whether the case in
hand would be covered under the exceptions predicated in
Section 300, IPC, so as to apply Section 304, IPC – be it Part I or
Part II thereof. The facts of the present case would indicate that
the accused, in particular accused No. 5, at the relevant time,
was deprived of the power of selfcontrol by grave and sudden
provocation due to repeated unauthorised entry on the fields
belonging to accused party. Further, the solitary fatal blow on
the vital part of the head by accused No. 5 caused the death of
Bhura Ram (deceased). The provocation was not invited by the
accused party, but was obviously at the instance of the
complainant party, who entered the fields unauthorizedly despite
the objection taken by the complainant party in that regard on
the same day earlier. However, as the death of Bhura Ram
(deceased) was caused by the act of accused No. 5 giving one fatal
blow on the head, which was with the intention of causing his
death or causing such bodily injury as is likely to cause death,
the case would be covered by Section 304 Part I, IPC. It is
certainly not a case to simply proceed under Section 326 of the
IPC, as held by the High Court. We disapprove that approach of
22
the High Court. Even if the High Court had justly applied
Section 326, IPC, we fail to appreciate as to how the High Court
could have imposed sentence only for a period (about five
months) undergone considering the nature and gravity of the
offence and the background in which it is committed by the
accused party, in particular, accused No. 5.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1894/2010
State of Rajasthan …Appellant(s)
Versus
Mehram & Ors. ...Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 5.11.2007 passed by the High Court of Judicature for
Rajasthan at Jodhpur1
in D.B. Criminal Appeal No. 271/1982,
whereby the conviction of the respondent No. 1/original accused
No. 5 (Mehram S/o Mr. Chhagna Ram) under Section 302 of the
Indian Penal Code2
has been converted into one under Section
326, IPC and the substantive sentence awarded therefor is
reduced only to the period already undergone (about five months)
by the accused No. 5. At the outset, the learned counsel for the
1 For short, “the High Court”
2 For short, “IPC”
2
appellantState had made it amply clear that the State was
pursuing this appeal only against the accused No. 5 (Mehram
S/o Chhagna Ram) for restoration of his conviction under Section
302, IPC and to award him sentence of life imprisonment.
2. Briefly stated, five accused were named in the First
Information Report (FIR) registered on 14.8.1981 at P.S. Nagaur
in relation to an incident at village Gowa Khurd. The case set out
in the stated FIR, as noted by the trial Court, reads thus:
“2. …
“On 14.08.1981 at 9:30 p.m. in the evening Complainant
injured Mangilal, lodged an oral report with the Officer
Incharge, Police Station Nagaur to the effect that he has
four fields at Village Gowa Khurd, out of which one field
is situated about a distance of one km. away from the
village. Complainant has further stated that for going to
that field they have to use an old way passing through
the fields of Heera, Chhagna and Jeevan. However, this
way is not recorded in Government record. In the report,
Complainant has further stated that last year sons of
accused Heera obstructed the sons of the complainant
party from going to their field by that unrecorded way.
But upon intervention of Anna Kaka, they were pacified.
Thereafter, this year after rainy season, accused Heera
and Chhagna closed that way. Therefore, they had to
cultivate their field having gone through Basni. In the
report, complainant has further stated that at about
dusk when he along with his wife were going for removing
the weeds to another fields and at that time his younger
brother Ghewar and Sawanta were grazing goats at a
distance. At that time quarrel was taken place between
accused Ramnarayan and Ghewar on account of way and
they went to village. At 5 o’ clock in the evening, his wife
had also gone to village. Complainant has further stated
that at the time of sunset while he alone was coming
towards the village from the field. And when he reached
3
the village near pond, then accused persons Mehram
and Baksharam, having armed with ‘Kassies’ and
accused persons Ramnarayan, Heeraram and
Ramniwas, having lathies in their hands came out from
the back of ‘Kai’ (bushes) and surrounded the
Complainant. Accused Baksharam with the intention to
kill struck ‘Kassi’ blow from the sharpen side on the head
of Mangilal, but Mangilal managed to prevent it by lifting
the hand, due to which Mangilal sustained injury over
his palm. Accused Baksharam tried to inflict another
‘Kassi’ blow to Mangilal, whereupon Bhuraram caught
hold the ‘Kassi’. And Mehram, Moti and Annaram arrived
at the place of occurrence from their fields. Thereafter,
accused Mehram S/o Chhagana struck a ‘Kassi’ blow
from sharpen side on the head of Bhura from the
backside, due to which Bhura fell down, accused
Ramniwas inflicted a lathi blow over the head of Mehram
S/o Annaram. Thereafter, all the accused persons gave
beatings. Then Ratna, Moti and Annaram had intervened
after reaching on the spot. Accused persons having
assumed Bhura died ran away. Complainant has further
stated that accused persons have given beatings with the
intention of taking revenge on account of way dispute…”
On the basis of the above complaint, investigation was
commenced for offences punishable under Sections 147, 148,
149, 323, 307 and 302, IPC. The case was committed to the
Sessions Court by the Chief Judicial Magistrate in February,
1982, which was numbered as Sessions Case No. 9/1982. After
a fullfledged trial, in which fourteen (14) prosecution witnesses
came to be examined, the trial Court, on extensive analysis of the
evidence on record, vide judgment and order dated 21.7.1982,
running into around 115 loosely typed pages, found the named
4
accused guilty of the concerned offences, and passed the
following order:
“ORDER
Hence, accused Mehram son of Chhagna is hereby
held guilty of committing offence under Section 148, 302,
324/149 Indian Penal Code.
Accused Ramniwas is hereby held guilty of
committing offence under Section 147, 323, 324/149
India Penal Code and accused persons Heera Lal,
Ramnarayan under Section 323, 324/149 Indian Penal
Code and accused Baksharam is hereby convicted under
Section 148, 324 I.P.C.
Accused persons Heeraram, Ramnarayan,
Ramniwas and Baksharam are not found guilty of
committing offence under Section 302 and 302/149
Indian Penal Code.
Hence, accused Mehram is hereby sentenced to
undergo life imprisonment and to pay fine of Rs.100/ in
default of payment of fine to undergo additional three
months rigorous imprisonment under Section 302 Indian
Penal Code.
Accused persons Mehram and Baksharam each of
them is hereby sentenced to undergo six months simple
imprisonment and to pay fine of Rs.100/ in default of
payment of fine to undergo 15 days additional simple
imprisonment for committing offence under Section 148
and accused persons Ramnarayan and Ramniwas for
committing offence under Section 147 I.P.C.
Accused Baksharam for committing offence under
Section 324 and accused persons Ramniwas, Heeraram,
Ramnarayan and Mehram for committing offence under
Section 324/149 I.P.C. each of them is hereby sentenced
to undergo six months and to pay fine of Rs.100/ in
default to undergo 15 days simple imprisonment.
Accused Ramniwas is further sentenced to undergo three
months simple imprisonment under Section 323 I.P.C. All
the sentences shall run concurrently.
Accused personsHeeraram, Ramnarayan,
Ramniwas and Baksharam shall be entitled to get benefit
under Section 428 I.P.C.
5
Clothes and arms (Art.1 to Art.10) shall be
destroyed after the expiry of period of limitation for
appeal. Copy of the judgment be made available to
accused persons.”
As regards the accused No. 5 (Mehram S/o Chhagna Ram), he
came to be convicted for offences punishable under Sections 148,
302, 324/149, IPC and sentenced to undergo life imprisonment
with fine of Rs.100/ for the offence punishable under Section
302, six months’ simple imprisonment with fine of Rs.100/ for
offence punishable under Section 148, IPC and six months’
simple imprisonment with fine of Rs.100/ for offence punishable
under Section 324/149, IPC.
