Ram Singh and Another vs State of Rajasthan

G.K. Sharma, J.—This appeal is directed against the judgment dated 9-10-1987 passed by the Sessions Judge, Jhunjhunu convicting and sentencing the appellants as under:

Shri Chandgi Ram gave a parcha-bayan to the SHO, Khetri on 20-1-1985 and in that statement he stated that there is a well known as Masania well, which is a joint well of both the parties. On 20-1-1985, the accused-persons dig the well, took out the Chawk and put it on the ground. Afternoon when the accused-persons left well, the complainant Chandgi Ram, his brother Sheesh Ram came to the well and again put the Chawk on the well. When they left the well and went towards Dhani and reached about 20.30 paces away, all the accused-persons armed with axe and other weapons arrived there and attacked Chandgi Ram and Sheesh Ram. Sahi Ram inflicted axe blow to Chandgi Ram. The all the accused-persons started beating. After hearing hue ann cry some persons arrived and rescued them. The accused persons also beat those persons. After beating the accused-persons left the place. The injured persons were taken to the Babai hospital from where the doctor Atmaram sent the information to the Police Station and inspected the injuries of the injured persons. Shiv Kumar, the Police Officer, arrived at the hospital and recorded the parcha bayan of Chandgi Ram. On 21-1-1987 in the morning at 1 O''clock Sheesh Ram died in the hospital. Initially, the Police registered the case under Sections 307, 147, 148, 149 and 323, IPC, but after the death of Sheesh Ram the case was converted u/s 302, IPC also. After completing the usual investigation the Police submitted challan against 11 persons under Sections 302, 148, 149 and 323, IPC.

Charges were framed against the accused-persons who denied the allegations made against them. The contention of the accused-persons was that after working on the well they were sitting in their field when Sheesh Ram and Chandgi Ram and 15-16 persons came there and started beating; them. When persons came to rescue them they were also beaten by Sheesh Ram and others. The accused-persons also lodged a report of this matter at the Police Station and the Police after registering the case and completing the usual investigation submitted challan under Sections 325, 324, 313, 147, 148 and 149 IPC against the complainant party. It was stated that the cross-case filed by the accused-persons is still pending in the lower Court.

The trial Court after completing the trial found that no case is made out against 9 persons i.e. except Ram Singh & Sahi Ram, the present appellants. The trial Court acquitted all the 9 persons from the charges under Sections 302/149, 148 and 323 IPC. Appellants Ram Singh was found: guilty under Sections 302 IPC only. He was acquitted from the charge under Sections 148 and 323 IPC. Appellant Sahi Ram was found guilty u/s 324 IPC and he was acquitted from the charge under Sections 302/149 and 148, IPC.

There is no controversy about this fact that the incident had taken place. There is no controversy in this matter that both the parties had: received injuries. The trial Court in its finding held that there was free fight between the parties. The prosecution has submitted challan with this allegation that the accused-persons formed an unlawful assembly and in of their common object the accused persons gave beating the complainant-party. The trial Court did not agree with this contention and acquitted all the accused-persons from the charge u/s 148, IPC i e. regarding forming an unlawful assembly. Therefore, the prosecution case was found false so far as those 9 persons are concerned who have been acquitted. The trial Court found the case established against Ram Singh and Sahi Ram only and for that he individually covered their case. Both these appellants raised the plea of self-defence. The learned Sessions Judge finding that there was free fight between the parties so the question of self-defence does not arise.

The judgment of the trial Court is perused. The trial Court has dealt the point of aggression. It was argued that the accused persons were aggressor but the finding of the learned Sessions Judge is that the prosecution has failed to prove that the accused persons were aggressor. In Para 5 of the judgment the learned trial Court has observed that the fact that Sheesh Ram went to the well and put the Chawk on the well was not found to he correct-The site-plan Ex. P 1 indicates that when the S.H.O. inspected the site, the Chawk was not found on the well. Therefore, the statement of Chandgi Ram was not found to be correct and it was held by the trial Court that the contention of Chandgi Ram that the accused-persons were aggressor and they attacked them is not correct and worth to be acceptable. Once the trial Court found this that the accused persons were not aggressor then the position is clear that the complainant party was aggressor in this matter.

