Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 991 OF 2010
Brij Lal … Appellant
versus
State of Rajasthan … Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. According to the allegations levelled in the complaint, the
appellant–Brij Lal and Mohan Lal - PW-15 were both employed in the
Irrigation Department of the State Government. They were both holding the
posts of Gauge Reader. They also resided in government quarters at Suleman-
ki-Head, close to one another. The appellant–Brij Lal allegedly used to
hurl abuses at Mohan Lal - PW-15 under the influence of liquor. Some
others, including Kashi Ram, co-accused, used to side with the appellant –
Brij Lal, in his misbehaviour with Mohan Lal – PW-15. In order to settle
the dispute amicably Mohan Lal – PW-15 called a “panchayat” (council). The
endeavour of Mohan Lal – PW-15, through the panchayat, proved unsuccessful.
Eventually, he addressed a communication dated 18.8.1983, to the Assistant
Engineer of the Irrigation Department, highlighting the inimical attitude
of the appellant–Brij Lal. Since the said complaint also did not lead to
any fruitful result, Mohan Lal – PW-15 quit his government accommodation,
and took up rental accommodation in the house of Mohan Ram – PW-1.
2. The incident which has given rise to the present appeal, occurred on
30.9.1983 at around 9 p.m., at the house of Mohan Ram – PW-1, i.e., the
premises to which Mohan Lal – PW-15 had shifted, to keep himself away from
the appellant–Brij Lal. At the time of occurrence, Mohan Lal – PW-15 was
present in the said premises, along with his wife and children. It was
alleged, that the appellant–Brij Lal and the co-accused – Kashi Ram hurled
abuses at Mohan Ram - PW-1, who was sitting outside, in front of his house.
The appellant and the co-accused asked Mohan Ram – PW-1, to call out Mohan
Lal – PW-15, as they wanted to kill him. It was the assertion of Mohan Ram
– PW-1, who eventually lodged the complaint, that he had requested the
appellant–Brij Lal and the co-accused – Kashi Ram, not to create any
trouble at his house. He asked them to fulfill their intentions at some
other place. Unmindful of the advice tendered by Mohan Ram – PW-1, the
appellant and the co-accused started hurling abuses at Mohan Ram – PW-1.
At that juncture, Mohan Ram – PW-1 realized, that the accused and the co-
accused were in possession of pistols. Mohan Lal – PW-15, having heard the
appellant and the co-accused hurling abuses, and also, threatening to kill
him, scaled the boundary wall of the premises, and hid in the flour mill of
Milkha Singh, located in close vicinity of the house of Mohan Ram–PW-1.
3. Hearing the altercation and the phone-calls made by Mohan Ram – PW-1
and Mohan Lal – PW-15, neighbours and co-villagers, came to the place of
occurrence. They too requested the appellant – Brij Lal, and the co-
accused – Kashi Ram, to go away. Instead of leaving, the accused-
appellant, as well as, the co-accused openly proclaimed, that they would
not leave without killing Mohan Lal – PW-15. Under the pressure of the
neighbours and the co-villagers, they moved towards the front of the house
of Sultan Bhat, located in front of the house of Mohan Ram–PW-1. At that
juncture, the neighbours and the co-villagers went towards the spot at
which the accused-appellant – Brij Lal and the co-accused – Kashi Ram had
retreated, and again requested them to desist from their intentions.
According to the assertions made in the complaint, at the instance of the
co-accused – Kashi Ram, the appellant – Brij Lal fired at the gathering.
Om Prakash and Sultan Bhat received bullet injuries from the shots fired by
Brij Lal. Om Prakash died on the spot. Sultan Bhat was rendered
unconscious. He was removed to hospital, where he died on the following
day, i.e., on 1.10.1983. Kashi Ram also fired from the gun in his
possession. It hit Mst. Munni Devi (a woman), who also died on the spot.
In the firing under reference, Labh Singh and Sheria (a 5 year old boy)
were also injured. The report of the above incident was lodged by Mohan
Ram – PW-1, on 1.10.1983 at 12.05 a.m.
4. It is also relevant to mention, that the appellant – Brij Lal and the
co-accused – Kashi Ram got themselves admitted to a hospital. As soon as
they heard about the death of Sultan Bhat, they ran away from the hospital.
The appellant – Brij Lal was however, arrested on 10.10.1983. Based on
the disclosure statement made by him, a 12 bore pistol and an empty
cartridge were recovered. The co-accused – Kashi Ram was successful in
evading his arrest. After investigation, the appellant – Brij Lal was
charged under Sections 302, 307 and 324 read with Section 34 of the Indian
Penal Code (hereinafter referred to as, the IPC) and Sections 25 and 27 of
the Indian Arms Act, by the Judicial Magistrate No.1, Sri Ganganagar. The
learned Magistrate committed the case to the Court of Session, which framed
charges against the appellant – Brij Lal, under the provisions referred to
hereinabove.
5. The accused appellant – Brij Lal, pleaded innocence. He sought
recourse to the plea of private defence, under the second exception under
Section 300 of the IPC. Section 300, IPC is reproduced below:
“300. Murder.—Except in the cases hereinafter excepted, culpable homicide
is murder, if the act by which the death is caused is done with the
intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person to whom
the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A
commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is
likely to cause his death, strikes him with the intention of causing bodily
injury. Z dies in consequence of the blow. A is guilty of murder, although
the blow might not have been sufficient in the ordinary course of nature to
cause the death of a person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives him such a blow as
would not in the ordinary course of nature kill a person in a sound state
of health, here A, although he may intend to cause bodily injury, is not
guilty of murder, if he did not intend to cause death, or such bodily
injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause
the death of a man in the ordinary course of nature. Z dies in consequence.
Here, A is guilty of murder, although he may not have intended to cause Z’s
death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and
kills one of them. A is guilty of murder, although he may not have had a
premeditated design to kill any particular individual.
Exception 1.— xxx xxx xxx
Exception 2.—Culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt
to A. A draws out a pistol. Z persists in the assault. A believing in good
faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed murder, but only culpable
homicide.
Exception 3.— xxx xxx xxx
Exception 4.— xxx xxx xxx
Exception 5.— xxx xxx xxx”
After the statements of the prosecution witnesses were recorded, and that
of the appellant was recorded under Section 313 of the Code of Criminal
Procedure, even though an opportunity was afforded to the appellant, to
lead evidence in his defence, he chose not to produce any witness on his
behalf.
6. Vide his judgment dated 22.1.1985, the Sessions Judge, Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of self-
defence raised by him by invoking the second exception under Section 300,
IPC.
7. Dissatisfied with the above judgment dated 22.1.1985, the State of
Rajasthan preferred D.B. Criminal Appeal No.227 of 1985, to assail the
order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar. The
High Court rendered the impugned judgment on 17.11.2009, whereby the appeal
preferred by the State of Rajasthan was accepted. The judgment rendered by
the Sessions Judge, Sri Ganganagar dated 22.1.1985, acquitting the
appellant-Brij Lal, was set aside. The appellant-Brij Lal was found guilty
of having committed the offence punishable under Section 302 of the IPC.
Keeping in mind the fact, that the occurrence had taken place in 1983, the
High Court awarded the sentence of life imprisonment to the appellant-Brij
Lal. It also imposed a fine of Rs.1,000/-, and in default thereof, awarded
one year’s rigorous imprisonment, to the appellant.
8. The appellant has approached this Court, to assail the impugned
judgment, rendered by the High Court dated 17.11.2009. During the course
of hearing, learned counsel for the appellant, summarized the contentions
advanced on behalf of the appellant, as under:
Firstly, it was contended, that the factum that the appellant-Brij Lal had
also suffered injuries, was sufficient to establish, that their retaliation
by firing gunshots at the gathering, was a matter of self-defence, and
nothing else. Secondly, it was urged, that the target of the appellant-
Brij Lal, as per the prosecution story, was Mohan Lal - PW-15. And as
such, there was no question of their having intentionally fired shots at
the neighbours and co-villagers and therefore, could not have been held
guilty of the offence under Section 302 of the IPC. Thirdly, it was
submitted, that the recovery of the weapon, namely, the gun with which the
appellant–Brij Lal, allegedly shot at the neighbours and co-villagers,
resulting in the death of Om Prakash, Sultan Bhat and Munni Devi, was not
proved to have been recovered from the appellant. And as such, in the
absence of proof of recovery of the weapon used in the occurrence from the
appellant, there was no justification, whatsoever, for the High Court to
have found the appellant guilty of the offence under Section 302 of the
IPC. Fourthly, it was submitted, that the co-accused – Kashi Ram, who was
tried separately, was prosecuted in the same manner as the appellant. It
was submitted, that the same witnesses as were produced by the prosecution
against the appellant-Brij Lal, were also produced by the prosecution,
against the co-accused – Kashi Ram. On the culmination of the trial against
Kashi Ram, he was found innocent, and was acquitted. It was submitted,
that the State of Rajasthan, chose not to prefer any appeal against the
order of acquittal of the co-accused – Kashi Ram. According to learned
counsel, the prosecution cannot succeed in one case, and fail in the other,
when the witnesses produced against both accused are the same. Fifthly, it
was contended, that the evidence produced by the prosecution reveals, that
the incident had occurred more than 200 feet away from the house of Mohan
Ram – PW-1. Just the above fact, according to learned counsel, is
sufficient to demonstrate, that the mob which had assembled at the place of
occurrence, was acting in an intimidating manner, resulting in the accused-
appellant – Brij Lal and the co-accused – Kashi Ram, retreating away from
the house of Mohan Ram – PW-1 towards the house of Sultan Bhat. It is
therefore apparent, that the gunshots fired by the appellant-Brij Lal and
the co-accused – Kashi Ram, were in their self-defence, and nothing more.
