Rattan Lal and Others vs State

Nirmal Singh, J.—This appeal is directed against the judgment and order dated 18.8.2000 passed by learned Ist Addl. Sessions Judge,

Jammu, vide which the appellants have been convicted and sentenced under Sections 307, 326, 324 RPC and 4/25 Arms Act under:

For offence u/s 307 RPC Rattan Lal accused is sentenced to suffer rigorous imprisonment for seven years and for offence u/s 324 RPC rigorous

imprisonment of two years with a fine of Rs. 2000 for offence u/s 307 RPC and a fine of Rs. 1000 for offence u/s 324 RPC. In default of payment

of fine of Rs. 2000 he shall suffer simple imprisonment for three months and in default of payment of fine of Rs. 1000 he shall suffer two months

simple imprisonment.

Accused Vijay Kumar is sentenced to suffer rigorous imprisonment of seven years for offence u/s 307 RPC and a fine of Rs. 2000. In default of

payment of fine he shall suffer simple imprisonment for three months. Accused Vijay Kumar is also sentenced to suffer rigorous imprisonment of

two years and a fine of Rs. 1000 for offence u/s 324 RPC. In default of payment of fine he shall further suffer simple imprisonment for two months.

Swarn Lal and Rakesh Kumari accused are sentenced to suffer rigorous imprisonment of two years for offence u/s 324 RPC and a fine of Rs.

1000 each. In default of payment of fine they shall further suffer simple imprisonment for two months.

Sentences imposed on accused Rattan Lal and Vijay Kumar shall run concurrently.

The prosecution story, in brief, is that on 1.7.1996 at noon time complainant Suresh Kumar along with his wife Sudesh Kumari were returning to

their home from the fields. When they reached bus stop in front of shop of accused Rattan Lal, he along with four other accused persons attacked

them. The accused Rattan Lal was armed with Karpan, accused Vijay Kumar was also armed with Karpan, Swarn Lal with Dah and Udho Ram

with a stick. All the accused attacked them and gave injuries to them on various parts of their bodies. They raised alarm on which the accused

persons ran away from the spot and the people who had gathered there took them to the hospital. Police came in the hospital and complainant

Suresh Kumar made the statement EXP-SK-1, on the basis of which FIR was registered. After completion of the investigation, challan was

presented and the accused were charge sheeted under Sections 307, 324, 326, 341, 147, 149 RPC and 4/25 Arms Act. The accused pleaded

not guilty and claimed trial.

To prove its case prosecution examined PWs, Suresh Kumar, Complainant, Sudesh Kumari, Parkash, Girdhari Lal, Dr. B. Jahanjir and Dr.

Vinod Sharma.

When the accused were examined u/s 342 Cr.P.C to explain the incriminating circumstances appearing in the prosecution evidence they denied

simplicitor and false implication. The accused were called to lead their defence evidence. They examined DWs Yash pal and Ramesh Lal.

After appreciating the evidence of the prosecution and the defence the learned Sessions Judge convicted the accused and sentenced them as

stated in para 1 above, aggrieved by which they have preferred the present appeal.

Mr. B.L. Kalgotra, learned Counsel for the appellants submitted that the learned trial court has not appreciated the evidence on record in its

right perspective. He submitted that the judgment of the learned trial court suffers from numerous infirmities as there are material contradictions

between the statement of interested and related witnesses. He further contended that the prosecution has examined Suresh Kumar and Sudesh

Kumari, who are husband and wife. No independent witness has been examined though as per PW Suresh Kumar at the time of occurrence

number of persons had gathered on spot. He further submitted that in the same occurrence the appellants also sustained injuries, for which they

have also lodged a criminal case in the court of learned Judicial Magistrate Ist Class, R.S. Pura. He submitted that the learned trial court should

have decided the criminal case filed by the appellants along with the present case to find out as to which party was the aggressor. He submitted

that the appellants had caused injuries to the complainant in their right of self defence. He contended that even though the appellants have not taken

the plea of self defence, there is no bar to raise such a plea before the appellate court. He placed reliance on Sardar Singh alias Sardari v. State

1998 KLJ 455.

Mrs. Aruna Thakur, learned Government Advocate, appearing for the State submitted that the accused have admitted the occurrence but it has

not been proved that they have sustained injuries in the same occurrence nor a copy of the alleged complaint filed by them has been produced on

record. She further submitted that it was not brought into the notice of learned Sessions Judge that appellants have filed any complaint with regard

to the same occurrence. She further submitted that the injuries suffered by complainant Suresh Kumar and Sudesh Kumari are not minor in nature

so that it can be said that they were self suffered. She further submitted that once the accused have admitted that they have caused the injuries and

they have failed to prove the plea of self defence, than they are to be convicted for causing injuries to the complainant and his wife.

I have heard the learned Counsel for the parties and perused the record.

