Rajasthan High Court - Jaipur
Badru Ram And Ors. vs State Of Rajasthan on 5 July, 2006
Equivalent citations: RLW2006(4)RAJ3110, 2006(4)WLC734
JUDGMENT Shiv Kumar Sharma, J.
1. "There are no bad soldiers, only bad officers" - this conviction guided NAPOLEON in all his military campaigns. The efficiency of the undertaking civil military or commercial is to a very great extent affected by the moral of its members. An efficient Police Service, therefore, postulates the maintenance of goods moral in its members. Shiv Pal Singh, a police officer, did not attain goods moral and his dead body was found lying in a pool of blood in the house of appellant Badru Ram, who along with other nine accused, was put to trial, before the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu. Learned Judge vide judgment dated September 2, 2005 convicted and sentenced eight appellants as under:
Appellants Badru Ram, Sheesh Ram, Mahesh, Sita Ram, Smt. Nandi, Smt. Nanchi, Smt. Lalita and Smt. Jamna:
Under Section 148 IPC:
Each to suffer rigorous imprisonment for three years fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days.
Under Section 353/149 IPC:
Each to suffer rigorous imprisonment for one year and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days.
Under Section 332/149 IPC:
Each to suffer rigorous imprisonment for three years and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days.
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for fifteen days.
The substantive sentences were ordered to run concurrently.
Two accused viz. Shiv Lal died during trial and Chameli stood acquitted of all the charges.
2. The prosecution story is woven like thus:
On November 12, 1999 at 7.00 AM first informant Narendra Meena, Circle Inspector Jhunjhunu (PW. 1) submitted a written report at Police Station Baggad to the effect that in the intervening night of November 11 & 12, 1999 at 1.45 AM on receiving information from Shivpal Singh SHO PS Baggad that the incident occurred in village Rekha-ki-dhani and two persons viz. Kamal Kumar and Om Prakash were killed, he alone with Shiv Pal Singh reached to the spot and around 3.30 AM arrested accused Lichhman Ram and Ramavtar who were involved in the case. Informant took with him the arrested persons and came back to the police station but Shiv Pal Singh remained at the spot. After some time police personnels viz. Rajendra Singh, Om Prakash, Vidyadhar and Pradeep Kumar came to the police station and informed that Badru Ram, Sheesh Ram, Mahesh, Shivlal, Sita Ram and the ladies of their family attacked Shivpal Singh and snatched his service revolver. The police rushed to the spot and found dead body of Shiv Pal Singh lying inside the house of Badru Ram. A case was registered against the assailants and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Fast Track' No. 2 Jhunjhunu. Charges under Sections 147,148, 302, 302/149, 332, 353 and 396/397 IPC were framed against the appellants, who denied the charges and claimed trial, the prosecution in support of its case examined as many as 30 witnesses. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence. Accused Chameli stated that Shivpal Singh Thanedar scaled the boundary wall of her house and made attempt to commit rape on her she raised hue and cry and in the attempt to save herself she gave 4-5 blows with lathi on the person of Shiv Pal Singh. Thereupon Shiv Pal Singh opened fire from his revolver and injured her and her family members. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
3. Learned Counsel for the appellants vehemently assailed the findings of trial Judge and prayed to quash and set aside the impugned judgment. Per contra, learned Public Prosecutor supported the impugned findings and urged that the appellant was rightly convicted and sentenced.
4. We have pondered over the submissions and with the assistance of learned Counsel carefully scanned the record.
5. Indisputably death of deceased Shivpal Singh was homicidal in nature. As per post mortem report (Ex. P.73) as many as 33 antemortem injuries were found on the dead body. In the opinion of Dr. J.P. Bugaliya (PW. 24), who conducted autopsy on the dead body, the cause of death was haemorrhagic shock due to internal and external haemorrhage and coma due to head injury.