Lastly, it was the contention of learned counsel for the appellant, that
Mohan Lal – PW-15, in his deposition, clearly and unequivocally
acknowledged, that at the time of occurrence when the appellant and the co-
accused fired the shots, he was at a distance of 20 feet from the
appellant–Brij Lal. It was the contention of learned counsel, that if the
prosecution story is to be believed, the appellant should have fired at
Mohan Lal – PW-15, and not at the persons gathered at the place of
occurrence, as alleged by the prosecution.
9. During the course of hearing, learned counsel for the rival parties,
in order to project their respective claims, relied on the statements of
only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal – PW-15. We are
of the view, that in our determination of the claims, projected on either
side, it is imperative to closely examine the testimony of these two
witnesses. We shall endeavour to do so, hereunder:
10. Mohan Ram – PW-1:
(i) In his opening statement, Mohan Ram acknowledged, that he knew the
accused-appellant – Brij Lal and Mohan Lal – PW-15, from before. He
affirmed, that just like them, he too was employed in the Irrigation
Department of the State Government. While Brij Lal and Mohan Lal were
employed in the department as Gauge Readers, he himself was working as a
Beldar. All of them were posted at the Head of Suleman. He stated, that
Mohan Lal and Brij Lal were allotted government quarters close to one
another, at Suleman-ki-Head. The fact, that they were quarreling among
themselves for some time prior to the incident, was also affirmed. It was
pointed out, that while Mohan Lal was living in his government quarter
along with his family, Brij Lal was residing by himself in his separate
quarter. He affirmed, that the accused-appellant – Brij Lal used to drink
liquor at night, and create a racket “every time”, thereafter. He
confirmed, that co-accused – Kashi Ram was Brijlal’s drinking partner, and
that, Kashi Ram also used to associate along with Brij Lal, in the brawl.
He testified, that Mohan Lal – PW-15, used to object to their behaviour,
and therefore, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were inimical to Mohan Lal – PW-15. He confirmed, that Mohan Lal – PW-
15 had complained to him and others about their behaviour on several
occasions, and that, he had also spoken to the accused-appellant – Brij
Lal, to persuade him to desist from such activities. He pointed out, that
Brij Lal was adamant, and had refused to stop. He also stated, that Mohan
Lal – PW-15 had taken him to make a representation against Brij Lal, to the
Overseer of the Irrigation Department. He (Mohan Lal – PW-15) had given up
living in his allotted quarter, and had moved to his (Mohan Ram – PW-1’s)
house along with his family, as his tenants. He confirmed, that the said
shifting had taken place about fifteen days prior to the occurrence.
(ii) With reference to the occurrence, it was stated, that it had taken
place between 8.30 p.m. and 9 p.m. He testified, that he was sitting in
front of his house on a cot, and that, Mohan Lal – PW-15, and his wife and
children, were inside the house. He deposed, that the accused-appellant –
Brij Lal and the co-accused – Kashi Ram, had come to his house with pistols
in their hands. The accused-appellant – Brij Lal, it was pointed out,
asked him to call Mohan Lal – PW-15 outside, as they had come to kill him.
He stated, that he pleaded with the accused-appellant, as also, the co-
accused, not to do any such thing, at his residence.
(iii) He confirmed, that he had seen Mohan Lal – PW-15 scale the wall of
his house, and cross over to the house of his neighbour Badri Ram, and then
proceeded to the flour mill of Milkha Singh. He stated, that he had
shouted out for help, whereafter, his neighbours and co-villagers, hearing
his clamour, had reached the place of occurrence. He deposed, that all the
persons gathered at the place of occurrence, had requested the accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, to leave the place,
but Brij Lal and Kashi Ram were adamant in their resolve. They had
responded by stating, that they would not go anywhere, as they had come to
kill Mohan Lal – PW-15. He testified, that at that juncture the accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, moved away from his
house and stood in front of the house of Sultan Bhat, but still continued
to hurl abuses. He pointed out, that all the neighbours and co-villagers
were at a distance of about 20 feet from Brij Lal and Kashi Ram, and were
persuading them to stop hurling abuses. But, they were insistent. Mohan
Ram – PW-1 further deposed, that co-accused – Kashi Ram, at that juncture,
exhorted Brij Lal to shoot at the crowd, as everyone was siding with Mohan
Lal – PW-15. He deposed, that Brij Lal, on being so implored, fired at the
gathering. He affirmed, that Om Prakash and Sultan Bhat received firearm
injuries. It was his assertion, that in the meanwhile, the co-accused –
Kashi Ram also fired from his gun, which hit Munni Devi, Labh Singh Mistry
and Sheria. He deposed, that Munni Devi and Om Prakash died at the spot,
whereas Sultan Bhat became unconscious.
(iv) He also confirmed, that he had lodged a report of the incident, at
Police Station Chunawar, around mid-night. In his cross-examination Mohan
Ram – PW-1 asserted, that the persons, who had gathered at the place of
occurrence, comprised of men, women and children. He denied, that those
persons who had gathered there, intended to apprehend the accused-appellant
– Brij Lal or the co-accused – Kashi Ram. He confirmed, that none amongst
the crowd, was armed with any lathis or sticks. He denied the suggestion,
that Brij Lal and Kashi Ram were attacked by the villagers, with lathis.
He deposed, that neither Brij Lal nor Kashi Ram had received any injuries
during the occurrence. He also denied the suggestion, that the persons
gathered at the place of occurrence, had chased the accused-appellant, and
the co-accused. He also denied the suggestion, that Brij Lal and Kashi Ram
had come to the general merchant shop to buy “biris” (traditional
cigarettes), and had never come to his residence, to beat or harm Mohan Lal
– PW-15.
(v) The above deposition of Mohan Ram – PW-1, fully affirmed the
prosecution version of the occurrence.
11. Mohan Lal – PW-15:
(i) Mohan Lal deposed, that he was employed in the Irrigation Department,
of the Government of Rajasthan, and was posted at Head of Suleman, as Gauge
Reader. He confirmed, that he was living in a government quarter allotted
to him, along with his wife and three children, at Suleman-ki-Head. He
acknowledged, that the government quarter of the accused-appellant – Brij
Lal, was nearby his own quarter. He asserted, that the accused-appellant –
Brij Lal, used to abuse him after drinking liquor, and that, Kashi Ram and
his brother-in-law, used to sometimes accompany the accused-appellant –
Brij Lal. He stated, that he had asked the accused to desist from using
such language, because he was a family man. He deposed, that he had called
a “panchayat” (council), to resolve the issue between himself and the
accused-appellant – Brij Lal. The “panchayat” was attended by co-employees
of the Irrigation Department. He confirmed, that Brij Lal, on being
called, had attended the panchayat. He deposed, that even at the
panchayat, the accused-appellant – Brij Lal had reiterated, that he would
do as he wished, and they (the members of the panchayat) may do what they
could. He also deposed, that after panchayat, he had given an application
to the Overseer (Exhibit P-12) of his department, complaining about the
conduct of the accused-appellant – Brij Lal. He stated that despite the
complaint, the behaviour of accused-appellant – Brij Lal did not improve.
He urged, that to avoid the appellant, he had surrendered the government
accommodation allotted to him at Suleman-ki-Head and had moved to a rented
accommodation, in the house of Mohan Ram – PW-1. He deposed, that the
occurrence had taken place within 10/15 days of his moving to the house of
Mohan Ram – PW-1. The occurrence is stated to have taken place between 8
p.m. and 9 p.m.. He asserted, that Mohan Ram – PW-1, was sitting outside
the gate of his house, whilst he himself, his wife and children, were in
the house. He deposed, that the accused-appellant – Brij Lal and the co-
accused – Kashi Ram were calling him outside the house. He confirmed, that
they were holding pistols in their hands. On such exhortation, Mohan Ram –
PW-1 had told the accused-appellant and the co-accused, that he would not
allow them to kill Mohan Lal – PW-15 at his residence, but they did not
listen to him, and continued to hurl filthy abuses.
(ii) Mohan Lal asserted, that he jumped over the wall of the house of
Mohan Ram – PW-1, and from the side of the house of Badri Ram, he entered
the flour mill of Milkha Singh. He asserted, that the neighbours and co-
villagers hearing the shouts of Mohan Ram – PW-1, ran to the place of
occurrence. At that juncture, the accused-appellant – Brij Lal and the co-
accused – Kashi Ram, had moved towards the house of Sultan Bhat. He
asserted, that the crowd comprised of men, women and children. He also
deposed, that the villagers requested Brij Lal and Kashi Ram to go away,
but they were bent on carrying out their objective. He stated, that Brij
Lal and Kashi Ram fired shots from their pistols, and the shots fired by
the accused-appellant – Brij Lal hit Om Prakash and Sultan Bhat, whereas,
the shots fired by the co-accused – Kashi Ram hit Muni Devi, Labh Singh and
Sheria Ram. He confirmed, that Munni Devi and Om Prakash died at the spot.
He also stated, that the condition of Sultan became serious, and
therefore, the villagers had taken him to hospital. He asserted, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, went away from
the spot after the incident.
(iii) In his cross-examination Mohan Lal – PW-15 stated, that the
conduct of accused-appellant – Brij Lal had worsened, about six months
prior to the occurrence. He stated, that his only difference with the
accused-appellant – Brij Lal was, that he used to abuse him. He denied the
suggestion, that the accused-appellant – Brij Lal had ever teased his wife.
He reiterated, that he had lodged a complaint against the accused-
appellant – Brij Lal, with his senior officers. He stated, that the first
time, accused-appellant – Brij Lal threatened to kill him, was after he had
summoned the “panchayat” (council), to resolve their dispute. Mohan Lal –
PW-15 acknowledged, that he had never made such a complaint to the police.
