REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 1156 OF 2007
Gopal & Anr. .... Appellant(s)
Versus
State of Rajasthan .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal is filed against the judgment and order dated 15.04.2006
passed by the High Court of Judicature for Rajasthan at Jaipur Bench in
D.B. Criminal Appeal No. 247 of 2001 whereby the High Court dismissed the
appeal in respect of the appellants herein and confirmed their conviction
and sentence awarded by the Court of Additional Sessions Judge, Shahpura,
District Jaipur, Rajasthan vide judgment dated 18.04.2001 in Session Case
No. 24 of 2000.
2) Brief facts:
(a) As per the prosecution case,
Rameshwar (since deceased) was the
guarantor for money settlement agreement between one Santosh and Jagdish,
residents of Tehsil Bishangarh, P.S. Manoharpur, Jaipur, Rajasthan.
When
Jagdish started demanding money from Santosh prior to the expiry of the
agreement, Rameshwar intervened between them.
Since then Jagdish started
keeping a grudge against him which is the root cause of the case in hand
and resulted into death of two persons in a fight between them.
(b) On 16.07.2000, at 07.30 a.m., when Bhagwan Sahai (PW-8), Bodu Ram (PW-
7) and Rameshwar (since deceased) were going towards the well of Padmawati
while crossing the field of one Prabhat (since deceased), at that time,
Gopal (A-1), Jagdish, Mahesh (A-3), Patasi, Teeja, Gokali and Sita
belaboured Rameshwar by inflicting lathi and axe blows.
Due to the attack,
Rameshwar died on the spot.
When Bhagwan Sahai and Bodu Ram tried to
intervene, they were also beaten by the accused party.
When Prabhat (since
deceased), who was working in his field along with his son-Badri Yadav
(PW-10), approached towards Rameshwar for help, he was also beaten to death
by the accused persons.
(c) On the very same day, at 09.45 a.m., Badri Yadav (PW-10) submitted a
written report at P.S. Manoharpur relating to the above-said incident.
On
the basis of the aforesaid report, a case under Sections 147, 148, 149, 302
and 323 of the Indian Penal Code, 1860 (in short ‘the IPC’) was registered
against the accused persons, viz., Gopal (A-1), Jagdish, Mahesh (A-3),
Teeja, Patasi and Gokali and the same was committed to the Court of
Additional Sessions Judge, Shahpura, District Jaipur, Rajasthan and
numbered as Sessions Case No. 24 of 2000.
(d) The Additional Sessions Judge, Shahpura after trial, by order dated
18.04.2001, convicted Teeja under Section 302 of IPC and Gopal, Jagdish and
Mahesh under Section 302 read with Section 34 of IPC and sentenced them to
suffer rigorous imprisonment (RI) for life alongwith a fine of Rs.1,000/-
each, in default, to further undergo simple imprisonment for 3 months.
Gokali and Patasi Devi were convicted under Section 323 of IPC and were
sentenced to the period already undergone by them in custody.
(e) Challenging the said order of conviction and sentence, the accused
persons filed appeal being D.B. Criminal Appeal No. 247 of 2001 before the
High Court. By impugned order dated 15.04.2006, the High Court while
modifying the order dated 18.04.2001 of the Additional Sessions Judge,
allowed the appeal in respect of Teeja, Jagdish, Gokali and Patasi and
dismissed the appeal in respect of Gopal (A-1) and Mahesh (A-3), the
appellants herein, and confirmed their conviction and sentence awarded to
them.
3) Heard Mr. Kanhaiya Priyadarshi, learned amicus curiae appearing for
the appellants and Mr. Ram Naresh Yadav, learned counsel appearing for the
respondent-State.
Contentions:
4) After taking us through the entire material relied on by the
prosecution and the defence, learned amicus curiae appearing for the
appellants submitted that it is evident from the site plan that the members
of the complainant’s party were the aggressors and they came to the field
of the accused persons and attacked them.
He also submitted that the
appellants also received injuries at the hands of the complainant’s party
and the prosecution had failed to explain the same.
Finally, he submitted
that since the members of the complainant’s party were the aggressors and
attacked on the accused persons causing injuries to Gopal (A-1) and Mahesh
(A-3) (the appellants herein), the accused had a right of private defence,
consequently, they are entitled for acquittal.
5) On the other hand, learned counsel for the respondent-State supported
the findings of the trial Court and the order of the High Court affirming
the conviction and sentence insofar as the appellants are concerned and,
consequently, prayed for dismissal of this appeal.
6) We have carefully considered the rival contentions and perused the
relevant materials.
Discussion :
7) It is a case of double murder. Admittedly, Rameshwar and Prabhat
were died in the incident in question. Though, initially, the prosecution
proceeded against 6 persons and the trial Court convicted and sentenced all
of them, in the appeal before the High Court, except the present appellants
(A-1 & A-3), others were acquitted.
