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2020 Supreme(SC) 359
SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
State of Rajasthan – Appellant(s)
Versus
Mehram & Ors. – Respondent(s)
CRIMINAL APPEAL NO. 1894 of 2010
Decided On : 06-05-2020
For the Appellant(s) :Milind Kumar, Advocate
For the Respondent(s):H.D. Thanvi, PreetiThanvi, Sarad Kumar Singhania, Advocate
IMPORTANT POINTS
(1) Fact that some of accused had received grievous injuries, does not belie prosecution case that accused were aggressors.
(2) Two theories of being aggressors as opposed to exercise of right of private defence are antithesis to each other.
Headnote:
Indian Penal Code, 1860 – Section 326 – Grievous hurt – Conviction and sentence – There were tangible circumstances and evidence to indicate that accused party was aggressor, who was hiding in bushes and appeared only after complainant party arrived on spot – Accused party had assembled at spot with lethal weapon(s) and all accused were waiting for complainant party to arrive at the spot and started assaulting complainant party – Blows inflicted by concerned accused, in particular accused No. 5, were with an intention to kill deceased – High Court by its cryptic judgment, proceeded on erroneous assumption that accused party had been provoked due to unauthorised entry of complainant party on their fields and to defend their possession, they had to resort to right of private defence – Fallacy in reasoning of High Court is palpable from evidence of prosecution witnesses, which has been elaborately analysed and rightly accepted as truthful by trial Court, substantiating allegations against accused party of being aggressors – No defence evidence was produced to substantiate plea of exercise of private defence – Two theories (of being aggressors as opposed to exercise of right of private defence) are antithesis to each other – Nature of injuries caused to complainant party and to accused party are also indicative of fact that accused party was aggressor – Fact that death was caused by injury No. 1 alone, does not mean that it was not a case of homicidal death – Nor there can be presumption that there was no intention to cause death by inflicting such injury – Injuries are superficial and as rightly found by trial Court, will have no bearing on prosecution case, even if same remain unexplained – Fact that some of accused had received grievous injuries, does not belie prosecution case that accused were aggressors – There was no reason for accused to remain in hiding position equipped with lethal weapon(s), waiting for arrival of complainant party and on their arrival, to immediately commence attack and cause fatal injuries to complainant party – Such being factual matrix, it is unfathomable as to how plea of right of private defence could be invoked by accused – If such a plea is not available, question of answering plea in favour of accused that it was a case of excessive exercise of right of private defence does not arise at all – Basis of High Court judgment being flawed in this regard, conclusion recorded by it cannot stand test of judicial scrutiny – For same reason, question of converting offence under Section 302 to one under Section 326 cannot be countenanced, both on facts and in law – It is certainly not a case to simply proceed under Section 326 of IPC, as held by High Court – Accused No. 5 awarded sentence of ten (10) years of simple imprisonment and he must pay compensation to tune of Rs.50,000/- to next kin of deceased. (Paras 9, 10, 11, 12, 13, 14, 15 and 16)
Facts of the Case:
Present appeal takes exception to the judgment and order dated 5.11.2007 passed by the High Court of Judicature for Rajasthan at Jodhpur1 in D.B. Criminal Appeal No. 271/1982, whereby the conviction of the respondent No. 1/original accused No. 5 (Mehram S/o Mr. Chhagna Ram) under Section 302 of Indian Penal Code2 has been converted into one under Section 326, IPC and the substantive sentence awarded therefor is reduced only to the period already undergone (about five months) by the accused No. 5.
Findings of the Court:
Provocation was not invited by the accused party, but was obviously at the instance of the complainant party, who entered the fields unauthorizedly despite the objection taken by the complainant party in that regard on the same day earlier. However, as the death of Bhura Ram (deceased) was caused by the act of accused No. 5 giving one fatal blow on the head, which was with the intention of causing his death or causing such bodily injury as is likely to cause death, the case would be covered by Section 304 Part I, IPC.
Result : Appeal disposed of with observations.
JUDGMENT
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order dated 5.11.2007 passed by the High Court of Judicature for Rajasthan at Jodhpur [For short, “the High Court”] in D.B. Criminal Appeal No. 271/1982, whereby the conviction of the respondent No. 1/original accused No. 5 (Mehram S/o Mr. Chhagna Ram) under Section 302 of the Indian Penal Code [For short, “IPC”] has been converted into one under Section 326, IPC and the substantive sentence awarded therefor reduced only to the period already undergone (about five months) by the accused No. 5. At the outset, the learned counsel for the appellantState had made it amply clear that the State was pursuing this appeal only against the accused No. 5 (Mehram S/o Chhagna Ram) for restoration of his conviction under Section 302, IPC and to award him sentence of life imprisonment.
2. Briefly stated, five accused were named in the First Information Report (FIR) registered on 14.8.1981 at P.S. Nagaur in relation to an incident at village Gowa Khurd. The case set out in the stated FIR, as noted by the trial Court, reads thus:
“2. …
“On 14.08.1981 at 9:30 p.m. in the evening Complainant injured Mangilal, lodged an oral report with the Officer Incharge, Police Station Nagaur to the effect that he has four fields at Village Gowa Khurd, out of which one field is situated about a distance of one km. away from the village. Complainant has further stated that for going to that field they have to use an old way passing through the fields of Heera, Chhagna and Jeevan. However, this way is not recorded in Government record. In the report, Complainant has further stated that last year sons of accused Heera obstructed the sons of the complainant party from going to their field by that unrecorded way. But upon intervention of Anna Kaka, they were pacified. Thereafter, this year after rainy season, accused Heera and Chhagna closed that way. Therefore, they had to cultivate their field having gone through Basni. In the report, complainant has further stated that at about dusk when he along with his wife were going for removing the weeds to another fields and at that time his younger brother Ghewar and Sawanta were grazing goats at a distance. At that time quarrel was taken place between accused Ramnarayan and Ghewar on account of way and they went to village. At 5 o’ clock in the evening, his wife had also gone to village. Complainant has further stated that at the time of sunset while he alone was coming towards the village from the field. And when he reached the village near pond, then accused persons Mehram and Baksharam, having armed with ‘Kassies’ and accused persons Ramnarayan, Heeraram and Ramniwas, having lathies in their hands came out from the back of ‘Kai’ (bushes) and surrounded the Complainant. Accused Baksharam with the intention to kill struck ‘Kassi’ blow from the sharpen side on the head of Mangilal, but Mangilal managed to prevent it by lifting the hand, due to which Mangilal sustained injury over his palm. Accused Baksharam tried to inflict another ‘Kassi’ blow to Mangilal, whereupon Bhuraram caught hold the ‘Kassi’. And Mehram, Moti and Annaram arrived at the place of occurrence from their fields. Thereafter, accused Mehram S/o Chhagana struck a ‘Kassi’ blow from sharpen side on the head of Bhura from the backside, due to which Bhura fell down, accused Ramniwas inflicted a lathi blow over the head of Mehram S/o Annaram. Thereafter, all the accused persons gave beatings. Then Ratna, Moti and Annaram had intervened after reaching on the spot. Accused persons having assumed Bhura died ran away. Complainant has further stated that accused persons have given beatings with the intention of taking revenge on account of way dispute…”
On the basis of the above complaint, investigation was commenced for offences punishable under Sections 147, 148, 149, 323, 307 and 302, IPC. The case was committed to the Sessions Court by the Chief Judicial Magistrate in February,