He also clarified, that the accused-appellant – Brij Lal and the co-accused
– Kashi Ram, had been exhorting Mohan Ram – PW-1, to call him (Mohan Lal –
PW-15) outside the house. He stated, that when accused-appellant – Brij
Lal and the co-accused – Kashi Ram were speaking to Mohan Ram – PW-1, they
were visible to him from within the house. He stated, that he became
scared, and therefore, ran away from the house. He deposed, that he had
run away, because the accused-appellant – Brij Lal was saying, that they
were going to kill him. He deposed, that he had run away by jumping into
the house of Badri Ram, and therefrom, went to the flour mill of Milkha
Singh. He testified, that Milkha Singh closed the doors, after he had
entered his mill, when he informed Milkha Singh, that the accused had come
to kill him. While in the flour mill of Milkha Singh, Mohan Lal – PW-15
confirmed, that he could hear the sound of people coming to the house of
Mohan Ram – PW-1. He also confirmed hearing the shouts of Mohan Ram – PW-
1. He stated, that he became encouraged and lost his fear, when he heard
the voices of the co-villagers, whereupon, he himself (Mohan Lal – PW-15)
and Milkha Singh came out of the flour mill. On coming out, he had seen
the accused-appellant – Brij Lal and the co-accused – Kashi Ram standing in
front of the house of Sultan Bhat at a distance of “…about 30-40-45 Ft…”,
from the flour mill. He stated, that he was standing near Om Prakash, when
Om Prakash was shot. And that, Sultan, Munni Devi and Sheria Ram were
standing about 5 feet away from their side. He confirmed, that he was not
hurt by any pellet. He deposed, that the first shot was fired by the
accused-appellant – Brij Lal, and the next shot was fired by the co-accused
– Kashi Ram. He affirmed, that the accused-appellant – Brij Lal had no
quarrel/enmity with the deceased Om Prakash and Munni Devi. He stated,
that Om Prakash, Munni Devi and others had only come to the place of
occurrence, to save him. In his cross-examination, Mohan Lal – PW-15
deposed that, while the accused-appellant – Brij Lal and the co-accused –
Kashi Ram were standing in front of the house of Sultan Bhat, the deceased
and the injured were standing at a distance of about 20-25 feet, from the
house of Sultan Bhat. The distance between the accused-appellant – Brij
Lal and the villagers was about 17 to 18 feet, whereas, the distance
between the co-accused – Kashi Ram and Munni Devi was about 8 to 10 feet.
He deposed, that it was not possible for anyone to catch the accused-
appellant – Brij Lal and the co-accused – Kashi Ram, because “…all were
empty handed…”. During his cross-examination Mohan Lal – PW-15 deposed,
that the crowd comprised of 20 to 25 men, 10 to 15 women and some children,
when the firing had taken place. He also asserted, that the accused-
appellant – Brij Lal, asked Mohan Ram – PW-1, to send forward Mohan Lal –
PW-15 (i.e., himself), because they needed to kill him. In response to his
denial, Mohan Lal – PW-15 stated, that the accused-appellant – Brij Lal
shouted, that the accused would kill each one of those who were helping
Mohan Lal – PW-15. Mohan Lal - PW-15 reiterated, that none of the
villagers was armed with any weapon. The suggestion, that the villagers
were chasing the accused and the co-accused, was denied. The suggestion,
that the persons gathered at the place of occurrence had lathis on their
hands, and that, they had inflicted injuries on accused-appellant – Brij
Lal and the co-accused – Kashi Ram with lathis, was also denied.
(iv) The above deposition of Mohan Lal – PW-15, fully affirmed the
prosecution version of the occurrence.
12. We shall now deal with the individual pleas canvassed at the hands of
learned counsel for the appellant.
13. The first contention advanced at the hands of learned counsel for the
appellant was, that the appellant had fired gunshots at the mob of
villagers only as a matter of self-defence, when the accused-appellant and
the co-accused, had been attacked. In this behalf, it would be relevant to
mention, that whilst it is open to an accused to raise a defence in the
nature suggested by learned counsel, there is an obvious pitfall where an
accused chooses to do so, in the sense that by raising such a plea, the
accused acknowledges the occurrence itself. There is yet another
predicament which he is liable to encounter, when raising such a defence.
The same emerges from Section 96 of the Indian Evidence Act, which is
extracted below:
“96. Evidence as to application of language which can apply to one only of
several persons.— When the facts are such that the language used might have
been meant to apply to any one, and could not have been meant to apply to
more than one, of several persons or things, evidence may be given of facts
which show which of those persons or things it was intended to apply to.”
In this behalf, reference may also be made to the decision in Rizan v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as under:
“13. Then comes plea relating to 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 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, the burden of
proof is on the accused, who sets of 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 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 and
others v. Delhi Administration, AIR 1968 SC 702; State of Gujarat v. Bai
Fatima, AIR 1975 SC 1478: State of U.P. v. Mohd. Musheer Khan, AIR 1977 SC
2226 and Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private defence of
body. If a person has a right to 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. (AIR 1979 SC 391), runs as follows:
"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 the
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.”
(emphasis supplied)
14. The question that arises for consideration in the instant case is,
whether there is evidence on the record of this case, to substantiate the
plea of self-defence? Learned counsel for the appellant, answered in the
affirmative. The basis of the aforesaid answer is, the injuries suffered
by the appellant which, according to the appellant, were caused by the mob
when the appellant was attacked. It was submitted, that the gathering of
neighbours and villagers, at the place of occurrence had attacked them,
resulting in their being pushed back to the house of Sultan Bhat. It was
submitted, that it was only in retaliation of the above attack, resulting
in the injuries suffered by the accused, that the accused-appellant – Brij
Lal, as also, the co-accused – Kashi Ram, had fired gunshots at the crowd,
which was out and out to lynch them.
15. Having given our thoughtful consideration to the submissions
advanced, at the hands of learned counsel for the appellant, we are of the
view, that there is overwhelming evidence produced by the prosecution,
affirming that the crowd which had gathered at the place of occurrence,
consequent upon the shouting of Mohan Ram – PW-1, was unarmed. There is
also evidence on the record of the case to authenticate, that all the
villagers were only persuading the accused-appellant – Brij Lal and his co-
accused – Kashi Ram, not to insist on carrying out their threat, to murder
Mohan Lal – PW-15. The testimony of the prosecution witnesses also
demonstrates, that there was substantial distance between the villagers,
and the place at which the accused were standing in the opposite of the
house of Sultan Bhat. Not only Mohan Ram – PW-1, but also Mohan Lal – PW-
15, expressly deposed that none of the neighbours and co-villagers, was
armed. Moreover, the reiteration by the witnesses, that the crowd
comprised of men, women and children, by itself is sufficient, to infer
that the neighbours and co-villagers were not aiming at causing any harm or
injury to the accused-appellant or the co-accused. It cannot be
overlooked, that one of the deceased - Mst. Munni Devi was a woman, and one
of the injured – Sheria was a child of 5 years. On taking into
consideration the entirety of the facts and circumstances of the case,
especially the absence of any material evidence produced by the appellant
(to demonstrate that gunshots fired by the accused and the co-accused were
in self-defence), the instant contention cannot be accepted.
16. At this juncture, it is also necessary for us, to refer to two
judgments relied upon by learned counsel for the appellant. Reliance was
first placed, on Bhagwan Swaroop v. State of Madhya Pradesh, (1992) 2 SCC
406, wherefrom our attention was invited to the following observations:
“9. We do not agree with the courts below. It is established on the
record that Ramswaroop was being given lathi blows by the complainant party
and it was at that time that gun-shot was fired by Bhagwan Swaroop to save
his father from further blows. A lathi is capable of causing a simple as
well as a fatal injury. Whether in fact the injuries actually caused were
simple or grievous is of no consequence. It is the scenario of a father
being given lathi blows which has to be kept in mind and we are of the view
that in such a situation a son could reasonably apprehend danger to the
life of his father and his firing a gun-shot at that point of time in
defence of his father is justified. We, therefore, set aside the finding of
the courts below on this point and hold that Bhagwan Swaroop fired the gun-
shot to defend the person of his father.”
(emphasis supplied)
Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC 612,
wherefrom, learned counsel placed emphasis on the following observations:
“8. From the above state of evidence, it appears that the defence version
regarding the incident is a probable one and is supported by the find of
blood from near the tubewell which is adjacent to the 'dera' of the
appellant. When two versions are before the court, the version which is
supported by objective evidence cannot be brushed aside lightly unless it
has been properly explained. As stated earlier, the prosecution has not
explained how blood was found from near the tubewell and no blood was found
from the spot where according to them the incident occurred. In addition to
this, the factum regarding the delay in lodging of the First Information
Report and the suspicion that it was delayed with a view to concocting the
prosecution case and further the delay in forwarding the special report to
the Magistrate as well as the case papers to the hospital shows that the
investigation was not above board. In these circumstances, we think that
the approach adopted by the courts below cannot be justified.
9. Mr. Behl, learned Counsel for the State, however, vehemently argued that
the appellant had exceeded his right of private defence. We do not think
so. Both the appellant and his wife were attacked. They had sustained
injuries. In the course of assault on them they caused injuries to the
deceased and the prosecution witnesses. It is true that the High Court has
come to the conclusion that all the injuries caused to the deceased were
caused by the appellant Buta Singh. However, that is not the prosecution
case. Besides, even if it were so, having regard to the nature of the
incident, it is difficult to say that he exceeded the right of private
defence for the obvious reason that he could not have weighed in golden
scales in the heat of the moment the number of injuries required to disarm
his assailants who were armed with lethal weapons. We are, therefore, of
the opinion that the submission of the learned Counsel for the State cannot
be accepted in the facts and circumstances of this case.”
(emphasis supplied)
17. Having perused the judgments relied upon by learned counsel for the
appellant, and keeping in mind the facts and circumstances of the case, we
are of the view, that no benefit can be derived by the appellant on the
legal position expressed by this Court, with reference to the plea of self-
defence. Herein, there is no evidence to demonstrate, that the accused-
appellant – Brij Lal and the co-accused – Kashi Ram were actually attacked,
and it was as a matter of self-defence that they fired at the crowd, with
their pistols. We have already examined the relevant evidence, on the
instant aspect of the matter above. We therefore find no merit in the
first contention, advanced by learned counsel for the appellant.