8) In support of their claim, the prosecution heavily relied on the
evidence of Bodu Ram (PW-7) and Bhagwan Sahai (PW-8) – injured eye-
witnesses and Badri Yadav (PW-10) – son of Prabhat (since deceased).
Bodu
Ram (PW-7), in his evidence has stated that about 4 months back, at about
7.30 a.m., he along with his brother Bhagwan Sahai and uncle - Rameshwar
was going to work at the well.
When they reached near the field of Gopal (A-
1), they found that Gopal (A-1), Jagdish, Mahesh (A-3), Patasi, Teeja,
Gokuli were plucking round gourd (Tinda) from their field and on seeing
them, they attacked on them and, thereafter, they went to the police
station at 10 o’ clock.
9) Bhagwan Sahai (PW-8), in his evidence has stated that at 7.30 a.m.,
when he along with Rameshwar (since deceased) and Bodu Ram (PW-7) reached
near the field of Gopal (A-1), they noticed that the accused persons were
plucking round gourd (Tinda) and on seeing them, they started fighting with
them.
He further explained that Teeja had an axe and other accused persons
were having lathis. Rameshwar was beaten by Mahesh (A-3) with lathi and he
fell down. Teeja hit Rameshwar with an axe on his forehead and she also
gave a hit at his armpit and one at his back.
He further stated that he
was hit by Gopal (A-1), Patasi and Jagdish with lathis. Bodu Ram (PW-7)
was hit by Gokuli on his forehead and Jagdish and Mahesh (A-3) hit him at
his hand and armpit side respectively.
He further deposed when Prabhat,
who was working in the field alongwith his son Badri (PW-10), approached us
in order to help, at that time, Gopal (A-1), Mahesh (A-3) and Jagdish ran
after him and he (Prabhat) ran back towards Durga-ki-Dhani and all the
three accused after chasing him hit him with lathis. Banshi, Murli, Gopal
and mother and wife of Badri had also seen Prabhat (since deceased) being
beaten by them. Prabhat and Rameswhwar both died in the incident.
Like
Bodu Ram (PW-7), Bhagwan Sahai (PW-8) also sustained injuries and he
categorically stated that on seeing that Prabhat was running towards Durga-
Ki-Dhani, the present appellants and other accused persons chased him and
hit him with lathis due to which he died. His evidence corroborates with
the statement of Bodu Ram (PW-7) and proves the case of the prosecution.
10) Badri Yadav (PW-10), in his evidence has stated that about 4 months
back, at about 7 to 8 a.m., when he was working in his field behind his
house alongwith his father Prabhat (since deceased) who was sitting there,
at that time, he noticed Bodu Ram (PW-7), Bhagwan Sahai (PW-8) and
Rameshwar (since deceased) going towards the well.
He further deposed
that when they reached near the field of Gopal (A-1), who was plucking
vegetables in his field along with Mahesh (A-3), Jagdish, Gokali, Teeja and
Patasi, on seeing them coming, they attacked on the complainant’s party.
Teeja hit Rameshwar with an axe on his neck. When Bodu Ram (PW-7) and
Bhagwan Sahai (PW-8) tried to save him, Gokali and Mahesh (A-3) fought with
them and Bhagwan Sahai (PW-8) was beaten by Patasi, Gopal and Jagdish. He
further stated that he saw the incident from a distance of 20 steps. He
also stated that when his father – Prabhat (since deceased) ran towards
Durga-Ki-Dhani, Gopal (A-1), Jagdish and Mahesh (A-3) beat him with lathis.
He further explained that due to lathi blows, Rameshwar and Prabhat died.
From his evidence, it is seen that the incident occurred in the field of
Gopal (A-1) and after killing Rameshwar, the accused persons chased Prabhat
and inflicted lathi blows, due to which, he also died.
11) Dr. Shiv Kumar Tanwar, who did post mortem, was examined as PW-25.
He also explained that the death of Rameshwar and Prabhat was due to the
injuries inflicted with lathis.
12) The materials placed and relied on by the prosecution show that
Rameshwar (since deceased), Bodu Ram (PW-7) and Bhagwan Sahai (PW-8) had
gone to the field of the appellants and there was a fight between both the
groups.
It is also clear that the appellants fought to repel the attack
and in the course of incident, both sides sustained injuries, as a result
of which, Rameshwar died. In such circumstances, it would be possible for
this Court to accept the claim of the appellants that since they were
defending themselves, they had a right of private defence.
In fact, the
High Court has accepted the above stand.
13) Regarding the plea of private defence,
it is useful to refer a
decision of this Court in
V. Subramani & Anr. Vs. State of T.N. (2005) 10 SCC 358.
The following principles and conclusion are relevant:
“11. The only question which needs to be considered is the alleged
exercise of right of private defence.
Section 96 IPC provides that
nothing is an offence which is done in the exercise of the right of
private defence.
The section does not define the expression “right of
private defence”.