6. In the same incident the accused persons also received injuries, appellant Badru Ram vide injury report (Ex. P. 74) received following injuries:
1. Lacerated wound 3 cm 1.5 cm 1/2 cm on superior side of root of left Ext. pinna.
2. Abrasion 1 cm 1 cm on Ant. side of Rt. knee just below lower region of patella.
Appellant Sheesh Ram vide injury report (Ex. P. 75) received following injuries:
1. Lacerated wound 3 cm x 1/3 cm x scalp deep on posterior side of head on Lt. occipital area.
2. Abrasion 2.5 cm x 1.5 cm on Ant. side of chin
3. Bruise 5 cm x 4 cm on external side of Rt. forearm at joint of proximal 2/3 distal
4. Abrasion 1 1/2 cm x 1 1/2 cm posterior surface of Rt. heal.
Appellant Mahesh vide injury report (Ex. P. 76) received following injuries:
1. Abrasion 3 cm x 1/3 cm on Rt. side of forehead just posterior to anterior hairline
2. Lacerated Wound 2.5 x 1/2 x skin deep on Lt. side of face 1/2 cm below Lt. eye.
3. Lacerated Wound 2 cm x 1/2 cm x skin deep on upper lips just below Rt. alaf nose.
4. Bruise 13 cm x 3 cm on back of lt. shoulder.
5. Bruise 8 cm x 2.5 cm on posterior lateral aspect of Lt. shoulder.
6. Bruise 10 cm x 2.5 cm on lateral side of chest in lower part.
7. Bruise 6 cm x 2.5 cm on post side of middle of lt. arm
8. Two lenior abrasions on ant. side of Rt. leg in lower 1/3 part.
Appellant Jamuna vide injury report (Ex. P. 80) received one lacerated wound 1/2 cm x 1/4 cm x skin deep on Rt. side of forehead just lateral to midline. Chameli who stood acquitted also sustained Fire arm injuries.
7. The prosecution examined Vidyadhar (PW.2), Pradeep Kumar Sharma (PW. 3), Rajendra Singh (PW. 8) and 6m Prakash (PW. 9) as the eye witnesses of the occurrence. All these witnesses are police personnels. Vidyadhar (PW. 2) in his deposition stated that in the month of November, 1999 he was posted as Constable at Police Station Baggad. In the intervening night of November 11 and 12, 1999 he along with Shiv Pal Singh SHO, Ganesh Ram Constable Pradeep, Rajendra, Om Prakash, Surendra Driver, Narendra Singh, Dy. S.P., Hari Singh Gunman, Bhanwar Singh, Driver Hari Singh, Ram Singh and Vinod Kumar reached to the house of Badru Ram in connection with investigation of case No. 248/99. They started from the police station around 3.30 AM in the night. The gate of the house of Badru Ram was opened by four ladies. On inquiring about Badru Ram, the ladies asked as to why they came in the night to their house. At that time two accused Viz. Ramavatar and Laxman had surrendered who were taken by Narendra Singh, Dy. SP to the police station along with the police squad. Shiv Pal Singh, Rajendra, Pradeep Kumar, Om Prakash, Surendra and he himself remained there Shiv Pal Singh then entered the house of Badru Ram. The ladies, who were armed with lathis, attacked Shiv Pal Singh, meanwhile male persons also started beating Shiv Pal Singh. Shiv Pal Singh then opened 4-5 Tires from his service revolver. He and other constables could not make any attempt to save Shiv Pal Singh since they were having small lathis and the assailants were more in number. They came back to police station for procuring the help of police squad. When they went again to the spot they found the dead body of Shiv Pal Singh lying in a pool of blood inside the house of Badru Ram. In his cross examination he admitted that he heard that Chameli had received Fire-arm injuries. He also admitted that he and other constables did not receive any injury on their person.
8. Pradeep Kumar (PW. 3), Rajendra Singh (PW. 8) and Om Prakash (PW. 9) corroborated the testimony of Vidyadhar. A conjoint reading of testimony of Vidyadhar, Pradeep Kumar, Rajendra Singh and Om Prakash reveals that since they did not enter inside the house of Badru Ram it was not possible for them to see the occurrence. It could also not be established beyond reasonable doubt that they knew the appellants previously.