18. The second contention advanced at the hands of learned counsel for
the appellant was, that the entire prosecution version discloses, that the
alleged intention of the accused-appellant – Brij Lal was to murder Mohan
Lal – PW-15. It was submitted, that there was no occasion for the
appellant to cause fatal injuries to three unknown persons, by firing shots
at them. Even though, the second contention advanced by learned counsel
seems to be interesting, yet we find no merit therein. The reason why the
neighbours and the co-villagers had gathered at the place of occurrence
was, to protect Mohan Lal – PW-15, by dissuading the accused from insisting
on to carry out their objective. Consequent upon their being angered by
the villagers, they retaliated by firing indiscriminately at the gathering.
Since it was not disputed by the accused-appellant – Brij Lal, that three
fatal (besides other) injuries, were caused by the accused-appellant and
his co-accused, the onus lies on the appellant to demonstrate the reason
and the justification for their action. The evidence produced by the
prosecution demonstrates, that the accused had fired gunshots
indiscriminately, on being angered by the gathering, which was trying to
persuade them from carrying out their singular objective – to cause harm to
the person of Mohan Lal – PW-15. Having accepted, that they had actually
fired at the neighbours and the villagers, who had gathered at the place of
occurrence, it does not lie in their mouth to raise such a plea. For the
aforesaid reasons, we find no merit even in the instant contention.
19. The third contention advanced by learned counsel for the appellant
was, that the recovery of the weapon, namely, the gun, with which the
accused-appellant – Brij Lal had shot at the crowd, was not proved to have
been recovered from the appellant. It was the contention of the learned
counsel, that one of the recovery witnesses had deposed, that the gun
recovered at the instance of the accused, was found wrapped when it was dug
out. The other witness to the recovery had stated otherwise. First and
foremost, as noticed hereinabove, such a plea could have been raised only
if the appellant had been in denial, and had adopted the stance, that he
had not fired at the crowd at the time of occurrence. Since that is not
his plea, the instant submission is wholly misconceived. Secondly, the
factum of recovery has been substantiated by the prosecution through the
statements of Mohan Ram – PW-1 and Mohan Lal – PW-15. Even the signatures
of the accused-appellant – Brij Lal were obtained on the “mazhar” prepared
at the time of recovery. In such view of the matter, whether or not the
recovered gun was found without any covering, or in a wrapped condition,
when the same was dug out, at the instance of the accused-appellant – Brij
Lal, makes no difference, whatsoever. For the reasons recorded above, we
find no merit in the instant contention.
20. The fourth contention advanced by learned counsel for the appellant
was, that the co-accused – Kashi Ram, who was separately tried, was
acquitted. In this behalf, the projection of learned counsel was, that the
very same witnesses, who were relied upon by the prosecution in the
separate trial of the appellant, had deposed during the course of the trial
conducted against the co-accused – Kashi Ram, and as such, the acquittal of
Kashi Ram and the conviction of the accused-appellant – Brij Lal, made no
sense whatsoever. It would be relevant to mention, that the most vital
prosecution witness, in the case on hand, was Mohan Lal – PW-15. All the
allegations focus around Mohan Lal – PW-15. The entire prosecution story
revolved around the fact, that the accused-appellant – Brij Lal and the co-
accused – Kashi Ram were out and out to harm Mohan Lal – PW-15, on account
of their previous discord. The witness Mohan Lal, who appeared as PW-15,
before the trial Court, in the matter out of which the instant appeal
arises, was fully described as, son of Balbir Chand, caste Meghwal, aged 38
years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station Banga,
District Jalandhar. Whereas, Mohan Lal who appeared as PW-16 in the trial
of the co-accused – Kashi Ram, was described as, son of Lekhram Bhat (in
the judgment dated 18.3.1994 rendered by the Additional Sessions Judge
No.2, Sri Ganganagar, in Sessions Trial No.26 of 1993), wherein Kashi Ram
was the accused. In the above judgment, most of the prosecution witnesses
had resiled, and did not identify the co-accused – Kashi Ram, as the person
involved in the occurrence. The position in the present case is just the
reverse. All the relevant prosecution witnesses, duly identified the
accused-appellant – Brij Lal. It is therefore not possible for us to
accept, that the accused-appellant – Brij Lal deserves to be acquitted,
because of the acquittal of Kashi Ram in the separate trial conducted
against him. The instant contention is therefore, accordingly, declined.
21. The fifth contention advanced at the hands of learned counsel for the
appellant was, that as a consequence of the aggressive attitude of the
neighbours and the co-villagers, who had gathered at the place of
occurrence, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were pushed back to a distance of about 200 feet from the house of
Mohan Ram – PW-1. It was submitted, that the above factual position itself
was sufficient, to demonstrate that the attitude of the people, who had
gathered at the place of occurrence, was intimidatory in nature. And that,
firing by the accused-appellant – Brij Lal and the co-accused – Kashi Ram,
was merely a matter of self-defence. We have already expressed our view
with reference to the issue of self-defence raised on behalf of the
appellant, in substantial detail hereinabove. The aforesaid submission is
sought to be projected again, by adding one further aspect to the factual
narration, namely, the fact that when the gunshots were fired by Brij Lal
and Kashi Ram, they were at a distance of more than 200 feet from the
residence of Mohan Ram – PW-1. We find hardly any justification in the
submission projected by learned counsel for the appellant, in a different
perspective. The prosecution has clearly demonstrated through the
testimony recorded on oath, that none of the persons gathered at the place
of occurrence was armed in any manner. It is also apparent, that the crowd
gathered at the place of occurrence was comprised of men, women and
children. The fact, that there was a distance of about 17 to 18 feet
between the accused-appellant – Brij Lal and the villagers, shows that
there was no real threat to him when he opened firing at the unarmed
gathering including women and children. It was only because of their
desire to retaliate against the crowd, consequent upon the crowd having
gathered to protect Mohan Lal – PW-15, cannot be a satisfactory reason for
the appellant to fire gunshots indiscriminately. It is therefore, not
possible for us to accept even the fifth contention advanced by learned
counsel for the appellant.
22. The last contention advanced by learned counsel for the appellant
was, that Mohan Lal – PW-15 was also a part of the crowd, which the accused-
appellant – Brij Lal and the co-accused – Kashi Ram were facing, and as
such, he ought to have fired at him, rather than at the other members of
the crowd. The instant submission is wholly misconceived and does not arise
at all. The accused-appellant did not even make the above suggestion to
the prosecution witnesses, when they were being cross-examined on his
behalf. Moreover, the actual suggestion given was, that the accused had
come to a general merchant shop to buy “biris” (traditional cigarettes),
and that, they never come to the place of occurrence, or that, they had any
intention to harm Mohan Lal – PW-15. In view of the conclusions recorded
by us in response to the first, second and fifth contentions (advanced by
learned counsel for the appellant), we find no merit in the instant
contention, and the same is also hereby rejected.
23. To be fair to learned counsel for the appellant, we must also refer
to the judgment in Sunil Kumar Sambhudayal Gupta v. State of Maharashtra,
(2010) 13 SCC 657, wherefrom, learned counsel placed emphatic reliance on
the observations extracted herein below:
“38. It is a well-established principle of law, consistently reiterated and
followed by this Court that while dealing with a judgment of acquittal, an
appellate court must consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial court were
perverse or otherwise unsustainable. Even though the appellate court is
entitled to consider, whether in arriving at a finding of fact, the trial
court had placed the burden of proof incorrectly or failed to take into
consideration any admissible evidence and/or had taken into consideration
evidence brought on record contrary to law; the appellate court should not
ordinarily set aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more probable
one. The trial court which has the benefit of watching the demeanor of the
witnesses is the best judge of the credibility of the witnesses.
39. Every accused is presumed to be innocent unless his guilt is proved.
The presumption of innocence is a human right. Subject to the statutory
exceptions, the said principle forms the basis of criminal jurisprudence in
India. The nature of the offence, its seriousness and gravity has to be
taken into consideration. The appellate court should bear in mind the
presumption of innocence of the accused, and further, that the trial
court's acquittal bolsters the presumption of his innocence. Interference
with the decision of the trial court in a casual or cavalier manner where
the other view is possible should be avoided, unless there are good reasons
for such interference.
40. In exceptional cases where there are compelling circumstances, and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The findings of fact recorded by a
court can be held to be perverse if the findings have been arrived at by
ignoring or excluding relevant material or by taking into consideration
irrelevant/inadmissible material. A finding may also be said to be perverse
if it is “against the weight of evidence”, or if the finding so
outrageously defies logic as to suffer from the vice of irrationality.
(See Balak Ram v. State of U.P., (1975) 3 SCC 219, Shailendra Pratap v.
State of U.P., (2003) 1 SCC 761, Budh Singh v. State of U.P., (2006) 9 SCC
731, S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535, Arulvelu v. State,
(2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445 and Babu v.
State of Kerala, (2010) 9 SCC 189).”
(emphasis supplied)
24. We have given our thoughtful consideration to the parameters laid
down in the above judgment. We are however of the considered view, that
the High Court relied upon cogent evidence, to set aside the order of
acquittal passed by the Additional Sessions Judge. We are also satisfied
in recording, that the trial Court had overlooked vital evidence recorded
on behalf of the prosecution, specially during the cross-examination of the
prosecution witnesses, whereupon, the position of there being any second
way of viewing the facts, was absolutely out of question. We are of the
considered view, that the statements of the two prosecution witnesses,
namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along with the testimony of
the other witnesses, would clearly and unequivocally lead to the inference,
that the accused-appellant – Brij Lal was guilty of having committed the
offence under Section 302 of the IPC, insofar as his having caused the
murders of Om Prakash and Sultan Bhat are concerned. There is absolutely
no question of extending the benefit of any doubt to the accused-appellant
– Brij Lal, in the present case.
25. For the reasons recorded above, we find no merit in this appeal and
the same is, accordingly, dismissed.
....…………………………….J.
(Jagdish Singh Khehar)
New Delhi ………………………………..J.
