Rajasthan High Court - Jaipur
Jagan Lal And Ors. vs State Of Rajasthan on 10 June, 2005
Equivalent citations: RLW2006(1)RAJ46, 2005(4)WLC370
Author: Jitendra Ray Goyal
Bench: Jitendra Ray Goyal
JUDGMENT Shiv Kumar Sharma, J.
1. This appeal impugns the judgment dated October 28, 2002 of the. learned Additional Sessions Judge (Fast Track) Hindaun City rendered in Sessions Case No. 63/2001 (27/99) whereby the six appellants (herein after to be referred as 'accused'), who are the members of one family, have been convicted and sentenced as under:
(1) Jagan Lal:
Under Section 302 IPC:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Under Section 148 IPC:
To suffer rigorous imprisonment for one year. Under Section 447 IPC:
To suffer rigorous imprisonment for three months. Under Section 326/149 IPC:
To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. Under Section 323/149 IPC:
To suffer rigorous imprisonment for six months. Under Section 3/25 Arms Act:
To suffer simple imprisonment for one year and fine of Rs. 1000/- in default to further suffer one month simple imprisonment. (2) Ramkesh:
Under Section 302/149 IPC:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Under Section 148 IPC:
To suffer rigorous imprisonment for one year. Under Section 447 IPC:
To suffer rigorous imprisonment for three months. Under Section 326/149 IPC:
To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. Under Section 323/149 IPC:
To suffer rigorous imprisonment for six months. Under Section 3/25 Arms Act:
To suffer simple imprisonment for one year and fine of Rs. 1000/-, in default to further suffer one month simple imprisonment. (3) Ramji Lal:
Under Section 302/149 IPC:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Under Section 148 IPC:
To suffer rigorous imprisonment for one year. Under Section 447 IPC:
To suffer rigorous imprisonment for three months. Under Section 326 IPC:
To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. Under Section 323/149 IPC:
To suffer rigorous imprisonment for six months. (4) Mangal, (5) Roop Narayan and (6) Beerbal:
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Under Section 148 IPC:
To suffer rigorous imprisonment for one year. Under Section 447 IPC:
To suffer rigorous imprisonment for three months. Under Section 326/149 IPC:
To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. Under Section 323 IPC:
To suffer rigorous imprisonment for six months. Substantive sentences were directed to run concurrently.
2. The prosecution story as pictured during trial runs like thus:-
On October 29, 1998 a written report was submitted by Laxman (Pw.2) at the police station Gadhmora to the effect that at about 7.00 AM the accused persons came in a tractor to the field of his father in law to uproot the standing crop. On being objected by the complainant party the accused Jagan and Ramkesh opened fire that hit Mangal and Sanwaliya. The women also sustained pellets injuries. The incident was narrated by Sanwaliya to the informant. The Police Station Gadhmora on the basis of said report registered the case under Sections 147, 148, 149, 323, 324 and 307 IPC and 3/25 & 3/27 Arms Act and investigation commenced. During investigation Mangal died and the case was converted into one under Section 302 IPC. After usual investigation charge sheet was filed. In due course the case came up for trial before the Learned Additional Sessions Judge (Fast Track) Hindaun. Charges under Sections 148, 447, 302, 302/149, 307/149, 326/149, 323 IPC and 3/25 Arms Act were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 22 witnesses. In the explanation under Section 313 Cr.P.C, the accused claimed innocence and stated that at the time of the incident the land in question had been in the possession of the accused party and they had sown mustard crop over it. The incident occurred when the complainant party tried to take possession of the land. In support of defence version one witness was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above.
3. Before adverting to the contentions canvassed at the bar, it will be useful to consider the medical evidence adduced at the trial. Dr. Sumant Dutta (Pw. 20), who performed autopsy on the dead body of Mangal Ram, incorporated in the postmortem report (Ex.P-25) following ante mortem injuries:-
1.2 Parallel bruise 9x 1/2 cm each a gap of 1cm in between meeting at both ends reddish colour on Rt. shoulder laterally up to arm upper 1/3.
