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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
Aasin Khan & others Vs. State of Rajasthan
D.B.CRIMINAL APPEAL NO.406/2003
against the judgment dt.26.3.2003 passed by
the Addl.Sessions Judge (FT), Jalore,
in Sessions Case No.18/2002.
Date of Judgment: Nov.11, 2008
P R E S E N T
HON'BLE MR.JUSTICE A.M.KAPADIA
HON'BLE MR.JUSTICE DEO NARAYAN THANVI
Mr.Dhirendra Singh, for accused appellants.
Mr.V.R.Mehta, Public Prosecutor.
BY THE COURT : (PER HON'BLE THANVI J.)
1. This is an appeal against the judgment of the
learned Addl.Sessions Judge (F.T.), Jalore, dated
26.3.2003, whereby all the five accused appellants
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Aasin Khan, Shakur Khan, Teke Khan, Smt.Bhima and
Amare Khan were convicted under various offences of
the Indian Penal Code as under:
(1) ACCUSED APPELLANT AASIN KHAN:
U/Sec.148 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/Sec.302 IPC: Life imprisonment alongwith a fine
of Rs.1000/- & in default, to further
undergo one year’s S.I.
U/Sec.324 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/s.323/149 IPC: Six months’ R.I. alongwith a fine of
Rs.100/- & in default, to further
undergo one month’s S.I.
(2) ACCUSED APPELLANT SHAKUR KHAN:
U/Sec.148 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/s.302/149 IPC: Life imprisonment alongwith a fine
of Rs.1000/- & in default, to further
undergo one year’s S.I.
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U/s.324/149 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/Sec.323 IPC: Six months’ R.I. alongwith a fine of
Rs.100/- & in default, to further
undergo one month’s S.I.
(3) ACCUSED APPELLANT TEKE KHAN:
U/Sec.148 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/s.302/149 IPC: Life imprisonment alongwith a fine
of Rs.1000/- & in default, to further
undergo one year’s S.I.
U/s.324/149 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/Sec.323 IPC: Six months’ R.I. alongwith a fine of
Rs.100/- & in default, to further
undergo one month’s S.I.
(4) ACCUSED APPELLANT SMT.BHIMA:
U/Sec.148 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/s.302/149 IPC: Life imprisonment alongwith a fine
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of Rs.1000/- & in default, to further
undergo one year’s S.I.
U/s.324/149 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/Sec.323 IPC: Six months’ R.I. alongwith a fine of
Rs.100/- & in default, to further
undergo one month’s S.I.
(5) ACCUSED APPELLANT AMARE KHAN:
U/Sec.148 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/s.302/149 IPC: Life imprisonment alongwith a fine
of Rs.1000/- & in default, to further
undergo one year’s S.I.
U/s.324/149 IPC: One year’s R.I. alongwith a fine of
Rs.500/- & in default, to further
undergo six months’ S.I.
U/Sec.323 IPC: Six months’ R.I. alongwith a fine of
Rs.100/- & in default, to further
undergo one month’s S.I.
2. Brief facts leading to this appeal are that Sikandar
Khan (PW 11) lodged a written report Ex.P.32 at Police
Station, Bagra, Distt. Jalore on 5.7.2002 alleging
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therein that when he alongwith his family members
were sitting in their khatedari well, accused Shakur
Khan, Aasin Khan, Amare Khan, Shere Khan, their
mother and two other ladies, came in their field and
accused Aasin Khan inflicted head blow on his father Ali
Khan with axe, Shakur Khan inflicted injury on the
hand of his mother Indra with iron rod and Amare Khan
and other ladies inflicted injuries on his wife and
daughter and Sheru Khan inflicted blows with kicks &
lathi. Upon seeing his father died, he rushed to the
police station. Upon this report, the police registered a
case and after investigation, all the accused were
challaned for the offences u/ss.147, 148, 302, 324 and
323/149 IPC before the Court of learned Judicial
Magistrate, who committed the case to the court of
Sessions. Learned trial Judge heard the arguments on
charge and framed charges for the offences u/ss.148,
302 or in alternative 302/149, 324 or in alternative
324/149 and 323 or in alternative 323/149 IPC. All the
accused appellants pleaded not guilty and claimed trial.
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The prosecution examined 21 witnesses. The
statements of the accused were recorded u/s.313
CrPC. They produced 5 witnesses in their defence.
After hearing the arguments, the learned trial Judge
convicted the accused appellants as above, against
which this appeal has been preferred. During pendency
of the appeal, accused Teke Khan died and proceedings
against him were consequently abated vide order
dt.18.5.06.
3. Learned counsel for the appellants has not
disputed the incident but his sole argument is that in
this case, it was the complainant party, which first
entered into the field of accused and in exercise of
right of private defence, accused Aasin Khan is said to
have inflicted axe blow on the head of deceased Ali
Khan, where he died. According to him, there is no role
of other accused appellants, except giving kicks and
inflicting lathi blows. He further submits that there was
no question of formation of unlawful assembly so as to
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convict them for the offence u/s.148 IPC or any other
section of the Indian Penal Code with the aid of Section
149 IPC.
4. Per contra, learned Public Prosecutor has
supported the judgment of the learned trial Court and
has urged to dismiss this appeal.
