JUDGMENT
S.K. Sharma, J.
1. Instant appeal has been filed by seven appellants questioning the correctness of the judgment dated July 7, 2000 of the learned Special Judge cum Additional Sessions Judge Alwar whereby the appellants were convicted and sentenced as under:-
Buddhi Lal, Dinesh, Rajendra, Ashok Kumar, Brij Mohan, Bhagchand & Om Prakash:-
Under Section 302/149 IPC Each to suffer Imprisonment for Life and fine of
Rs. 1000/-, in default to further suffer six months
Rigorous Imprisonment.
Under Section 148 IPC Each to suffer Rigorous Imprisonment for three years.
Under Section 447 IPC Each to suffer Rigorous Imprisonment for three months.
Under Section 325/149 IPC Each to suffer Rigorous Imprisonment for five
years and fine of Rs. 500/-, in default to further
suffer three months Rigorous Imprisonment.
Under Section 324/149 IPC Each to suffer Rigorous Imprisonment for two years.
Under Section 323/149 IPC Each to suffer Rigorous Imprisonment for one year.
All the sentences were ordered to run concurrently.
2. As per the prosecution case, a written report (Ex.P-1) was submitted by Munni Ram at Police Station Khedli District Alwar on September 2, 1994 at 8.30 PM to the effect that on September 2, 1994 at 8.30 PM to the effect that on September 2, 1994 at 6.30 PM while complainant party was ploughing their field, Buddhi, Bhag Chand, Rajendra, Om Prakash, Vijay, Sampat, Manohari, Ashok and Brij Mohan armed with Pharsas, Ballam and lathis, came there on a tractor which was driven by Dinesh. Tractor was deliberately pushed towards Chhuttan (now deceased) who fell down and his legs were crushed. Buddhi then exhorted to kill Chhuttan and inflicted blow with Pharsa on his head, Rajendra gave blow with Ballam and others with lathis on the legs of Chhuttan. When Khushi Ram (PW.6) and Phool Singh (PW.7) made attempt to save Chhuttan, Rajendra gave blow with Ballam on the back of Khushi Ram and Sampat and Ashok gave blows with lathi and Pharsa on his legs and hand. Vijay and Om Prakash gave blows with lathis on the back of Phool Singh. Chhuttan died at the spot and his dead body was taken to his house by the complainant party. On the basis of said information a case under Sections 147, 148, 149, 302, 323 and 447 IPC was lodged and investigation commenced. The investigation was kept pending against accused Manohari and Vijay and the charge sheet was filed against other accused. In due course the case came for trial before the learned Special Judge cum Additional Sessions Judge Alwar. Charges under Sections 302, 148, 323, 324, 325, 326, 447 with alternate charge under Section 149 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In their explanation under Section 313 Cr.P.C. the accused claimed innocence. No witness in defence was however examined. On hearing final submissions, the learned trial Judge convicted and sentenced the appellants as indicated above.
3. Before proceeding further, we shall briefly refer to the post mortem report (Ex.P-14) and the evidence of Dr. Ananya Goswami (PW.10), the Medical Officer who performed autopsy on the dead body and noticed following ante mortem injuries:-
“1. Incised wound 6″ x 1” upto brain matter cutting through the skull bone.
Brain matter was extruding through the wound. Wound is extending from the left forehead to the top of skull in sagittal plate.
2. 3 lacerated wounds size 4cm x 4cm present on the autero medial aspect of the middle of right leg-fracture of both of the leg bones.
3. Lacerated wound size 4cm x 1cm below the knee on Tibia tubero-city bone deep present on the Rt. feet.
4. 2 Penetrating wound size 5cm x 2cm & 3 x 3cm present on the anterior aspect on the left leg in middle-fracture of both of the leg bones.
5. 2 bruise (a) measuring 9″ x 1″ oblique in direction present on the abdomen.
6. 11 measuring 9″ x 1″ oblique cross the I, present on the anterior abdomen wall.”
Dr. Ananya Goswami (PW. 10) opined that the cause of death was due to Head injuries laceration of brain and fracture of skull bone & leg bone & hammorhagic shock due to multiple injuries.
4. The prosecution case is primarily founded on the testimony of informant Munni Ram (PW.1), Shibbu (PW.2), Tola Ram (PW.3), Dharam Singh (PW.4), Khushi Ram (PW.6) and Phool Singh (PW.7). Then comes the evidence of Dr. Ananya Goswami (PW.10) who conducted post mortem on the dead body of the deceased. Ramesh Chand Sharma, ASI (PW. 16) arrested the accused and got recovered weapons at the instance of accused persons. Khushi Ram (PW.6) and Phool Singh are the injured eye witnesses and injury reports are Ex.P-8 and Ex.P-9, they sustained following injuries:-