2. Multiple punctured lacerated wound oval to irregular shape inverted edges reddish clotted blood with collor or abrasion no signing no blackening no tattooing spreaded on Rt. fore arm middle 1/3 and lower 1/3 aspect and in area of 18 x 9 cm each entry wound 1/4 x 1/4 cm to 1/2 x 1/4 cm muscle deep skin deep. Pellets recovered from subcut to muscle with antemortem haematoma.
3. Abrasion lxl 1/2 cm Rt. fore arm middle 1/3 outer aspect.
4. Abrasion 3 x 1/4 cm Rt. fore arm middle 1/3 outer aspect.
5. Abrasion 2 x 1/2 cm outer aspect reddish colour Rt. fore arm middle 1/3.
6. Abrasion 1/2 x 1/2 cm left part lower back reddish colour.
7. Multiple punctured lacerated wound 1/4 x 1/1 to 1/4 x l/6cm collar of abrasion no signing no blackening, no tattooing reddish colour inverted edges in an area Rt. frontal forehead middle Rt. side forehead Rt. eyebrow Rt. fronto parietal region in an area of 12 x 18cm area. On ex. lacerated wound 10x8 cm x scale bone deep parito frontal region with irregular edges these are brain deep to scalp deep entry wound of fire arm. Each punctured wound on exploration shows scalp haematoma.
The cause of death was coma brought as a result of antemortem injuries to skull, brain.
4. The injuries sustained by other members of the complainant party viz. Bhart Bai (Pw.3), Mohani (Pw.5), Dhan Bai (Pw.7) and Sanwaliya (Pw.8) were also examined. The details of which are as under:-
Bhart Bai vide injury report (Ex.P-1):
1. Multiple fire arm wound of entrance 1/2 cm x 1/2 cm on left hand left fore arm extending up to left elbow joint and lower l/3rd.
On X-ray vide X-ray Report (Ex.P-3) the fracture of 1st metacarpal bone was found.
Mohani vide injury report (Ex.P-4):
1. Red contusion on right shoulder joint with swelling and tenderness 7cm x 4cm
2. Red contusion on Rt. leg upper 2/3rd 7cm x 4cm
3. Oblique lacerated wound 2cm x 1/2 cm skin deep on right hand thumb with bleeding.
Dhan Bai vide injury report (Ex.P-5):-
1. Red contusion on left forearm vvith swelling and tenderness 10cm x 4cm.
Sanwaliya vide injury report (Ex.P-6):-
1. Oblique incised wound 20cm x 8cm on right back of chest with skin x muscle and bone deep on right back of chest with bleeding with extending to right lung with air is coming.
2. Oblique Red Contusion 10cm x 8cm on right hand anterior surface with swelling and tenderness of fingers.
3. Oblique Red contusion 10cm x 4cm on left hand with contusion 20cm x 20cm on left hand index finger & deformity.
On X-ray vide X-ray Report (Ex.P-7) the fracture of proximal phalanx of 2nd digit and 5th metacarpal was found.
5. Not only the members of the complainant party but the accused persons Jagan Lal, Ramkesh Meena, Beerbal, Kamli and Bhagoti also received injuries in the course of the incident.
Jagan Lal vide injury report (Ex.D-1) received following injuries:
