JUDGMENT
Shiv Kumar Sharma, J.
1. Mahesh, Mahadev, Bablu @ Vishambhar, Smt. Gulab Devi and Smt. Dhanda, the appellants herein, were put to trial before the learned Additional Sessions Judge Kotputli District Jaipur, who vide judgment dated December 13, 2002 convicted and sentenced them as under:-
Mahesh
Under Section 302 IPC:
To suffer imprisonment for life and fine Rs. 1,000, in default to further suffer six months simple imprisonment.
Under Section 148 IPC:
To suffer simple imprisonment for one year.
Under Section 323/149 IPC:
To suffer simple imprisonment for one year.
Mahadev, Babloo @ Vishambher, Smt. Gulab and Smt. Chanda:
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine Rs. 1000, in default to further suffer one month simple imprisonment.
Under Section. 148 IPC:
Each suffer simple imprisonment for one year.
Under Section. 323 IPC
Each to suffer simple imprisonment for one year. All the sentences were directed to run concurrently.
2. Put briefly the prosecution case is that on November 5, 2000, informant Mala Ram (PW. 6) submitted a written report (Ex. P. 8) at Police Station Kotputli to the effect that on the said day around 11 AM while his brother OM Prakash was digging foundation of the boundary wall suddenly Mahadev Prasad, Mahesh, Bablu, Meera, Angoori, Champa Devi, Gulab and Gokul armed with Spade. Lathis and Rods entered into the house of Om Prakash and Mahesh inflicted spade-blow on the head of Om Prakash. As a result of beating Om Prakash sustained injuries on his head and hand. Prem Devi also received injuries in the incident. Hearing hue and cry many persons gathered and saved them. On the aforesaid report Police Station Kotputli registered a case under Sections 147, 452 and 323 IPC and investigation commenced. During the course of investigation injured Om Prakash succumbed to his injuries and Section 302 IPC was added. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Kotputli District Jaipur. Charges under Sections 302, 302/149, 148, 323 and 323/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 20 witnesses. In the explanation under Sec. 313 Cr.P.C, the appellants claimed innocence. Accused Mahadev stated that Om Prakash was trying to obstruct the lane by digging foundation ignoring the decision of Panchayat when he was asked to follow the decision of the Panchayat, he started quarreling. Mahesh and Babloo raised the plea of alibi. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record.
4. Death of deceased Om Prakash was indisputably homicidal in nature. As per postmortem report (Ex. P. 28) he received following ante mortem injuries:-
1. Curved shape stitched wound 27 cm long Rt. Fronto parietal region.
2. Stitched wound 5 cm long parelatel to corneal suture Rt. parietal region.
On dissection thick dark red sub scalp hematoma present over Rt. fronto parietal region. Brain protruded out thereon a bony gap of 13 cm x. 10 cm at Rt. fronto parietal region.
3. Abrasion 6 cm x l/4 cm Rt. arm upper dorsolateral aspect with bruise scab formation.
4. Abrasion 6 cm x 1/4 cm Rt. arm middle dorsolateral aspect with abnormal mobility of arm on further exam. fracture of shaft humerus was present.
5. abrasion 4 cm x 1 cm Rt. post axillary fold.
6. Fracture dislocation of all the lower jaw incisor teeth with gum laceration abrasion with dried blood over Rt. Lower lip muco cutaneous junction.
According to Dr. D.K. Sharma (PW. 17) the cause of death was coma as a result of injuries to the brain and skull.
5. At this juncture the injuries sustained by accused persons may also be noticed. Accused Mahadev vide injury report (Ex. D. 6) received following injuries:-
1. Lacerated wound 1-1/4″ x 1/2″ deep on vault of skull.
2. Contusion with swelling 1/2″ x 1/2″ on body of nose.
3. Contusion 1/2″ x 1/2″ on chin Rt. side.
4. C/o pain left gluteal region no external injury.
On X-ray vide X-ray report (Ex. D-9A) fracture of nasal bone was found.
Accused Smt. Bulab vide injury report (Ex. D-7) received following injuries:-
1. Contusion with swelling 1″ x 1/2″ on forehead Rt. side.
2. Contusion 1″ x 1/2″ on Rt. Maxillary region.
3. Abrasion carrying of 1/4″ x 1/4″ on Rt. forearm lower 1/3 lateral aspect.
6. Having scanned the material on record we find that the prosecution case rests on the testimony of Prem Devi (PW. 7) and Maya (PW. 8). In her cross examination Prem Devi deposed that while Om Prakash was digging the foundation Mahadev asked Him not to do so. Since the land belonged to Om Prakash he did not agree and continued his work. Mahadev and Om Prakash had altercations and they grappled with each other. Mahesh then inflicted blow with spade on the right temporal region of Om Prakash. She however denied the fact that Mahadev had suffered injury on his head. Testimony of Prem Devi gets corroboration from the evidence of Maya (PW. 8) who in her cross examination stated that after Om Prakash and Mahadev hurled abuses to each other Mahesh gave a blow with spade on the person of Om Prakash. According to her incident occurred on the way near the foundation.
7. Factual scenario of the case appears from the evidence on record may be summarised thus:-
(i) The informant in the FIR (Ex. P.9) stated that the incident occurred in the house, whereas at the trial he deposed that the place of occurrence was the street.