9. Shiv Kumar (PW. 27), in whose presence blood stained clothes of Chameli were seized, in his cross examination deposed that accused Chameli was admitted to the hospital and there was a cut over her Salwar. Ram Gopal Vishnoi, IO (PW. 26) admitted that Chameli was arrested from the hospital. Dr. J.P. Bugaliya (PW. 24) deposed that he examined Chameli while she was admitted in Female Surgical ward of BDK hospital. According to Dr. J.P. Bugaliya, who drew her injury report (Ex. P. 79), there was a Fire arm injury on her left thigh. Kiran, Constable No. 643 (PW. 17) deposed that in her presence Chameli was arrested on November 22, 1999 at that time Shiv Kumar ASI was with her. Mahaveer Prasad, Constable (PW. 12) in his deposition stated that around 3.30 AM he alongwith Shiv Pal Singh and other police officers proceeded from the police station. On reaching the house of Badru Ram when no response was given from inside the house one of them scaled the house. He however admitted in his cross examination that Shiv Pal Singh was not attacked in his presence.
10. Learned trial Judge in the impugned judgment incorporated the statement made by Chameli under Section 313 Cr.P.C, which reads as under:
eSa ?kVuk ds fnu esjs ekek ds ?kj ij FkhA f'koiky flag Fkkusnkj M.Ms ds mij ls dwndj vdsyk ?kj esa ?kqlk vkSj esjs ls CykRdkj djus dh dksf'k'k dhA tcju esjh Nkrh nckbZ eSaus fojks/k fd;k vkSj mlds FkIiM+ eqDds ekjsA ogka ,d ydM+h iM+h Fkh mldh Hkh eSaus 5&4 pksV EkkjhA mlus esjs fjokYoj ls xksyh ekjhA eSa fpYykbZ rks ?kj esa nks rhu vkneh vkSj ,d vkSjr esgeku vk;s gq, FksA mUgksaus esjh bTtr cpkus ds fy, Fkkusnkj ds ikap nl ydfM+;kas dh ekjhA mlds ckn eq>s vLirky ys tkdj HkrhZ djk;kA esjs ls cykRdkj djus dh fu;r ls fkoiky flag M.Ms ls dwndj vdsyk vk;k FkkA eq>s tc NqM'kus yxs rc fkoiky flag us NqM+kus okyksa ij Hkh rhu pkj xksfy;ka pykbZA
11. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the accused persons. Section 47 provides as under:
47. Search of place entered by person sought to be arrested-
(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the present to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress to such place cannot be obtained under Sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made he cannot otherwise obtained admittance.
Provided that if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility of withdrawing, and may then break open the apartment and enter it.
(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
12. A Division Bench of Kerala High Court in A.P. Kuttan Panicker v. State of Kerala 1963 (1) Cr.L.J. 669 held that though a search during night time is not prohibited by law, it is proper, if not inconvenient, that the search should be conducted during day time so as to avoid any complaint on the part of the person concerned that there was room for unfair practices.
13. Undeniably Shiv Pal Singh while entering the house of Badru Ram did not follow the safeguards provided by chapter V of CrPC. In the odd hours of night he entered the house without giving notice to females as required by Section 47 CrPC. The act of Shiv Pal Singh reminds us the observation made by their Lordships of Supreme Court in Shri D.K. Basu v. State of West Bengal 1997 (1) JT 1, wherein it was indicated as under: (Para 18) However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder.
14. In Joginder Kumar v. State (1994) 4 SCC 260, the Hon'ble Supreme Court considered the dynamics of misuse of police power of arrest and propounded thus:
No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another... No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.
Hon'ble Supreme Court voiced its concern regarding complaints of violations of human rights during and after arrest. It observed:
The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike balance between the two?
...
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively, of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the abider....
