JUDGMENT
Shiv Kumar Sharma, J.
1. Since these two matters relate to the incident occurred on October 31, 1990, we propose to decide them by a common judgment.
APPEAL NO. 527/2000:
2. The appellants eight in number were the accused on the file of learned Special Judge (Dacoity Affected Area) and Additional Sessions Judge, Dholpur in Sessions Case No. 18/1991. Learned Judge vide judgment dated September 6, 2000 convicted and sentenced the appellants as under :-
Jandel Singh:
Under Section 148 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month.
Under Section 302 IPC:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 324/149 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 323/149 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Soren:
Under Section 148 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month.
Under Section 302/149 IPC:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 324 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 323/149 IPC:
To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Roopa @ Roop Singh, Veeri Singh, Bhajna, Shiv Ram, Vijay Pal and Ram Phool:
Under Section 148 IPC:
Each to suffer rigorous imprisonment for one year and fine of Rs. 110/-, in default to further suffer rigorous imprisonment for one month.
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 324/149 IPC:
Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 323 IPC:
Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
All the substantive sentences were directed to run concurrently.
3. The prosecution case as unfolded during trial is that the informant Khoobi submitted a written report at Police Station Sadar Dholpur on October 31, 1990 with the averments that around 7.00 am on the said day when the informant along with his father and mother were proceeding towards their field they were surrounded by the accused Ram Prasad (now dead), Veeri, Dhanna, Shiv Ram. Jandel, Soren, Vijay Pal and Ram Phool. Jandel and Soren were having guns, whereas others were having lathis. Jandel opened fire at Gokuli (the mother of informant) who died as a result of gunshot injuries. Soren opened fire that hit on the neck of the informant. Roopa and Ram Prasad inflicted lathi blows on the head of informant. Police Station Sadar Dholpur registered a case under Sections 147, 148, 302 IPC and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Dacoity Affected Area) and Additional Sessions Judge Dholpur. Charges under Sections 148, 302/149, 307/149, 323, 323/149 IPC and Sections 5/27 and 3/25 Arms Act were framed against the accused, who denied the charge and claimed trial. Accused Ram Prasad died during trial and proceeding against him stood drop. 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. Two witnesses were examined in defence. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above.
4. It is contended by learned counsel for the appellants that cross case arising out of the same incident was registered vide FIR No. 172/90 against the complainant party. It is next contended that the prosecution has not explained the injury sustained by the appellants which throw substantial doubt on the prosecution story. It is further contended that the independent witnesses Pw.2, Pw.3 and Pw.7 did not support the prosecution story and they were declared hostile. Sum and substance of the submissions of learned counsel for the appellants is that the complainant party forcibly stopped the tractor of Ram Prasad and owing to this reason the alleged incident occurred and even if any injuries were caused by the appellant they were caused in the exercise of right of private defence.
5. Per contra, learned Public Prosecutor supported the impugned judgment and contended that the appellants were rightly convicted and sentenced.
6. We have pondered over the rival submissions and scanned the material on record.
7. At the outset it will be appropriate to refer to the injuries sustained by the deceased. As per post mortem report (Ex.P-12) deceased Gokuli sustained following ante mortem injuries:-
Stint R.H + Ext. injury punctured wound 4 in number 0.1cm x 0.1cm over manubrium sternil in an area of 1″ in diameter.
2) Punctured wound 0.1cm x 0.1cm oralin upper part (R) chest in 2nd Intercostal space part below in latendeul 7th (R) clevicle.
3) Punctured wound 0.1cm x 0.1cm over (L) shoulder.
The cause of death was haemorrhage and shock due to gunshot injury to the vital organs.
8. It also appears that prosecution witnesses Khubi Ram (Pw. 1), Pattha (Pw.4), Pappu (Pw.5), Maharaj Singh (Pw.2) and Kishan Singh (Pw.3) also received injuries during the incident.
Khubi Ram vide injury report (Ex.P-13) sustained following injuries:-
(1) Lacerated wound 1/2 x 1/4 x bone deep outer middle of the occipital part of skull.