1. Red contusion 7cm x 4cm left hand with swelling and tenderness.
2. Red contusion 7cm x 4cm left leg with swelling and tenderness.
3. Red Contusion 7cm x 2cm left forearm mid part.
4. Red contusion 2cm x 4cm front part of skull frontal region with haematoma.
5. Red contusion 2cm x 2cm left hand thumb.
6. Oblique red contusion 7cm x 2cm on left back of chest.
Injury report (Ex.D-2) of Ramkesh Meena reads as under:-
1. Oblique incised wound 7cm x 4cm skin deep left leg upper 1/3rd part with bleeding.
2. Red contusion 7cm x 2cm on right hand & rt. Wrist joint with swelling and tenderness.
3. Red Contusion 7cm x 4cm left shoulder joint.
4. Red contusion 3cm x 2cm on left lateral conthus of eye.
Injury report (Ex.D-3) of Beerbal reads as under:-
1. Red contusion 7cm x 2cm on right back of chest with swelling.
2. Red contusion 2cm x 2cm on left knee.
3. Red Contusion 3cm x 2cm on right knee.
4. Red contusion 3cm x 2cm on front of chest.
Injury report of Kamli (Ex.D-4) reads as under:-
1. Red contusion 7cm x 3cm on right leg upper 2/3rd part.
2. Red contusion 7cm x 4cm on right renal angle back region.
3. Red Contusion 4cm x 2cm on waist region.
4. Red contusion 7cm x 4cm on back of chest.
Injury report of Bhagoti (Ex.D-5) reads as under:-
1. Red contusion 7cm x 4cm on left ankle joint with tenderness and swelling.
2. Red contusion 7cm x 4cm on left hip joint.
3. Red Contusion 7cm x 4cm on back of chest.
6. In the above back ground let us now analyse and examine the evidence both oral and documentary and see whether conclusion arrived at by the learned Trial Court is correct or not.
7. The structure of the prosecution case is founded on the testimony of Bhart Bai (Pw.3), Mohani (Pw.5), Dhan Bai (Pw.7) and Sanwaliya (Pw.8) who sustained injuries during incident. Bhart Bai in her deposition stated that she had sown mustard crop on the agricultural land belonging to Jagan S/o Jinsi her father in law. On the date of incident accused Jagan T.T., Ramkesh, Ramji Lal, Roop Narain, Beerbal, Mangal and Birju came to the field to uproot the crop. Jagan T.T. was armed with gun, Ramkesh had gandasi and small gun, Birju, Ramjilal, Beerbal, Roop Narain and Mangal were respectively having gun, Gandasi, lathis and Karwadis. On seeing them coming to the land when Bhart Bai, Mangal, Mohani, Sanwaliya and Dhan Bai protested Jagan T.T. opened fire that hit the head of Mangal as a result of which he fell down. Ramkesh then inflicted gandasi blow on the head of Mangal and also opened fire that hit the chest of Mangal. Birju opened fire that hit the left hand of Bhart Bai. Ramji Lal gave Gandasi blow on the back of Sanwaliya. All the injured were removed to the Hospital Karauli. Mangal and Sanwaliya were referred to Jaipur where Mangal succumbed to the injuries. Testimony of Bhart Bai gets corroboration from the statements of Mohani, Dhan Bai and Sanwaliya.
8. Sanwaliya (Pw.8) in his cross examination however stated that agricultural field where the incident had taken place belonged to his elder brother Jagnya who had sown mustard crop on it. At the time of incident though Jagnya was not present but the report of the incident was lodged by Jagnya. Sanwaliya further stated that after the accused party started uprooting mustard crop, complainant party entered the field. Manju (Pw.4) grand daughter in law of Jagnya deposed that the land on which incident occurred belonged to Jagnya alone and Mangal (deceased) and Sanwaliya had no connection with the land.
9. Gurji Lal Meena 1.0 (Pw.21) admitted in his cross examination that revenue record of the agricultural land where the incident occurred, was in the name of accused Ramkesh and his brother Dinesh. Gurji Lal Meena however could not approach Jagnya who was ex-khatedar of the land.
10. Bharat Lal Patwari (Dw.1) deposed that land bearing khasra No. 319/2 was entered in the khatedari of Ramkesh s/o Jagan Lal Meena w.e.f. September 24, 1998. Similarly land bearing khasra No. 549 was entered in the Khatedar of Ramkesh and Dinesh sons of Jagan Lal with effect from September 24, 1998. Jamabandi and map the land got exhibit as Ex.D-12 and Ex.D-11.
11. The salient features of the case may be summarised thus:-
(i) Jagnya, who was the Khatedar of land in dispute, transferred it in favour of accused Ramkesh and his brother Dinesh and the land was entered in Revenue Record in the name of accused Ramkesh and his brother Dinesh w.e.f. September 24, 1998.