3. All the five accused preferred appeal before the High Court
being D.B. Criminal Appeal No. 271/1982. The appeal filed by
Ram Niwas (respondent No. 2/original accused No. 3), Heera
Ram (respondent No. 3/original accused No. 1), Ram Narayan
(respondent No. 4/original accused No. 2) and Laxa Ram
(respondent No. 5/original accused No. 4) came to be partly
allowed and their conviction under Section 149, IPC was set
aside, but under Sections 323, 324, 147 and 148, IPC, the
conviction was maintained. They were sentenced for the period
already undergone for the stated offences. As regards Mehram
6
S/o Chhagna Ram (respondent No. 1/accused No. 5), the High
Court converted the conviction under Section 302, IPC into one
under Section 326, IPC on the finding that the said accused had
exceeded his right of private defence. Additionally, the High
Court confirmed his conviction under Section 148, IPC. Despite
the charge of murder and intentionally causing death of Bhura
Ram (deceased), the High Court awarded sentence of period
already undergone (around five months) by the accused No. 5
and directed him to pay compensation of Rs.50,000/ (Rupees
fifty thousand only) to the next of kin of the deceased – Bhura
Ram.
4. As aforesaid, even though the State has filed the present
appeal against all the five accused persons, at the outset, it was
made clear by the counsel for the State that the appeal is being
pursued only against the respondent No. 1/accused No. 5
(Mehram S/o Chhagna Ram) in respect of nature of offence and
on the point of sentence. The counsel for accused No. 5,
however, urged that the said accused had a right to challenge the
finding of guilt and conviction under Section 326 and 148, IPC,
recorded against him, even though the said accused had not
7
preferred a formal appeal against the impugned judgment. To
make good this submission, reliance is placed on Chandrakant
Patil vs. State through CBI3
, Sumer Singh vs. Surajbhan
Singh & Ors.4
, State of Rajasthan vs. Ramanand5
and
Section 377(3) of the Code of Criminal Procedure, 19736
.
According to him, the accused No. 5 was entitled to acquittal, as
the prosecution had failed to substantiate the charges framed
against him. In any case, in the alternative it is submitted, that
the incident had occurred on the spur of the moment due to
provocation given to the accused and the said accused in
retaliation and in exercise of right of private defence, ended up in
causing single injury to the deceased (Bhura Ram) without any
intention to cause his death. Even for that reason, the accused
No. 5 was entitled to benefit of doubt and it was not a fit case for
conviction even under Section 326/148, IPC. It is urged that the
accused No. 5 is a senior citizen (aged about 7075 years) and
suffering from various old age diseases and due to efflux of time,
the Court ought not to entertain this appeal filed by the State.
Learned counsel contends that even if it is a case of excessive
3 (1998) 3 SCC 38
4 (2014) 7 SCC 323
5 (2017) 5 SCC 695
6 For short, “Cr.P.C.”
8
exercise of right of private defence, the benefit should be given to
the accused. In support of the said contention, the learned
counsel has placed reliance on the decisions of this Court in
Gottipulla Venkatasiva Subbrayanam & Ors. vs. the State of
Andhra Pradesh & Anr.7
, Deo Narain vs. The State of Uttar
Pradesh8
, Subramani & Ors. vs. State of Tamil Nadu9 and
State of Uttar Pradesh vs. Gajey Singh & Anr.10
.
5. We have heard Dr. Manish Singhvi, learned senior counsel
for the appellant and Mr. Sushil Kumar Jain, learned senior
counsel for the respondent.
6. The accused No. 5 (Mehram S/o Chhagna Ram) is justified
in contending that it is open to the said accused to challenge the
finding and order of conviction under Section 326/148, IPC
recorded against him in the appeal filed by the State, assailing
the impugned judgment of the High Court. That being the settled
legal position, as expounded in Chandrakant Patil (supra),
Sumer Singh (supra) and Ramanand (supra) including Section
377(3) of the Cr.P.C., which predicates that in the appeal filed
7 (1970) 1 SCC 235 (paragraphs 17 and 18)
8 (1973) 1 SCC 347 (paragraph 5)
9 (2002) 7 SCC 210 (paragraphs 19 to 27)
10 (2009) 11 SCC 414 (paragraph 30)
9
against the sentence on the ground of its inadequacy, the
accused may plead for his acquittal or for reduction of the
sentence. Resultantly, we may have to consider the correctness
of the finding of fact recorded by the trial Court and the appeal
Court (High Court) against the accused No. 5 (Mehram S/o
Chhagna Ram).
7. Reverting to the judgment of the trial Court, it is noticed
that the trial Court vide judgment and order dated 21.7.1982,
extensively analysed the evidence of each witness and the stand
taken by the rival parties. On the basis of that analysis, the trial
Court proceeded to hold that the prosecution had succeeded in
substantiating the allegation that the accused party was hiding
behind the ‘Kair’ bushes and on arrival of the complainant party
at the scene of occurrence, came out of the bushes and assaulted
the complainant party including Bhura Ram (deceased). The trial
Court recorded the following finding:
“24. … Hence, it is established that place of occurrence
was the ‘Kair’ bushes land, the height of ‘Kair’ bushes
was 5 to 6 ft. and by the depositions of witness Mangilal
(PW11) and spot inspection report (Ex. P21) and
accused persons were hiding behind the ‘Kair’ bushes.
Accordingly, the fact of accused persons duly armed with
weapons hiding behind the ‘Kair’ bushes has also been
established and that accused persons were the
10
assailants, otherwise they would not have hidden behind
the ‘Kair’ bushes.”
It then proceeded to find that before the incident, some quarrel
had taken place between accused No. 2 – Ram Narayan, Ghewar
and Motaram on account of grazing goats, in which Ram Narayan
had assaulted Ghewar, who belonged to complainant side. The
circumstances clearly indicate that the accused persons intended
to take revenge and due to which they had arrived at the place of
occurrence from the village armed with lethal weapon(s) for
assaulting the complainant party at an opportune moment. The
trial Court then found that the accused persons had not been
able to give any explanation for coming together at the place of
incident nor about the bringing of lethal weapon(s) like “kassi” at
the site. The trial Court in that context observed thus:
“25. ... Fourthly, accused persons have not been able to
give any explanation of coming all the five accused
persons altogether. Nor they have given any explanation
of bringing lethal weapon like – ‘Kassi’ with them.
Therefore, by the fact viz. going of accused persons from
village, having armed with deadly weapons, giving
beatings to Ghewarram belonging to complainant side by
Ramnarayan amongst accused persons prior to the
occurrence, it has been fully established that accused
persons in order to take revenge, duly armed with lathies
and ‘Kassies’ had arrived at the place of occurrence,
therefore, accused persons are proved to be the
aggressor.
26. In my opinion, the arguments of learned counsel
appearing for the accused persons to the effect that by
11
the prosecution evidence, revolving lathi by Mangilal is
proved and, therefore, Complainant side was the
assailant, does not appear having any substance. Firstly,
in view of the aforesaid discussion, accused persons have
been proved to be the aggressor, therefore, first revolving
lathi by Mangilal after having surrounded, it cannot be
said that Mangilal was assailants. Secondly, by the
depositions of prosecution witnesses viz. Ramratan (PW5), Motiram (PW6), Annaram (PW7), Mehram (PW8) and
Mangilal (PW11), it has been established that Mangilal
was revolving lathi while he was surrounded and was
raising alarm that ‘Maare Marre’. Therefore, revolving
lathi by the complainant side after assaulting was in
defence and, therefore, accused persons do not get the
right of private defence.”