August 17, 2016 (Arun Mishra)
-----------------------
30
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 991 OF 2010
Brij Lal … Appellant
versus
State of Rajasthan … Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. According to the allegations levelled in the complaint, the
appellant–Brij Lal and Mohan Lal - PW-15 were both employed in the
Irrigation Department of the State Government. They were both holding the
posts of Gauge Reader. They also resided in government quarters at Suleman-
ki-Head, close to one another. The appellant–Brij Lal allegedly used to
hurl abuses at Mohan Lal - PW-15 under the influence of liquor. Some
others, including Kashi Ram, co-accused, used to side with the appellant –
Brij Lal, in his misbehaviour with Mohan Lal – PW-15. In order to settle
the dispute amicably Mohan Lal – PW-15 called a “panchayat” (council). The
endeavour of Mohan Lal – PW-15, through the panchayat, proved unsuccessful.
Eventually, he addressed a communication dated 18.8.1983, to the Assistant
Engineer of the Irrigation Department, highlighting the inimical attitude
of the appellant–Brij Lal. Since the said complaint also did not lead to
any fruitful result, Mohan Lal – PW-15 quit his government accommodation,
and took up rental accommodation in the house of Mohan Ram – PW-1.
2. The incident which has given rise to the present appeal, occurred on
30.9.1983 at around 9 p.m., at the house of Mohan Ram – PW-1, i.e., the
premises to which Mohan Lal – PW-15 had shifted, to keep himself away from
the appellant–Brij Lal. At the time of occurrence, Mohan Lal – PW-15 was
present in the said premises, along with his wife and children. It was
alleged, that the appellant–Brij Lal and the co-accused – Kashi Ram hurled
abuses at Mohan Ram - PW-1, who was sitting outside, in front of his house.
The appellant and the co-accused asked Mohan Ram – PW-1, to call out Mohan
Lal – PW-15, as they wanted to kill him. It was the assertion of Mohan Ram
– PW-1, who eventually lodged the complaint, that he had requested the
appellant–Brij Lal and the co-accused – Kashi Ram, not to create any
trouble at his house. He asked them to fulfill their intentions at some
other place. Unmindful of the advice tendered by Mohan Ram – PW-1, the
appellant and the co-accused started hurling abuses at Mohan Ram – PW-1.
At that juncture, Mohan Ram – PW-1 realized, that the accused and the co-
accused were in possession of pistols. Mohan Lal – PW-15, having heard the
appellant and the co-accused hurling abuses, and also, threatening to kill
him, scaled the boundary wall of the premises, and hid in the flour mill of
Milkha Singh, located in close vicinity of the house of Mohan Ram–PW-1.
3. Hearing the altercation and the phone-calls made by Mohan Ram – PW-1
and Mohan Lal – PW-15, neighbours and co-villagers, came to the place of
occurrence. They too requested the appellant – Brij Lal, and the co-
accused – Kashi Ram, to go away. Instead of leaving, the accused-
appellant, as well as, the co-accused openly proclaimed, that they would
not leave without killing Mohan Lal – PW-15. Under the pressure of the
neighbours and the co-villagers, they moved towards the front of the house
of Sultan Bhat, located in front of the house of Mohan Ram–PW-1. At that
juncture, the neighbours and the co-villagers went towards the spot at
which the accused-appellant – Brij Lal and the co-accused – Kashi Ram had
retreated, and again requested them to desist from their intentions.
According to the assertions made in the complaint, at the instance of the
co-accused – Kashi Ram, the appellant – Brij Lal fired at the gathering.
Om Prakash and Sultan Bhat received bullet injuries from the shots fired by
Brij Lal. Om Prakash died on the spot. Sultan Bhat was rendered
unconscious. He was removed to hospital, where he died on the following
day, i.e., on 1.10.1983. Kashi Ram also fired from the gun in his
possession. It hit Mst. Munni Devi (a woman), who also died on the spot.
In the firing under reference, Labh Singh and Sheria (a 5 year old boy)
were also injured. The report of the above incident was lodged by Mohan
Ram – PW-1, on 1.10.1983 at 12.05 a.m.
4. It is also relevant to mention, that the appellant – Brij Lal and the
co-accused – Kashi Ram got themselves admitted to a hospital. As soon as
they heard about the death of Sultan Bhat, they ran away from the hospital.
The appellant – Brij Lal was however, arrested on 10.10.1983. Based on
the disclosure statement made by him, a 12 bore pistol and an empty
cartridge were recovered. The co-accused – Kashi Ram was successful in
evading his arrest. After investigation, the appellant – Brij Lal was
charged under Sections 302, 307 and 324 read with Section 34 of the Indian
Penal Code (hereinafter referred to as, the IPC) and Sections 25 and 27 of
the Indian Arms Act, by the Judicial Magistrate No.1, Sri Ganganagar. The
learned Magistrate committed the case to the Court of Session, which framed
charges against the appellant – Brij Lal, under the provisions referred to
hereinabove.
5. The accused appellant – Brij Lal, pleaded innocence. He sought
recourse to the plea of private defence, under the second exception under
Section 300 of the IPC. Section 300, IPC is reproduced below:
“300. Murder.—Except in the cases hereinafter excepted, culpable homicide
is murder, if the act by which the death is caused is done with the
intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person to whom
the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A
commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is
likely to cause his death, strikes him with the intention of causing bodily
injury. Z dies in consequence of the blow. A is guilty of murder, although
the blow might not have been sufficient in the ordinary course of nature to
cause the death of a person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives him such a blow as
would not in the ordinary course of nature kill a person in a sound state
of health, here A, although he may intend to cause bodily injury, is not
guilty of murder, if he did not intend to cause death, or such bodily
injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause
the death of a man in the ordinary course of nature. Z dies in consequence.
Here, A is guilty of murder, although he may not have intended to cause Z’s
death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and
kills one of them. A is guilty of murder, although he may not have had a
premeditated design to kill any particular individual.
Exception 1.— xxx xxx xxx
Exception 2.—Culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt
to A. A draws out a pistol. Z persists in the assault. A believing in good
faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed murder, but only culpable
homicide.
Exception 3.— xxx xxx xxx
Exception 4.— xxx xxx xxx
Exception 5.— xxx xxx xxx”
After the statements of the prosecution witnesses were recorded, and that
of the appellant was recorded under Section 313 of the Code of Criminal
Procedure, even though an opportunity was afforded to the appellant, to
lead evidence in his defence, he chose not to produce any witness on his
behalf.
6. Vide his judgment dated 22.1.1985, the Sessions Judge, Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of self-
defence raised by him by invoking the second exception under Section 300,
IPC.
7. Dissatisfied with the above judgment dated 22.1.1985, the State of
Rajasthan preferred D.B. Criminal Appeal No.227 of 1985, to assail the
order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar. The
High Court rendered the impugned judgment on 17.11.2009, whereby the appeal
preferred by the State of Rajasthan was accepted. The judgment rendered by
the Sessions Judge, Sri Ganganagar dated 22.1.1985, acquitting the
appellant-Brij Lal, was set aside. The appellant-Brij Lal was found guilty
of having committed the offence punishable under Section 302 of the IPC.
Keeping in mind the fact, that the occurrence had taken place in 1983, the
High Court awarded the sentence of life imprisonment to the appellant-Brij
Lal. It also imposed a fine of Rs.1,000/-, and in default thereof, awarded
one year’s rigorous imprisonment, to the appellant.
8. The appellant has approached this Court, to assail the impugned
judgment, rendered by the High Court dated 17.11.2009. During the course
of hearing, learned counsel for the appellant, summarized the contentions
advanced on behalf of the appellant, as under:
Firstly, it was contended, that the factum that the appellant-Brij Lal had
also suffered injuries, was sufficient to establish, that their retaliation
by firing gunshots at the gathering, was a matter of self-defence, and
nothing else. Secondly, it was urged, that the target of the appellant-
Brij Lal, as per the prosecution story, was Mohan Lal - PW-15. And as
such, there was no question of their having intentionally fired shots at
the neighbours and co-villagers and therefore, could not have been held
guilty of the offence under Section 302 of the IPC. Thirdly, it was
submitted, that the recovery of the weapon, namely, the gun with which the
appellant–Brij Lal, allegedly shot at the neighbours and co-villagers,
resulting in the death of Om Prakash, Sultan Bhat and Munni Devi, was not
proved to have been recovered from the appellant. And as such, in the
absence of proof of recovery of the weapon used in the occurrence from the
appellant, there was no justification, whatsoever, for the High Court to
have found the appellant guilty of the offence under Section 302 of the
IPC. Fourthly, it was submitted, that the co-accused – Kashi Ram, who was
tried separately, was prosecuted in the same manner as the appellant. It
was submitted, that the same witnesses as were produced by the prosecution
against the appellant-Brij Lal, were also produced by the prosecution,
against the co-accused – Kashi Ram. On the culmination of the trial against
Kashi Ram, he was found innocent, and was acquitted. It was submitted,
that the State of Rajasthan, chose not to prefer any appeal against the
order of acquittal of the co-accused – Kashi Ram. According to learned
counsel, the prosecution cannot succeed in one case, and fail in the other,
when the witnesses produced against both accused are the same. Fifthly, it
was contended, that the evidence produced by the prosecution reveals, that
the incident had occurred more than 200 feet away from the house of Mohan
Ram – PW-1. Just the above fact, according to learned counsel, is
sufficient to demonstrate, that the mob which had assembled at the place of
occurrence, was acting in an intimidating manner, resulting in the accused-
appellant – Brij Lal and the co-accused – Kashi Ram, retreating away from
the house of Mohan Ram – PW-1 towards the house of Sultan Bhat. It is
therefore apparent, that the gunshots fired by the appellant-Brij Lal and
the co-accused – Kashi Ram, were in their self-defence, and nothing more.