(ii) The spade used for digging the foundation by the deceased, was picked up by accused Mahesh for the purpose of causing the injury.
(iii) Jhabar Mal Gurjar (DW. 1), Panch of Gram Panchayat Kalyanpura, in his deposition stated that complainant and accused party entered into compromise (Ex. D-8 according to which it was agreed upon that 3 feet land shall be kept open and no construction shall be made on the said land.
(iv) Dispute arose when the deceased started digging foundation on the land which had to be kept open in accordance with the order dated July 3, 2000 (Ex. D-8) of the Gram Panchayat.
(v) Mahaver and Gulab sustained injuries in the same incident and those injuries were not explained by the prosecution.
8. It is canvassed by learned counsel for the appellants that since the appellants had apprehension that grievous injuries might be caused they exercised the right of private defence and in that process if appellant Mahesh might have dealt one blow with spade on the head of Om Prakash which resulted in his death no crime is said to have committed by him. It is also contended that in the facts and circumstances of the case sections 148 and 149 IPC are not attracted. On the other hand learned public prosecutor supported the impugned judgment and urged that the appellants had rightly been convicted and sentenced.
9. Before considering the above submissions we deem it appropriate to notice the principles laid down in the various judicial pronouncements in regard to right of private defence, that may be summarised thus:-
(i) Section 96 does not define the expression ‘right of private defence.’ It merely indicates that nothing is an offence which is done in the exercise of such right.
(ii) Whether in a particular set of circumstances, a person 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. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances.
(iii) 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.
(iv) 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.
(v) Under Section 105 of the Evidence Act, the burden of proof is on the accused, who sets of the plea of self defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self defence. The Court shall presume the absence of such circumstances.
(vi) It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined by the prosecution. An accused taking the plea of the right of private defence is not required to call evidence. He can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden.
(vii) Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of accused.
(vii) The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance in favour of that plea on the basis of the material on record.
10. Right of private defence is codified in Sections 96 to 100 IPC which have all to be read together in order to have a proper grasp of the scope and the limitations of this right. By enacting these sections the authors of the Code wanted to except from the operation of its penal clauses. Clauses of acts done in good faith for the purpose of repelling unlawful aggression. This right is available against an offence, and therefore, where an act is done in exercise of the right of private defence such act cannot give rise to any right of private defence in favour of the aggressor in return. This would seem to be so even if the person exercising the right of private defence has the better of his aggressor provided of course he does not exceed his right because the moment he exceeds it, he commits an offence. There is also no right of private defence in cases where there is time to have recourse to the protection of public authorities. The right of private defence is essentially a defence right circumscribed by the statute, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. According to Section 97 this right vests even in strangers for the defence of the body and property of other persons against offences mentioned therein. The courts have, therefore, to be careful in seeing that no one on the mere pretext of the exercise of the right of private defence takes side in a quarrel between two or more persons and inflict injuries on the one or the other. Section 99 lays down the limitations within which the right of private defence must be exercised. It does not arm the party wronged with fire and sword, but allows him to help himself only when there is a reasonable apprehension of danger. Other sections define the extent to which the right may be pushed. Section 99 limits the general rule there laid down, and its object is to lay down certain restrictions; the first two of which are specially intended to protect public servants, the remaining two paragraphs being more general. Before the right of private defence can be exercised there must be reasonable apprehension of death or grievous hurt at the hands of the person against whom the right is exercised. Whether the apprehension was reasonable or not, is always a question of fact to be determined from the surrounding circumstances. The test in such a case is not whether there was actual danger but whether there was reasonable apprehension that such danger existed.
11. In Kashi Ram v. State of M.P. their Lordships of the Supreme Court held that so long as an assembly of persons is acting in exercise of right of private defence it cannot be an unlawful assembly. In Munir Khan v. State of U.P. AIR 1972 SC 335 their Lordships of Supreme Court observed that in a mutual fight there is no common object and none of the accused can be convicted by having recourse of section 149 IPC.
12. The Apex Court in Devraj v. Himachal Pradesh indicated that the accused persons sustained injuries during the same occurrence, in which complainant party was injured. When they have taken the plea that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. In the instant case since the injuries received by Mahadev and Gulab have not been explained by the prosecution, the plea of right of private defence raised by the appellants have been considered by us after bearing the principles laid down in regard to private defence in mind. In our opinion right of private defence was not available to the appellants. When the order of Panchayat was flouted by Om Prakash, the appellants would have taken recourse of approaching the competent authorities for seeking redressal of their grievance. However in view of the fact that appellant Mahesh in the heat of passion picked up spade from the place of occurrence and inflicted only one blow, we find that Exception IV to Section 300 IPC is attracted in the facts and circumstances of this case. We are also of the view that since the complainant party and the accused party fought freely sections 148 and 149 IPC could not have been invoked.
13. For these reasons, we dispose of the instant appeal in the following terms:-
(i) We allow the appeal of appellants Mahadev, Babloo @ Vishambhar, Smt. Gulab and Smt. Chanda and acquit them of the charges under Sections 302/149, 148 and 323 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged.
(ii) We partly allow the appeal of appellant Mahesh and instead of Section 302 IPC we convict him under Section 304 Part II IPC. Looking to the fact that the appellant had already undergone sentence for a period of more than five years and four months, in our opinion, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Mahesh, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case.
(iii) The impugned judgment of learned trial Judge stands modified as indicated above.