The trial Court then went on to find that the complainant side
and accused persons, both, had sustained injuries in the
incident in question. The trial Court, however, opined that in the
present case, nonexplanation of injuries sustained by accused
persons by the prosecution had no vital impact on the
prosecution case, and observed thus: –
“28. … Firstly, in the present case it has been
established that accused persons were the aggressor. It
has also been established that accused persons have
started the occurrence. Therefore, prosecution side has
given explicit evidence with regard to the genesis of the
occurrence. The prosecution evidence is unambiguous
and, therefore, nonsubmission of explanation of the
injuries sustained by accused persons, does not have any
effect on the prosecution case. …”
The trial Court unambiguously noted that the injuries sustained
by the accused persons are superficial and minor. After
analysing the medical and ocular evidence, the trial Court found
12
that during the scuffle, deceased Bhura Ram had caught hold of
“kassi” blow inflicted by Laxa Ram (accused No. 4) and thereafter,
Mehram S/o Chhagna Ram (accused No. 5) inflicted “kassi” blow
from the sharpen side on the head of Bhura Ram (deceased) with
intention to kill him, which blow struck on the vital part of his
head. And as per the medical evidence, that injury was sufficient
to cause death of Bhura Ram. The trial Court then proceeded to
analyse the evidence on record and noted as follows:
“39. Hence, depositions of witness Mangilal (PW11) gets
corroboration by the depositions of eyewitnesses PW5,
6, 7 and 8, Injury Reports Ex. P9, 10 and PW11 Post
mortem report of deceased Bhura, Report (Ex. P13)
lodged by Mangilal immediately after the incident, spot
condition memo (Ex. P1), siteplan of the place of
occurrence (Ex. P14), recovery of blood stained lathi
(Article8) from the possession of accused Ramniwas,
recovery of clothes of injured and deceased which have
been found to be stained with human blood and accused
persons being the aggressor and by giving beatings by
accused Ramnarayan to Ghewar and Motaram belong to
complainant side, prior to the occurrence and by the
depositions of PW1 it is also proved that on 14.08.81 in
the evening time at village Gowa Khurd, accused
personsHeeraram, Ramnarayan, Ramniwas, Baksharam
and Mehram formed an unlawful assembly and at that
time accused Baksharam and Mehram were duly armed
with lethal weapons like ‘Kassies’ and amongst the
accused persons, in furtherance to their common object,
accused Baksharam intentionally inflicted simple injuries
with ‘Kassi’ from sharpen side on the hand of Mangilal
and when Bhura came to rescue, then accused Mehram
inflicted a ‘Kassi’ blow from sharpen side over the head of
Bhura. It is also established that when Mehram came to
13
rescue Bhura, then Ramniwas caused injuries with lathi
over the head and shoulder of Mehram.
40. Learned Advocate for the accused persons has also
contended that Bhura was come to rescue, suddenly he
sustained this injury, therefore, by the act of accused
Mehram, it cannot be said that he was having any motive
to kill and at the most the case of the accused falls within
the purview of Section 304 Clause II I.P.C. and, therefore,
accused shall be acquitted of the charge under Section
302 Indian Penal Code.
41. In my opinion, no substance appears in the
contention raised by learned defence counsel, because by
the depositions of Dr. Ghodawat (PW9) it is proved that
in the ordinary course of nature injury No.1 on the head
of Bhura was sufficient to cause death and due to this
injury Bhura died. Beneath this injury the complete bone
was cut in thickness. All the membranes over the brain
were cut. Accordingly, it is proved that injury No. 1 was
sufficient to cause death in the ordinary course of nature,
injury No. 1 placed over the vital part of body like head,
causing injury with a lethal weapon like ‘Kassi’ from the
sharpen side, arriving of Bhura to rescue from backside,
engaging of accused persons in giving beatings and
causing very deep injuries, by which it is proved that
accused have forcefully inflicted injuries and falling of
Bhura immediately after sustaining injuries, by these
facts, it is proved that accused Mehram was having
intention to kill Bhura and he has caused head injury to
Bhura with the intention to kill, due to which Bhura died.
Therefore, accused Mehram S/o Chhagna caused injury
to Bhura with the intention to kill. Thus, he has
committed offence of homicidal death by committing
murder of Bhura and, therefore, charge of committing
offence under Section 302 Indian Penal Code has been
fully established against accused Mehram son of
Chhagna.
42. In my opinion, no substance appears in the
argument of learned Advocate for the accused persons
that the act of accused falls within the purview of Section
304 Part II I.P.C. Firstly, Mehram was already assailant,
secondly accused Mehram has given beatings with
weapon, he was standing there after making preparations
and, therefore, it cannot be said that killing of Bhura by
accused Mehram S/o Chhagana was sudden. Rather, it is
proved that Mehram S/o Chhagna has caused injury to
14
Bhura with the intention to kill, therefore, his case falls
within Section 302 I.P.C.”
Indeed, the trial Court went on to hold that the prosecution had
not succeeded in substantiating common object of committing
murder of the person concerned and acquitted the accused of
charge under Section 149, IPC.
8. When the matter travelled to the High Court at the instance
of the accused persons by way of appeal, the Division bench of
the High Court partly allowed the appeal and, if we may say so,
by a cryptic judgment, which reads thus:
“…..
We have heard the learned counsel for the parties
and have given our thoughtful consideration to the
material available on record.
Admittedly the way to field which is being claimed
by the complainant party, is not a sanctioned way, so
much so that it is not even recorded in the revenue
record. The complainant party is claiming it through
prescription. If prescription has such maturity in it that it
got converted into an actionable right, the complainant
party could have sought a declaration to that effect.
Without taking recourse to the lawful measures, the
complainant party insisted on sing that way by courtesy
only. This puts the complainant party on the offensive,
and in that way the complainants stand on a weaker
footing when they assert that the accused assaulted
them. There were enough provocations created by the
complainants to the accused persons by asserting a right,
which was not a legally recognized right. In that
background when the complainants and the accused,
entered into a conflict, then the question of common
object stands ruled out. Both the parties have quarrelled,
and have inflicted injuries to each other. It was almost a
case of free fight and in that view of the matter, invoking
15
Section 149 IPC is not considered proper by us and,
therefore, Section 149 IPC deserves to be excluded from
consideration.
When Section 149 IPC is taken out then individual
participation has to be seen to the deceased it was only
accused Meh Ram, who is said to have caused injuries.
All other accused persons were held guilty with the aid
[sic] of Section 149 IPC. Conviction with the aid of Section
149 IPC, therefore, deserves to be set aside. After setting
aside the conviction of other accused persons except Meh
Ram under Section 302 IPC they stand convicted under
Sections 323, 324, 147 and 148 IPC. For those offences
whatever period they have already undergone can be
considered sufficient and in that view of the matter, the
appeal of the accused Ram Niwas, Heera Ram, Ram
Narayan and Baxa Ram is allowed to the extent that the
conviction under Section 302/149 IPC is set aside. Their
conviction under Sections 323, 324, 147 and 148 IPC is
maintained and the period already undergone which is
more than 5½ month is considered sufficient to meet out
the ends of justice.
Now we take up the case of accused Meh Ram. He
is said to have caused the total blow. But that was in the
background that both the parties fought a free fight. Meh
Ram himself has sustained injuries and in that view of
the matter it can be said that he cannot have the
intention of causing death of the deceased. It may be said
that he had exceeded his right of private defence. At best
a case under Section 326 IPC can be said to be made out
against him.
In the result, the appeal of accused Ram Niwas,
Heera Ram, Ram Narayan and Boxa Ram accused is
partly allowed. Their conviction and sentence under
Section 149 IPC is set aside and their conviction under
Sections 323, 324, 147 and 148 IPC is maintained. As
regards the sentence, the period already undergone is
considered sufficient to meet the ends of justice.
So far as accused Meh Ram is concerned, his
conviction under Section 302 IPC is converted into one
under Section 326 IPC and his conviction under Section
148 IPC is maintained. However, he is sentenced to the
period already undergone. Meh Ram is directed to pay
compensation to the tune of Rs.50,000/ to the next of
kin of the deceased.”
16
9. After having gone through the relevant evidence and
judgments of the trial Court and the appeal Court (High Court),
we have no reason to depart from the conclusion reached by the
trial Court that there were tangible circumstances and evidence
to indicate that the accused party was the aggressor, who was
hiding in the bushes and appeared only after the complainant
party arrived on the spot. The accused party had assembled at
the spot with lethal weapon(s) and all the accused were waiting
for the complainant party to arrive at the spot and started
assaulting the complainant party. The blows inflicted by the
concerned accused, in particular accused No. 5, were with an
intention to kill Bhura Ram (deceased). The death of Bhura Ram
was caused due to the blow inflicted by accused No. 5 and was a
homicidal death. We have no reason to depart from the said
findings recorded by the trial Court and if we may say so, the
same remained undisturbed by the High Court. The High Court
by its cryptic judgment, proceeded on the erroneous assumption
that the accused party had been provoked due to the
unauthorised entry of the complainant party on their fields and
to defend their possession, they had to resort to right of private
defence. While doing so, the accused party, in particular,
17
accused No. 5 (Mehram S/o Chhagna Ram), exceeded his right of
private defence. There was no common object because the
incident in question occurred due to provocation and spiralled
into a free fight, causing injuries to both sides. The fallacy in the
reasoning of the High Court is palpable from the evidence of
prosecution witnesses, which has been elaborately analysed and
rightly accepted as truthful by the trial Court, substantiating the
allegations against the accused party of being the aggressors.
