SHIV KUMAR SHARMA, J. - (1.) MAHESH, Mahadev, Bablu @ Vishambhar, Smt. Gulab Devi and Smt. Dhanda, the appellants herein, were put to trial before the learned Additional Sessions Judge Kotputli District Jaipur, who vide judgment dated December 13, 2002 convicted and sentenced them as under:- MAHESH U/s. 302 IPC: To suffer imprisonment for life and fine Rs. 1,000, in default to further suffer six months simple imprisonment. U/s. 148 IPC: To suffer simple imprisonment for one year. U/s. 323/149 IPC: To suffer simple imprisonment for one year. Mahadev, Babloo @ Vishambher, Smt. Gulab and Smt. Chanda: U/s. 302/149 IPC: Each to suffer imprisonment for life and fine Rs. 1000, in default to further suffer one month simple imprisonment. U/s. 148 IPC: Each suffer simple imprisonment for one year. U/s. 323 IPC: Each to suffer simple imprisonment for one year. All the sentences were directed to run concurrently.
(2.) PUT briefly the prosecution case is that on November 5, 2000, informant Mala Ram (PW. 6) submitted a written report (Ex. P. 8) at Police Station Kotputli to the effect that on the said day around 11 AM while his brother OM Prakash was digging foundation of the boundary wall suddenly Mahadev Prasad, Mahesh, Bablu, Meera, Angoori, Champa Devi, Gulab and Gokul armed with Spade. Lathis and Rods entered into the house of Om Prakash and Mahesh inflicted spade-blow on the head of Om Prakash. As a result of beating Om Prakash sustained injuries on his head and hand. Prem Devi also received injuries in the incident. Hearing hue and cry many persons gathered and saved them. On the aforesaid report Police Station Kotputli registered a case under Sections 147, 452 and 323 IPC and investigation commenced. During the course of investigation injured Om Prakash succumbed to his injuries and Section 302 IPC was added. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Kotputli District Jaipur. Charges under Sections 302, 302/149, 148, 323 and 323/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 20 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Accused Mahadev stated that Om Prakash was trying to obstruct the lane by digging foundation ignoring the decision of Panchayat when he was asked to follow the decision of the Panchayat, he started quarreling. Mahesh and Babloo raised the plea of alibi. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Death of deceased Om Prakash was indisputably homicidal in nature. As per postmortem report (Ex. P. 28) he received following ante mortem injuries:- 1. Curved shape stitched wound 27 cm long Rt. Fronto parietal region. 2. Stitched wound 5 cm long parelatel to corneal suture Rt. parietal region. On dissection thick dark red sub scalp hematoma present over Rt. fronto parietal region. Brain protruded out thereon a bony gap of 13 cm x 10 cm at Rt. fronto parietal region. 3. Abrasion 6 cm x1/4 cm Rt. arm upper dorsolateral aspect with bruise scab formation. 4. Abrasion 6 cm x 1/4 cm Rt. arm middle dorsolateral aspect with abnormal mobility of arm on further exam. fracture of shaft humerus was present. 5. abrasion 4 cm x 1 cm Rt. post axillary fold. 6. Fracture dislocation of all the lower jaw incisor teeth with gum laceration abrasion with dried blood over Rt. Lower lip muco cutaneous junction. According to Dr. D. K. Sharma (PW. 17) the cause of death was coma as a result of injuries to the brain and skull. At this juncture the injuries sustained by accused persons may also be noticed. Accused Mahadev vide injury report (Ex. D. 6) received following injuries:- 1. Lacerated wound 1-1/4" x 1/2" deep on vault of skull. 2. Contusion with swelling 1/2" x 1/2" on body of nose. 3. Contusion 1/2" x 1/2" on chin Rt. side. 4. C/o pain left gluteal region no external injury. On X-ray vide X-ray report (Ex. D-9a) fracture of nasal bone was found. Accused Smt. Bulab vide injury report (Ex. D-7) received following injuries:- 1. Contusion with swelling 1" x 1/2" on forehead Rt. side. 2. Contusion 1" x 1/2" on Rt. Maxillary region. 3. Abrasion carrying of 1/4" x 1/4" on Rt. forearm lower 1/3 lateral aspect. Having scanned the material on record we find that the prosecution case rests on the testimony of Prem Devi (PW. 7) and Maya (PW. 8 ). In her cross examination Prem Devi deposed that while Om Prakash was digging the foundation Mahadev asked him not to do so. Since the land belonged to Om Prakash he did not agree and continued his work. Mahadev and Om Prakash had altercations and they grappled with each other. Mahesh then inflicted blow with spade on the right temporal region of Om Prakash. She however denied the fact that Mahadev had suffered injury on his head. Testimony of Prem Devi gets corroboration from the evidence of Maya (PW. 8) who in her cross examination stated that after Om Prakash and Mahadev hurled abuses to each other Mahesh gave a blow with spade on the person of Om Prakash. According to her incident occurred on the way near the foundation.
(3.) FACTUAL scenario of the case appears from the evidence on record may be summarised thus:- (i) The informant in the FIR (Ex. P. 9) stated that the incident occurred in the house, whereas at the trial he deposed that the place of occurrence was the street. (ii) The spade used for digging the foundation by the deceased, was picked up by accused Mahesh for the purpose of causing the injury. (iii) Jhabar Mal Gurjar (DW. 1), Panch of Gram Panchayat Kalyanpura, in his deposition stated that complainant and accused party entered into compromise (Ex. D-8 according to which it was agreed upon that 3 feet land shall be kept open and no construction shall be made on the said land. (iv) Dispute arose when the deceased started digging foundation on the land which had to be kept open in accordance with the order dated July 3, 2000 (Ex. D-8) of the Gram Panchayat. (v) Mahaver and Gulab sustained injuries in the same incident and those injuries were not explained by the prosecution. It is canvassed by learned counsel for the appellants that since the appellants had apprehension that grievous injuries might be caused they exercised the right of private defence and in that process if appellant Mahesh might have dealt one blow with spade on the head of Om Prakash which resulted in his death no crime is said to have committed by him. It is also contended that in the facts and circumstances of the case sections 148 and 149 IPC are not attracted. On the other hand learned public prosecutor supported the impugned judgment and urged that the appellants had rightly been convicted and sentenced. Before considering the above submissions we deem it appropriate to notice the principles laid down in the various judicial pronouncements in regard to right of private defence, that may be summarised thus:- (i) Section 96 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. (ii) 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. (iii) 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. (iv) 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. (v) Under Section 105 of the Evidence Act, 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. (vi) 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 by 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. (vii) 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 accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of accused. (viii) The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance in favour of that plea on the basis of the material on record. ;