Khushi Ram (Ex.P-8):-
1. Penetrating wound 5cm x 2cm with cavity deep left scapular region.
2. Abrasion 2cm x 1.5cm.
3. Abrasion 1cm x 0.5cm Thumb of left hand.
4. Bruise 3cm x 2cm Lumber region on just above sacrum.
5. Bruise 3cm x 2cm wrist joint of Rt. hand.
X-ray report (Ex.P-11) of Khushi Ram reads as under:-
There is fracture of neck of 4th & 5th rib D. Phool Singh (Ex.P- 9):-
1. Bruise 6crn x 1cm Rt. scapular region.
2. Tenderness 3cm x 2cm Lateral side of Thorax lower rib of Lt.side.
5. In order to establish possession of the deceased over the land in question, the prosecution placed on record Khasra Girdavri (Ex.P-22A) Map (Ex.P-23) and Jamabandi (Ex,P-24). The accused on the other hand submitted copies of decree dated June 30, 1980 in favour of appellant Buddhi (Ex.D-8), Application under Order 9 Rule 13 CPC(Ex.D-9). Application under Section 212 Rajasthan Tenancy Act (Ex.D-10) and order dated August 18, 1994 maintaining status quo (Ex.D-11).
6. Learned counsel for the appellants canvassed that presence of alleged eye witnesses at the time of occurrence is doubtful on account of improvements, contradictions and omissions in their testimony. Statements of these witnesses are not corroborated by the medical evidence. Learned counsel further contended that in view of the statements of Ramesh Chand Patwari (PW.15) the complainant party was not in possession of disputed field. The defence exhibits were totally ignored and the right of appellants of right of private defence of their property was not properly considered. The provisions contained in Section 149 IPC are not attracted and impugned findings are patently illegal and erroneous. Reliance is placed on Vajrapu Sambayya Naidu and Ors. v. State of A.P. and Ors. (1), Horam and Ors. v. Rex (2), Hari Singh v. State of Rajasthan (3), Jai Dev and Hari Singh v. State of Punjab (4), Chand Singh and Ors. v. State (5), Dina Nath Balik Ram v. Emperor (6), Puttan alias Ellappan v. State of Tamil Nadu (7), Abdul Kadir and Ors. v. State of Assam (8), Mohd. Ramzani v. State of Delhi (9), Ghansham Dass v. State (Delhi Administration) (10), Munshi Ram and Ors. v. Delhi Administration (11), Vidhya Singh v. State of Madhya Pradesh (12), State of Haryana v. Sher Singh and Ors. (13), Puran Singh and Ors. v. State of Punjab (14), Subramani and Ors. v. State of Tamil Nadu (15), Learned Public Prosecutor on the other hand supported the impugned finding and urged that testimony of injured eye witnesses was rightly believed and right of private defence did not accrue to the appellants.
7. We have pondered over the submissions.
8. It is well settled that the right of private defence is a right of defence, not of retribution, it is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. Where the accused persons have the right of private defence of property they are justified in defending the same against any aggressive acts of the prosecution party-men, of course so long they defend the same by acting within the limits prescribed under the law.
9. Bearing in mind these principles we proceed to look at the factual scenario emerged in the instant case, which is summarised as under:-
(i) As per the FIR while complainant party was ploughing the field the seven appellants including Sampat, Manohari and Vijay came to the field in a tractor armed with Pharsas, Ballam and Lathis. Appellant Dinesh was driving the tractor.
(ii) Chhuttan was hit by the tractor and his legs were crushed.
(iii) Buddhi exhorted to kill Chhuttan and inflicted blow with Pharsa on his head.
(iv) Rajendra gave blow with Ballam and others with lathis on the legs of Chhuttan.
(v) Rajendra gave blow with Ballam on the back of Khushi Ram (PW.6) whereas Sampat and Ashok gave blows with lathi and Pharsa on his legs and hand.
(vi) Vijay and Om Prakash gave blows with lathis on the back of Phool Singh (PW.7).
(vii) Chhuttan died at the spot and the dead body was removed from the field and taken to the residence. Chhuttan and other members of complainant party were unarmed and none of the accused sustained injuries.
(viii) Buddhi in his explanation stated that the complainant party forcibly want to grab half of the land of khasra No. 975.
(ix) Although Sampat, Manohari and Vijay were named in FIR, charge sheet was not filed against them.
(x) Chhuttan sustained one incised wound extending from the left forehead to the top of skull, three lacerated wounds on the right leg and fracture of both the leg bones, two penetrating wounds on the left leg and fracture of both the leg bones and cause of death was injuries to head and legs.
(xi) Deceased Chhuttan and accused were relatives and litigation in regard to agricultural land in question was pending in revenue court.
(xii) Khushi Ram (PW.6) received penetrating wound on left scapular region and there was fracture of neck of fourth and fifth rib.
(xiii) Phool Singh (PW.7) sustained bruise on right scapular region.