(ii) On October 29, 1998 when accused Ramkesh, his father Jagan T.T., his uncles Ramjilal, Mangal, Roop Narain and cousin went to the land in a tractor, the brother of Ex khatedar Jagnya viz. Mangal (deceased) and Sanwaliya and their women Bhart Bai, Mohani and Dhan Bai came to the land to prevent the accused persons from entering into the land. Jagan T.T. then fired the gun that hit Mangal on his head and this injury proved fatal.
(iii) Jagnya, the ex-khatedar of the land although available but was not examined.
(iv) Accused persons also sustained injuries which were not explained by the prosecution.
(v) Sanwaliya and Mangal (deceased) were neither in the possession of the land nor had any connection with the land.
12. Learned Counsel of the accused vehemently canvassed that the deceased had no right to enter into the land which was owned and possessed by the accused Ramkesh and his brother Dinesh. Since Mangal, Sanwaliya, Bhart Bai, Mohani and Dhan Bai committed criminal trespass over the land belonging to accused Ramkesh and gave beating to the accused persons, the accused persons acted in exercise of their right of private defence. Thus they could not have been convicted and sentenced. Reliance is placed on Jai Ram v. State of Rajasthan (2002(2) R.C.C. 913) =(RLW 203(3) Raj. 1901), Bhagwan Swaroop v. State of M.P. , Biri Singh v. State of U.P. (1992 S.C.C. (Cr.) 915), Lajo v. Sukhdev Singh , Lallu Manjhi v. State of Jharkhand (2003 IAD (SC) 597), James Martin v. State of Kerala and Charan Singh v. State of Punjab .
13. On the other hand learned public prosecutor and the learned Counsel for the complainant supported the impugned judgment and urged that the accused persons did not have possession over the land. Only a month before the incident they got the revenue record tempered and then made attempt to forcibly dispossessed the complainant party from the land. They entered the land fully equipped with deadly weapons, killed Mangal and injured Sanwaliya, Bhart Bai, Mohani and Dhan Bai. It is further contended that the accused persons sustained minor injuries and non explanation of minor injuries is not fatal to the prosecution case. Reliance is placed on Ayodhya Ram v. State of Bihar , Ram Bilas Yadav v. State of Bihar , Jassa Singh v. State of Haryana , Kulwant Singh v. State of Punjab , Shri Ram v. State of M.P. and Daulat T. Shewale v. State of Maharashtra .
14. On scanning the entire case law placed for our perusal, we may deduce following principles:-
(i) While exercising the right of private defence the force that the person is entitled to use must not be unduly disproportionate to the injury which has to be averted or which is reasonable to apprehend and should not exceed its legitimate purpose. The exercise of right of defence must never be vindictive or malicious.
(ii) Fact that injuries received were of simple in nature is not relevant where causing fatal injury was equally possible. Capability of the weapon wielded by the aggressor has to be kept in mind.
(iii) Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. The entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered, while determining right of private defence was available or not.
(iv) Where the evidence does not indicate that there was a serious apprehension that death or grievous hurt would be the consequence of the act allegedly committed by the deceased and others, no right of private defence was available to the accused.
(v) Non explanation of minor injuries is not fatal to the prosecution case.
(vi) A plea of right of private defence can not be based on surmises and speculation. The Court dealing with the plea has to weigh the material to conclude whether plea is acceptable.
(vii) The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence although the offence may not have been committed, but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues.
(viii) In order to sustain the plea that the act committed by accused would not amount to murder but only culpable homicide punishable under Section 304 Part II IPC, there should have been evidence to show that the accused had exceeded in exercising the right of private defence to property against act of criminal trespass and the conditions incorporated in Exception 2 to Section 300 IPC are fulfilled.
