JUDGMENT
Shiv Kumar Sharma, J.
1. Ram Ratan (deceased) was the husband of Dropadi Bai (P.W. 8). As per the prosecution story Tara Chand and his two sons viz. Mohan Lal and Kalyan (appellants herein) committed murder of Ram Ratan and inflicted injuries on the person of Dropadi Bai but according to defence version Dropadi Bai had illicit relations with Chhitar Lal (P.W. 7) and while they were making love, Ram Ratan suddenly appeared and gave blows with Ballam (spear) to Dropadi Bai. Chhitar Lal then inflicted injuries on the person of Ram Ratan and killed him. Sincere appellants had seen the incident they were implicated falsely and put to triahbefore learned Additional Sessions Judge (Fast Track) No. 2 Baran Head Quarter Chhabra, who vide judgment dated November 20, 2003, convicted and sentenced them as under:
Under Section 302/34 IPC:
Each to undergo imprisonment for life and fine of Rs. 1000/- in default to further suffer two months simple imprisonment.
Under Section 323/34 IPC:
Each to undergo one year rigorous imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment.
Under Section 324/34 IPC:
Each to undergo three years rigorous imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment.
The substantive sentences were ordered to run concurrently.
2. On September 25, 2001 informant Dropadi Bai (P.W. 8) submitted a written report (Ex. P-14) at Police Station Chhipa Barod to the effect that their field situated on the path way of Bawri of Bammori Ghata near the field of Tara Chand, who used to quarrel with them for the use of pathway. On the said day around 7 PM while the informant and her husband Ram Ratan were on their field and digging peanuts and Chhitar Lal was grazing goats nearby. Tara Chand, Kalyan and Mohan came over there. Tara Chand had axe, Kalyan had Khalla (lakri) and Mohan had Khuntia. They made assault on Ram Ratan. Kalyan inflicted blow with Khalla on his head as result of which he fell down, thereafter all started inflicting blows on his person. When she tried to save him Kalyan gave khalla-blow on her left hand, Mohan gave blow on her left shoulder. Blows were given by the assailants on her legs and back. Ratan was removed to hospital, where he was declared dead. On that report case under Sections 302 and 323/34 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Cr.P.C. were recorded accused were arrested necessary memos were drawn 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 Baran Head Quarter Chhabra. Charges under Sections 302, 323 and 324/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Section 313 Cr.P.C, the accused claimed innocence. One witnesses in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard learned Counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record.
4. As per Post Mortem Report (Ex. P-15) following ante mortem injuries were found on the dead body:
1. Incised wound 21/2″ x 1/2″ x 2″ upto brain matters margins clean cut well defined Rt. parietal region 2″ after Rt. ear
2. Incised wound 11/2″ x 1/2 x bony deep on Rt. parietal region just 1/2″ medial to injury No. 1.
3. Lacerated wound 21/2″ x 1/2″ x bony deep forehead frontal region is on Rt. side 1cm medial to injury No. 2.
4. Incised wound 11/2″ x 1/4″ x 1/4″ on Rt. eyebrow on forehead red margins clean cut well defined. Line of Rt. eye brow.
5. Incised wound Red 11/2″ x 1/4″ x 1/4″ – x 1/2″ Rt. eye brow.
6. Abrasion Rt. side lower 1/3rd 3″ lateral to M/L
7. Bones and joint depression of Rt. frontal Rt. parietal bone.& Rt. temporal region of frontal & parietal bone.
In the opinion of Dr. Ramesh Chand Meena (P. W. 16) the cause of death was coma due to head injury.
5. Dropadi Bai (P.W. 8) vide injury report (Ex. P-16) received following injuries:
1. Incised wound 1″ x 1/4″ x 1/4″ Rt. shoulder joint scapulla post.
2. Extensive swelling oval Left forearm after left wrist joint.
3. Swelling with tenderness oval Rt. thigh.
4. Swelling with tenderness oval left thigh.
6. Coming to the prosecution evidence we notice that Dropadi Bai (P.W. 8) in her deposition stated that on the day of incident around around 10 AM she had gone to the well at Bambori Ghata, taking food for her husband Ramratan, who was digging peanuts. She and Ram Ratan workd in the field. At about 6 PM Ram Ratan told her to proceed to the house. When they started for their house, they found Kalyan, Mohan and Tarachand hiding in the maiz field of Kalu Lal. All the three armed with axe, Kuntia and Khalla belaboured Ram Ratan and inflicted injuries on the forehead, head and back of Ram Ratan. When she intervened Tara Chand gave axe blow on her back and Kalyan inflicted blow with Khalla on her hand. Chhitar Lal also arrived there, who raised alarm and the assailants fled away. Meanwhile Radhey shyam reached there with whose help she removed her husband to hospital where he was declared dead. In her cross examination she denied to have illicit relations with Chhitar Lal. Despite lengthy cross examination her testimony could not be shattered.