In Gottipulla Venkatasiva Subbrayanam and Others Vs. The State of Andhra Pradesh and Another, , the Apex Court has interpreted the

provisions of Sections 96 to 106 of Indian Penal Code that when the right of private defence is available to an accused and has held as under:

The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property

as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for

commission of offences. The right of private defence serves a social purpose and as observed by this Court more than once there is nothing more

degrading to the human spirit than to run away in face of peril; (Munshi Ra, v. Delhi Administration Criminal Appeal No. 124 of 1965, D/ 27-11-

1967= (reported in AIR 1968 SC 702) and Kishna v. State of Rajasthan Criminal Appeal No. 23 of 1960, D 30-11-1962 (SC). But this right is

basically preventive and not punitive. It is in this background that the provisions of Sections 96 to 106, Indian Penal Code which deal with the right

of private defence have to be construed. According to Section 96 nothing is an offence which is done in the exercise of the right of private defence

and u/s 97 subject to the restrictions contained in Section 99 every person has a right to defend; (1) his own body and the body of any other

person against any offence affecting the human body and (2) the property whether moveable or immovable of himself or of any other person

against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these

offences. The right of private defence, according to Section 99, does not extend to an act which does not reasonably cause the apprehension of

death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith etc., and there is also no right of private defence

in cases in which there is time to have recourse to the protection of the public authorities. Nor does it extend to the inflicting of more harm than is

necessary to inflict for the purpose of defence. Section 100 lays down the circumstances in which the right of private defence of the body extends

to the voluntary causing of death or of any other harm to the assailants. They are (1) if the assault which occasions the exercise of the right

reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof and (2) if such assault is inspired by

an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may

reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. In case of less serius offences

this rights extends to causing any harm other than death. The right of private defence to the body commences as soon as reasonable apprehension

of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as

long as the apprehension of danger to the body continues. The right of private defence of property u/s 103 extends, subject to Section 99, to the

voluntary causing of death or of any other harm tro the wrongdoer if the offence which occasions the exercise of the right is robbery, house-

breaking by night, mischief by fire on any building etc., or if such offence is, theft, mischief or house trespass in such circumstances as may

reasonably cause apprehension that death or grievous hurt will be the consequence, if the right of private defence is not exercised. This right

commences when reasonable apprehension of danger to the property commences and its duration, as prescribed in Section 105, in case of

defence against criminal trespass or mischief, continues as long as the offender continues in the commission of such offence. Section 106 extends

the right of private defence against deadly assault even when there is risk of harm to innocent persons.

The right of private defence of the body commences as soon as reasonable apprehension of damage to body arises from an attempt and threat

to commit the offence of death or grievous hurt, as envisaged u/s 100 of the RPC, which reads as under:

Firstly: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.

Thirdly...

....

It is settled proposition of law that accused has not to plead in so many words that he had acted in self defence, but once the accused sets up

the plea of self defence then the burden to prove is on the accused that he has acted in self defence. The accused has to prove his plea by bringing

on record the necessary material, by leading positive evidence or from the evidence of the prosecution itself but in the absence of any material the

plea of self defence is not available to the accused.

In the instant case, Suresh Kumar Complainant and Sudesh Kumari, his wife, both injured were examined but no suggestion was put to them

that the appellants have caused injuries to them in retaliation.

When the appellants were examined u/s 342 Cr.P.C, at that stage also the appellants have not taken the plea of right of self defence. The

appellants for the first time, while filing the appeal have pleaded as under:

That it has come in evidence that the convicts appellants also sustained injuries in the same occurrence and a criminal case has been lodged by

accused persons/appellants in the Court of learned Judicial Magistrate R.S. Pura. The law is settled by this Hon'ble court and Apex Court that

when there are counter cases of the same occurrence, both must be decided by one court by simultaneous judgments and return a finding after

appreciation of evidence of both the cases and totality of circumstances as to which of the two parties was aggressor.

The failure of learned trial court to do this has caused grave injustice to the appellant ts as in such cases the party sustaining larger number of

injuries may be found to be guilty of assault and the party sustaining lesser number of injuries may be found to have exercised right of self defence

as it is settled law that right of self defence is right to pre-ampt and not to retaliate and thus the aggressed party may have caused greater number

or even killed the aggressor in certain circumstances. As such, Hon'ble trial court having failed to do so in the present case, the impugned judgment

suffers from this grave inconformity and is liable to be set aside. The learned trial judge has not property appreciated the evidence.

In support of the plea taken by the appellants that they have sustained injuries at the hands of Suresh Kumari and his wife, no witness has been

examined. The appellants have examined two defence witnesses but both of them have taken a contradictory stand against the stand taken by the

appellants in the memo of appeal. Both of them deposed that no occurrence has taken place. The appellants have taken the stand that they have

filed a complaint with regard to the same occurrence but the appellants have not placed on record copy of the compliant. The judgment (supra)

relied upon by the learned Counsel for the appellants is distinguishable on facts. In that case though the accused has not raised the plea of self

defence straight away and in clear terms but from the manner of suggestions put to the prosecution witnesses it was proved that the accused was

acting in the right of their private defence, therefore, the benefit was extended to the accused.

