by the learned District & Sessions Judge and thus, affirm the same. The appeal deserves to be dismissed.
Accordingly, the appeal is dismissed. The impugned judgment of acquittal dated 11.12.1989 passed by learned District (Downloaded on 14/12/2022 at 12:15:02 AM) (40 of 40) [CRLA-250/1992] and Sessions Judge, Bikaner, in Sessions Case No. 104/1988 is upheld. The bail bonds of the accused are discharged.
(FARJAND ALI),J (VIJAY BISHNOI),J
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