Lastly, it was the contention of learned counsel for the appellant, that
Mohan Lal – PW-15, in his deposition, clearly and unequivocally
acknowledged, that at the time of occurrence when the appellant and the co-
accused fired the shots, he was at a distance of 20 feet from the
appellant–Brij Lal. It was the contention of learned counsel, that if the
prosecution story is to be believed, the appellant should have fired at
Mohan Lal – PW-15, and not at the persons gathered at the place of
occurrence, as alleged by the prosecution.
9. During the course of hearing, learned counsel for the rival parties,
in order to project their respective claims, relied on the statements of
only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal – PW-15. We are
of the view, that in our determination of the claims, projected on either
side, it is imperative to closely examine the testimony of these two
witnesses. We shall endeavour to do so, hereunder:
10. Mohan Ram – PW-1:
(i) In his opening statement, Mohan Ram acknowledged, that he knew the
accused-appellant – Brij Lal and Mohan Lal – PW-15, from before. He
affirmed, that just like them, he too was employed in the Irrigation
Department of the State Government. While Brij Lal and Mohan Lal were
employed in the department as Gauge Readers, he himself was working as a
Beldar. All of them were posted at the Head of Suleman. He stated, that
Mohan Lal and Brij Lal were allotted government quarters close to one
another, at Suleman-ki-Head. The fact, that they were quarreling among
themselves for some time prior to the incident, was also affirmed. It was
pointed out, that while Mohan Lal was living in his government quarter
along with his family, Brij Lal was residing by himself in his separate
quarter. He affirmed, that the accused-appellant – Brij Lal used to drink
liquor at night, and create a racket “every time”, thereafter. He
confirmed, that co-accused – Kashi Ram was Brijlal’s drinking partner, and
that, Kashi Ram also used to associate along with Brij Lal, in the brawl.
He testified, that Mohan Lal – PW-15, used to object to their behaviour,
and therefore, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were inimical to Mohan Lal – PW-15. He confirmed, that Mohan Lal – PW-
15 had complained to him and others about their behaviour on several
occasions, and that, he had also spoken to the accused-appellant – Brij
Lal, to persuade him to desist from such activities. He pointed out, that
Brij Lal was adamant, and had refused to stop. He also stated, that Mohan
Lal – PW-15 had taken him to make a representation against Brij Lal, to the
Overseer of the Irrigation Department. He (Mohan Lal – PW-15) had given up
living in his allotted quarter, and had moved to his (Mohan Ram – PW-1’s)
house along with his family, as his tenants. He confirmed, that the said
shifting had taken place about fifteen days prior to the occurrence.
(ii) With reference to the occurrence, it was stated, that it had taken
place between 8.30 p.m. and 9 p.m. He testified, that he was sitting in
front of his house on a cot, and that, Mohan Lal – PW-15, and his wife and
children, were inside the house. He deposed, that the accused-appellant –
Brij Lal and the co-accused – Kashi Ram, had come to his house with pistols
in their hands. The accused-appellant – Brij Lal, it was pointed out,
asked him to call Mohan Lal – PW-15 outside, as they had come to kill him.
He stated, that he pleaded with the accused-appellant, as also, the co-
accused, not to do any such thing, at his residence.
(iii) He confirmed, that he had seen Mohan Lal – PW-15 scale the wall of
his house, and cross over to the house of his neighbour Badri Ram, and then
proceeded to the flour mill of Milkha Singh. He stated, that he had
shouted out for help, whereafter, his neighbours and co-villagers, hearing
his clamour, had reached the place of occurrence. He deposed, that all the
persons gathered at the place of occurrence, had requested the accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, to leave the place,
but Brij Lal and Kashi Ram were adamant in their resolve. They had
responded by stating, that they would not go anywhere, as they had come to
kill Mohan Lal – PW-15. He testified, that at that juncture the accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, moved away from his
house and stood in front of the house of Sultan Bhat, but still continued
to hurl abuses. He pointed out, that all the neighbours and co-villagers
were at a distance of about 20 feet from Brij Lal and Kashi Ram, and were
persuading them to stop hurling abuses. But, they were insistent. Mohan
Ram – PW-1 further deposed, that co-accused – Kashi Ram, at that juncture,
exhorted Brij Lal to shoot at the crowd, as everyone was siding with Mohan
Lal – PW-15. He deposed, that Brij Lal, on being so implored, fired at the
gathering. He affirmed, that Om Prakash and Sultan Bhat received firearm
injuries. It was his assertion, that in the meanwhile, the co-accused –
Kashi Ram also fired from his gun, which hit Munni Devi, Labh Singh Mistry
and Sheria. He deposed, that Munni Devi and Om Prakash died at the spot,
whereas Sultan Bhat became unconscious.
(iv) He also confirmed, that he had lodged a report of the incident, at
Police Station Chunawar, around mid-night. In his cross-examination Mohan
Ram – PW-1 asserted, that the persons, who had gathered at the place of
occurrence, comprised of men, women and children. He denied, that those
persons who had gathered there, intended to apprehend the accused-appellant
– Brij Lal or the co-accused – Kashi Ram. He confirmed, that none amongst
the crowd, was armed with any lathis or sticks. He denied the suggestion,
that Brij Lal and Kashi Ram were attacked by the villagers, with lathis.
He deposed, that neither Brij Lal nor Kashi Ram had received any injuries
during the occurrence. He also denied the suggestion, that the persons
gathered at the place of occurrence, had chased the accused-appellant, and
the co-accused. He also denied the suggestion, that Brij Lal and Kashi Ram
had come to the general merchant shop to buy “biris” (traditional
cigarettes), and had never come to his residence, to beat or harm Mohan Lal
– PW-15.
(v) The above deposition of Mohan Ram – PW-1, fully affirmed the
prosecution version of the occurrence.
11. Mohan Lal – PW-15:
(i) Mohan Lal deposed, that he was employed in the Irrigation Department,
of the Government of Rajasthan, and was posted at Head of Suleman, as Gauge
Reader. He confirmed, that he was living in a government quarter allotted
to him, along with his wife and three children, at Suleman-ki-Head. He
acknowledged, that the government quarter of the accused-appellant – Brij
Lal, was nearby his own quarter. He asserted, that the accused-appellant –
Brij Lal, used to abuse him after drinking liquor, and that, Kashi Ram and
his brother-in-law, used to sometimes accompany the accused-appellant –
Brij Lal. He stated, that he had asked the accused to desist from using
such language, because he was a family man. He deposed, that he had called
a “panchayat” (council), to resolve the issue between himself and the
accused-appellant – Brij Lal. The “panchayat” was attended by co-employees
of the Irrigation Department. He confirmed, that Brij Lal, on being
called, had attended the panchayat. He deposed, that even at the
panchayat, the accused-appellant – Brij Lal had reiterated, that he would
do as he wished, and they (the members of the panchayat) may do what they
could. He also deposed, that after panchayat, he had given an application
to the Overseer (Exhibit P-12) of his department, complaining about the
conduct of the accused-appellant – Brij Lal. He stated that despite the
complaint, the behaviour of accused-appellant – Brij Lal did not improve.
He urged, that to avoid the appellant, he had surrendered the government
accommodation allotted to him at Suleman-ki-Head and had moved to a rented
accommodation, in the house of Mohan Ram – PW-1. He deposed, that the
occurrence had taken place within 10/15 days of his moving to the house of
Mohan Ram – PW-1. The occurrence is stated to have taken place between 8
p.m. and 9 p.m.. He asserted, that Mohan Ram – PW-1, was sitting outside
the gate of his house, whilst he himself, his wife and children, were in
the house. He deposed, that the accused-appellant – Brij Lal and the co-
accused – Kashi Ram were calling him outside the house. He confirmed, that
they were holding pistols in their hands. On such exhortation, Mohan Ram –
PW-1 had told the accused-appellant and the co-accused, that he would not
allow them to kill Mohan Lal – PW-15 at his residence, but they did not
listen to him, and continued to hurl filthy abuses.
(ii) Mohan Lal asserted, that he jumped over the wall of the house of
Mohan Ram – PW-1, and from the side of the house of Badri Ram, he entered
the flour mill of Milkha Singh. He asserted, that the neighbours and co-
villagers hearing the shouts of Mohan Ram – PW-1, ran to the place of
occurrence. At that juncture, the accused-appellant – Brij Lal and the co-
accused – Kashi Ram, had moved towards the house of Sultan Bhat. He
asserted, that the crowd comprised of men, women and children. He also
deposed, that the villagers requested Brij Lal and Kashi Ram to go away,
but they were bent on carrying out their objective. He stated, that Brij
Lal and Kashi Ram fired shots from their pistols, and the shots fired by
the accused-appellant – Brij Lal hit Om Prakash and Sultan Bhat, whereas,
the shots fired by the co-accused – Kashi Ram hit Muni Devi, Labh Singh and
Sheria Ram. He confirmed, that Munni Devi and Om Prakash died at the spot.
He also stated, that the condition of Sultan became serious, and
therefore, the villagers had taken him to hospital. He asserted, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, went away from
the spot after the incident.
(iii) In his cross-examination Mohan Lal – PW-15 stated, that the
conduct of accused-appellant – Brij Lal had worsened, about six months
prior to the occurrence. He stated, that his only difference with the
accused-appellant – Brij Lal was, that he used to abuse him. He denied the
suggestion, that the accused-appellant – Brij Lal had ever teased his wife.
He reiterated, that he had lodged a complaint against the accused-
appellant – Brij Lal, with his senior officers. He stated, that the first
time, accused-appellant – Brij Lal threatened to kill him, was after he had
summoned the “panchayat” (council), to resolve their dispute. Mohan Lal –
PW-15 acknowledged, that he had never made such a complaint to the police.
