1987 Supreme(Raj) 178
Rajasthan High Court
S.S. Byas and N.C. Sharma, JJ.
Dharamveer - Appellant
Versus
State of Rajasthan (14) - Respondents
D.B. Criminal Appeal No. 187 of 1982
Decided On : April 30, 1987
Ganpatram and B.R.Arora, for Accused; Niyazzuddin Khan, Public Prosecutor; M.D. Purohit, for Complainant
Headnote:(a) Penal Code, Sec. 96 and 141—Complainant was the aggressor who first fired a shot—Assembly of five or more persons resisting an attack when there was an imminent danger to the life—It is not an unlawful assembly—The force used must be reasonable—If more harm is caused than necessary and exceeds the right of private defence, the individual is liable for it.(b) Penal Code, Sec. 302 and 100-Coroplainant killed M by shot of gun and attempted to reload it-M was close relative of the accused — In that moment of excitment and finding the grave, imminent and Impending danger-Right of private defence in such moment can not be weigh in golden scale-Conviction u/s 302 I.P.C, struck down. (para 33)(c) Penal Code, Sec. 304 part II-Use of axe by the accused with intent to inflict injury but without causing any particular injury on the head-With a knowledge that blow could lend on any vital part of the body which could likely to result in the death-Guilty u/s, 204 part 11 instead of sec. 302 IPC) (para 41) Appeal against acquittal dismissed. Appeal of accused partly allowed.
2. The incident is alleged to have taken place at about 11.00 or 11.30 a.m. on May 30, 1981 in village Chandgoti P.S. Hamirwas district Churu, in which two members of the complainant party, viz., Lalchand and his son Singh Ram, and one member of the accused party, viz., Mool Chand alias Moolaram, lost their lives.
3. Briefly recounted, the prosecution case is that at about 8.00 a.m. on May 30, 1981, Vimla the daughter of the deceased-victim Singhram and Guddi daughter of accused Badansingh (both the girls being 6/7 years in age), while playing in the street, picked-up quarrel. The mother of accused (appellant) Shubnran, who is also the grand- mother of Guddi, gave a beating to Vimla. Vimla went to her house and apprised her father Singhram of her being beaten by Shubhrams mother. Singhram went to the house of accused Shubhram, reprimanded his (Shubhrams) mother and came back to his house. At about 11.00 or 11.30 a.m., Lalchand (father of Singhram) was sitting in the Polli of his Bakhal (house). The other inmates of the family, viz , PW 1 Sajjana, PW 2 Smt. Krishna, PW 3 Mahendra, PW 4 Smt. Nimmo and Singhram were sitting in the Varandah of the house. All of a sudden, nine persons viz., Dharamveer, Ramsingh, Dayaram, Mangeram, Rooparam, Badansingh alias Badnaram, Sumersingh Shubhram and the deceased Moolchand alias Moolaram stormed into the Bakhal. Dharamveer had an axe, Moolaram had a jelly and the rest had lathis. They asked Lalchand to drive out Singhram as they wanted to kill him because he had abused their mother in the morning. Hearing the noise. Smt. Santosh, Smt. Krishna, Smt. Sajna, Smt. Nimmo and Singhram came out in the Bakhal. As soon as Singhram came out, nine miscreants made an assault on him and started administering blows to him with their weapons. Lalchand and other inmates tried to rescue Singhram. Accused Shubhram struck a blow of his lathi on the head of Lalchand. Accused Dharamveer struck a blow of his axe also on the head of Lalchand. Lalchand fell down with profuse bleeding from his wounds. Singhram went into the Varandah brought a gun and in order to save himself and other inmates of the family, fired a shot. The shot hit Moolchand alias Moolaram. Accused Shubhram struck a blow of his lathi on the gun of Singhram. The gun got broken. Thereafter Singhram was struck blows by the nine miscreants. The other inmates of the house also sustained injuries when they tried to intervene. The accused, while fleeing away , took away the broken gun with them. Lalchand did not survive and passed-away instantaneously. His son Harpath (PW 5), who had gone to Rajgarh, returned after some time. He found his father lying dead and his brother Singhram lying in a pool of blood with multiple injuries and in unconscious state. He further noticed Krishna, Nimmo, Sajna and Mahendra lying injured. Smt. Sajna (PW 1) narrated the inci