JUDGMENT
Sharma, J.
1. This is an unfortunate case in which two persons from the complainant side and one from the accused side appear to have lost their lives over a land dispute. The prime questions that have come up for our consideration in the instant appeals are as to in what manner a person, who faces imminent peril of life and limb of himself or another should act? Is he expected to weigh in golden scales ‘the precise force’ needed to repel the danger?
2. All the thirteen appellants were indicted before the learned Additional Sessions Judge Khetri (Distt. Jhunjhunu) in sessions case No. 32/1994 for having committed murder of Gheesa, and Rohtas. They were found guilty, convicted and sentenced as under-
1.Leelaram @ Sukhvir
U/Sec. 302 IPC
Imprisonment for life
and fine of Rs. 1000/-, in default to further to further suffer three months
Rl.
U/s. 3/25 Arms Act.
Six months RI and fine
of Rs. 500A in default to further suffer 2 months R.I.
2, Ramcshwar Dayal
3. Gokal
4.
Inderraj
5. Chhotelal
6. Hariram
7. Ramjilal
8. Satyaveer
9. Bhagwanaram
10. Rajveer
11. Bhagat Singh
12. Rohtas
13. Fakirchand
U/s. 323 IPC
Four months Rl and fine
of Rs. 300/- in default to suffer one month SI.
Sentences awarded to appellant Leela Ram were directed to run concurrently. Against this judgment of conviction, that the appellants have preferred the instant appeals.
3. Brief resume of the prosecution case is this. A written report Ex. P. 10 was submitted to the Police Station Khetri By Guljari (PW. 17) with the averments that on August 4,1992 around 5.00 a.m. Rameshwar s/o Pal Singh, Birbal s/o Pal Singh, Rajveer s/o Rameshwar, Satyaveer s/o Rameshwar, Inderraj s/o Birbal, Leela Ram @ Sukhveer s/o Rameshwar, Gokal, Fakir Chand, Ramjilal, Chhote Lal, Rohitash, Hari Ram, Bharat Singh and Bhagwana went in truck No. RNE 8005, alongwith a Tractor No. HRM 460 to the land bearing Khasra No. 407 situated in village Dudva and started cultivating the land. When Bhata Ram (PW.13) asked them to obey the stay order of the court and stop cultivation, Birbal made an assault at him. In the meanwhile some persons armed with lathies and pharsis got down from the truck and some while standing on the truck, started pelting stones at the complainant party that also used sticks in defence. Leelaram was armed with 12 Bore gun. On being exhorted by Rameshwar, Leelaram opened fire resulting in death of Gheesharam. Rajveer, who was sitting on the driver seat of the truck, made an attempt to crush the complainant party under the wheels of the truck but instead he crushed his own uncle Birbal who died at the spot. When the complainant party ran towards the village Leelaram again opened Fire that hit Rohtas who died instantly. Members ol complainant parly viz. Leela, Prahlad, Jagdish and many others sustained injuries in the Incident. The Police Station Khetri registered a case under Sections. 147,148,149 and 302 IPC and investigation commenced. Statements of witnesses were recorded under Section 161 Cr.P.C. The autopsy on the dead bodies were conducted. The accused were arrested. The gun used in the incident was seized at the instance of accused Rameshwar on conclusion of investigation the charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Khetri. Charges under sections 148, 149, 302, 324, 323 IPC and 3/25 of the Arms Act were framed. The accused denied the charges and claimed trial. The prosecution examined as many as 27 witnesses in support of its case and exhibited 61 documents. In the statements recorded under Section 313 Cr.P.C. the accused claimed innocence. Four witnesses were examined in defence by the accused and as many as 41 documents were exhibited. The learned trial court on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove.
