1988 Supreme(Raj) 481
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Farooq Hasan, J.
Mahendra Singh - Appellant
Versus
State of Raj. - Respondent
S.B. Cr. Appeal No. 199 of 1981.(Against the judgment dated 3.4.81 passed by A.S.J. No. 1 Bharatpur in Ss. Case No. 44 of 1980).
Decided On : 24-03-1988
The court held that a person has a right of private defense to protect himself and his property from imminent danger, and that this right extends to causing injury to an aggressor.
Headnote:
CRIMINAL APPEAL - DELAY IN LODGING FIR - EXPLANATION - RIGHT OF PRIVATE DEFENCE - INTERPRETATION OF EVIDENCE - SECTION 325, IPC.
Fact of the Case:
The appellant, Mahendra Singh, was convicted by the trial court for causing grievous hurt to Kesari Singh under Section 325 of the Indian Penal Code (IPC). The incident occurred during a dispute over drawing water from a well. The appellant claimed that he acted in self-defense and that the delay in lodging the FIR was due to the injured being hospitalized.
Finding of the Court:
The court found that the delay in lodging the FIR was not satisfactorily explained by the prosecution. It also found that the appellant had a right of private defense as he was entitled to draw water from the well at the time of the incident. The court further found that the prosecution evidence was inconsistent and unreliable.
Issues: 1. Whether the delay in lodging the FIR was satisfactorily explained by the prosecution? 2. Whether the appellant had a right of private defense? 3. Whether the prosecution evidence was consistent and reliable?
Ratio Decidendi: 1. The court held that the delay in lodging the FIR was not satisfactorily explained by the prosecution. It noted that the injured was admitted to the hospital on the day of the incident but the FIR was lodged five days later. The court also noted that the injured's relatives had informed the doctor about the incident but the doctor failed to inform the police. 2. The court held that the appellant had a right of private defense as he was entitled to draw water from the well at the time of the incident. The court noted that the appellant and his party had their turn in rotation to draw water from the well and that the complainant party insisted on drawing water continuously from the well. 3. The court held that the prosecution evidence was inconsistent and unreliable. It noted that the eye witnesses gave different versions of the incident and that the medical evidence contradicted the eye witness accounts.
Final Decision: The court allowed the appeal, set aside the conviction of the appellant, and acquitted him of the charges levelled against him.
JUDGMENT
1. - This criminal appeal springs from the judgment dated 3.4.1981 of the Addl. Sess. Judge No. 1, Bharatpur, whereby the appellant, Mahendra Singh has been held peccant for the offence under Section 325, IPC, and sentenced to undergo 2 years' R.I. with a fine of Rs. 2,000/-, in default, two months' R.I.
2. Nawal Singh (informant) lodged a report at police station Bhusawar on 1.12.1979 alleging therein that, both, the complainant and the accused parties, used to irrigate their agricultural land from a well family known as 'Golaka Kua' situated in village Salimpur Kalan of Bhusawar police station whereupon an electric connection was obtained by one, Ram Sahaya (PW 10), that, on 26th morning of November, 1979 at about 81/2 O'clock, when he (informant), his son - Keshari Singh & Yadunath Singh - were watering from the said well with the aid of electric motor, five named in the report then arrived at the well switched off the electric motor and started hurling abuses, to which Kesari Singh and Yadunath Singh objected and asked as to why they switched off the electric motor, and than Yadunath Singh want on to re-start the electric motor but some of the accused over-powered him. Thereafter, Kesari Singh intervened but, Mahendra Singh is alleged to have inflicted shovel blow on the head of Kesari Singh - shovel was lifted by the accused-appellant from the well; as a result of shovel blow, Kesari Singh fell down and became unconscious. Thereafter, Mohar Singh (accused) is said to have inflicted lathi blow on the right hand of Kesari Singh. On hearing hullabaloo, Ram Dayal and Yaduveer with other village people came to the scene of occurrence and however, the accused persons ran away. Thereupon Kesari Singh was taken to Salimpur dispensary where its Incharge directed the injured to be taken to Bharatpur where he was medically examined. After x-ray a fracture of left parietal bone on the person of Kesari Singh was found. Kesari Singh remained as Indoor patient in Bharatpur hospital from 26.11.79 upto 22.12.1979.
3. After usual investigation, a challan was filed against five persons including the appellant for the offences under sections 307, 323 and 147, IPC. The learned trial Court framed charges for the said offences against all the accused persons. In all ten prosecution witnesses were examined. The statement of the accused-appellant were also recorded under Section 313 Cr.P.C. wherein they denied prosecution allegation. After due trial and hearing the parties, the learned trial Court acquitted four of the accused persons but convicted the appellant only for the offence under section 325, IPC.
4. Shri N. L. Tibrewal, expertise in legal gimmicks by quibbling legalities, on behalf of the accused-appellant, firstly wrangled that the first information report in the instant case was lodged after five days of the incident - this inordinate delay which has much significance has not at all been explained by the prosecution and its non-explanation is fatal for the prosecution; secondly that the accused-appellant, himself, sustained injuries which have also not been explained by the prosecution - that by itself is sufficient to create doubt in the prosecution case; thirdly that the action of the accused-appellant if any proved to have been committed, was protected under his right of private defence of his person as well as property; fourthly that, the prosecution has not succeeded in proving the guilty against the accused-appellant beyond reasonable doubt because the prosecution case has poor corroboration apart from over implication muchless false implication which devalue their credibility; fifthly that a cross case was also there against the complainant party wherein it was proved that the complainant party was aggressor on the day of incident but the learned trial Court failed to consider the defence theory; and in totality, according to the learned counsel, these features referred to above cannot be eschewed as irrelevant for and th
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