He also clarified, that the accused-appellant – Brij Lal and the co-accused
– Kashi Ram, had been exhorting Mohan Ram – PW-1, to call him (Mohan Lal –
PW-15) outside the house. He stated, that when accused-appellant – Brij
Lal and the co-accused – Kashi Ram were speaking to Mohan Ram – PW-1, they
were visible to him from within the house. He stated, that he became
scared, and therefore, ran away from the house. He deposed, that he had
run away, because the accused-appellant – Brij Lal was saying, that they
were going to kill him. He deposed, that he had run away by jumping into
the house of Badri Ram, and therefrom, went to the flour mill of Milkha
Singh. He testified, that Milkha Singh closed the doors, after he had
entered his mill, when he informed Milkha Singh, that the accused had come
to kill him. While in the flour mill of Milkha Singh, Mohan Lal – PW-15
confirmed, that he could hear the sound of people coming to the house of
Mohan Ram – PW-1. He also confirmed hearing the shouts of Mohan Ram – PW-
1. He stated, that he became encouraged and lost his fear, when he heard
the voices of the co-villagers, whereupon, he himself (Mohan Lal – PW-15)
and Milkha Singh came out of the flour mill. On coming out, he had seen
the accused-appellant – Brij Lal and the co-accused – Kashi Ram standing in
front of the house of Sultan Bhat at a distance of “…about 30-40-45 Ft…”,
from the flour mill. He stated, that he was standing near Om Prakash, when
Om Prakash was shot. And that, Sultan, Munni Devi and Sheria Ram were
standing about 5 feet away from their side. He confirmed, that he was not
hurt by any pellet. He deposed, that the first shot was fired by the
accused-appellant – Brij Lal, and the next shot was fired by the co-accused
– Kashi Ram. He affirmed, that the accused-appellant – Brij Lal had no
quarrel/enmity with the deceased Om Prakash and Munni Devi. He stated,
that Om Prakash, Munni Devi and others had only come to the place of
occurrence, to save him. In his cross-examination, Mohan Lal – PW-15
deposed that, while the accused-appellant – Brij Lal and the co-accused –
Kashi Ram were standing in front of the house of Sultan Bhat, the deceased
and the injured were standing at a distance of about 20-25 feet, from the
house of Sultan Bhat. The distance between the accused-appellant – Brij
Lal and the villagers was about 17 to 18 feet, whereas, the distance
between the co-accused – Kashi Ram and Munni Devi was about 8 to 10 feet.
He deposed, that it was not possible for anyone to catch the accused-
appellant – Brij Lal and the co-accused – Kashi Ram, because “…all were
empty handed…”. During his cross-examination Mohan Lal – PW-15 deposed,
that the crowd comprised of 20 to 25 men, 10 to 15 women and some children,
when the firing had taken place. He also asserted, that the accused-
appellant – Brij Lal, asked Mohan Ram – PW-1, to send forward Mohan Lal –
PW-15 (i.e., himself), because they needed to kill him. In response to his
denial, Mohan Lal – PW-15 stated, that the accused-appellant – Brij Lal
shouted, that the accused would kill each one of those who were helping
Mohan Lal – PW-15. Mohan Lal - PW-15 reiterated, that none of the
villagers was armed with any weapon. The suggestion, that the villagers
were chasing the accused and the co-accused, was denied. The suggestion,
that the persons gathered at the place of occurrence had lathis on their
hands, and that, they had inflicted injuries on accused-appellant – Brij
Lal and the co-accused – Kashi Ram with lathis, was also denied.
(iv) The above deposition of Mohan Lal – PW-15, fully affirmed the
prosecution version of the occurrence.
12. We shall now deal with the individual pleas canvassed at the hands of
learned counsel for the appellant.
13. The first contention advanced at the hands of learned counsel for the
appellant was, that the appellant had fired gunshots at the mob of
villagers only as a matter of self-defence, when the accused-appellant and
the co-accused, had been attacked. In this behalf, it would be relevant to
mention, that whilst it is open to an accused to raise a defence in the
nature suggested by learned counsel, there is an obvious pitfall where an
accused chooses to do so, in the sense that by raising such a plea, the
accused acknowledges the occurrence itself. There is yet another
predicament which he is liable to encounter, when raising such a defence.
The same emerges from Section 96 of the Indian Evidence Act, which is
extracted below:
“96. Evidence as to application of language which can apply to one only of
several persons.— When the facts are such that the language used might have
been meant to apply to any one, and could not have been meant to apply to
more than one, of several persons or things, evidence may be given of facts
which show which of those persons or things it was intended to apply to.”
In this behalf, reference may also be made to the decision in Rizan v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as under:
“13. Then comes plea relating to 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 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, the burden of
proof is on the accused, who sets of 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 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 and
others v. Delhi Administration, AIR 1968 SC 702; State of Gujarat v. Bai
Fatima, AIR 1975 SC 1478: State of U.P. v. Mohd. Musheer Khan, AIR 1977 SC
2226 and Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private defence of
body. If a person has a right to 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. (AIR 1979 SC 391), runs as follows:
"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 the
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.”
(emphasis supplied)
14. The question that arises for consideration in the instant case is,
whether there is evidence on the record of this case, to substantiate the
plea of self-defence? Learned counsel for the appellant, answered in the
affirmative. The basis of the aforesaid answer is, the injuries suffered
by the appellant which, according to the appellant, were caused by the mob
when the appellant was attacked. It was submitted, that the gathering of
neighbours and villagers, at the place of occurrence had attacked them,
resulting in their being pushed back to the house of Sultan Bhat. It was
submitted, that it was only in retaliation of the above attack, resulting
in the injuries suffered by the accused, that the accused-appellant – Brij
Lal, as also, the co-accused – Kashi Ram, had fired gunshots at the crowd,
which was out and out to lynch them.
15. Having given our thoughtful consideration to the submissions
advanced, at the hands of learned counsel for the appellant, we are of the
view, that there is overwhelming evidence produced by the prosecution,
affirming that the crowd which had gathered at the place of occurrence,
consequent upon the shouting of Mohan Ram – PW-1, was unarmed. There is
also evidence on the record of the case to authenticate, that all the
villagers were only persuading the accused-appellant – Brij Lal and his co-
accused – Kashi Ram, not to insist on carrying out their threat, to murder
Mohan Lal – PW-15. The testimony of the prosecution witnesses also
demonstrates, that there was substantial distance between the villagers,
and the place at which the accused were standing in the opposite of the
house of Sultan Bhat. Not only Mohan Ram – PW-1, but also Mohan Lal – PW-
15, expressly deposed that none of the neighbours and co-villagers, was
armed. Moreover, the reiteration by the witnesses, that the crowd
comprised of men, women and children, by itself is sufficient, to infer
that the neighbours and co-villagers were not aiming at causing any harm or
injury to the accused-appellant or the co-accused. It cannot be
overlooked, that one of the deceased - Mst. Munni Devi was a woman, and one
of the injured – Sheria was a child of 5 years. On taking into
consideration the entirety of the facts and circumstances of the case,
especially the absence of any material evidence produced by the appellant
(to demonstrate that gunshots fired by the accused and the co-accused were
in self-defence), the instant contention cannot be accepted.
16. At this juncture, it is also necessary for us, to refer to two
judgments relied upon by learned counsel for the appellant. Reliance was
first placed, on Bhagwan Swaroop v. State of Madhya Pradesh, (1992) 2 SCC
406, wherefrom our attention was invited to the following observations:
“9. We do not agree with the courts below. It is established on the
record that Ramswaroop was being given lathi blows by the complainant party
and it was at that time that gun-shot was fired by Bhagwan Swaroop to save
his father from further blows. A lathi is capable of causing a simple as
well as a fatal injury. Whether in fact the injuries actually caused were
simple or grievous is of no consequence. It is the scenario of a father
being given lathi blows which has to be kept in mind and we are of the view
that in such a situation a son could reasonably apprehend danger to the
life of his father and his firing a gun-shot at that point of time in
defence of his father is justified. We, therefore, set aside the finding of
the courts below on this point and hold that Bhagwan Swaroop fired the gun-
shot to defend the person of his father.”
(emphasis supplied)
Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC 612,
wherefrom, learned counsel placed emphasis on the following observations:
“8. From the above state of evidence, it appears that the defence version
regarding the incident is a probable one and is supported by the find of
blood from near the tubewell which is adjacent to the 'dera' of the
appellant. When two versions are before the court, the version which is
supported by objective evidence cannot be brushed aside lightly unless it
has been properly explained. As stated earlier, the prosecution has not
explained how blood was found from near the tubewell and no blood was found
from the spot where according to them the incident occurred. In addition to
this, the factum regarding the delay in lodging of the First Information
Report and the suspicion that it was delayed with a view to concocting the
prosecution case and further the delay in forwarding the special report to
the Magistrate as well as the case papers to the hospital shows that the
investigation was not above board. In these circumstances, we think that
the approach adopted by the courts below cannot be justified.
9. Mr. Behl, learned Counsel for the State, however, vehemently argued that
the appellant had exceeded his right of private defence. We do not think
so. Both the appellant and his wife were attacked. They had sustained
injuries. In the course of assault on them they caused injuries to the
deceased and the prosecution witnesses. It is true that the High Court has
come to the conclusion that all the injuries caused to the deceased were
caused by the appellant Buta Singh. However, that is not the prosecution
case. Besides, even if it were so, having regard to the nature of the
incident, it is difficult to say that he exceeded the right of private
defence for the obvious reason that he could not have weighed in golden
scales in the heat of the moment the number of injuries required to disarm
his assailants who were armed with lethal weapons. We are, therefore, of
the opinion that the submission of the learned Counsel for the State cannot
be accepted in the facts and circumstances of this case.”
(emphasis supplied)
17. Having perused the judgments relied upon by learned counsel for the
appellant, and keeping in mind the facts and circumstances of the case, we
are of the view, that no benefit can be derived by the appellant on the
legal position expressed by this Court, with reference to the plea of self-
defence. Herein, there is no evidence to demonstrate, that the accused-
appellant – Brij Lal and the co-accused – Kashi Ram were actually attacked,
and it was as a matter of self-defence that they fired at the crowd, with
their pistols. We have already examined the relevant evidence, on the
instant aspect of the matter above. We therefore find no merit in the
first contention, advanced by learned counsel for the appellant.