5. We have re-appreciated the evidence on record. It
is an admitted position that the incident took place in
the field of accused party and the site plan proved by
the prosecution is Ex.P.2 in which mark `X’ is shown to
be place of incident being situated in Khasra No.61 &
the field of complainant party has been marked at
place `C’ being Khasra No.53. The fields marked `A’,
`B’ & `D’ are of neighbourers. The portion marked `E
to F’ and `G to H’ is the sign of cultivating the field
from the tractor. The description of the site plan has
been given in Crime Details Form marked Ex.P.1 in
which it has been stated that mark `X’ being Khasra
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No.61 has come in the share of accused appellant Teke
Khan, who has now died, in partition. It is also
admitted position that cross cases were registered vide
Ex.D.1 but the police has given the Final Report in the
matter. When from the site plan Ex.P.1, the field
Khasra No.61 is in the share of accused appellant Teke
Khan, then the presence of rest of the accused
appellants, who are family members of Teke Khan
cannot be said to be unlawful so as to bring the case
under the category of formation of unlawful assembly.
It is true that axe blow has been inflicted by accused
appellant Aasin Khan and these two blows on the scalp
and chest of deceased Ali Khan, as per the version of
Dr.Vallabh Bhandari (PW 15), who conducted the post
mortem report vide Ex.P.34, were the cause of death.
A separate report has also been given to this effect
which is Ex.P.35. The same is the statement of
Dr.R.C.Chouhan, who was the member of the Medical
Board, which conducted the post mortem. When the
cause of death is axe blows, then it is to be seen as to
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who is the author of these blows. In this regard,
Sikandar Khan (PW 11), who is the son of deceased,
has said that the disputed field was jointly cultivated
by them. When his father went to the accused as to
why they were cultivating the joint field, then accused
Aasin Khan came on the spot and told that how they
were demanding their share and thereupon, he inflicted
axe blows on the head of his father and rest of the
accused, who were having lathis in their hands and
Smt.Bhima, who was having no weapon in her hand,
inflicted blows. When his wife and mother came to
intervene, accused Aasin Khan also inflicted axe blows
on them. Accused Shakur Khan inflicted lathi blow on
his wife. On hearing the cries, he went on the spot and
seeing the incident, he left for the police station.
6. Smt.Indra (PW 12), wife of deceased, is also an
injured witness. While stating about the joint
possession of his husband and accused party over the
field, she has deposed that accused Aasin Khan came
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with tractor and started cultivation. When her husband
intervened, he inflicted axe blow on her husband. Rest
of the accused also inflicted lathi blows. When she
alongwith her daughter in law went to interfere,
accused Aasin Khan inflicted axe blow on her.
7. Smt.Sukhi (PW 13) is also an injured witness. She
has also stated the same version.
8. Ms.Apiya (PW 14) is also eye witness of the
incident. Her statement is also on the same line.
9. If the evidence of these four witnesses is looked
into in the light of the statement of the investigating
officer Mahendra Singh (PW 21), it is clear from the
last line of his cross examination that as per his
investigation, he found that except accused Aasin Khan
and Shakur Khan, rest of the accused inflicted blows
with fists and slaps only and, therefore, lathis could not
be recovered. Though the recovery of lathi has been
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shown from Shakur Khan vide Ex.P.12 but the cause of
death, as per the post mortem report Ex.P.34 &
Ex.P.35, is the injuries on chest and head, which are
shown in the injury report, Ex.P.18, which have been
caused by sharp edged weapon. Ofcourse lathi cannot
be said to be a sharp edged weapon, therefore, it
cannot be said that these injuries were caused by
Shakur Khan by lathi on the person of deceased Ali
Khan. These injuries are the result of axe blows, which
was in the hands of accused Aasin Khan and the same
has also been recovered from him.
10. From the above evidence, it can safely be arrived
at the conclusion that the author of the injuries on the
chest and head on the person of deceased Ali Khan
was accused appellant Aasin Khan for which he can be
conclusively held liable for committing culpable
homicide. Since unlawful assembly has not been
established and accused were sitting in their field as
per the site plan Ex.P.1 and dispute arose with regard
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to cultivation of the field by tractor, the only conclusion
which can be arrived-at is that all the accused acted in
exercise of right of private defence including the
accused appellant Aasin Khan. When a person acts in
exercise of right of private defence & exceeds his right
by causing death of another, then it is a case of
culpable homicide not amounting to murder punishable
under Section 304 part I IPC, being a case of
Exception-2 defined under Section 300 IPC. Therefore,
in our view, the act of the accused appellant Aasin
Khan is covered under Section 304 part I IPC. So far as
rest of the accused are concerned, they have inflicted
injuries with slaps and fists and accused Shakur Khan
by lathi, which is alleged to have been recovered from
him. Smt.Indra (PW 12) & Smt.Sukhi (PW 13) are the
injured witnesses and their injuries are simple in
nature, caused by blunt weapon as per their injury
reports Ex.P.16 and Ex.P.17 respectively. Therefore,
the act of the rest of the three accused falls under
Section 323 IPC and they can be held liable for that
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offence only.
11. Consequently, while allowing this appeal in part,
we alter the judgment dt.26.3.2003 passed by the
Additional Sessions Judge (F.T.), Jalore as under:
(i) Accused appellant Aasin Khan is convicted only for
the offence under Section 304 part I IPC instead of
Section 302 IPC and is sentenced to the period already
undergone, which is about seven years, with a fine of
Rs.1000/- & in default, to further undergo one year’s
S.I. However, he is acquitted for the rest of the
offences i.e. under Sections 148, 324 and 323/149 IPC.
He is in jail, he be released forthwith, if not required in
any other case, on depositing of fine.
(ii) Accused appellants Shakur Khan, Smt.Bhima and
Amare Khan are convicted for the offence u/s.323 IPC
only and they are sentenced to the period already
undergone, which is about five months, with a fine of
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Rs.100/- & in default, to further undergo one month’s
S.I. However, they are acquitted for the rest of the
offences i.e. u/ss.148, 302/149 and 324/149 IPC.
(DEO NARAYAN THANVI), J. (A.M.KAPADIA), J.
RANKAWAT JK, PS