4. Mr. Jagdeep Dhankar, learned Senior Advocate assailing the Findings of the learned trial Judge, canvassed that the situation bearing on the land in question has
not been properly appreciated in the impugned judgment. The possession of the accused party over the land was lawful and setlled. II is revealed from Girdawaris Ex.D-15, Ex.D. 1 7 and Ex. D. 18 that the land in dispute was under cultivation of appellant Rameshwar. There was no injunction against accused Rameshwar in respect of the aforementioned land from any court. In such a situation the appellant had settled a right over the land and no offence could be made out against them if they act to protect their right. The other party if aggrieved by the action of the appellants ought to have taken recourse to the assistance from authorities in terms of Section 99 Cr.P.C. rather than to take law in their own hands. The court below has not appreciated the injuries sustained by Birbal. The prosecution has failed to explain the injuries by Birbal and the story of prosecution has become doubtful. The prosecution version as regards the death of Birbal on account of crushed by truck tyres, is further falsified by site plan Ex.P. 15. It will be seen from the site plan Ex.P. 15 that near the dead body of Birbal there were no signs of movement of a truck. Analysis of the injuries of deceased Birbal would lead to the conclusion that Birbal suffered injuries not from the truck tyre as asserted by the prosecution, but on account of belabouring at the hands of complainant party as held out by the defence. Birbal suffered injuries at the hands of complainant party and only thereafter firing took place and the accused party was fully justified in acting in defence of its person and property. The court below has also not properly appreciated the contention of defence that the injuries sustained by Gheesa and Kohtas did not indicate any intention to kill. Both of them suffered fire arm injuries on non vital parts. As the appellants acted in their right of private defence they could not have been convicted.
5. Per contra Mr. Rajendra Yadav, learned Public Prosecutor supported the impugned judgment and contended that the accused Leela Ram had mercilessly opened fire and killed Gheesa and Rohtas. No right of private defence was available to him in the facts and circumstances of the instant case and all the appellants have been rightly convicted and sentenced by the learned trial Judge.
6. With the assistance of learned counsel for the parties we have closely scrutinised the entire record. Begraj (PW.4), Badan (PW.5), Hanuman (PW.6), Prahlad (P.W. 7), Jagdish (PW.8), Matadin Moria (PW.9) Shanker Lal (PW.10), Fakir Chand (PW.II), Sawal Ram (PW.I2), Bhata Ram (PW.13), Gokal; (PW. 14) Birbal (PW.15), Gulzari (PW.17), MoolChand (PW.18) and Lila Ram (PW. 19) are the eye witnesses of the occurrence. All of them deposed that when they prevented Rameshwar, his three sons Rajveer, Satyaveer and Leelararn @ Sukhveer, brother Birbal, Inderraj s/o Birbal, Gokal, Fakir Chand, Ramji Lal, Chhotelal, Rohilash, Hari Ram, Bhagat Singh and Bhagwana from cultivating land bearing Khasra No. 407 situated in village Dudva, Rameshwar gave his 12 Bore Gun to Leela Ram @ Sukhveer and exhorted to Leela Ram to open fire, who in turn opened fire and killed Gheesaram and Rohtas. They further stated that the accused persons inflicted injuries with Pharsis and lathies on the person of Leela, Prahlad, Jagdish and many others. Rajveer in making attempt to crush them under the wheels of the truck, crushed his own uncle Birbal who died at the spot. Disowning their statements under Section 161 in which they stated that they defended themselves by using lathies against the assailants, these witnesses stated that they were empty handed and they did not inflict any injury on the person of Birbal or any other accused. They however admitted that before the incident many litigations were pending between them and Birbal in the various courts and earlier also they did not allow Rameshwar to cultivate the land. Dr. B.S. Daderwal (PW. 23) who conducted the autopsy on the dead body of Gheesa Ram and Rohtas, deposed that cause of their death was hemorrhage and shock as a result of Gun shot injuries. SBBL 12 Bore Gun was recovered at the instance of Rameshwar vide Ex.P.20. The Gun was examined by the Forensic Science Laboratory. As per FSL report (Ex. P.60) it was a serviceable fire arm. The examination of the barrel residue indicated that it had been fired however no definite time of its last fire could be ascertained. Thus it is a established beyond reasonable doubt that the deceased Gheesa Ram and Rohlas died as a result of Gun shot injuries inflicted by 12 Bore SBBL Gun seized vide Ex.P.20 at the instance of accused Rameshwar.