It merely indicates that nothing is an offence which
is done in the exercise of such right.
Whether in a particular set of
circumstances, a person legitimately acted in the exercise of the
right of private defence is a question of fact to be determined on the
facts and circumstances of each case.
No test in the abstract for
determining such a question can be laid down.
In determining this
question of fact, the court must consider all the surrounding
circumstances.
It is not necessary for the accused to plead in so many
words that he acted in self-defence.
If the circumstances show that
the right of private defence was legitimately exercised, it is open to
the court to consider such a plea.
In a given case the court can
consider it even if the accused has not taken it, if the same is
available to be considered from the material on record.
Under Section
105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”),
the burden of proof is on the accused, who sets up the plea of self-
defence, and, in the absence of proof, it is not possible for the
court to presume the truth of the plea of self-defence.
The court
shall presume the absence of such circumstances.
It is for the accused
to place necessary material on record either by himself adducing
positive evidence or by eliciting necessary facts from the witnesses
examined for the prosecution.
An accused taking the plea of the right
of private defence is not necessarily required to call evidence;
he
can establish his plea by reference to circumstances transpiring from
the prosecution evidence itself.
The question in such a case would be
a question of assessing the true effect of the prosecution evidence,
and not a question of the accused discharging any burden.
Where the
right of private defence is pleaded, the defence must be a reasonable
and probable version satisfying the court that the harm caused by the
accused was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from the side of the
accused.
The burden of establishing the plea of self-defence is on the
accused and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on
record.
(See Munshi Ram v. Delhi Admn. (1968) 2 SCR 455, State of
Gujarat v. Bai Fatima,(1975) 2 SCC 7, State of U.P. v. Mohd. Musheer
Khan, (1977) 3 SCC 562, and Mohinder Pal Jolly v. State of
Punjab,(1979) 3 SCC 30.)
Sections 100 to 101 define the extent of the
right of private defence of body.
If a person has a right of private
defence of body under Section 97, that right extends under Section 100
to causing death if there is reasonable apprehension that death or
grievous hurt would be the consequence of the assault.
The oft-quoted
observation of this Court in Salim Zia v. State of U.P.,(1979) 2 SCC
648 runs as follows: (SCC p. 654, para 9)
“It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the
prosecution and that while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the plea
to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea in
the cross-examination of prosecution witnesses or by adducing defence
evidence.”
The accused need not prove the existence of the right of private
defence beyond reasonable doubt.
It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”
Based on the above principles, in view of the discussion of the prosecution
witnesses, viz., PWs 7, 8 and 10 coupled with the fact that the incident
occurred in the field of the appellants, who also sustained injuries which
is evident from the evidence of the doctor, who examined the injuries of
Gopal (A-1) and Mahesh (A-3)-appellants herein, the stand of the
appellants, as rightly argued by learned amicus curiae, is to be accepted.
However, as per the prosecution story, not only Rameshwar but in the same
incident Prabhat also died due to lathi blows inflicted by the appellants
herein.
14) The only moot question for consideration is
whether the right of private defence is still available to the appellants when they chased Prabhat near Durga-ki-Dhani and inflicted lathi blows on him?
We have
already noted the evidence of PWs 7, 8 and 10 which clearly established
that
Prabhat (since deceased) was not present at the place where Rameshwar
was assaulted. It is also seen that after inflicting injuries on the
person of Rameshwar, the appellants ran towards Prabhat, who was standing
10 steps away from the place of incident.
It is further seen from their
evidence that after seeing the incident relating to the death of Rameshwar,
Prabhat started running towards Durga-ki-Dhani and he was chased by the
accused persons and they inflicted lathi blows on his person.
In such a
situation, we are of the view that the appellants have no right to invoke
the right of self defence by chasing Prabhat and causing fatal injuries on
him.
In other words, the reasonable apprehension has disappeared when they
noticed that Prabhat was running away from the scene in order to escape, in
such circumstances though the appellants were entitled to the plea of
private defence insofar as the death of Ramehwar is concerned, they are not
justified in availing the same for the cause of death of Prabhat.
On the
other hand, they exceeded their limit and the materials placed by the
prosecution clearly show that they chased Prabhat at some distance near
Durga-Ki-Dhani, pushed him down and inflicted several blows with lathis due
to which he died.
In such circumstances, the trial Court was justified in
convicting the appellants under Section 302 read with Section 34 of IPC and
sentencing them to suffer RI for life.
Taking note of all these aspects,
we are of the view that the High Court was fully justified in confirming
the order of conviction and sentence insofar as the present appellants and
dismissing the appeal in respect of them.
15) In the light of the above discussion, we find no merit in the appeal
and the same is accordingly dismissed. We wish to record our appreciation
for the assistance rendered by Mr. Kanhaiya Priyadarshi, learned amicus
curiae in putting forth the case of the appellants.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
JANUARY 18, 2013.
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