(2) Cuting 1/2 x 1/2 internal 1/3 front spade (R) for arm.
(3) Cuting 1 x 1/2 outer (R) shoulder.
(4) Cutting with swelling 1 x 1/2 inter middle and from space (L) Fore arm.
Pattha vide injury report ,(Ex.P-14) sustained following injuries:-
(1) Cuting 1/2 x 1/2 outer middle lateral spade (L) fore arm
(2) Swelling 1/2 x 1/2 outer knuckle of 2nd mid finger.
(3) Lacerated wound 1/2 x 1/4 x muscle deep outer injury web
(R) Index middle finger.
(4) Cuting 2 x 1/2 middle upper 1/3 (R) back.
(5) Cutting 1 1/2 x 1/2 intra middle outer space (L) thigh.
Pappu vide injury report (Ex.P-15) sustained contusion with swelling 1 x 1/2 outer (L) knee.
Maharaj Singh vide injury report (Ex.P-16) sustained following injuries:-
(1) Lacerated wound 1/2 x 1/4 x muscle deep part behind (L) ear.
(2) Abrasion 1/4 x 1/4 outer upper part of (R) ear.
(3) Swelling 1/2 x 1/2 outer dorsal (L) hand.
(4) Abrasion 1/4 x 1/4 outer middle of (L) back.
Kishan Singh vide injury report (Ex.P-17) sustained following injuries:-
(1) Lacerated Wound 1/2 x 1/4 x muscle deep intriddle of the skull
(2) Cuting 1 x 1/2 outer upper 1/3 (R) back
(3) Swelling 1/2 x 1/2 under (L) knee.
9. At this juncture the injuries received by the accused may also be referred.
Accused Shiv Ram vide injury report (Ex.P-1) sustained following injuries:-
(1) Lacerated wound 3″ x 1/2″ x bone deep granible lession outer middle of the fore head.
(2) Swelling 1/2 x 1/2 outer (L) head.
(3) Contusion 1 1/2 x 1/2 outer middle of the (R) thigh anteriorly (green in colour)
(4) Contusion 4 x 1/2 outer middle of the (R) back.
(5) Swelling 1/2 x 1/2 outer back of the (R) thumb.
(6) Contusion 1 x 1/2 outer (L) scapular region of back.
Accused Ram Prasad vide injury report (Ex.P-5) sustained following injuries:-
(1) Lacerated wound 4″ x 1/2 x bone deep outer (L) fore head
(2) Contusion 1/2 x 1/2 outer (L) shoulder.
During the pendency of trial Rain Prasad died on January 21, 1991 and vide post mortem report (Ex.P-4) following ante mortem injuries were found on the dead body:-
Stint-R.H. + External injury septic wound 2 1/2 x 1/2 over (L) fore head with pus discharge injury of the wound.
The cause of death was septicemia caused by brain abresis.
Accused Bhajan Singh vide injury report (Ex.P-6) sustained following injuries:-
(1) Lacerated wound 1/2 x 1/4 x muscle deep outer interphalyned part of the (2) mid finger.
(2) Contusion 1 x 1/2 outer (R) scapular region back.
(3) Abrasion 2 1/2 x 1/4 outer upper 1/3 at space (L) thigh.
10. Super structure of the prosecution case is founded on the testimony of injured eye witnesses namely Khubi Ram (Pw.1). Maharaj Singh (Pw.2), Kishan Singh (Pw.3), Pattha (Pw.4) and Pappu (Pw.5). Supporting the prosecution case all these witnesses deposed that while informant Khubi, his mother Gokuli and his father proceeded towards their field the accused-appellants Ram Prasad. Veeri, Dhanna, Shiv Ram, Jandel, Soren, Vijay Pal and Ram Phool surrounded them. Jandel and Soren were armed with guns whereas others had lathis. Jandel opened fire at Gokuli which hit on the person of Gokuli as a result of which Gokuli died. Soren opened fire at Khubi that hit on the neck of Khubi. Roopa Ram and Ram Prasad inflicted lathi blows on the head of Khubi whereas others gave beating to the father of the informant. A close look at the cross examination of these witnesses demonstrates that they did not explain the injuries sustained by accused-appellants Shiv Ram, Ram Prasad and Bhajan Singh. It also appears that cross case under Sections 147, 148 and 307 IPC was registered against the complainant party and the witnesses Khubi Ram. Maharaj Singh, Kishan Singh, Pattha and Pappu were charge sheeted. On the death of accused Shiv Ram during trial they were charged under Sections 148, 323 and 302 read with 149 IPC.