15. At this juncture we deem it appropriate to incorporate the guidelines regarding arrest issued by the National Human Rights Commission, which reads as under:
Pre-arrest Guidelines The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person's complicity as well as the need to effect arrest.
* Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognisable case.
* After Joginder Singh's pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justifiable one.
* Arrest in cognisable cases may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping for evading the process of law.
(ii) The suspect is given to violent behaviour and is likely to commit further offences.
(iii) The suspect requires to be prevented from destroying evidence or interfering with witness or warning other suspects who have not yet been arrested.
(iv) The suspect is a habitual offender who, unless arrested, is likely to commit or further offences. (3rd Report of National Police Commission).
* Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission.
* Police officers carrying out an arrest or interrogation should bear clear identification and name tag with designations. The particulars of police personnel carrying out the arrest of interrogation should be recorded contemporaneously in the register kept at the police station.
Arrest Guidelines * As a rule use of force should be avoided while affecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise is avoided.
* The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost.
* Searches of the person arrested must be done with due respect to the dignity of the person, without force or a aggression and with care for the person's right to privacy. Searches of women should only be made by other women with strict regard to decency.
* The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shankar Shukla v. Delhi Administration and Citizen for Democracy v. State of Assam.
* As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided.
* Where children or juveniles are sought to be arrested, no force of beating should be administered under any circumstances. Police officers, may for this purpose, associate respectable citizens so that the children or juvenile are not terrorised and minimal coercion is used.
* Where the arrest is without a warrant, the person arrested has be immediately informed of the grounds of arrest in a language which he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well as also given a copy on demand.
* The arrested person can, on a request made by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The Police should record in a register the name of the person so informed.
* If a person is arrested for a bailable offence, the police officer should inform him of his entitlement to be released on bail so that he may arrange for sureties.
* Apart from informing the person arrested of the above rights, the police should also inform him of his rights to consult and be defended by a lawyer of his choice. He should be informed that he is entitled to free aid at States expense.
* When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of his right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. Only a female registered practitioner should examine the female requesting for medical help.
* Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police control room and District/State headquarters. There must be a monitoring mechanism working round the clock.
* As soon as the person is arrested, police officer effecting the arrest shall make a mention of the existence or non-existence of any injury on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned on the register. The entry shall also be signed by the officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.
* If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be medically examined and a certificate shall be issued to him stating therein the factual position of the existence or non-existence of any injuries on his person.
Post Arrest Guidelines * The person under arrest must be produced before the appropriate court within twenty four hours of the arrest.
* The person arrested should be permitted to meet his lawyer at any time during interrogation.
* The interrogation should be conducted in a clearly identifiable place, which has been notified for his purpose by the government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place.
* The methods of interrogation must be consistent with the recognised rights to life, dignity and liberty and right against torture and degrading treatment.
Enforcement of Guidelines * The guidelines must be translated in as many languages as possible and distributed to every police station. It must also be incorporated in a handbook which should be given to very policeman.
* Guidelines must receive maximum publicity in the print or other electronic media. It should also be prominently displayed on notice board, in more than one language, in every police station.
* The police must set up a complaint redressal mechanism, which will promptly investigate complaints of violation of guidelines and take corrective action.
* The notice board which displays guidelines must also indicate the location of complaints redressal mechanism and how that body can be approached.
* NGOs and public institutions including courts, hospitals, universities etc. must be involved in a dissemination of these guidelines to ensure the widest possible reach.
* The functioning of the complaint redressal mechanism must be transparent and its reports accessible.
* Prompt action must be taken against errant police officers for violation of the guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism.
* Sensitisation and training of police officers is essential for effective implementation of the guidelines.
Thus inspite of constitutional and legal safeguard, established procedural law, judicial verdicts, international convention and treaties against the torture and death in police lockup, the menace is on increase and nothing seems to have substantially changed on ground level. The torture leading to lockup death is a fundamental violation of human rights and extremely misused of power by the State law enforcing agency. Therefore, the immediate steps are required to eradicate this growing menace otherwise the constitutional provisions assuring justice, liberty and dignity of the individual would remain on paper unless the police is brought under greater central of civil magistracy. The attitude and behaviour of police is also required reorientation through proper education and training.
