Munsha Singh And Ors vs State Of Rajasthan Through P P ...
2023 Latest Caselaw 3197 Raj/2

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  D.B. Criminal Appeal No. 474/2018

Sukh Dev Singh S/o Succha Singh, R/o Sehasan Ps Jurhara
Bharatpur Raj. (At Present Confined In Central Jail Bharatpur)
                                                                      ----Appellant
                                       Versus
State Of Rajasthan Through P.P.
                                                                    ----Respondent

Connected With D.B. Criminal Appeal No. 996/2017 1 Munsha Singh S/o Dileep Singh, R/o Sehasan, Police Station Jurhara Bharatpur Rajasthan At Present Confined In Central Jail Bharatpur

2. Amar Singh S/o Laxman Singh, R/o Khedi Almimuddin Police Station Jurhara Bharatpur Rajasthan At Present Confined In Central Jail Bharatpur

3. Smt. Rukman Kaur W/o Dileep Singh, R/o Sehasan, Police Station Jurhara Bharatpur Rajasthan At Present Confined In Central Jail Bharatpur

4. Kulwant @ Gurjant Singh S/o Dileep Singh, R/o Sehasan, Police Station Jurhara Bharatpur Rajasthan At Present Confined In Central Jail Bharatpur

----Appellants Versus State Of Rajasthan Through P.P.

----Respondent D.B. Criminal Appeal No. 1315/2017 Gurudev Singh S/o Inder Singh, R/o Sahsan, Police Station Jurhera, District Bharatpur. At Present Confined In Central Jail, Bharatpur.

----Appellant Versus State Of Rajasthan Through P.P.

----Respondent D.B. Criminal Appeal No. 2214/2017

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Succha Singh S/o Surain Singh, R/o Sehasan, Police Station Jurhara, Bharatpur, Raj. At Present Confined In Central Jail, Bharatpur.

----Appellant Versus State Of Rajasthan Through P.P.

----Respondent

For Appellant(s) : Mr. Rajendra Singh Tanwar in CRLA No.474/2018 & 996/2017 Mr. Amitabh Vijaywargia in CRLA No.1315/2017 Mr. Santosh Kumar Jain in CRLA No.2214/2017 For State : Mr. Javed Choudhary, Addl.G.A.

For Complainant : Mr. Harendra Singh Sinsinwar with Mr. Jaswant Singh Rathore

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

Reserved on :: 27/07/2023 Pronounced on :: 07/08/2023 (Per Hon'ble Justice Pankaj Bhandari)

1. Since controversy involved in the bunch of these criminal

appeals arises out of the same incident; the same are being

decided by this common judgment.

2. The appellants have preferred these appeals aggrieved by

the judgment of conviction and order of sentence dated

17.05.2017 whereby appellants were acquitted for the offence

under Sections 323, 323/149, 307, 307/149 and 341 of IPC and

convicted and sentenced as hereunder:-

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Appellant- Sukh Dev Singh:-

(i) For offence under Section 148 IPC- 2 years rigorous

imprisonment and fine of Rs.1,000/- and in default of

payment of fine, to further undergo 1 month rigorous

imprisonment.

(ii) For offence under Section 302 IPC- Life Imprisonment

and fine of Rs.5,000/- and in default of payment of fine, to

further undergo 6 months rigorous imprisonment.

(iii) For offence under Section 326/149 IPC- 7 years rigorous

imprisonment and fine of Rs.2,000/- and in default of

payment of fine, to further undergo 2 months rigorous

imprisonment.

(iv) For offence under Section 324/149 IPC- 3 years rigorous

imprisonment and fine of Rs.1,000/- and in default of

payment of fine, to further undergo 2 months rigorous

imprisonment.

(v) For offence under Section 3/25 Arms Act- 3 years

rigorous imprisonment and fine of Rs.1,000/- and in default

of payment of fine, to further undergo 1 month rigorous

imprisonment.

All the sentences were directed to run concurrently.

Appellants- Munsha Singh, Amar Singh, Smt. Rukman Kaur,

Gurudev Singh, Succha Singh and Kulwant:-

(i) For offence under Section 148 IPC- 2 years rigorous

imprisonment and fine of Rs.1,000/- and in default of

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payment of fine, to further undergo 1 month rigorous

imprisonment.

(ii) For offence under Section 302/149 IPC- Life

Imprisonment and fine of Rs.5,000/- and in default of

payment of fine, to further undergo 6 months rigorous

imprisonment.

(iii) For offence under Section 326/149 IPC- 7 years rigorous

imprisonment and fine of Rs.2,000/- and in default of

payment of fine, to further undergo 2 months rigorous

imprisonment.

(iv) For offence under Section 324/149 IPC- 3 years rigorous

imprisonment and fine of Rs.1,000/- and in default of

payment of fine, to further undergo 2 months rigorous

imprisonment.

All the sentences were directed to run concurrently.