7. Chhitar Lal (P.W. 7) deposed that around 7 PM while he left the field for the home he saw Tara Chand, Kalyan, Mohan and Ram Ratan quarreling. Tara Chand gave axe blow on the head of Ram Ratan, Mohan inflicted blow with Khalla whereas Kalyan caused injuries with Kuntia on the person of Ram Ratan. Dropadi Bai wife of Ram Ratan was also given beating by the assailants. He (Chhitar Lal) put bandage with Safi on the head of Ram Ratan. He then called Radhey Shyam and Ram Ratan was removed to the Hospital in the Tractor of Ram Narain Mali. Where Ram Ratan was declared dead. In the cross examination suggestion was given to Chhitar Lal that on the date of incident Ram Ratan had seen Dropadi and Chhitar Lal in the illicit state therefore Chhitar Lal inflicted injuries with Ballam (spear) on the person of Ram Ratan. Chhitar Lal denied this suggestion.
8. Ganga Bai (Dw. 1) was examined by the appellants in support of their defence. She onlvWposed that she had seen Ram Ratan, Dropadi and Chhitar Lal quarreling. Mr. Biri Singh, learned Counsel for the appellants instead of toeing the line of defence raised on behalf of the appellants at the trial, made altogether new submission. According to learned Counsel at the time of incident Ram Ratan had Ballam and his conduct was sufficient to give rise to a reasonable apprehension in the mind of the appellants that Ram Ratan would kill them had they not exercised the right of private defence. The use of axe, kuntia and khalla by the appellants was justified. In a situation like this it was not possible for an average person whose mental excitement could be better imagined and described, to weigh the position in golden scales. According to learned Counsel, since the appellants had exceed the right of private defence, they could not be held guilty under Section 302/34 IPC
9. The essential basic character of right of private defence is preventive and noiretributive. The fact that the plea of self defence was not raised by the accused at the trial and that he had on the contrary raised another defence theory, do not preclude this Court to give the accused the benefit of right of private defence, if on proper appraisal of the evidence and other relevant material on record the conclusion is that the circumstances in which accused found himself at the relevant time gave him the right to use the weapon in exercise of this right. The analogy of estoppal oi other technical rules, in such a case are inappropriate and the Court should administer the law of private defence in a practical way with reasonable liberality. (Vide Gottipulla Venkata v. The State of A.P. )
10. Now, the facts in the back ground of which the question of right of private defence is to be considered are that Ballam (spear) which was found lying in the field, even according to appellant, belonged to Chhitar Lal (P.W. 7). This is evident from the cross examination of Chhitar Lal. The relevant questions that were asked by the appellants in the cross examination read as under:
;g dguk xyr gS fd esjs ikl cYyHk gks A ;g dguk xyr gS fd eSus jkejru dks cYye ls pksVsa igqapkbZ gks vkSj jkejru dks ogh ekj fn;k gks A ;g dguk xyr gS fd blds ckn jkejru dks eSus vkSj nzksinh us jkeLo:i ds [ksr es tkdj Mkyk gks A ;g dguk xyr gS fd ftl cYyHk ls eSaus jkejru dks ekjk gks] ;g cYye jkejru dks Mkyk ogh ij Mky fn;k gksA
From the evidence of Dropadi Bai and Chhitar Lal it is established that deceased was unarmed at the time of incident and the dispute in regard to pathway existed between the deceased and the appellants. It is also borne out from record that none of the appellants had received injuries during the incident and on the basis of disclosure statements of the appellants the weapons used in commission of offence got recovered. There is nothing on record to show that the appellants inflicted injuries on the person of deceased in exercise of right of private defence. The deceased was empty handed and appellants had no apprehension from him. On proper appraisal of the evidence we could not arrive at the conclusion that the circumstances in which appellants found themselves at the relevant time gave them the right to use axe, kuntia an khalla in exercise of their right of self defence.
11. That takes us to the defence plea of the appellants raised at the trial. Despite searching cross examination the testimony of Dropadi Bai and Chhitar Lal could not be shattered. It could not be probabilised that Chhitar Lal and Dropadi Bai had illicit relationship. Dropaid Bai sustained injuries during the incident. It is difficult to believe that Chhitar Lal killed Ram Ratan as he had seen his wife Dropadi in the compromising state with Chhitar Lal. Chhitar Lal’s clothes did not have even a small stain of blood, on the contrary, took the deceased to the hospital and no injury caused by spear was found on the dead body of Ram Ratan. On examining the testimony of Dropadi Bai and Chhitar Lal from the point of view of trustworthiness we find them highly reliable witnesses. For these reasons, we find no merit in the appeal and it accordingly stands dismissed. Conviction and sentence awarded by the learned trial Court are maintained.