S. K. SHARMA, J. - (1.) THE appellants four in number, were the accused on the file of learned Additional Sessions Judge No. 3, Alwar bearing Sessions Case No. 28/1997. Learned Judge vide judgment dated May 25, 1999 convicted and sentenced the appellants (herein after described as accused') as under:- Ghanshyam @ Ghanti & Babu Lal @ Banti: + U/s. 302 IPC: Each to suffer Imprisonment for life and fine of Rs. 1000/- , in default to further suffer One Year Simple Imprisonment. U/s. 307 IPC: Each to suffer Rigorous Imprisonment for Seven Years and fine of Rs. 500/-, in default to further suffer six Months Simple Imprisonment. U/s. 3/27 of Arms Act: Each to suffer Rigorous Imprisonment for Three Years and fine of Rs. 200/- in default to further suffer Three Months Simple Imprisonment. Ghanshyam @ Ghanti: U/s. 3/25 of the Arms Act: To suffer Rigorous Imprisonment for Three Years and fine of Rs. 200/- in default to further suffer Three Months Simple Imprisonment. Smt. Guddo @ Nirmala and Smt. Seema: U/s. 323 IPC: Extended the benefit of probation. THE substantive sentences were directed to run concurrently.
(2.) IT is the prosecution case that informant Raghunandan (PW. 2) submitted a written report (Ex. P. 2) with the Police Station Malakhera on June 30, 1997 at 4. 00 PM, with the averments that while he was on duty his brother Shiv Charan informed him on telephone that Ghanshyam, Babulal, Guddo, Seema, father-in-law of Ghanshyam and Billu were hurling abuses and beating them. When Raghunandan reached the house Ghanshyam opened fire at him, that kissed his shoulder but hit one Kalya, who was standing nearby Kalya died on the spot. Finding the target missed. Babulal snatched the gun form the hands of Ghanshyam and opened another fire at Raghunandan, that too missed and hit another bystander Kalli @ Ramkishan, who also died. Therefore Guddo and Seema gave lathi blows on his head and hand. Other accused pelted stones on him. Hearing hue and cry Khiladi, Shiv Charan and many other gathered there. Police Station Malakhera registered a case under sections 147, 148, 149, 323, 307, 307, 302 IPC and 3/15 of the Arms Act and investigation commenced. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge No. 3. Alwar Charges under Section 147, 148, 302, 307, 302/149. 307/149, 323/149, 323/149 IPC 3/5 Arms Act were framed against the accused who denied the charges and claimed trial. The prosecution in support of its case examined as may as 23 witness. In the explanation under Sec. 313 Cr. P. C. the appellants claimed innocence. The accused examined Anuradaha Jain (DW. 1) as defence witness. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated herein above. We have heard the submissions and carefully gone through the evidence adduced at the trial. Both the deceased Kalu @ Ajay Patel and Ram Kishan as per the post mortem reports Ex. P-26 and Ex. P-27 sustained fire arm injuries and according to Dr. Raj Kumar Saxena (PW. 17) who performed the autopsy on the dead bodies, the injuries were ante mortem in nature and sufficient in the course of nature to cause death. The prosecution thus established that the death of Kalu @ Ajay Patel and Kalli @ Ram Kishan was homicidal. Coming to the evidence, we find that Neeta Sharma (PW. 1), Raghunandan Patel (PW. 2), Asha (PW. 3), Heera Lal (PW. 4), Jaggi (PW. 5), Daya Ram (PW. 7) and Daulat Ram (PW. 8) were the star witnesses of the prosecution. Neeta Sharma (PW. 1) in her deposition stated that because of altercations between her daughter and the daughters of Babulal, Seema started hurling abuses, Ghanshyam and Babulal also came over there. Ghanshyam then went inside and came armed with gun and opened fire at Raghunandan, but the bullet hit Kalu @ Ajay Patel, who died at the spot. Thereafter Babulal snatched the gun and opened fire at Raghunandan, but the bullet hit Kallu @ Ramkishan, who also died at the spot. Nirmala inflicted injuries with the stick on her head, whereas Seema caused injury on the fingers of her right hand. Testimony of Neeta Sharma stood corroborated by the statements of Raghunandan (PW. 2), Asha 9pw. 3), Heera Lal (PW. 4), Jaggi (PW. 5), Daya Ram (PW. 7) and Daulat Ram (PW. 8 ). It is contended on behalf of the accused that in the course of the incident three accused sustained simple and grievous injuries. The