7. Now we proceed to consider the defence version. In the cross-examination of the eye witnesses an specific suggestion was made on behalf of the accused that when the complainant party made attempt to oust Rameshwar, his sons, his brother Birbal from the land and started beating Birbal, he snatched the Gun from the hands of Rameshwar and opened fire resulting in death of Gheesa Ram and Rohtas. The prosecution witnesses denied this suggestion. In the statement under Section 313 Cr.P.C. Rameshwar stated that he was the khatedar tenant of land in question and it was in his continuous possession since 1991. Appellant Inderraj who is the son of deceased Birbal in his statement under Section 313 Cr.P.C. deposed that his father in order to save his life, snatched the Gun from the hands of Rameshwar and killed Gheesa Ram and Rohtas. Leela Ram @ Sukhvir slated that at the lime of incident he was at village Sohela District Jodhpur and he has been falsely implicated. Defence witnesses Hanuman Singh (DW.l) in his deposition stated that when Birbal, Rajveer, Inderraj and Rameshwar were cullivating the field, Gokul, Jagdish, Leela, Rohtas, Bhata, Sanwal, Fakir Chand, Ballaram, Prahlad, Birbal, Gheesa Ram and other members of their family armed with lathies, Pharsies and axes rushed to make assault on them. At that time Rameshwar had a gun. When his request to cultivate the land was turned down, Rameshwar opened fire in the air to frighten them. In the meanwhile Leela (PW. 19) inflicted lathi blow on the head of Birbal. Birbal fell down but suddenly got up and snatched the gun from Rameshwar and opened fire that hit Gheesa. His second fire hit Rohlas. In his cross examination he stated that accused Leela @ Sukhveer was not present at that time. He denied this suggestion that Birbal was run down by the truck.
8. As per post mortem report Ex.1 D.41 A Birbal sustained following injuries.
(i) Lacerated wound 12″ x 5″ x bone deep on index lower part of left leg.
(ii) Lacerated wound on right side of parietal region 6″ x 4″ x 3″ above eye brow.
(iii) Lacerated wound 2″ x 1/2″ x bone deep on left side of occipital region.
(iv) Abrasion 4″ x 3″ x 1/2″ on left knee.
(v) Abrasion 2″ x 1/2″ x 4″ on left side of chest.
(vi) Hemotoma 3″ x 3″ on left side of chest.
Appellants Chhotelal, Gokul and Inderraj also sustained injuries in the incident. Their injury reports are Ex. D. 12, Ex. D. 13, and Ex. D. 14.
9. Ex.D.40 A is the FIR No. 193/88 dated Sept. 14, 1989 lodged by the deceased Birbal against forty persons including the deceased Gheesa and Rohtas stating therein lhat the land bearing khasra No. 407 was in the possession of his brother Rameshwar and it was cultivated by him but the accused persons mischieviously removed the crop from the said land. A case under Section 379/427 IPC was registered against Gokal, Jagdish, Gheesa and Rohlas and other thirty six persons.
10. Ex.D.39A is the copy of the order sheet of the proceedings of the Court of S.D.M. Khetri in respect of complaint under Sections 107/116(3) Cr.P.C. instiluted by the appellant Rameshwar against the complainant party on July 30, 1992 i.e. five days before the incident. Show cause notices were issued to the complainant party to maintain peace.
11. Ex.D.19 is the cross FIR No. 211/92 registered on August 4, 1992 under sections 147, 148, 149, 447, 302 and 323 IPC on the basis of information of appellant Rameshwar against the complainanl party in connection with the murder of Birbal.
12. Ex.D.17 is the copy of Khasra Girdawari of land bearing Khasra No. 407 situaled in village Dudva. As per this document the said land was in the khatedari of appellant Rameshwar. Om Prakash Sharma Patwari (PW.24) in his cross examination established the possession of Rameshwar over land bearing Khasra No. 407 situated in village Dudva.
13. Fad situation emerges from the above discussions may be deduced thus-
(i) Appellant Rameshwar was the khatedar tenant of land in question and at the lime of incident was cultivating it with the help of his brother Birbal and other family members.
(ii) Members of complainant party who have been examined as eye witnesses by the prosecution along with Gheesa Ram and Rohtas (deceased) were the aggressors and they prevented Rameshwar, Birbal and other members of his family from cultivating the land.
(iii) Gheesa Ram and Rohtas received gun shot injuries and died at the spot.
(iv) Birbal also died at the spot because of head injuries sustained by him at the time of incident and accused Chholelal, Gokul and Inderra] also sustained injuries.