10. We have carefully scrutinised the testimony of Munni Ram, Shibhu (PW.2), Tola Ram (PW.3) and Dharam Singh (PW.4) as well as Khushi Ram (PW.6) and Phool Singh (PW.7) who sustained injuries in the course of the incident. Having viewed the testimony of these witnesses from broad angles and with cogent standards we find their version honest, true and consistent in so far it relates to the participation of appellants Buddhi, Rajendra and Dinesh is concerned. The discrepancies appear in the testimony of these witnesses do not shake the main version of the prosecution case. It is established beyond doubt from the ocular and medical evidence that Dinesh by driving tractor deliberately pushed Chhuttan down and caused injuries on his legs, Buddhi inflicted blow with Pharsa and caused incised wound over the skull and Rajendra inflicted blows with Ballam on the legs. Rajendra also caused penetrating wound and fracture on left scapular region of Khushi Ram (PW.7). Dinesh, Buddhi and Rajendra had shared common intention to kill Chhuttan and cause injuries on the person of Khushi Ram. Witnesses although made attempt to implicate Ashok Kumar, Brij Mohan, Bhag Chand and Om Prakash but that part of the evidence does not represent the true and correct state of affairs. The allegations levelled against them are vague. Phool Chand (PW.7) deposed that after Buddhi inflicted Pharsa blow on the head of Chhuttan, Bhag Chand gave another Pharsa blow on the head but this part of statement is untrue as according to post mortem report only one incised wound on the head of Chhuttan was found. The witnesses in their testimony implicated Sampat, Manohari and Vijay but no charge sheet was filed against them. Having undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence reference to broad and reasonable probabilities Of the case the possibility of over implication of Bhag Chand, Om Prakash, Ashok Kumar and Brij Mohan can not be ruled out.
11. It is trite that a plea of right of private defence cannot be based on surmises and speculation. Burden to prove the plea is on the accused and it stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. Defence must be reasonable and probable version satisfying the court that the harms caused by the accused was necessary for either warding off the attack or for forestalling any further reasonable apprehension from the attacker. The right of self-defence preserved by the law for an individual is very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right.
12. The Apex Court in Sekar v. State (16), propounded that in order to find whether right of private defence is available or not 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 facts to be considered. Whether in a particular set of circumstances a person acted in 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 form for determining such a question can be laid down. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. It cannot be stated as a universal rule whenever the injuries are on the body of accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilities the version of the right of private defence.
13. In the facts and circumstances of the instant case, we find that harm caused by the accused was not necessary for either warding off the attack or for forestalling any further reasonable apprehension from the attacker. The plea of self defence is not available to the accused. The reasons are as follows:
(i) Chhuttan, Phool Chand and Khushi Ram were unarmed while assault was made on them.
(ii) None of the accused sustained injuries.
(iii) Appellants Buddhi, Dinesh and Rajendra armed with lethal weapons, reached the place of occurrence together and challenged the deceased who was asserting his right over the piece of land. Their Lordships of the Supreme Court in Harjit Singh v. State of Punjab (17), in a similar situation held that right of private defence was not available to the accused.
(iv) Appellants Buddhi Lal, Dinesh and Rajendra failed to probablise from the record that Chhuttan was a trespasser. Even a trespasser can not be dispossessed by force. The Apex Court in Munshi Ram v. Delhi Administration (supra), indicated that if the trespasser is in settled possession of the land, he is entitled to defend his possession even against the rightful owner.
14. Ratio indicated in the case law cited by learned counsel for the appellants
is not applicable to the facts of the instant case. It is also not possible to accept the
alternative plea of appellants that the alleged acts attributed to them would not amount
to murder but only culpable homicide punishable under Section 304 IPC. In order to
sustain that plea, there should have been evidence to show that the appellants had
exceeded their right of private defence. If only the offence comes within Exception 2
to Section 300 IPC, the gravity of the offence would be reduced and the acts committed
by the assailants would come within the purview of culpable homicide not amounting
to murder.
15. In the ultimate analysis, we find that the prosecution has failed to establish beyond reasonable doubt the charges under Sections 302/149, 148, 447, 323/149, 324/149 and 323/149 IPC against the appellants Ashok Kumar, Brij Mohan, Bhag Chand and Om Prakash and they are entitled to benefit of doubt.
16. For the reasons aforementioned we dispose of the appeal in the following terms:-
(i) Appeal of appellants Ashok Kumar, Brij Mohan, Bhag Chand and Om Prakash is allowed and they stand acquitted of all the charges. They are on bail, they need not surrender and their bail bonds stand cancelled.
(ii) Conviction and sentence of appellants Buddhi Lal, Dinesh and Rajendra under Sections 302/149, 148, 447, 325/149, 324/149 and 323/149 IPC are set aside. Instead we convict appellants Buddhi Lal, Dinesh and Rajendra under Sections 302/34, 325/34 and 324/34 IPC and sentence them as under:-
Under Section 302/34 IPC Each to suffer Imprisonment for life
and fine of Rs. 1000/- in default to
further suffer six months rigorous
imprisonment.
Under Section 325/34 IPC Each to suffer five years
rigorous Imprisonment
and fine of Rs. 500A in default to
further suffer three months
rigorous imprisonment.
Under Section 324/34 IPC Each to suffer two years
rigorous Imprisonment.
The sentences shall run concurrently.
(iii) The appellants Dinesh and Rajendra are on bail. They shall be taken into custody forthwith and their bail bonds stand cancelled.
(iv) The impugned judgment of learned trial judge stands modified as indicated above.