16. In Shri D.K. Basu v. State of West Bengal (supra) Hon'ble Supreme Court also directed to follow the following requirements in case of arrest or detention: (Para 36) (1) The police personnel carrying out the arrest and handing the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnels who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lockup, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or his detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours of his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
17. In para 37 of the judgment it was indicated that failure to comply with the requirements herein above mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
18. The questions emerge for consideration therefore are:
(i) Whether the investigation into a crime by Shiv Pal Singh was in true sense and purposeful?
(ii) Whether there was any justification on the part of Shiv Pal Singh to enter the house of females in the odd hours of night?
(iii) Whether the appellants had right of private defence?
19. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire Incident must be examined with care and viewed in its proper setting. It Is not necessary for the accused to plead in so many words that he acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider It even If the accused has not taken It, If the same Is available to be considered from the material on record. The plea of right of private defence comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to propriety. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. (Vide Babulal Bhagwan Khandare v. Sate of Maharashtra (2005) 10 SCC 404).
20. Having pragmatically viewed the facts and circumstances of the instant case we fail to condustand that after the accused Lichhman Ram and Ramavtar, who were involved in double murder case, had already been arrested, taken in custody and Narendra Meena, Dy. S.P. with police squad left for the police station, Why Shiv Pal Singh, remanded outside the house of Badru Ram? Why he alone entered the house of females in the odd hours of night? Why the prosecution did not explain the fire arm injuries sustained by Chameli, Jamuna, Badru Ram, Sheesh Ram and Mahesh? These meaningful questions have not been answered by the prosecution. In our opinion investigation into the crime by Shiv Pal Singh was neither in true sense nor purposeful. There was no justification on the part of Shiv Pal Singh to enter the house of females in the odd hours of night without following the safeguards provided in CrPC. In the facts and circumstances of the case the possibility that Shiv Pal Singh entered the house of Badru Ram with an evil eye on Chameli cannot be ruled out. The circumstances appear in the instant case give rise to reasonable grounds that the appellants Smt. Nandi, Smt. Nanchi, Smt. Lalita and Smt. Jamma had apprehension that either death or grievous hurt would be caused to them and they acted in their right of private defence. Appellants Badru Ram, Sheesh Ram, Mahesh and Sita Ram however appear to have exceeded their right of self defence. After service revolver was snatched and Shiv Pal Singh was overpowered, it was not necessary to cause more harm. Learned trial Judge although acquitted accused Chameli, did not properly consider the shortcomings of the prosecution case as notice by us.
21. As a result of above, discussions, we dispose of the instant appeals in the following terms:
(i) We partly allow the appeal of appellants Badru Ram, Sheesh Ram, Mahesh and Sita Ram and instead of Section 302/149, we convict each of them under Section 304 Part II read with 34 of the Indian Penal Code. Looking to the fact that all the four appellants have remained in custody for a period of more than six years, we sentence them to the period already undergone by them in confinement. Whowever acquit them of the charges under Sections 148,323/149, 353/149 IPC. The appellants Badru Ram, Sheesh Ram, Mahesh and Sita Ram, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case.
(ii) We allow the appeals of Smt. Nandi, Smt. Nanchi, Smt. Lalita and Smt. Jamma and acquit them of the charges under Sections 148, 302/149, 332/149 and 353/149 IPC. The appellants Smt. Nandi, Smt. Nanchi, Smt. Lalita and Smt. Jamna, who are in jail shall be set at liberty forthwith, if not required to be detained in any other case.
(iii) The impugned judgment of the learned trial Court stands modified as indicated above.
22. A copy of the judgment be forwarded to Director General of Police, Rajasthan to issue appropriate directions to the police officers in view the guidelines incorporated in this judgment.