Once it is a case of accused party being the aggressors and they
commenced assault on the complainant party and further, the
accused No. 5 (Mehram S/o Chhagna Ram) having been found to
have assaulted Bhura Ram (deceased) with intention to kill him,
the question of invoking the right of private defence does not
arise. In fact, no defence evidence was produced to substantiate
the plea of exercise of private defence. The two theories (of being
aggressors as opposed to exercise of right of private defence) are
antithesis to each other.
10. Had it been a case of complainant party being the aggressor,
the accused party and accused No. 5 (Mehram S/o Chhagna
Ram) in particular, could be heard on the factum of right of
18
private defence. The nature of injuries caused to the
complainant party and to the accused party are also indicative of
the fact that the accused party was the aggressor. As regards the
injuries caused to the deceased (Bhura Ram) due to the assault
by the accused No. 5 (Mehram S/o Chhagna Ram), as noted in
the postmortem examination (Exhibit P11) by Dr. Ghodawat,
the same reads thus:
“1. Incised wound of size 5.1 cm. x bone deep. This
injury was in the middle parietal region of head.
Underneath which bone was fully cut in obesity. All
membranes covering brain were cut. Brain matter was
appearing from the deepness of wound.
2. One bruise of size 3.x2 cm. which was in the middle
of left foot on front portion. Injury was ante mortem in
nature. Brain matter was also cut parallel to the
deepness of wound, which was cut up to half cm.”
(emphasis supplied)
In the opinion of the doctor, the cause of death of Bhura Ram
(deceased) was brain injury and due to the injury No. 1. The fact
that the death was caused by the injury No. 1 alone, does not
mean that it was not a case of homicidal death. Nor there can be
presumption that there was no intention to cause death by
inflicting such injury. The evidence on record has been duly
analysed by the trial Court and it has been held that accused No.
5 (Mehram S/o Chhagna Ram) had caused injury No. 1 with
19
intention to cause death of Bhura Ram (deceased) to teach lesson
to the complainant party for their repeated unauthorised entry on
the fields belonging to the accused party despite warnings and
obstructions caused in that behalf in the past.
11. We may now usefully refer to the injury report (Exhibit D7)
of accused No. 5 (Mehram S/o Chhagna Ram), who had suffered
simple injuries on his person caused by blunt weapon. The
description of injuries therein reads thus:
“1. Abrasion 1 x 1 cm which was in the middle posterior
region of left forefinger;
2. Abrasion 1 x .3 cm. in the middle top portion of left
index finger;
3. Bruise 6 x 1 cm. over Rt. Shoulder oblique placed.
4. Two abrasions 1.5 x 4 cm. in the lower portion of Rt.
Thigh, both were placed at a distance of 0.5 cm.
each other.
5. Injured was complaining pain in his left foot.”
From the description of injuries, it is amply clear that these
injuries are superficial and as rightly found by the trial Court,
will have no bearing on the prosecution case, even if the same
remain unexplained. The fact that some of the accused had
received grievous injuries, does not belie the prosecution case
that the accused were the aggressors. There was no reason for
the accused to remain in hiding position equipped with lethal
20
weapon(s), waiting for the arrival of the complainant party and on
their arrival, to immediately commence attack and cause fatal
injuries to the complainant party. Such being the factual matrix,
it is unfathomable as to how the plea of right of private defence
could be invoked by the accused. If such a plea is not available,
the question of answering the plea in favour of the accused that it
was a case of excessive exercise of right of private defence does
not arise at all. The basis of the High Court judgment being
flawed in this regard, the conclusion recorded by it cannot stand
the test of judicial scrutiny. For the same reason, the question of
converting the offence under Section 302 to one under Section
326 cannot be countenanced, both on facts and in law.
12. Indeed, the trial Court’s finding of guilt recorded against
accused No. 5 (Mehram S/o Chhagna Ram), is unexceptionable.
However, on the nature of offence, the trial Court considered the
plea of the accused only in reference to offence falling under
Section 304 Part II of the IPC. The trial Court rejected that
argument and we must uphold that conclusion, because the
finding of fact is that the act was done by the accused with the
knowledge that it is likely to cause death, and with intention to
21
kill Bhura Ram (deceased). But before we express our final
opinion, it is necessary to examine as to whether the case in
hand would be covered under the exceptions predicated in
Section 300, IPC, so as to apply Section 304, IPC – be it Part I or
Part II thereof. The facts of the present case would indicate that
the accused, in particular accused No. 5, at the relevant time,
was deprived of the power of selfcontrol by grave and sudden
provocation due to repeated unauthorised entry on the fields
belonging to accused party. Further, the solitary fatal blow on
the vital part of the head by accused No. 5 caused the death of
Bhura Ram (deceased). The provocation was not invited by the
accused party, but was obviously at the instance of the
complainant party, who entered the fields unauthorizedly despite
the objection taken by the complainant party in that regard on
the same day earlier. However, as the death of Bhura Ram
(deceased) was caused by the act of accused No. 5 giving one fatal
blow on the head, which was with the intention of causing his
death or causing such bodily injury as is likely to cause death,
the case would be covered by Section 304 Part I, IPC. It is
certainly not a case to simply proceed under Section 326 of the
IPC, as held by the High Court. We disapprove that approach of
22
the High Court. Even if the High Court had justly applied
Section 326, IPC, we fail to appreciate as to how the High Court
could have imposed sentence only for a period (about five
months) undergone considering the nature and gravity of the
offence and the background in which it is committed by the
accused party, in particular, accused No. 5.
13. The learned counsel for the accused No. 5 was at pains to
persuade us that the said accused is now about 7075 years of
age and at this distance of time, it may not be appropriate to
send him back to jail. Taking overall view of the matter, we are
not impressed by this submission. Even in case of offence under
Section 326, IPC, which commended to the High Court, the same
was punishable with imprisonment for life or with imprisonment
of either description which may extend to ten years and also
liable to fine. Had it been a conviction under Section 326, as
aforesaid, the sentence of only about five months in the facts of
the present case, by no stretch of imagination, was adequate.
14. Be that as it may, in our considered opinion, the accused
No. 5 (Mehram S/o Chhagna Ram) deserves to be convicted for
the offence punishable under Section 304 Part I of the IPC. For
23
the reasons already recorded, it is unnecessary for us to dilate on
the decisions of this Court pressed into service regarding
approach to be adopted by the Court in respect of cases
pertaining to accused exceeding his right of private defence.
15. Taking overall view of the matter, we are of the considered
opinion that in this case, the accused No. 5 (Mehram S/o
Chhagna Ram) deserves to be awarded sentence of ten (10) years
of simple imprisonment and he must pay compensation to the
tune of Rs.50,000/ (Rupees fifty thousand only) to the next kin
of the deceased, if it is yet to be paid in terms of order of the High
Court.
16. Accordingly, we partly allow this appeal. The impugned
judgment of the High Court and that of the trial Court are
modified by convicting the accused No. 5 (Mehram S/o Chhagna
Ram) for offence punishable under Section 304 Part I and Section
148, IPC. He is sentenced to undergo simple imprisonment for
ten (10) years for offence punishable under Section 304 Part I
and six (6) months’ simple imprisonment for offence punishable
under Section 148 and fine of Rs.100/ on each count, in default
to undergo fifteen (15) days’ additional simple imprisonment.