18. The second contention advanced at the hands of learned counsel for
the appellant was, that the entire prosecution version discloses, that the
alleged intention of the accused-appellant – Brij Lal was to murder Mohan
Lal – PW-15. It was submitted, that there was no occasion for the
appellant to cause fatal injuries to three unknown persons, by firing shots
at them. Even though, the second contention advanced by learned counsel
seems to be interesting, yet we find no merit therein. The reason why the
neighbours and the co-villagers had gathered at the place of occurrence
was, to protect Mohan Lal – PW-15, by dissuading the accused from insisting
on to carry out their objective. Consequent upon their being angered by
the villagers, they retaliated by firing indiscriminately at the gathering.
Since it was not disputed by the accused-appellant – Brij Lal, that three
fatal (besides other) injuries, were caused by the accused-appellant and
his co-accused, the onus lies on the appellant to demonstrate the reason
and the justification for their action. The evidence produced by the
prosecution demonstrates, that the accused had fired gunshots
indiscriminately, on being angered by the gathering, which was trying to
persuade them from carrying out their singular objective – to cause harm to
the person of Mohan Lal – PW-15. Having accepted, that they had actually
fired at the neighbours and the villagers, who had gathered at the place of
occurrence, it does not lie in their mouth to raise such a plea. For the
aforesaid reasons, we find no merit even in the instant contention.
19. The third contention advanced by learned counsel for the appellant
was, that the recovery of the weapon, namely, the gun, with which the
accused-appellant – Brij Lal had shot at the crowd, was not proved to have
been recovered from the appellant. It was the contention of the learned
counsel, that one of the recovery witnesses had deposed, that the gun
recovered at the instance of the accused, was found wrapped when it was dug
out. The other witness to the recovery had stated otherwise. First and
foremost, as noticed hereinabove, such a plea could have been raised only
if the appellant had been in denial, and had adopted the stance, that he
had not fired at the crowd at the time of occurrence. Since that is not
his plea, the instant submission is wholly misconceived. Secondly, the
factum of recovery has been substantiated by the prosecution through the
statements of Mohan Ram – PW-1 and Mohan Lal – PW-15. Even the signatures
of the accused-appellant – Brij Lal were obtained on the “mazhar” prepared
at the time of recovery. In such view of the matter, whether or not the
recovered gun was found without any covering, or in a wrapped condition,
when the same was dug out, at the instance of the accused-appellant – Brij
Lal, makes no difference, whatsoever. For the reasons recorded above, we
find no merit in the instant contention.
20. The fourth contention advanced by learned counsel for the appellant
was, that the co-accused – Kashi Ram, who was separately tried, was
acquitted. In this behalf, the projection of learned counsel was, that the
very same witnesses, who were relied upon by the prosecution in the
separate trial of the appellant, had deposed during the course of the trial
conducted against the co-accused – Kashi Ram, and as such, the acquittal of
Kashi Ram and the conviction of the accused-appellant – Brij Lal, made no
sense whatsoever. It would be relevant to mention, that the most vital
prosecution witness, in the case on hand, was Mohan Lal – PW-15. All the
allegations focus around Mohan Lal – PW-15. The entire prosecution story
revolved around the fact, that the accused-appellant – Brij Lal and the co-
accused – Kashi Ram were out and out to harm Mohan Lal – PW-15, on account
of their previous discord. The witness Mohan Lal, who appeared as PW-15,
before the trial Court, in the matter out of which the instant appeal
arises, was fully described as, son of Balbir Chand, caste Meghwal, aged 38
years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station Banga,
District Jalandhar. Whereas, Mohan Lal who appeared as PW-16 in the trial
of the co-accused – Kashi Ram, was described as, son of Lekhram Bhat (in
the judgment dated 18.3.1994 rendered by the Additional Sessions Judge
No.2, Sri Ganganagar, in Sessions Trial No.26 of 1993), wherein Kashi Ram
was the accused. In the above judgment, most of the prosecution witnesses
had resiled, and did not identify the co-accused – Kashi Ram, as the person
involved in the occurrence. The position in the present case is just the
reverse. All the relevant prosecution witnesses, duly identified the
accused-appellant – Brij Lal. It is therefore not possible for us to
accept, that the accused-appellant – Brij Lal deserves to be acquitted,
because of the acquittal of Kashi Ram in the separate trial conducted
against him. The instant contention is therefore, accordingly, declined.
21. The fifth contention advanced at the hands of learned counsel for the
appellant was, that as a consequence of the aggressive attitude of the
neighbours and the co-villagers, who had gathered at the place of
occurrence, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were pushed back to a distance of about 200 feet from the house of
Mohan Ram – PW-1. It was submitted, that the above factual position itself
was sufficient, to demonstrate that the attitude of the people, who had
gathered at the place of occurrence, was intimidatory in nature. And that,
firing by the accused-appellant – Brij Lal and the co-accused – Kashi Ram,
was merely a matter of self-defence. We have already expressed our view
with reference to the issue of self-defence raised on behalf of the
appellant, in substantial detail hereinabove. The aforesaid submission is
sought to be projected again, by adding one further aspect to the factual
narration, namely, the fact that when the gunshots were fired by Brij Lal
and Kashi Ram, they were at a distance of more than 200 feet from the
residence of Mohan Ram – PW-1. We find hardly any justification in the
submission projected by learned counsel for the appellant, in a different
perspective. The prosecution has clearly demonstrated through the
testimony recorded on oath, that none of the persons gathered at the place
of occurrence was armed in any manner. It is also apparent, that the crowd
gathered at the place of occurrence was comprised of men, women and
children. The fact, that there was a distance of about 17 to 18 feet
between the accused-appellant – Brij Lal and the villagers, shows that
there was no real threat to him when he opened firing at the unarmed
gathering including women and children. It was only because of their
desire to retaliate against the crowd, consequent upon the crowd having
gathered to protect Mohan Lal – PW-15, cannot be a satisfactory reason for
the appellant to fire gunshots indiscriminately. It is therefore, not
possible for us to accept even the fifth contention advanced by learned
counsel for the appellant.
22. The last contention advanced by learned counsel for the appellant
was, that Mohan Lal – PW-15 was also a part of the crowd, which the accused-
appellant – Brij Lal and the co-accused – Kashi Ram were facing, and as
such, he ought to have fired at him, rather than at the other members of
the crowd. The instant submission is wholly misconceived and does not arise
at all. The accused-appellant did not even make the above suggestion to
the prosecution witnesses, when they were being cross-examined on his
behalf. Moreover, the actual suggestion given was, that the accused had
come to a general merchant shop to buy “biris” (traditional cigarettes),
and that, they never come to the place of occurrence, or that, they had any
intention to harm Mohan Lal – PW-15. In view of the conclusions recorded
by us in response to the first, second and fifth contentions (advanced by
learned counsel for the appellant), we find no merit in the instant
contention, and the same is also hereby rejected.
23. To be fair to learned counsel for the appellant, we must also refer
to the judgment in Sunil Kumar Sambhudayal Gupta v. State of Maharashtra,
(2010) 13 SCC 657, wherefrom, learned counsel placed emphatic reliance on
the observations extracted herein below:
“38. It is a well-established principle of law, consistently reiterated and
followed by this Court that while dealing with a judgment of acquittal, an
appellate court must consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial court were
perverse or otherwise unsustainable. Even though the appellate court is
entitled to consider, whether in arriving at a finding of fact, the trial
court had placed the burden of proof incorrectly or failed to take into
consideration any admissible evidence and/or had taken into consideration
evidence brought on record contrary to law; the appellate court should not
ordinarily set aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more probable
one. The trial court which has the benefit of watching the demeanor of the
witnesses is the best judge of the credibility of the witnesses.
39. Every accused is presumed to be innocent unless his guilt is proved.
The presumption of innocence is a human right. Subject to the statutory
exceptions, the said principle forms the basis of criminal jurisprudence in
India. The nature of the offence, its seriousness and gravity has to be
taken into consideration. The appellate court should bear in mind the
presumption of innocence of the accused, and further, that the trial
court's acquittal bolsters the presumption of his innocence. Interference
with the decision of the trial court in a casual or cavalier manner where
the other view is possible should be avoided, unless there are good reasons
for such interference.
40. In exceptional cases where there are compelling circumstances, and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The findings of fact recorded by a
court can be held to be perverse if the findings have been arrived at by
ignoring or excluding relevant material or by taking into consideration
irrelevant/inadmissible material. A finding may also be said to be perverse
if it is “against the weight of evidence”, or if the finding so
outrageously defies logic as to suffer from the vice of irrationality.
(See Balak Ram v. State of U.P., (1975) 3 SCC 219, Shailendra Pratap v.
State of U.P., (2003) 1 SCC 761, Budh Singh v. State of U.P., (2006) 9 SCC
731, S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535, Arulvelu v. State,
(2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445 and Babu v.
State of Kerala, (2010) 9 SCC 189).”
(emphasis supplied)
24. We have given our thoughtful consideration to the parameters laid
down in the above judgment. We are however of the considered view, that
the High Court relied upon cogent evidence, to set aside the order of
acquittal passed by the Additional Sessions Judge. We are also satisfied
in recording, that the trial Court had overlooked vital evidence recorded
on behalf of the prosecution, specially during the cross-examination of the
prosecution witnesses, whereupon, the position of there being any second
way of viewing the facts, was absolutely out of question. We are of the
considered view, that the statements of the two prosecution witnesses,
namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along with the testimony of
the other witnesses, would clearly and unequivocally lead to the inference,
that the accused-appellant – Brij Lal was guilty of having committed the
offence under Section 302 of the IPC, insofar as his having caused the
murders of Om Prakash and Sultan Bhat are concerned. There is absolutely
no question of extending the benefit of any doubt to the accused-appellant
– Brij Lal, in the present case.
25. For the reasons recorded above, we find no merit in this appeal and
the same is, accordingly, dismissed.
....…………………………….J.
(Jagdish Singh Khehar)
New Delhi ………………………………..J.
August 17, 2016 (Arun Mishra)
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