2005 Supreme(SC) 1529

2005(8) Supreme 205
Supreme Court of India
(From Rajasthan High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Jalaram —Appellant
versus
State of Rajasthan —Respondent
Criminal Appeal No. 773 of 2005
Decided on 24-11-2005
Counsel for the Parties :
For the Appellant : U.U. Lalit, Sr. Advocate, Ram Niwas, Nitin Sangra, Sarad Singhania and Ms. Prabitha Jain, Advocates.
For the Respondent : Kumar Kartikay Advocate for Aruneshwar Gupta, Advocate.

Headnote:Indian Penal Code, 1860—Section 302—Deceased with his brothers PW1, PW4 and PW5 were proceeding with cattle for grazing and were passing through field of acquitted accused, appellant and other acquitted accused assaulting them with lathies—Appellant was said to have given a lathi blow on head of deceased—Trial Court found appellant guilty u/s 147, 302 and 323/149 IPC and five other accused for offence u/s 147, 302/149 and 325/149 IPC—High Court acquitted other accused and convicted appellant u/s 302 IPC—Appeal—Right of way on agricultural land of acquitted accused was not established—If there had been apprehension in mind of accused that there was a threat of trespass on their land, they could exercise their right of private defence—Genesis of occurrence appeared not to have been disclosed by prosecution—Prosecution did not place any material to prove that appellant and other accused were aggressors—Non-explanation of injuries on person of accused, though simple in nature, gained significance—Appellant had raised plea of private defence and he appeared to have exceeded his right of private defence—Appellant was liable to be convicted u/s 304 Part I IPC and sentence of 10 years imprisonment awarded.

       Held : The short question, therefore, which arises for consideration is as to whether in the facts and circumstances of the case, the Appellant herein can be said to have committed an offence punishable under Section 302 IPC. Hanja (PW-1) had received four injuries and Informant Pratapa (PW-5) had received five simple injuries. It is also in dispute that the accused Sonaram and Kisana Ram had also received one injury each. The injuries found on the body of the deceased upon post-mortem are as under :

       “(i) Lacerated wound 7 cm x 3 cm x bone deep with fracture of bone on right side of parieto temporal region.

       (ii) Abrasion 4" x 4" on left thigh on anterior side.”

       It is not in dispute that the occurrence took place in the field of Sonaram who has been acquitted by the trial court. It is also not in dispute that Jalaram had agricultural land nearby. It is furthermore not in dispute that no right of way by way of path/passage between the lands appurtenant to Khasra nos. 865, 866 and 1006 and the boundaries of village Punasa was found to have been recorded in the records of rights. The defence had examined seven witnesses including DW-6 who was the Investigating Officer in the case. He stated that upon investigation carried out by him, he came to the opinion that no offence was made out against the accused Jalaram, Bhikharam and Poonmaram. DW-7 Udda Ram, who is an independent witness stated that there had been a free fight between ‘Bishnois’ and ‘Rebaris’ on the field of Sonaram Bishnoi. It has further not been disputed that the deceased and other on the date of the incident were proceeding with about 60 numbers of cattle for grazing to the field of Sonaram and Bhagirath. It also deserves to be noticed that the eye-witnesses Hanja (PW-1), Raimal (PW-4) and Pratapa (PW-5) although deposed that the accused persons gave indiscriminate beatings to the deceased but, the same has been, in view of the medical evidence, found to be not correct. The right of way on the agricultural land belonging to Sonaram has not been established. If there was no established right of way by way of easement or otherwise and if there had been an apprehension in the mind of the accused that there was a threat of trespass in their land, indisputably they could exercise their right of private defence. In any event, such an apprehension on the part of the Appellant and other accused persons cannot be ruled out. We have noticed hereinbefore, that the only one blow was hurled by the Appellant herein was on the forehead of the deceased. The genesis of the occurrence, appears also not to have been disclosed by the prosecution. It is not the case of the prosecution that the Appellant herein and other accused persons had been nurturning any grudge against the deceased or the informant from before or had any motive to commit the aforementioned offence. Any motive on the part of the Appellant and other accused persons for hiding themselves near the place of occurrence and committing the offence has not been established. It is, thus, difficult to accept that part of the prosecution case. Sonaram and Kisana Ram had also received one injury each. It is true, as has been held by the High Court, that the nature of injuries was simple one but it was, in the peculiar facts and circumstances of this case, obligatory on the part of the prosecution to prove as to how they received the same. It is also true that in all situations the injuries received by the accused persons need not be explained but a different situation may arise when a right of private defence is claimed. The prosecution has not placed any material before this Court to prove that it was the Appellant and other accused persons who were aggressors. If they were not the aggressors, the plea of right of private defence was available to them. Non-explanation of injuries on the person of Sonaram and Kisana Ram, thus, gains significance. Injuries on the persons of the accused persons having not been explained by the prosecution gives rise to the credibility to the defence put forth by the Appellant as regard exercise of his right of private defence. (Paras 10 to 16)

       The Appellant herein also has raised a plea of private defence. He, however, has not been able to show that the threat on the person of Sonaram and Kisana Ram was such or even threat of dispossession was such, he had to hit the deceased at such place and with such force that he would breathe his last on the spot itself. He, therefore, in our considered opinion, exceeded his right of private defence. We, therefore, are of the considered view that the Appellant is guilty of commission of an offence under Section 304, Part I of the Indian Penal Code and not under Section 302 thereof. Keeping in view of the facts and circumstances of this case, we are of the opinion that imposition of a sentence of 10 years Rigorous Imprisonment under the aforementioned provision shall meet the ends of justice. The Appellant shall also pay a fine of Rs. 500/- in default whereof he will undergo simple imprisonment of three months. (Paras 20 to 22)