There is another aspect to judge the correctness of the story and that aspect is that the well in question according to the accused persons is a joint well. The complainant-party did not admit that it is a joint well but the prosecution witnesses accepted in the cross-examination that a case is pending with regard to this well and the civil court had issued a temporary injunction order against the complainant-party. It means that a dispute was pending with regard to this well and the civil Court passed an injunction order against the complainant-party. So the well was in possession of the accused-persons and the complainant-party was not entitled to go to the well. The complainant Chandgiram from very beginning did not come to the Court with clean hands and he asserted that the well belongs to complainant-party only. Actually, this is a joint well and this was held by the learned trial Court and it has been admitted by the witnesses in the cross-examination. Therefore, the well in question was in possession of the accused-persons and the complainant party went there and inflicted injuries which is evident from the medical-reports of the accused-persons. They were beaten by the complainant-party and certainly to save themselves they had also inflicted injuries to the complainant party. If we go through the injury-reports of both the parties we find that the total injuries inflicted on the person of the accused party were more than in numbers then the injuries inflicted on the person of the complainant-party by the accused-persons. The injury-reports of both the parties have been 7 persons received injuries on the side of complainant party and 7 persons received injuries on the side of accused-persons. The injury reports of complainant party are Ex. Ps. 42 to 48. Chandgi Ram received 5 injuries, out of which only one by sharp weapon and others by the blunt weapon. All the injuries of Chandgi Ram are simple. Other persons of complainant party also received simple injuries. The injury reports of accused persons are Ex. D 16 to Ex. D 22. Guljari accused had 7 injuries, out of which one was grievous. Sahi Ram received 8 injuries, out of which three were grievous. Sundari also received one grievous injury. Harnarain and Kalu Ram also received one grievous injury each. So after seeing the injury reports of both the parties, it is clear that the nature of injuries on the person of accused persons was grievous and more in numbers, then the complainant party. Therefore it is clear that when the complainant party beat the accused persons they also in self-defence inflicted injuries it is unfortunate that one of the injuries to Sheesh Ram proved fatal and he died in the hospital. The injuries to Sheesh Ram were by a blunt weapon. He received three injuries. Two injuries were simple and one was fatal which was haematoma. So the theory of self-defence advanced by the accused-persons is worth considerable. The learned Sessions Judge rejected the plea of self defence on the ground that there was a free fight and in free fight no plea of self defence is permissible. After seeing the record and the judgment we are of this opinion that the trial Court has committed error in coming to this conclusion that there was a free fight. It is not a case of free fight because the well was in possession of the accused-persons. The complainant party was restrained by the civil court through a temporary injunction. So the complainant party was actually aggressor and they started beating the accused persons In order to save themselves the accused persons also gave beating to the complainant party.

According to the accused-persons the well in question was a joint property of both the parties. A dispute was pending with regard to this well and the civil court had passed an injunction order against the complainant party and they had no right to proceed to the well. The accused-persons after working on the well came to the field and they sat there. The complainant party came there and started beating the accused-persons. When the complainant party has been restrained by an injunction order it was not correct on their part to arrive at the well and start the dispute.

The trial Court in its judgment held that well in question was a joint well and in page 10 of the judgment Sessions Judge who disbelieved the story of the prosecution witnesses, so far as accused-persons are concerned, we fail to understand how the learned Sessions Judge believed those witnesses, so far as the appellants are concerned. There is no reason to believe those prosecution witnesses against the appellants.

Therefore, after going through the entire record of this case and the judgment of the learned trial court we are of this opinion that the learned trial court has completely failed to appreciate the evidence in a right prospective manner. He has erred in coming to this finding that it was a sudden fight. It had erred in coming to this finding that the accused-persons had no right of private defence. We can only say that the learned Sessions Judge has not understood the evidence as well as the law.

This incident had taken place and the complainant party was aggressor in it. They started beating the accused-persons for which a cross case is pending. The accused-persons in their self defence inflicted injuries to the complainant party and unfortunately one person Sheesh Ram had died. It cannot be said that the accused-persons had exceeded their right of self defence, therefore we do not agree with the finding of the learned Sessions Judge convicting and sentencing the appellants.

As a result, the appeal is accepted. Appellant Ram Singh is not found guilty u/s 302, IPC and Sahi Ram is not found guilty of the offence u/s 324, IPC. Both the appellants are acquitted. Sahi Ram is on bail. His bail-bonds are cancelled and he need not surrender. Appellant Ram Singh is in jail. He is ordered to be released forthwith, if not required in any other case.