11. In the light of factual situation of the case it would be worth while to consider the principles governing exercise of right of private defence.
12. It is well settled that where the charge against the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises.
13. In Mohd. Ramzani v. State of Delhi , the Hon’ble Supreme Court indicated that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence 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. 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 repeal the danger. Even if he at the heat of the movement carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.
14. In Mohinder Pal Jolly v. State of Punjab , the Hon’ble Supreme Court indicated as under:-
“The onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in Section 99 of the Penal Code.”
15. In Chuhar Singh v. State of Punjab , where in the quarrel was between the accused and deceased the accused received injuries during the course of occurrence causing death of deceased by gun shot, the accused could be said to have exceeded his right of private defence and convicted under Section 304 Part I IPC. Their Lordships of Supreme Court observed as under:- (Para 6)
“Now the question that arises for our consideration is whether the appellant would be entitled for a complete acquittal on the plea of right of private defence of his person. We have no hesitation in coming to the conclusion that the appellant had exceeded his right of private defence of his body when causing the death of the deceased by using the dangerous weapon, namely the gun and hence he is not entitled for complete acquittal but would be liable to be convicted under Section 304 Part-I IPC.”
16. In Devraj and Anr. v. State of H.P. 1994 Supp. (2) SCC 552, their Lordships of Supreme Court observed in para 9 as under:-
“As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence and 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. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible, the accused should be given the benefit of doubt. Having regard to the nature of the injuries on the two accused persons, we find it difficult to hold that their pleas altogether are unfounded. Then the next question would be whether they had exceeded the right of self-defence. Admittedly, the occurrence is said to have taken place in a sudden manner. Even, according to the prosecution, they did not come there armed. A quarrel ensued there and they picked up iron pipes and wooden phattis that were lying there and a clash took place. In such a situation, their plea of right of private defence has to be accepted, but having regard to the injuries inflicted by them on the two deceased persons as well as on PW.23, they have definitely exceeded the right of private defence and the accused are entitled to the benefit of Exception 2 of Section 300 and the offence punishable is one under Section 304 Part II IPC.”
17. Division Bench of this Court in Veera v. State of Rajasthan 1981 (5) RCC 169 indicated that injuries on the person of the accused found immediately after the occurrence but not explained by the Prosecution, accused alleging that his gun went off during the attack by the deceased, plea of self defence proved by the accused and made out by evidence sufficient to acquit him.
18. Section 301 IPC embodies doctrine of transfer of malice or transmigration of motive. This doctrine makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended nor knew himself to be likely to kill. Lord Coleridge C.J. said:-
“It is common knowledge that a man who has an unlawful and malicious intent against another and in attempting to carry it out, injuries a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act” (17 Q.B.D. 389 at page 361)
19. In Kashi Ram v. State of M.P. Hon’ble Supreme Court indicated that in the case of accidental injury attracting applicability of “transferred malice” under Section 301 IPC and having held that the act of the accused was covered by Section 304 IPC, the court should lean in favour of convicting the accused under Part II of Section 304, if it is in doubt as to which one of the two parts of Section 304 IPC would be attracted.
20. The right of self defence is a very valuable right having a social purpose. It should not be construed narrowly. In view of this in assessing the value to be attached to the evidence, the court should rely more on human probabilities than on assertions of the witnesses (vide Vidhya Singh v. State of M.P., .