24
Both sentences to run concurrently. Further, the period already
undergone by accused No. 5 (Mehram S/o Chhagna Ram) shall
be adjusted by giving the benefit under Section 428, Cr.P.C. In
addition, the accused No. 5 (Mehram S/o Chhagna Ram) is
directed to pay compensation to the tune of Rs.50,000/ (Rupees
fifty thousand only) to the next of kin of the deceased (Bhura
Ram), if already not paid. The bail bonds stand cancelled and
the accused No. 5 (Mehram S/o Chhagna Ram) is directed to
surrender within six weeks from the date on which lockdown in
the country due to pandemic COVID19 including in the State of
Rajasthan is relaxed, to undergo the remaining sentence period.
17. The appeal is disposed of in the above terms. Pending
interlocutory applications, if any, shall stand disposed of.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Dinesh Maheshwari)
New Delhi;
May 6, 2020.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1894/2010
State of Rajasthan …Appellant(s)
Versus
Mehram & Ors. ...Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 5.11.2007 passed by the High Court of Judicature for
Rajasthan at Jodhpur1
in D.B. Criminal Appeal No. 271/1982,
whereby the conviction of the respondent No. 1/original accused
No. 5 (Mehram S/o Mr. Chhagna Ram) under Section 302 of the
Indian Penal Code2
has been converted into one under Section
326, IPC and the substantive sentence awarded therefor is
reduced only to the period already undergone (about five months)
by the accused No. 5. At the outset, the learned counsel for the
1 For short, “the High Court”
2 For short, “IPC”
2
appellantState had made it amply clear that the State was
pursuing this appeal only against the accused No. 5 (Mehram
S/o Chhagna Ram) for restoration of his conviction under Section
302, IPC and to award him sentence of life imprisonment.
2. Briefly stated, five accused were named in the First
Information Report (FIR) registered on 14.8.1981 at P.S. Nagaur
in relation to an incident at village Gowa Khurd. The case set out
in the stated FIR, as noted by the trial Court, reads thus:
“2. …
“On 14.08.1981 at 9:30 p.m. in the evening Complainant
injured Mangilal, lodged an oral report with the Officer
Incharge, Police Station Nagaur to the effect that he has
four fields at Village Gowa Khurd, out of which one field
is situated about a distance of one km. away from the
village. Complainant has further stated that for going to
that field they have to use an old way passing through
the fields of Heera, Chhagna and Jeevan. However, this
way is not recorded in Government record. In the report,
Complainant has further stated that last year sons of
accused Heera obstructed the sons of the complainant
party from going to their field by that unrecorded way.
But upon intervention of Anna Kaka, they were pacified.
Thereafter, this year after rainy season, accused Heera
and Chhagna closed that way. Therefore, they had to
cultivate their field having gone through Basni. In the
report, complainant has further stated that at about
dusk when he along with his wife were going for removing
the weeds to another fields and at that time his younger
brother Ghewar and Sawanta were grazing goats at a
distance. At that time quarrel was taken place between
accused Ramnarayan and Ghewar on account of way and
they went to village. At 5 o’ clock in the evening, his wife
had also gone to village. Complainant has further stated
that at the time of sunset while he alone was coming
towards the village from the field. And when he reached
3
the village near pond, then accused persons Mehram
and Baksharam, having armed with ‘Kassies’ and
accused persons Ramnarayan, Heeraram and
Ramniwas, having lathies in their hands came out from
the back of ‘Kai’ (bushes) and surrounded the
Complainant. Accused Baksharam with the intention to
kill struck ‘Kassi’ blow from the sharpen side on the head
of Mangilal, but Mangilal managed to prevent it by lifting
the hand, due to which Mangilal sustained injury over
his palm. Accused Baksharam tried to inflict another
‘Kassi’ blow to Mangilal, whereupon Bhuraram caught
hold the ‘Kassi’. And Mehram, Moti and Annaram arrived
at the place of occurrence from their fields. Thereafter,
accused Mehram S/o Chhagana struck a ‘Kassi’ blow
from sharpen side on the head of Bhura from the
backside, due to which Bhura fell down, accused
Ramniwas inflicted a lathi blow over the head of Mehram
S/o Annaram. Thereafter, all the accused persons gave
beatings. Then Ratna, Moti and Annaram had intervened
after reaching on the spot. Accused persons having
assumed Bhura died ran away. Complainant has further
stated that accused persons have given beatings with the
intention of taking revenge on account of way dispute…”
On the basis of the above complaint, investigation was
commenced for offences punishable under Sections 147, 148,
149, 323, 307 and 302, IPC. The case was committed to the
Sessions Court by the Chief Judicial Magistrate in February,
1982, which was numbered as Sessions Case No. 9/1982. After
a fullfledged trial, in which fourteen (14) prosecution witnesses
came to be examined, the trial Court, on extensive analysis of the
evidence on record, vide judgment and order dated 21.7.1982,
running into around 115 loosely typed pages, found the named
4
accused guilty of the concerned offences, and passed the
following order:
“ORDER
Hence, accused Mehram son of Chhagna is hereby
held guilty of committing offence under Section 148, 302,
324/149 Indian Penal Code.
Accused Ramniwas is hereby held guilty of
committing offence under Section 147, 323, 324/149
India Penal Code and accused persons Heera Lal,
Ramnarayan under Section 323, 324/149 Indian Penal
Code and accused Baksharam is hereby convicted under
Section 148, 324 I.P.C.
Accused persons Heeraram, Ramnarayan,
Ramniwas and Baksharam are not found guilty of
committing offence under Section 302 and 302/149
Indian Penal Code.
Hence, accused Mehram is hereby sentenced to
undergo life imprisonment and to pay fine of Rs.100/ in
default of payment of fine to undergo additional three
months rigorous imprisonment under Section 302 Indian
Penal Code.
Accused persons Mehram and Baksharam each of
them is hereby sentenced to undergo six months simple
imprisonment and to pay fine of Rs.100/ in default of
payment of fine to undergo 15 days additional simple
imprisonment for committing offence under Section 148
and accused persons Ramnarayan and Ramniwas for
committing offence under Section 147 I.P.C.
Accused Baksharam for committing offence under
Section 324 and accused persons Ramniwas, Heeraram,
Ramnarayan and Mehram for committing offence under
Section 324/149 I.P.C. each of them is hereby sentenced
to undergo six months and to pay fine of Rs.100/ in
default to undergo 15 days simple imprisonment.
Accused Ramniwas is further sentenced to undergo three
months simple imprisonment under Section 323 I.P.C. All
the sentences shall run concurrently.
Accused personsHeeraram, Ramnarayan,
Ramniwas and Baksharam shall be entitled to get benefit
under Section 428 I.P.C.
5
Clothes and arms (Art.1 to Art.10) shall be
destroyed after the expiry of period of limitation for
appeal. Copy of the judgment be made available to
accused persons.”
As regards the accused No. 5 (Mehram S/o Chhagna Ram), he
came to be convicted for offences punishable under Sections 148,
302, 324/149, IPC and sentenced to undergo life imprisonment
with fine of Rs.100/ for the offence punishable under Section
302, six months’ simple imprisonment with fine of Rs.100/ for
offence punishable under Section 148, IPC and six months’
simple imprisonment with fine of Rs.100/ for offence punishable
under Section 324/149, IPC.
3. All the five accused preferred appeal before the High Court
being D.B. Criminal Appeal No. 271/1982. The appeal filed by
Ram Niwas (respondent No. 2/original accused No. 3), Heera
Ram (respondent No. 3/original accused No. 1), Ram Narayan
(respondent No. 4/original accused No. 2) and Laxa Ram
(respondent No. 5/original accused No. 4) came to be partly
allowed and their conviction under Section 149, IPC was set
aside, but under Sections 323, 324, 147 and 148, IPC, the
conviction was maintained. They were sentenced for the period
already undergone for the stated offences. As regards Mehram
6
S/o Chhagna Ram (respondent No. 1/accused No. 5), the High
Court converted the conviction under Section 302, IPC into one
under Section 326, IPC on the finding that the said accused had
exceeded his right of private defence. Additionally, the High
Court confirmed his conviction under Section 148, IPC. Despite
the charge of murder and intentionally causing death of Bhura
Ram (deceased), the High Court awarded sentence of period
already undergone (around five months) by the accused No. 5
and directed him to pay compensation of Rs.50,000/ (Rupees
fifty thousand only) to the next of kin of the deceased – Bhura
Ram.