(v) Criminal case under sections 147, 148, 149, 447, 302 and 323 IPC for having committed trespass over the land and murder of Birbai was registered against the complainant party.
(vi) About five days before the incident, appellant Rameshwar had filed a complaint under Section 107/ 116(3) Cr.P.C. against the complainant party and the SDM Khetri issued show cause notices to the complainant party to maintain peace.
14. Their Lordships of the Supreme Court in Puran Singh v. State of Punjab (1), observed that ‘the right of private defence of person or property is to be exercised under the following limitations:
(i) that if there is sufficient time for recourse to the public authorities, the right is not available.
(ii) that more harm than necessary should not be caused;
(iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.”
Their Lordships in para 18 of the judgment further observed thus-
“It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been subject matter of trespass and mischief he should allow the aggressor to take possession of the properly which he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence in to operation.”
15. Their Lordships of the Supreme Court in Mohd. Ramzani v. State of Delhi (2), ruled that the onus to establish his plea of private defence under Section 105 of the Evidence Act on an acgused person, is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with 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 then what would be necessary when calculated with precision and exactitude by a cairn and unruffled mind, the law makes due allowance for it.”
16. The necessary corollary of the doctrine of private defence is that violence must not be unduly disproportionate to the injury reasonably apprehended. Essential basic character of right of private defence is preventive and not retributive.
17. Coming to the facts of the case on hand as already stated that the appellant Rameshwar was the Khatedar of the land and on the date of incident he with the help of his family members, was cultivating it. It was the complainant party which forcibly entered into the field. The fact that when Rameshwar, his brother Birbal and other persons were cultivating the field, they were prevented by Bhata Ram, has been stated even in the written report (Ex.P.10) by the informant Guljari (PW.17). It has further been stated in the report that the complainant party also used stricks in defence. As per prosecution story Leela Ram @ Sukhveer opened fire and killed Gheesaram and ‘ Rohtas but in his statement under Section 313 Cr.P.C. accused Inderraj who is the son of deceased Birbal, deposed that it was Birbal who snatched the Gun from Rameshwar and killed Gheesaram and Rohtas. Twelve bore SBBL Gun was not recovered at the instance of accused Leela Ram @ Sukhveer. Hanuman Singh (DW. 1) in his deposition stated that when Leela (PW. 19) from the complainant party inflicted lathi blow on the head of Birbal, he snatched the Gun from Rameshwar and killed Gheesaram and Rohtas. It is thus established that Gheesaram and Rohtas were aggressors and in the incident Birbal, Chhotelal, Gokal and Inderraj received injuries. There is nothing on record which could suggest that Birbal had sustained injuries in the process of being run down under the wheels of a truck. We are satisfied that the violence used in the incident was not unduly disproportionate to the injuries reasonably apprehended. The appellants and Birbal who faced imminent peril of their lives were not expected to weight in golden scales the precise force needed to repel the danger. If the appellant Leela @ Sukhveer or Birbal opened fire in order to save their lives they acted in their right of private defence. In the facts and circumstances of the case their act may be termed as preventive and not retributive. The learned trial Judge appears to have overlooked the propositions of fact that have emerged in the instant case. The right of private defence of the appellants was not properly considered. Deceased Gheesaram and Rohtas were amongst those persons against, whom the Sub Divisional Magistrate Khetri had issued notices under Section 111 Cr.P.C., to maintain peace only five days before the incident, still they took law in their hands and became aggressors. We are satisfied that the prosecution has failed to establish beyond reasonable doubt the guilt under Section 302 1PC and 3/25 Arms Act against Leelaram @ Sukhveer and under Section 323 IPC against the other appellants.
18. For the reasons aforementioned we allow the appeals and set aside the impugned judgment. We acquit the appellant Leelaram @ Sukhvir from the charges under Section 302 IPC and 3/25 Arms Act. He shall be set at liberty forthwith if not required in any other case.
19. We also acquit the appellants Rameshwar Dayal, Gokal, Inderraj, Chhotelal, Hari Ram, Ramjilal, Satyaveer, Bhagwana Ram, Rajveer, Bhagat Singh, Rohtas and Fakir Chand from the charge under Section 323 IPC. They are on bail, they need not surrender, their bail bonds stand discharged.