21. In the case on hand as already noticed accused-appellant Shiv Ram received injuries on his head, accused-appellant Ram Prasad received injuries on his head and shoulder and also died due to septicemia and accused-appellant Bhajan Singh received injuries on his person during the same incident and 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. Having regard to the nature of the injuries on the accused Shiv Ram, Ram Prasad and Bhajan Singh we find some merit in their plea. The next question that arises for our consideration is whether the accused would be entitled for a complete acquittal on the plea of right of private defence? As already noticed free fight took place between the complainant and accused parties as a result of which accused Shiv Ram, Ram Prasad and Bhajan Singh received serious injuries. Accused Jandel Singh in the course of free fight opened fire that hit Gokuli as a result of which she died. In these circumstances even if the right of private defence was available to accused Jandel Singh he had far exceeded it in dealing the fatal blow on the person of Gokuli. He must, therefore, be held guilty under second part of Section 304 IPC. So far as the allegations of other accused-appellants are concerned we are of the view that since mutual fight between the parties ensued there was no common object and the charge under Section 148 and 149 IPC are not established beyond reasonable doubt.
DB CRIMINAL REVISION PETITION NO. 612/2000:
22. On the basis of written report submitted by informant Bhajan Singh at Police station Sadar Dholpur the FIR (Ex.P-2) was registered on October 30, 1990 under Sections 147, 148 and 307 IPC. On conclusion of investigation the charge sheet was filed and the case came up for trial before the learned Special Judge (Dacoity Affected Area) and Additional Sessions Judge Dholpur. During pendency of trial the injured Ram Prasad died, owing to this Khubi was charged under Sections 148, 302 and 323 IPC and rest of the accused were charged under Sections 148, 323 and 302/149 IPC. The prosecution in support of its case examined 7 witnesses. In the explanation under Section 313 Cr.P.C. the accused respondents claimed innocence and stated that Jandel had fired on the mother of Khubi, as a result of which she died. Soren also fired on the head of Khubi and he received bullet injury on his skull. Ram Prasad and Rupa also beat Khubi and his father Pattha. The present FIR has been lodged only in order to escape from the liability of the cross case got registered by the accused respondent-Learned trial Judge vide judgment dated September 6, 2000 acquitted all the accused.
23. Having heard the submissions and scanning the material on record we find that accused respondents have rightly been given the benefit of doubt. Since it was a case of mutual fight the accused respondents could not have been convicted with the aid of Section 148 IPC. The Prosecution having failed to establish the charge beyond reasonable doubt, learned trial judge acquitted all the accused respondents. We do not find any illegality in the said judgment.
24. As a result of the above discussion we dispose of the instant appeal and revision in the following terms:-
DB CRIMINAL APPEAL NO. 527/2000:
(1) The appeal of the appellants Jandel Singh, Soren and Shiv Ram is partly allowed.
(i) Appellant Jandel Singh, instead of Section 302 IPC is convicted under Section 304 Part II IPC and sentenced to the period already undergone by him in confinement. He is acquitted of the charge under Sections 148, 324/149 and 323 IPC. Appellant Jandel Singh, who is in the custody shall be set at liberty forthwith, if no required to be detained in any other case.
(ii) Appellant Soren is convicted under Section 324 IPC and sentenced to suffer one year’s simple imprisonment. He is, however, acquitted of the charges under Sections 148, 302/149, 324/149 and 323/149 IPC. Appellant Soren has already suffered three year’s imprisonment and he is on bail. He, therefore, is not required to surrender and his bail bonds stand discharged.
(iii) Appellant Shiv Ram stands convicted under Section 323 IPC and sentenced to suffer six months imprisonment. He is, however, acquitted of the charges under Sections 148, 302/149 and 324/149 IPC. Since he has already suffered eight months imprisonment and is on bail, therefore, he need not surrender and his bail bonds stand discharged.
(2) Appeal of appellants Roopa @ Rup Singh, Veeri Singh, Bhajna, Vijay Pal and Ram Phool is allowed and they stand acquitted of the charges under Sections 148, 302,, 149, 324/149 and 323/149 IPC. All these appellants are on bail, they need not surrender and their bail bonds stands discharged.
The impugned judgment of the learned trial Judge is modified as indicated herein above.
DB Criminal Revision Petition No. 612/2000:
The Revision petition filed by the petitioner Bhajan @ Bhajna stands dismissed.