4. As aforesaid, even though the State has filed the present
appeal against all the five accused persons, at the outset, it was
made clear by the counsel for the State that the appeal is being
pursued only against the respondent No. 1/accused No. 5
(Mehram S/o Chhagna Ram) in respect of nature of offence and
on the point of sentence. The counsel for accused No. 5,
however, urged that the said accused had a right to challenge the
finding of guilt and conviction under Section 326 and 148, IPC,
recorded against him, even though the said accused had not
7
preferred a formal appeal against the impugned judgment. To
make good this submission, reliance is placed on Chandrakant
Patil vs. State through CBI3
, Sumer Singh vs. Surajbhan
Singh & Ors.4
, State of Rajasthan vs. Ramanand5
and
Section 377(3) of the Code of Criminal Procedure, 19736
.
According to him, the accused No. 5 was entitled to acquittal, as
the prosecution had failed to substantiate the charges framed
against him. In any case, in the alternative it is submitted, that
the incident had occurred on the spur of the moment due to
provocation given to the accused and the said accused in
retaliation and in exercise of right of private defence, ended up in
causing single injury to the deceased (Bhura Ram) without any
intention to cause his death. Even for that reason, the accused
No. 5 was entitled to benefit of doubt and it was not a fit case for
conviction even under Section 326/148, IPC. It is urged that the
accused No. 5 is a senior citizen (aged about 7075 years) and
suffering from various old age diseases and due to efflux of time,
the Court ought not to entertain this appeal filed by the State.
Learned counsel contends that even if it is a case of excessive
3 (1998) 3 SCC 38
4 (2014) 7 SCC 323
5 (2017) 5 SCC 695
6 For short, “Cr.P.C.”
8
exercise of right of private defence, the benefit should be given to
the accused. In support of the said contention, the learned
counsel has placed reliance on the decisions of this Court in
Gottipulla Venkatasiva Subbrayanam & Ors. vs. the State of
Andhra Pradesh & Anr.7
, Deo Narain vs. The State of Uttar
Pradesh8
, Subramani & Ors. vs. State of Tamil Nadu9 and
State of Uttar Pradesh vs. Gajey Singh & Anr.10
.
5. We have heard Dr. Manish Singhvi, learned senior counsel
for the appellant and Mr. Sushil Kumar Jain, learned senior
counsel for the respondent.
6. The accused No. 5 (Mehram S/o Chhagna Ram) is justified
in contending that it is open to the said accused to challenge the
finding and order of conviction under Section 326/148, IPC
recorded against him in the appeal filed by the State, assailing
the impugned judgment of the High Court. That being the settled
legal position, as expounded in Chandrakant Patil (supra),
Sumer Singh (supra) and Ramanand (supra) including Section
377(3) of the Cr.P.C., which predicates that in the appeal filed
7 (1970) 1 SCC 235 (paragraphs 17 and 18)
8 (1973) 1 SCC 347 (paragraph 5)
9 (2002) 7 SCC 210 (paragraphs 19 to 27)
10 (2009) 11 SCC 414 (paragraph 30)
9
against the sentence on the ground of its inadequacy, the
accused may plead for his acquittal or for reduction of the
sentence. Resultantly, we may have to consider the correctness
of the finding of fact recorded by the trial Court and the appeal
Court (High Court) against the accused No. 5 (Mehram S/o
Chhagna Ram).
7. Reverting to the judgment of the trial Court, it is noticed
that the trial Court vide judgment and order dated 21.7.1982,
extensively analysed the evidence of each witness and the stand
taken by the rival parties. On the basis of that analysis, the trial
Court proceeded to hold that the prosecution had succeeded in
substantiating the allegation that the accused party was hiding
behind the ‘Kair’ bushes and on arrival of the complainant party
at the scene of occurrence, came out of the bushes and assaulted
the complainant party including Bhura Ram (deceased). The trial
Court recorded the following finding:
“24. … Hence, it is established that place of occurrence
was the ‘Kair’ bushes land, the height of ‘Kair’ bushes
was 5 to 6 ft. and by the depositions of witness Mangilal
(PW11) and spot inspection report (Ex. P21) and
accused persons were hiding behind the ‘Kair’ bushes.
Accordingly, the fact of accused persons duly armed with
weapons hiding behind the ‘Kair’ bushes has also been
established and that accused persons were the
10
assailants, otherwise they would not have hidden behind
the ‘Kair’ bushes.”
It then proceeded to find that before the incident, some quarrel
had taken place between accused No. 2 – Ram Narayan, Ghewar
and Motaram on account of grazing goats, in which Ram Narayan
had assaulted Ghewar, who belonged to complainant side. The
circumstances clearly indicate that the accused persons intended
to take revenge and due to which they had arrived at the place of
occurrence from the village armed with lethal weapon(s) for
assaulting the complainant party at an opportune moment. The
trial Court then found that the accused persons had not been
able to give any explanation for coming together at the place of
incident nor about the bringing of lethal weapon(s) like “kassi” at
the site. The trial Court in that context observed thus:
“25. ... Fourthly, accused persons have not been able to
give any explanation of coming all the five accused
persons altogether. Nor they have given any explanation
of bringing lethal weapon like – ‘Kassi’ with them.
Therefore, by the fact viz. going of accused persons from
village, having armed with deadly weapons, giving
beatings to Ghewarram belonging to complainant side by
Ramnarayan amongst accused persons prior to the
occurrence, it has been fully established that accused
persons in order to take revenge, duly armed with lathies
and ‘Kassies’ had arrived at the place of occurrence,
therefore, accused persons are proved to be the
aggressor.
26. In my opinion, the arguments of learned counsel
appearing for the accused persons to the effect that by
11
the prosecution evidence, revolving lathi by Mangilal is
proved and, therefore, Complainant side was the
assailant, does not appear having any substance. Firstly,
in view of the aforesaid discussion, accused persons have
been proved to be the aggressor, therefore, first revolving
lathi by Mangilal after having surrounded, it cannot be
said that Mangilal was assailants. Secondly, by the
depositions of prosecution witnesses viz. Ramratan (PW5), Motiram (PW6), Annaram (PW7), Mehram (PW8) and
Mangilal (PW11), it has been established that Mangilal
was revolving lathi while he was surrounded and was
raising alarm that ‘Maare Marre’. Therefore, revolving
lathi by the complainant side after assaulting was in
defence and, therefore, accused persons do not get the
right of private defence.”
The trial Court then went on to find that the complainant side
and accused persons, both, had sustained injuries in the
incident in question. The trial Court, however, opined that in the
present case, nonexplanation of injuries sustained by accused
persons by the prosecution had no vital impact on the
prosecution case, and observed thus: –
“28. … Firstly, in the present case it has been
established that accused persons were the aggressor. It
has also been established that accused persons have
started the occurrence. Therefore, prosecution side has
given explicit evidence with regard to the genesis of the
occurrence. The prosecution evidence is unambiguous
and, therefore, nonsubmission of explanation of the
injuries sustained by accused persons, does not have any
effect on the prosecution case. …”
The trial Court unambiguously noted that the injuries sustained
by the accused persons are superficial and minor. After
analysing the medical and ocular evidence, the trial Court found
12
that during the scuffle, deceased Bhura Ram had caught hold of
“kassi” blow inflicted by Laxa Ram (accused No. 4) and thereafter,
Mehram S/o Chhagna Ram (accused No. 5) inflicted “kassi” blow
from the sharpen side on the head of Bhura Ram (deceased) with
intention to kill him, which blow struck on the vital part of his
head. And as per the medical evidence, that injury was sufficient
to cause death of Bhura Ram. The trial Court then proceeded to
analyse the evidence on record and noted as follows:
“39. Hence, depositions of witness Mangilal (PW11) gets
corroboration by the depositions of eyewitnesses PW5,
6, 7 and 8, Injury Reports Ex. P9, 10 and PW11 Post
mortem report of deceased Bhura, Report (Ex. P13)
lodged by Mangilal immediately after the incident, spot
condition memo (Ex. P1), siteplan of the place of
occurrence (Ex. P14), recovery of blood stained lathi
(Article8) from the possession of accused Ramniwas,
recovery of clothes of injured and deceased which have
been found to be stained with human blood and accused
persons being the aggressor and by giving beatings by
accused Ramnarayan to Ghewar and Motaram belong to
complainant side, prior to the occurrence and by the
depositions of PW1 it is also proved that on 14.08.81 in
the evening time at village Gowa Khurd, accused
personsHeeraram, Ramnarayan, Ramniwas, Baksharam
and Mehram formed an unlawful assembly and at that
time accused Baksharam and Mehram were duly armed
with lethal weapons like ‘Kassies’ and amongst the
accused persons, in furtherance to their common object,
accused Baksharam intentionally inflicted simple injuries
with ‘Kassi’ from sharpen side on the hand of Mangilal
and when Bhura came to rescue, then accused Mehram
inflicted a ‘Kassi’ blow from sharpen side over the head of
Bhura. It is also established that when Mehram came to
13
rescue Bhura, then Ramniwas caused injuries with lathi
over the head and shoulder of Mehram.
