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S.B. Sinha & Dalveer Bhandari
Kashi Ram & Others - PETITIONER:
Versus
State of Rajasthan - RESPONDENT:
Appeal (crl.) 732 of 2002
Decided On : 28/01/2008
Code of Criminal Procedure, 1973 – Section 313 – Penal Code, 1860 – Sections 96 to 106, 302, 149, 148, 323 – Murder for Transfer of Possession of Property – Accused submitted an application before the Tehsildar, Taranagar and disclosed that he had bought the said land on the basis of agreement to sell from Smt. Chhoti Devi at a consideration of Rs.1200/- and he is in possession of the land and is cultivating the same. – It was alleged that the transfer in the name of Balu Singh had been wrongly recorded in the revenue records. – Tehsildar, after some enquiry cancelled the entry of transfer recorded in the name of Balu Singh. – Complainant party consisting of Amar Singh PW4, his father Balu Singh (since deceased), Bahadur Singh PW8, Nanuram Nai PW1 and Prithvi Singh PW17 went to cultivate Khasra No.512 situated in village Bhinan Tehsil, Taranagar District Churu. – At that time, the accused persons were not there but on learning about the presence of the complainant party in Khasra No. 512 around 12 noon on the same day, the accused party consisting of Nanuram accused-appellant along with the acquitted 6 persons came from the side of village, armed with gandasa, lathis and axes and attacked the members of the complainant party and caused serious injuries to Amar Singh PW4, Nanuram Nai PW1 and Balu Singh. Balu Singh succumbed to those injuries in the hospital on the same day at 6 p.m. – Held, Careful analysis of the right of private defence as codified in sections 96 to 106 IPC and the legal position as crystallized by a number of judgments leads to an irresistible conclusion that the findings of the Sessions Court as upheld by the High Court in the instant case regarding the appellants exceeding the right of private defence are wholly erroneous and untenable. – Right of private defence is purely preventive and not punitive. – This right is available only to ward off the danger of being attacked; the danger must be imminent and very real and it cannot be averted by a counter-attack. – Accused appellants did not have the right of private defence. – Therefore, they cannot legitimately claim any benefit by invoking the principle of right of private defence. – Acts of the accused appellants of proceeding to a definite destination with lethal weapons and thereafter causing serious injuries including fatal injuries on the unarmed members of the complainant party can never legitimately claim the benefit of the provisions of the right of private defence. – Since the accused appellants did not have the right of private defence, therefore, the findings of the courts below regarding their exceeding the right of private defence cannot be sustained and are accordingly set aside. – There is no appeal by the State against acquittal of the accused appellants under sections 302 IPC, therefore it is not necessary for us to deal with the aspect whether their acquittal under section 302 was justified or not. – Sessions Court convicted accused Kashiram under section 304 Part-II and the other appellants under section 304 Part-II read with section 149 IPC. – In the impugned judgment the High Court has upheld their conviction. – Appeal Dismissed
JUDGMENT:
Dalveer Bhandari, J.
1. This appeal is directed against the judgment dated 04.02.2002 in Criminal Appeal No.826 of 2001 passed by the High Court of judicature for Rajasthan at Jodhpur.
2. Brief facts, which are necessary to dispose of this appeal are recapitulated as under:-
The land measuring 21 bighas is located in village Bhinan, Tehsil Taranagar and the ownership of the same was recorded in the name of Smt. Chhoti Devi w/o Budh Singh Rajput and after her demise, the land was transferred in the name of Balu Singh.
3. The accused, Nanuram submitted an application before the Tehsildar, Taranagar and disclosed that he had bought the said land on the basis of agreement to sell from Smt. Chhoti Devi at a consideration of Rs.1200/- and he is in possession of the land and is cultivating the same. It was alleged that the transfer in the name of Balu Singh had been wrongly recorded in the revenue records. The Tehsildar, after some enquiry cancelled the entry of transfer recorded in the name of Balu Singh.
4. On 13th June, 1999 at about 10 a.m., the complainant party consisting of Amar Singh PW4, his father Balu Singh (since deceased), Bahadur Singh PW8, Nanuram Nai PW1 and Prithvi Singh PW17 went to cultivate Khasra No.512 situated in village Bhinan Tehsil, Taranagar District Churu. At that time, the accused persons were not there but on learning about the presence of the complainant party in Khasra No. 512 around 12 noon on the same day, the accused party consisting of Nanuram accused-appellant along with the acquitted 6 persons came from the side of village, armed with gandasa, lathis and axes and attacked the members of the complainant party and caused serious injuries to Amar Singh PW4, Nanuram Nai PW1 and Balu Singh. Balu Singh succumbed to those injuries in the hospital on the same day at 6 p.m.
5. Amar Singh PW4 lodged the first information report. The accused persons were apprehended and on their voluntary disclosure statements, lathis, gandasa and axes were recovered and after usual examination, they were charged under section 302 read with sections 149, 148 and 323 IPC. The accused-appellants in their statements under section 313 of the Code of Criminal Procedure denied all the incriminating evidence and pleaded that they were in possession of the agricultural land and the complainant party wanted to dispossess them forcibly. In the process of protecting the possession of their land, a scuffle between the parties took place. Amar Singh PW4 and Balu Singh from the side of the complainant party received injuries and Gopiram from the side of accused appellants also received injuries.
6. According to the members of the complainant party, they were totally unarmed at the time of the incident and the accused persons who were armed with lathis, gandasa and axes had inflicted serious injuries on them. The injuries on the person of Balu Singh were medically examined. The doctor found the following external injuries:
(1) lacerated wound 6 cm x 1 cm x bone deep on vertex of skull,
(2) lacerated wound 5 cm x bone deep in the right frontal prominence region, (3) lacerated wound 3 cm x 1 cm x bone deep on occipital region of head and (4) four abrasions on right middle leg, left knee and posterior region of left leg.
All the aforesaid injuries were found to have been caused with blunt weapon and x-ray was advised in respect of three lacerated wounds.
7. On the post-mortem of Balu Singh s body, it was revealed that apart from abrasions, three lacerated wounds, haematoma was present and the fracture of bone was detected. The brain was squeezed. In the opinion of doctor, cause of death of Balu Singh was shock due to aforesaid three lacerated injuries on his person.
8. On the head of Amar
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