injury reports were placed on record and market as Ex. D-7, Ex. D-8 and Ex. D-9. The prosecution has withheld origin and genesis of the occurrence. Injuries received by the accused were not explained. The fact that gun was accidentally fired and the accused had right of private defence was not properly considered. Witnesses Khiladi and Shiv Charan, who were named in the FIR were not examined. Since ocular testimony of the witnesses examined by the prosecution was not trustworthy, the accused could not have been convicted. Reliance is placed on Yogendra Morarji vs. The State of Gujrat (1), Mohd. Ramzani vs. State of Delhi (2), Mohinder Pal Jolly vs. State of Punjab (3), Tara Chand and Another vs. State of Haryana (4), Dev Raj and Another vs. State of H. P. (5) Madan Mohan Pandey vs. State of U. P. (6), Chuhar Singh vs. State of Punjab (7), Kashi Ram and Others vs. State of M. P. (8), Veera vs. State of Rajasthan (9) and Lakshmi Singh and Others vs. State of Bihar FACTUAL SITUATION:
(3.) AT first we may catelogue certain material facts appearing on record. These are:- (i) No sooner Raghunandan Patel did reach his house accused Ghanshyam targeted him and opened fire that hit Kalya @ Ajay after kissing shoulder of Raghunandan, as a result of which Kalya @ Ajay died; (ii) Babu Lal then snatched the gun from the hands of Ghanshyam and opened fire that hit Kalli @ Ram Kishan, who also died; (iii) Khiladi and Shiv Charan were named in written report, but the prosecution did not examine them; (iv) Raghunandan (PW. 2) vide injury report (Ex. P-1) sustained following injuries:- " 1. Lacerated wound 5 cm x 2 cm x 4 cm (depth) on Lt. Parietal temporal region of skull acrosing Lt. to Rt. 2. Lacerated wound 1, 1/2 cm x 3/4 cm Rt. little finger dorsal aspect 3. Lacerated wound 1, 1/2 cm x 3/4 cm Rt. ring finger dorsal aspect. 4. Gunshot would O margin inverted tatooing present 4 cm in diameter Lt. shoulder back side. 5. Abrasion oblique shape 6 cm x 2 cm. Rt. Lower Abd. From posterior to anterior. " (v) Lead pallets of cartridges were seized from the place of incident vide memo Ex. P-12. (vi) 12 Bore double barrel gun was seized at the instance of accused Ghanshyam vide Ex. P-15. (vii) Vide Ex. P-39, District Magistrate Alwar granted sanction to prosecute accused Babu Lal and Ghanshyam; (viii) Accused Seema vide injury report Ex. D-7 sustained following injuries:- " 1. Lacerated wound over base of Rt. ring finger 4 cm x 2cm x 3 cm (depth) 2. Lacerated wound over base of little finger 8 cm x 2 cm x 3 cm (depth) 3. C/o of pain Lt. wrist - No external injury seen. " (ix) Accused Ghanshyam vide Ex. D-8 received following injuries: " 1. Lacerated wound over Rt. Fronto parietal region 3 cm x 3 cm x 4 cm 2. Lacerated wound over Lt. thumb inner aspect 4 cm x 1 cm" (x) Accused Babu lal vide Ex. D-9 sustained following injuries:- " 1. Lacerated wound over mind of skull 6 cm x 3 cm x 4 cm (depth) 2. Lacerated wound over Rt. Tempro occipital region 3 cm x 3 cm x 4 cm (depth) 3. Complaining of pain Lt. elbow joint no ext. injury is seen 4. C/o pain Rt. Elbow joint No. ext. injury is seen. 5. Bruise over Rt. Scapular region 4 cm x 12 cm (width) 6. Abrasion over Rt. Middle finger dorsal aspect 1 cm x 3 cm 7. Abrasion dorsal of Rt. Second metacarpal upper part. 4 cm x 2 cm 8. C/o pain Rt. Lower chest in Ant. Axillary line No. ext. injury is seen. " (xi) Written report Ex. D-11 was made by Ghanshyam to S. P. Alwar. (xii) Copy of FIR No. 224/97 (Ex. D-12) was registered at Police Station Malakhera District Alwar; (xiii) X-ray report of Ghanshyam (Ex. D-14) demonstrates that he sustained grievous injury; (xiv) Raghunandan (PW. 2) in the cross examination stated that the fact that Babu Lal had snatched the gun from Ghanshyam and opened fire was known to him (Raghunandan) in the hospital on being informed by his family members; (xv) Raghunandan denied this suggestion that gun got fired while lathi blow aimed by Anil at Ghanshyam hit the gun; (xvi) Injuries sustained by Seema, Ghanshyam and Babu Lal were not explained by the prosecution. RIGHT OF PRIVATE DEFENCE: At this juncture it will be worthwhile to consider the principles governing exercise of right of private defence. It is well settled that where the charge against the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. ;