40. Learned Advocate for the accused persons has also
contended that Bhura was come to rescue, suddenly he
sustained this injury, therefore, by the act of accused
Mehram, it cannot be said that he was having any motive
to kill and at the most the case of the accused falls within
the purview of Section 304 Clause II I.P.C. and, therefore,
accused shall be acquitted of the charge under Section
302 Indian Penal Code.
41. In my opinion, no substance appears in the
contention raised by learned defence counsel, because by
the depositions of Dr. Ghodawat (PW9) it is proved that
in the ordinary course of nature injury No.1 on the head
of Bhura was sufficient to cause death and due to this
injury Bhura died. Beneath this injury the complete bone
was cut in thickness. All the membranes over the brain
were cut. Accordingly, it is proved that injury No. 1 was
sufficient to cause death in the ordinary course of nature,
injury No. 1 placed over the vital part of body like head,
causing injury with a lethal weapon like ‘Kassi’ from the
sharpen side, arriving of Bhura to rescue from backside,
engaging of accused persons in giving beatings and
causing very deep injuries, by which it is proved that
accused have forcefully inflicted injuries and falling of
Bhura immediately after sustaining injuries, by these
facts, it is proved that accused Mehram was having
intention to kill Bhura and he has caused head injury to
Bhura with the intention to kill, due to which Bhura died.
Therefore, accused Mehram S/o Chhagna caused injury
to Bhura with the intention to kill. Thus, he has
committed offence of homicidal death by committing
murder of Bhura and, therefore, charge of committing
offence under Section 302 Indian Penal Code has been
fully established against accused Mehram son of
Chhagna.
42. In my opinion, no substance appears in the
argument of learned Advocate for the accused persons
that the act of accused falls within the purview of Section
304 Part II I.P.C. Firstly, Mehram was already assailant,
secondly accused Mehram has given beatings with
weapon, he was standing there after making preparations
and, therefore, it cannot be said that killing of Bhura by
accused Mehram S/o Chhagana was sudden. Rather, it is
proved that Mehram S/o Chhagna has caused injury to
14
Bhura with the intention to kill, therefore, his case falls
within Section 302 I.P.C.”
Indeed, the trial Court went on to hold that the prosecution had
not succeeded in substantiating common object of committing
murder of the person concerned and acquitted the accused of
charge under Section 149, IPC.
8. When the matter travelled to the High Court at the instance
of the accused persons by way of appeal, the Division bench of
the High Court partly allowed the appeal and, if we may say so,
by a cryptic judgment, which reads thus:
“…..
We have heard the learned counsel for the parties
and have given our thoughtful consideration to the
material available on record.
Admittedly the way to field which is being claimed
by the complainant party, is not a sanctioned way, so
much so that it is not even recorded in the revenue
record. The complainant party is claiming it through
prescription. If prescription has such maturity in it that it
got converted into an actionable right, the complainant
party could have sought a declaration to that effect.
Without taking recourse to the lawful measures, the
complainant party insisted on sing that way by courtesy
only. This puts the complainant party on the offensive,
and in that way the complainants stand on a weaker
footing when they assert that the accused assaulted
them. There were enough provocations created by the
complainants to the accused persons by asserting a right,
which was not a legally recognized right. In that
background when the complainants and the accused,
entered into a conflict, then the question of common
object stands ruled out. Both the parties have quarrelled,
and have inflicted injuries to each other. It was almost a
case of free fight and in that view of the matter, invoking
15
Section 149 IPC is not considered proper by us and,
therefore, Section 149 IPC deserves to be excluded from
consideration.
When Section 149 IPC is taken out then individual
participation has to be seen to the deceased it was only
accused Meh Ram, who is said to have caused injuries.
All other accused persons were held guilty with the aid
[sic] of Section 149 IPC. Conviction with the aid of Section
149 IPC, therefore, deserves to be set aside. After setting
aside the conviction of other accused persons except Meh
Ram under Section 302 IPC they stand convicted under
Sections 323, 324, 147 and 148 IPC. For those offences
whatever period they have already undergone can be
considered sufficient and in that view of the matter, the
appeal of the accused Ram Niwas, Heera Ram, Ram
Narayan and Baxa Ram is allowed to the extent that the
conviction under Section 302/149 IPC is set aside. Their
conviction under Sections 323, 324, 147 and 148 IPC is
maintained and the period already undergone which is
more than 5½ month is considered sufficient to meet out
the ends of justice.
Now we take up the case of accused Meh Ram. He
is said to have caused the total blow. But that was in the
background that both the parties fought a free fight. Meh
Ram himself has sustained injuries and in that view of
the matter it can be said that he cannot have the
intention of causing death of the deceased. It may be said
that he had exceeded his right of private defence. At best
a case under Section 326 IPC can be said to be made out
against him.
In the result, the appeal of accused Ram Niwas,
Heera Ram, Ram Narayan and Boxa Ram accused is
partly allowed. Their conviction and sentence under
Section 149 IPC is set aside and their conviction under
Sections 323, 324, 147 and 148 IPC is maintained. As
regards the sentence, the period already undergone is
considered sufficient to meet the ends of justice.
So far as accused Meh Ram is concerned, his
conviction under Section 302 IPC is converted into one
under Section 326 IPC and his conviction under Section
148 IPC is maintained. However, he is sentenced to the
period already undergone. Meh Ram is directed to pay
compensation to the tune of Rs.50,000/ to the next of
kin of the deceased.”
16
9. After having gone through the relevant evidence and
judgments of the trial Court and the appeal Court (High Court),
we have no reason to depart from the conclusion reached by the
trial Court that there were tangible circumstances and evidence
to indicate that the accused party was the aggressor, who was
hiding in the bushes and appeared only after the complainant
party arrived on the spot. The accused party had assembled at
the spot with lethal weapon(s) and all the accused were waiting
for the complainant party to arrive at the spot and started
assaulting the complainant party. The blows inflicted by the
concerned accused, in particular accused No. 5, were with an
intention to kill Bhura Ram (deceased). The death of Bhura Ram
was caused due to the blow inflicted by accused No. 5 and was a
homicidal death. We have no reason to depart from the said
findings recorded by the trial Court and if we may say so, the
same remained undisturbed by the High Court. The High Court
by its cryptic judgment, proceeded on the erroneous assumption
that the accused party had been provoked due to the
unauthorised entry of the complainant party on their fields and
to defend their possession, they had to resort to right of private
defence. While doing so, the accused party, in particular,
17
accused No. 5 (Mehram S/o Chhagna Ram), exceeded his right of
private defence. There was no common object because the
incident in question occurred due to provocation and spiralled
into a free fight, causing injuries to both sides. The fallacy in the
reasoning of the High Court is palpable from the evidence of
prosecution witnesses, which has been elaborately analysed and
rightly accepted as truthful by the trial Court, substantiating the
allegations against the accused party of being the aggressors.
