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Monday, February 20, 2017

Right of Private Defence = there is substance in the submissions made by the learned Senior Counsel for the Appellants regarding the right to private defence for the following reasons: It is recorded in the judgment of the High Court that the Public Prosecutor argued that the deceased was beaten outside the house which was corroborated by the site plan. The Investigating Officer stated in his evidence that there was a cross case lodged by Lal Chand in which a charge-sheet under Section 323, 324, 326 and 34 IPC was filed against Bahadur Mal and Vijay Singh @ Vijendra. The injury reports of the accused persons Exh.D-18, D-19 and D-21 were filed. Suggestions were made to prosecution witnesses Gita, Ram Chandra, Patasi and Bihari about the complainant party being aggressors. 7. In view of the above facts and circumstances, we hold that the conviction of the Appellants under Section 302 is unsustainable. However, we are convinced that the accused are guilty of causing the death of Virendra and they are liable for conviction for an offence punishable under Section 304 Part-I IPC. As we are informed that the Appellants have served a sentence of nearly 11 ½ years, we sentence them to the period already undergone. They may be set free, if they are not required in any other case

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.483 of 2013

JAGMAL & ORS.
                                                           .... Appellant(s)
      Versus
STATE OF RAJASTHAN
                                                             ….Respondent(s)

                               J U D G M E N T


L. NAGESWARA RAO, J.
      By a judgment dated 06.01.2006 of the Additional Sessions Judge, Neem-
Ka-Thana, District Sikar, the  Appellants  were  convicted  for  an  offence
under Section 302/149 of the Indian Penal Code, 1860  (hereinafter  referred
to as the ‘IPC’) and sentenced to  undergo  life  imprisonment.   They  were
also convicted under Section 452 IPC and sentenced to  undergo  five  years’
rigorous imprisonment.  They were further convicted  for  an  offence  under
Section  148  IPC  and  were  sentenced  to  undergo  two  years’   rigorous
imprisonment. The Appeal filed by them was dismissed by the  High  Court  of
Rajasthan, aggrieved by which the Appellants have filed this Appeal.
2.    Initially 12 persons  were  named  in  the  First  Information  Report
(FIR).  After investigation 7 persons including  the  accused  were  charge-
sheeted and tried.  The Trial Court acquitted Gulabi  Devi  and  Meva  Devi.
Lal Chand died during the pendency of trial.   Along with the  appeal  filed
by the Appellants, the revision filed against the acquittal of  Gulabi  Devi
and Meva Devi were also taken up and dismissed.   We are informed  that  one
of the Appellants, Kana Ram died during the pendency  of  this  Appeal.   At
present, we are concerned with the conviction  and  sentence  of  Appellants
Jagmal, Arvind and Om Prakash.
3.    Bihari Lal lodged a report at Police Station  Patan,  District  Sikar,
that his son Virendra and Lal Chand (accused who died  during  the  pendency
of trial) had an altercation during the course of  the  day  on  19.02.2004.
At about 05:30 pm, the accused armed with lathies, iron rods,  axe  forcibly
entered into the house where Virendra, Vijendra, Patasi and Gita  Devi  were
sitting and attacked them.   The injured persons were taken to  hospital  at
Neem-Ka-Thana.  As the condition of Virendra and Vijendra was  serious  they
were referred to SMS Hospital,  Jaipur.   Virendra  succumbed  on  the  same
night.  The  post  mortem  was  conducted  on  20.02.2004.   There  were  11
injuries on the body of the deceased.  The  injured  eye-witness  PW-7  Gita
Devi and PW-9 Smt. Patasi gave a graphic  account  of  the  assault  by  the
accused persons and the injuries suffered by Virendra.
4.    There is no doubt about the incident  on  19.02.2004  as  the  accused
claimed a right of private defence.   There is also no doubt  that  Virendra
died due to the attack by the accused.   The ocular testimony  of  the  eye-
witnesses is corroborated by the  medical  evidence.   We  do  not  see  any
reason to take a view different from that  of  the  Courts  below  that  the
Appellants had caused the death of Virendra.
5.    The only point that remains to be considered is  whether  the  accused
have acted in their right of private defence.  The right to private  defence
was taken  by  the  Appellants  before  the  Court  below,  in  vain.    The
submission of  Mr.  Sushil  Kumar  Jain,  learned  Senior  Counsel  for  the
Appellants is that there was a free fight and Lal Chand was attacked by  the
complainant party and he snatched a stick  and  hit  the  deceased  in  self
defence.   The learned Senior Counsel relied upon  the  FIR  lodged  by  the
accused and the injury reports of the Appellants Jagmal  (Exh.D-19),  Arvind
(Exh.D-20) and injury report of Lal Chand (Exh.D-21).   The  learned  Senior
Counsel also relied upon the suggestions put to  the  prosecution  witnesses
Gita Devi, Ram Chandra, Patasi Devi and Bihari Lal about the attack  on  Lal
Chand.   He submitted that the High Court erred in holding  that  there  was
no suggestion made to any of the prosecution witness  regarding  the  attack
on Lal Chand.   He  also  contended  that  the  High  Court  went  wrong  in
rejecting the plea of right of private defence of the accused by relying  on
the statement of Lal Chand under Section 313 Cr. P.C. in which there was  no
mention of self defence.
6.    We have considered the material on record carefully and we are of  the
opinion that there is substance in  the  submissions  made  by  the  learned
Senior Counsel for the Appellants regarding the  right  to  private  defence
for the following reasons:
It is recorded in the judgment of the High Court that the Public  Prosecutor
argued  that  the  deceased  was  beaten  outside  the   house   which   was
corroborated by the site plan.
The Investigating Officer stated in his evidence  that  there  was  a  cross
case lodged by Lal Chand in which a charge-sheet  under  Section  323,  324,
326 and 34 IPC was filed against Bahadur Mal and Vijay Singh @ Vijendra.
The injury reports of the accused  persons  Exh.D-18,  D-19  and  D-21  were
filed.
Suggestions were made to prosecution witnesses  Gita,  Ram  Chandra,  Patasi
and Bihari about the complainant party being aggressors.

7.    In view of the  above  facts  and  circumstances,  we  hold  that  the
conviction of the Appellants under Section 302 is  unsustainable.   However,
we are convinced that the  accused  are  guilty  of  causing  the  death  of
Virendra and they are liable for conviction for an offence punishable  under
Section 304 Part-I IPC.  As we are informed that the Appellants have  served
a sentence of nearly 11 ½ years, we sentence  them  to  the  period  already
undergone.  They may be set free, if they are  not  required  in  any  other
case. With the above modification in the  conviction  and  sentence  of  the
Appellants, the Appeal is disposed of.


........................................J
        [S. A. BOBDE]



                    ..……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
February 20, 2017

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