15. Coming to the facts of the instant case we notice that the land where incident had taken place was entered in the revenue record in the name of Jagnya alone, who transferred it to accused Ramkesh and his brother Dinesh, the sons of accused Jagan T.T. Bharat Lal Patwari (Dw. 1) categorically deposed that on September 24, 1998 the land was entered in Jamabandi in the name of Ramkesh and Dinesh. Jamabandi (Ex.D-12) and Mutation (Ex.D-13) were placed on record. Gurji Lal Meena, I.O. (Pw.21) deposed that the accused were not charge sheeted under Section 447 IPC for having committed criminal trespass over the land since the land was entered in the name of deceased accused Ramkesh and his brother Dinesh. According to Gurji Lal Meena, Jagnya, the Ex- khatedar of land, did not lodge any report against the accused. Manju (Pw.4), grand daughter in law of Jagnya, in her cross examination clearly stated that Jagnya alone was Khatedar of the land and Mangal (deceased), Sanwaliya, Bharat Bai, Dhan Bai and Mohani had no connection with the land. It is thus evident that the deceased and the injured persons neither owned the land nor did they possess it. Because the land belonged to their elder brother Jagnya, they did not like the. entry of the accused on the land and in order to oust them from the land they committed trespass on the land and asked the accused to go out. Jagnya would have been the best witness to establish that the accused did not have possession over the land but he was not examined deliberately, therefore adverse inference may be drawn against the prosecution that if Jagnya would have been examined he would have deposed against the prosecution. Under these circumstances we are of the view that it was the complainant party that committed criminal trespass over the land and since the land was owned and possessed by the accused persons they had right to defend their person and property. The deceased Mangal, his brother Sanwaliya and their ladies Bharat Bai, Dhan Bai and Mohani had no right to oust the accused persons from the land. They could not have stepped up in the shoes of Jagnya. A look at the injury report (Ex.D-1) of accused Jagan T.T. reveals that he had in all received six injuries, out of which injury No. 4 was red contusion measuring 2cm x 4cm over frontal region of the skull with haematoma, but it was not explained by the prosecution. Accused Ramkesh and Beerbal also sustained injuries, but they were also not explained. Injury over skull sustained by accused Jagan Lal T.T. was not insignificant and its non explanation is fatal to the prosecution case. The injury must have been caused by lathi and in the scenario Jagan Lal T.T. could reasonably apprehended danger to his life and his firing a gunshot at that point of time in defence of his person and property was justified.
16. In Bhagwan Swaroop v. State of M.P. (supra), their Lordships of Supreme Court indicated thus:
(Para 9) A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind. In such a situation a son could reasonably apprehend danger to the life of his father and his firing a gunshot at that point of time in defence of his father is justified. It must therefore, be held that the accused had fired the gunshot to defend the person of his father. Therefore conviction under Section 302 for causing death of the deceased is liable to be set aside.
17. Accused persons Ramkesh, Ramjilal, Mangal, Roop Narain and Beerbal also appear to have acted in exercise of their right to defend their person and property, therefore Ramkesh, Mangal, Roop Narain and Beerbal could not be held guilty with the aid of Section 148 and 149 IPC. The act of Ramjilal in causing sharp edged injury to Sanwaliya also does not come within the definition of offence since being the family member of accused Ramkesh and Jagan Lal TT he was defending their person and property. The offence under Section 3/25 Arms Act is also not established as sanction of District Magistrate was not obtained by the Investigating Officer.
18. But this fact cannot be lost sight that accused Jagan Lal TT had gone to the place of occurrence with gun. This fact would clearly indicate that he had 61 intention of committing more harm than necessary for the purpose of self defence. Therefore we are of the view that he exceeded the right of defence of his person and property and his case comes within the purview of Exception 2 to Section 300 IPC punishable under Section 304 Part II IPC.
19. As a result of the above discussion, we dispose of instant appeal in the following terms:
(i) We partly allow the appeal of Jagan Lal and instead of Section 302 IPC we convict him under Section 304 Part II IPC. Accused Jagan Lal has remained in custody for a period of more than six years and six months, therefore, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit accused Jagan Lal of the charges under Sections 148, 147, 326/149, 323/149 IPC and 3/25 Arms Act. Accused Jagan Lal, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.
(ii) We allow the appeal of accused Ramkesh, Ramjilal, Mangal, Roop Narain and Beerbal and acquit them of the charges under Sections 302/149, 148, 447, 326, 326/149, 323, 323/149 IPC and 3/25 Arms Act. Accused Ramkesh, Ramjilal, Mangal, Roop Narain and Beerbal are on bail they need not surrender and their bail bonds stand discharged.
(iii) The impugned judgment of the learned trial Judge stands modified as indicated above.