Once it is a case of accused party being the aggressors and they
commenced assault on the complainant party and further, the
accused No. 5 (Mehram S/o Chhagna Ram) having been found to
have assaulted Bhura Ram (deceased) with intention to kill him,
the question of invoking the right of private defence does not
arise. In fact, no defence evidence was produced to substantiate
the plea of exercise of private defence. The two theories (of being
aggressors as opposed to exercise of right of private defence) are
antithesis to each other.
10. Had it been a case of complainant party being the aggressor,
the accused party and accused No. 5 (Mehram S/o Chhagna
Ram) in particular, could be heard on the factum of right of
18
private defence. The nature of injuries caused to the
complainant party and to the accused party are also indicative of
the fact that the accused party was the aggressor. As regards the
injuries caused to the deceased (Bhura Ram) due to the assault
by the accused No. 5 (Mehram S/o Chhagna Ram), as noted in
the postmortem examination (Exhibit P11) by Dr. Ghodawat,
the same reads thus:
“1. Incised wound of size 5.1 cm. x bone deep. This
injury was in the middle parietal region of head.
Underneath which bone was fully cut in obesity. All
membranes covering brain were cut. Brain matter was
appearing from the deepness of wound.
2. One bruise of size 3.x2 cm. which was in the middle
of left foot on front portion. Injury was ante mortem in
nature. Brain matter was also cut parallel to the
deepness of wound, which was cut up to half cm.”
(emphasis supplied)
In the opinion of the doctor, the cause of death of Bhura Ram
(deceased) was brain injury and due to the injury No. 1. The fact
that the death was caused by the injury No. 1 alone, does not
mean that it was not a case of homicidal death. Nor there can be
presumption that there was no intention to cause death by
inflicting such injury. The evidence on record has been duly
analysed by the trial Court and it has been held that accused No.
5 (Mehram S/o Chhagna Ram) had caused injury No. 1 with
19
intention to cause death of Bhura Ram (deceased) to teach lesson
to the complainant party for their repeated unauthorised entry on
the fields belonging to the accused party despite warnings and
obstructions caused in that behalf in the past.
11. We may now usefully refer to the injury report (Exhibit D7)
of accused No. 5 (Mehram S/o Chhagna Ram), who had suffered
simple injuries on his person caused by blunt weapon. The
description of injuries therein reads thus:
“1. Abrasion 1 x 1 cm which was in the middle posterior
region of left forefinger;
2. Abrasion 1 x .3 cm. in the middle top portion of left
index finger;
3. Bruise 6 x 1 cm. over Rt. Shoulder oblique placed.
4. Two abrasions 1.5 x 4 cm. in the lower portion of Rt.
Thigh, both were placed at a distance of 0.5 cm.
each other.
5. Injured was complaining pain in his left foot.”
From the description of injuries, it is amply clear that these
injuries are superficial and as rightly found by the trial Court,
will have no bearing on the prosecution case, even if the same
remain unexplained. The fact that some of the accused had
received grievous injuries, does not belie the prosecution case
that the accused were the aggressors. There was no reason for
the accused to remain in hiding position equipped with lethal
20
weapon(s), waiting for the arrival of the complainant party and on
their arrival, to immediately commence attack and cause fatal
injuries to the complainant party. Such being the factual matrix,
it is unfathomable as to how the plea of right of private defence
could be invoked by the accused. If such a plea is not available,
the question of answering the plea in favour of the accused that it
was a case of excessive exercise of right of private defence does
not arise at all. The basis of the High Court judgment being
flawed in this regard, the conclusion recorded by it cannot stand
the test of judicial scrutiny. For the same reason, the question of
converting the offence under Section 302 to one under Section
326 cannot be countenanced, both on facts and in law.
12. Indeed, the trial Court’s finding of guilt recorded against
accused No. 5 (Mehram S/o Chhagna Ram), is unexceptionable.
However, on the nature of offence, the trial Court considered the
plea of the accused only in reference to offence falling under
Section 304 Part II of the IPC. The trial Court rejected that
argument and we must uphold that conclusion, because the
finding of fact is that the act was done by the accused with the
knowledge that it is likely to cause death, and with intention to
21
kill Bhura Ram (deceased). But before we express our final
opinion, it is necessary to examine as to whether the case in
hand would be covered under the exceptions predicated in
Section 300, IPC, so as to apply Section 304, IPC – be it Part I or
Part II thereof. The facts of the present case would indicate that
the accused, in particular accused No. 5, at the relevant time,
was deprived of the power of selfcontrol by grave and sudden
provocation due to repeated unauthorised entry on the fields
belonging to accused party. Further, the solitary fatal blow on
the vital part of the head by accused No. 5 caused the death of
Bhura Ram (deceased). The provocation was not invited by the
accused party, but was obviously at the instance of the
complainant party, who entered the fields unauthorizedly despite
the objection taken by the complainant party in that regard on
the same day earlier. However, as the death of Bhura Ram
(deceased) was caused by the act of accused No. 5 giving one fatal
blow on the head, which was with the intention of causing his
death or causing such bodily injury as is likely to cause death,
the case would be covered by Section 304 Part I, IPC. It is
certainly not a case to simply proceed under Section 326 of the
IPC, as held by the High Court. We disapprove that approach of
22
the High Court. Even if the High Court had justly applied
Section 326, IPC, we fail to appreciate as to how the High Court
could have imposed sentence only for a period (about five
months) undergone considering the nature and gravity of the
offence and the background in which it is committed by the
accused party, in particular, accused No. 5.
13. The learned counsel for the accused No. 5 was at pains to
persuade us that the said accused is now about 7075 years of
age and at this distance of time, it may not be appropriate to
send him back to jail. Taking overall view of the matter, we are
not impressed by this submission. Even in case of offence under
Section 326, IPC, which commended to the High Court, the same
was punishable with imprisonment for life or with imprisonment
of either description which may extend to ten years and also
liable to fine. Had it been a conviction under Section 326, as
aforesaid, the sentence of only about five months in the facts of
the present case, by no stretch of imagination, was adequate.
14. Be that as it may, in our considered opinion, the accused
No. 5 (Mehram S/o Chhagna Ram) deserves to be convicted for
the offence punishable under Section 304 Part I of the IPC. For
23
the reasons already recorded, it is unnecessary for us to dilate on
the decisions of this Court pressed into service regarding
approach to be adopted by the Court in respect of cases
pertaining to accused exceeding his right of private defence.
15. Taking overall view of the matter, we are of the considered
opinion that in this case, the accused No. 5 (Mehram S/o
Chhagna Ram) deserves to be awarded sentence of ten (10) years
of simple imprisonment and he must pay compensation to the
tune of Rs.50,000/ (Rupees fifty thousand only) to the next kin
of the deceased, if it is yet to be paid in terms of order of the High
Court.
16. Accordingly, we partly allow this appeal. The impugned
judgment of the High Court and that of the trial Court are
modified by convicting the accused No. 5 (Mehram S/o Chhagna
Ram) for offence punishable under Section 304 Part I and Section
148, IPC. He is sentenced to undergo simple imprisonment for
ten (10) years for offence punishable under Section 304 Part I
and six (6) months’ simple imprisonment for offence punishable
under Section 148 and fine of Rs.100/ on each count, in default
to undergo fifteen (15) days’ additional simple imprisonment.
24
Both sentences to run concurrently. Further, the period already
undergone by accused No. 5 (Mehram S/o Chhagna Ram) shall
be adjusted by giving the benefit under Section 428, Cr.P.C. In
addition, the accused No. 5 (Mehram S/o Chhagna Ram) is
directed to pay compensation to the tune of Rs.50,000/ (Rupees
fifty thousand only) to the next of kin of the deceased (Bhura
Ram), if already not paid. The bail bonds stand cancelled and
the accused No. 5 (Mehram S/o Chhagna Ram) is directed to
surrender within six weeks from the date on which lockdown in
the country due to pandemic COVID19 including in the State of
Rajasthan is relaxed, to undergo the remaining sentence period.
17. The appeal is disposed of in the above terms. Pending
interlocutory applications, if any, shall stand disposed of.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Dinesh Maheshwari)
New Delhi;
May 6, 2020.
