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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PANKAJ BHANDARI, ANIL KUMAR UPMAN, JJ.
State of Rajasthan through PP - Appellant
Versus
Shyoraj S/o Shri Kastura – Respondent
D.B. Criminal Appeal No. 366 of 1989, 13 of 1990, Criminal Appeal No. 170/2003
Decided on : 07-02-2023
Indian Penal Code,1860 - Sections 302, 302/149, 323, 325, 324, 447 - Criminal Procedure Code,1973 - Section 313 – Offence of Murder – Voluntarily causing hurt - Land dispute from last 15-20 years - Complainant-respondents and other persons armed with gandasis and lathis started beating accused and other persons who were harvesting crops - Police after registering case and after due investigation initially submitted charge-sheet against 20 persons - Trial Court framed charges - Accused were examined - In defence, one witness has been examined and seventeen documents were exhibited - Since persons in complainant party were armed with lathis and gandasis and were aggressors, every member of the accused party had an apprehension that death or grievous hurt would be consequence of such assault - Same would fall within ambit of Section 100 (clause firstly and secondly) of IPC. Para 16
Finding of Court :
Court are of the considered view that Section 149 of IPC is not attracted in present case as admittedly all accused persons were on their fields harvesting their crops and there was no meeting of minds to commit any offence prior to occurrence of this offence - Moreover, it is complainant side who tried to stop accused party from harvesting their crops and who initiated dispute - It is evident from perusal of postmortem reports of deceased in this case Ex.P-12, P-18, P19, P-16 and P-17 that all of them suffered injuries - Court are of considered view that accused-appellants were in their field harvesting their crops - They have an order of Board of Revenue in their favour and it was complainant party who barged into their land and started quarrel by causing injuries to accused side and in exercise of their right of private defence, they rightly exercised their right of private defence of body as enumerated under Section 100 IPC.
Result : Criminal Appeal No.13/1990 is hereby dismissed.
JUDGMENT :
Pankaj Bhandari, J
1. State has preferred Criminal Appeal No.13/1990 against the judgment dated 21.09.1989 passed by Sessions Judge, Bundi in Sessions Case No.67/1988, whereby accused-respondents have been acquitted from the offence under Sections 302, 302/149, 323, 325, 324, 447 IPC. Accused-respondents namely, Janshi, Kastura, Manthari, Parsi and Anokhbai have expired and the appeal filed by the State against them was abated vide order dated 04.01.2023.
2. Accused-Appellants-Gopi, Ramsagar, Rajaram, Radhey Shyam @ Radhya, Shyopal, Brijmohan, Jagdish, Morpal, Birbala and Banshi have preferred Criminal Appeal No.366/1989 against the judgment dated 21.09.1989 passed by Addl. Sessions Judge, Bundi in Sessions Case No.67/1988, whereby accused-appellants have been convicted for offence under Sections 304 Part-1 read with Section 149 IPC and they have been sentenced for ten years rigorous imprisonment and fine of Rs.500/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Appellant-Brij Mohan has expired and his appeal was abated vide order dated 04.01.2023.
3. Accused-Appellants-Mahaveer, Mohan, Prabhulal, Rekhraj and Gondari @ Samidaa have preferred Criminal Appeal No.170/2003 against the judgment dated 22.01.2003 passed by Addl. Sessions Judge No.1, Bundi in Sessions Case No.261/2001, whereby they have been convicted for offence under Sections 148, 304 Part-1 read with Section 149 and 323/149 of IPC. For offence under Section 148 IPC, they have been sentenced for one year rigorous imprisonment and fine of Rs.200/- and in default of nonpayment of fine, to further undergo 15 days simple imprisonment. For offence under Section 304 Part-1 read with Section 149 IPC, they have been sentenced for ten years rigorous imprisonment and fine of Rs.500/- and in default of non-payment of fine, to further undergo three months simple imprisonment. For offence under Section 323/149 IPC, they have been sentenced for six months simple imprisonment and fine of Rs.100 and in default of non-payment of fine, to further undergo 15 days simple imprisonment. Appellants-Mahaveer and Prabhulal have expired and their appeal was abated vide order dated 04.01.2023.
4. Succintly stated the facts of the case are that on 14.03.1986 at 12:00 noon, Kanhaiyalal lodged an oral report at Police Station Dei, District Bundi, wherein he has stated that there is a land dispute from last 15-20 years. Complainant-respondents and other persons armed with gandasis and lathis started beating the accused and other persons who were harvesting the crops. The police after registering the case and after due investigation initially submitted charge-sheet against 20 persons. Trial Court framed charges under Sections 148, 302/149, 325/149, 323/149 and 447 IPC. Accused denied the charges and sought trial. Prosecution examined as many as 25 witnesses and exhibited 39 documents. Accused were examined under Section 313 Cr.P.C. In defence, one witness has been examined and seventeen documents were exhibited. After framing the charges and after recording the statement of witnesses, Trial Court convicted 10 of the accused persons namely, Gopi, Ramsagar, Rajaram, Radhya, Shyopal, Brijmohan, Jagdish, Morpal, Banshi and Birbal and acquitted 10 persons namely, Janshi, Moolchand, Kastura, Shyoraj, Mathri, Parsi, Anokhi Bai, Nuwasi, Moolchand, Hiralal & Ramphool from all the charges. All the accused who were convicted have been convicted for offence under Sections 304 Part-1 read with Section 149 IPC and were sentenced to ten years rigorous imprisonment and fine of Rs.500/- and on non-payment of fine to further undergo, three months simple imprisonment. Aggrieved by the judgment and sentence dated 21.09.1989, State has preferred Criminal Appeal No.13/1990 against acquittal of ten accused. Out of which five accused namely, Janshi, Kastura, Manthari, Parsi and Anokhbai have expired and the appeal filed by the State against them was abated vide order dated
Point of Law : It is well established law that while exercising right of private defence, it is not required that defence be modulated step by step.
Once it is concluded that case is of free fight, concept of vicarious liability under Section 149, IPC cannot be applied to such a case.
Point of law: only permissible view would be to hold each accused responsible for his individual act. As the incident took place at the spur of moment after the violence acts committed by the members....
The main legal point established in the judgment is the application and limitation of the right of private defence, leading to the toning down of the charge and acquittal of the accused from certain ....
The absence of premeditated intent and evidence of rioting with deadly weapons negates the applicability of Sections 148 and 149, allowing modification of convictions under Section 323 IPC.
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