In the instant case, as has been discussed above, no suggestion was put to the complainant Suresh Kumar or injured Sudesh Kumari that they

have came to the shop of the appellant Rattan Lal for causing injuries to the appellants and apprehending danger to their life, appellants gave

injuries to them in their right of self defence.

The next contention of learned Counsel for the appellants is that the prosecution has examined interested and related witnesses, who have

contradicted in their statements and, as such, no reliance can be placed on their statements. This contention raised by the learned Counsel for the

appellants is not sustainable. When the occurrence is admitted by the accused then it is to be seen whether the version given by the complainant is

true and probable or the version given by the accused. The appellants have taken the stand that they have caused injuries to the complainant and

his wife in their right of self defence but they have failed to prove it, therefore, the plea of right of self defence is not available to them.

Further more there is no law that evidence of interested and related witnesses cannot be relied upon. When the case is based on the statements

of related and interested witnesses it puts the court on its own guards to scrutinize their evidence with great care and caution.

Suresh Kumar and Sudesh Kumari both injured are stamped witnesses. Suresh Kumar has sustained 4 injuries and Sudesh Kumari has

sustained 2 injuries. These injuries sustained by complainant and his wife cannot be said to be self suffered or self inflicted. Both of them were

subjected to searching cross examination by the defence but the defence has failed to make any dent in their evidence. Learned Counsel for the

appellant failed to point out any material discrepancy in the statements of the witnesses on the basis of which their evidence can be discarded. The

evidence of complainant Suresh Kumar and Sudesh Kumari is inconsistent on all the points with regard to date, time, place and the manner in

which the occurrence has taken place and the weapon used by the appellants. Their evidence has been corroborated by medical evidence given by

Dr Vinod Sharma, who has proved the injuries on their person. When their evidence is scanned it strikes nothing but truth.

The next question which has to be determined is the nature of offence committed by the appellants.

Dr. Vinod Sharma, Medical officer, has found following injuries on the person of complainant Suresh Kumar:

Incised wound on right hand, palmer aspect along the whole length of palm, starting from the base of little finger to base of index finger 7 c.m

long and deep cutting under lying structure and reaching upto the bone.

Incised wound on left leg upper and lateral part 2 c.mX 1/2 c.m X 1/2 c.m red in colour.

Incised wound on right arm lateral aspect, mid part 3 c.m X 1/2 c.m X 1/2 c.m red in colour.

Incused wound on left side of forehead 3 c.m X 1/2 c.m X 1/2 c.m obliquely placed. Red in colour.

As per the opinion of the doctor all the injuries were simple in nature and were caused by a sharp weapon.

The doctor has found the following injuries on the person of Sudesh Kumari, injured:

Incised wound onm right fore-arm, lower part from ulnar to radial side 4 c.m long 3 c.m deep under lying muscles and vessels cut partially and

reaching upto the bone.

Incised wound on left parietal area, mid part anteroposteriorily placed 3 c.m X 1/2 c.m X 1/2 c.m red colour.

In the opinion of the doctor, injury No. 1 was grievous in nature and injury No. 2 was simple but the doctor further pointed out that injury No.

2 on the head could be fatal if not treated properly. There is no evidence on record that life of Sudesh Kumari was in danger or endangered at any

stage. When Sudesh Kumari was examined by the doctor she was fully conscious.

Section 307 RPC provides that a person shall be deemed to have committed an offence of attempt to murder if he does any act with such

intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder. The intention or knowledge

has to be inferred from the result. The dimension of the injury was 3 c.m X 1/2 c.m X 1/2 c. m, it has a weak effect and it cannot cause the death

nor this injury is proved to be danger or endanger to the life. In view of the above, I am of the view that injuries attributed to appellants Rattan Lal

and Vijay Kumar cannot come under the ambit of Section 307 RPC and, therefore, their conviction u/s 307 RPC stands set aside and instead of

that they stand convicted u/s 324 RPC, however, their conviction u/s 326 RPC is up held.

Now coming to the question of sentence, the learned trial court has convicted the appellants for their individual acts by observing that

provisions of Section 149 Cr.P.C are not attracted. The case against the appellants was registered in 1996 and since then they are facing the

rigorous of trial, both mentally and financially. All the injuries attributed to the appellants are simple in nature, except injury No. 2 on the person of

Sudesh Kumari, which has been declared as grievous and on non-vital part. Perusal of the record shows that before and after registration of the

case, appellants have not indulged themselves in any other criminal activity.

So taking into consideration the facts and circumstances of the case, it is a fit case where the sentence awarded by the trial court is reduced to

that of already undergone by the appellants, with a fine of Rs. 5000 each in addition to the fine already imposed by the trial court. In default of

payment of fine the appellants will undergo rigorous imprisonment for six months. In case fine is recovered the entire fine amount be converted into

compensation and same be paid to both the injured in equal shares.

With the modifications indicated above, the appeal is dismissed.