3. Succinctly stated the facts of the case are that a written

report (Exhibit-P1) was lodged by complainant - Prakash Kaur wife

of Charan Singh on 27.09.2012 at Police Station Jurhara, District

Bharatpur, Rajasthan, which reads as under:-

"mijksDr fo"k;kUrxZr fuosnu gS fd dy fnukad 26-09-

2012 dks lk;adky 6&6%30 cts dh ckr gS fd esjk ifr pj.kflag vius [ksr dks tqrkbZ ;ksX; gksus vFkok ugha gksus gsrq ns[kus x;k Fkk rks ogka mls lqPpkflag iq= lqjs.kflag] fnyhiflag iq= lqjs.kflag] lq[knsoflag] dqyoarflag] mQZ xq:tsUV iq= fnyhiflag] eqU'kkflag iq= fnyhiflag] xq:nso flag iq= Jh bUnj flag o muds lkFk muds ifjokj dh efgyk;sa jk.kkdkSj iRuh Jh fnyhiflag] y{ehdkSj iq=h lqPpkflag] fniksa dkSj iRuh lqPpkflag] :de.kdkSj iq=h fnyhiflag o lqjs.kflag dk nkekn vejflag iq= y{ke.kflag xkao

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[ksMh gkFkksa esa cUnwd] ryokj] QlkZ] o ykBh;ksa ls ySl gksdj izkFkhZ;k ds ifjokj ds [ksr esa VªSDVj ls tqrkbZ djkrs gq, feys ftl ij esjs ifr pj.kflag us mUgs [ksr tksrus ls euk fd;k rks mldks ?ksj dj o fnyhiflag us viuh cUnwd ls tku ls ekjus ds vk'k; ls Qk;j dj fn;k ftlls mlds NjsZ gkFkksa esa yxs o mldh iRuh :de.kh esjs ifr ds flj o gkFkksa esa Qjlk ekjk] ftlls mlds gkFk dV x;sA blds ckn esjs ifjokj dk xq:ehr flag mDr okjnkr dks ns[kdj igqapk rks mldks tku ls ekjus ds vk'k; ls xq:uhrflag ds flj esa QlsZ dh pksV ekjh o gkFkksa esa ryokj dqycUrflag us ryokj ls pksV igqapkbZA ftlls xq:ehrflag ds gkFk dV x;sA fQj esjs ifjokj ds egsUnzflag] fueZydkSj] vt;flag] vejthrflag ikl esa fLFkr vius edku ls [ksr ij igqaps rks mu ij Hkh lHkh eqyftekuksa }kjk QlkZ ryokj ls okj dj xEHkhj pksVsa ekjhA vejnhiflag] dks lq[knsoflag }kjk cUnwd ls xksyh ekjh] tks mlds dqYgs dks phjrh gqbZ ikj gksdj fudy xbZ o esjs ifjokj ds lHkh yksxksa dks ykBh ryokj QlkZ] cYye ls xEHkhj pksVsa igqapkbZA mDr ?kVuk ds le; lrikyflag] ijthrdkSj] tkxhj dkSj] xq:nsoflag vkfn dkQh xkao ds yksx ekStwn FksA ftUgksaus ;g ?kVuk ns[kh gS ftUgksaus mDr xEHkhj okjnkr dh VsyhQksu ls lwpuk iqfyl Fkkuk tqjgjk dks nh tks ekSds ls esjs ifjokj ds lHkh yksxksa dks ej.kklUu voLFkk esa mBkdj yk;s o tqjgjk vLirky esa ys x;s tgka ?kk;yksa dh xEHkhj voLFkk dks ns[kdj dkeka ds fy, jSQj dj fn;k rRi'pkr dkaek ls Hkjriqj ds fy, jSQj fd;kA tgka Hkjriqj esa mUgsa HkrhZ djok;k x;kA ftuesa ls vejthrflag dks Hkjriqj ls t;iqj ds fy, jSQj dj fn;kA esjs ifjokj ds lHkh lnL; vkj-ch-,e- gkWLihVy esa ej.kklUu voLFkk esa tSj bykt pys vk jgs gS ftUgsa eSa gkWLihVy esa NksMdj eqdnek ntZ djokus vkbZ gwaA vr% fuosnu gS fd eqdnek ntZ dj esjs ifjokj ds lnL;ksa dk esfMdy eqvk;uk djok dj mDr vijkf/k;ksa ds fo:) dkuwuh dk;Zokgh dj dBksj ltk fnyokbZ tkosA"

4. On the basis of the said written report (Exhibit-P1), the

Police Station Jurhara, registered FIR No.222/2012 (Exhibit-P2)

for offences under Sections 143, 323, 341 & 307 of IPC. After due

investigation, police filed challan for the offence under Sections

147, 148, 149, 323, 341, 324, 326, 307, 302 of IPC against all the

accused-appellants. Against appellant-Sukh Dev Singh, in addition

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to the above, supplementary challan was also filed under Section

3/25 of the Arms Act before the concerned Magistrate. The case

was committed to the Court of Additional District and Sessions

Judge, Kaman, District Bharatpur.

5. Learned Trial Court after hearing the charge arguments,

framed charges against the accused. The accused appellants

denied the charges and sought trial. As many as 25 witnesses

were examined and 58 documents were got exhibited on behalf of

the prosecution. Explanation of all the accused was recorded

under Section 313 Cr.P.C., wherein they denied the prosecution

case. In defence, 4 witnesses (DW-1 to DW-4) were examined and

11 documents (D-1 to D-11) were exhibited. After hearing the

arguments, learned Additional Sessions Judge convicted 7 accused

appellants and acquitted 2 accused i.e. Dilip Singh and Rani Bai

and also acquitted Sukh Dev Singh, Suchcha Singh, Gurdev Singh,

Smt. Rukaman Kaur, Amarjeet, Munsha Singh, Kulwant @ Kurjant

Singh for offence under Sections 323, 323/149, 307, 307/149 and

341 of IPC and sentenced the appellants as above mentioned.

6. It is contended by learned counsel for the accused appellants

that the complainant and the accused party belong to the same

family. They are sons and grand-sons of Swaran Singh, who was

the actual owner of the property in dispute. It is also contended

that Swaran Singh was the owner of 40 bighas of land, which was

to be divided amongst his sons and daughters. The accused side

were in possession of their share and were ploughing the field,

when the complainant side attacked the accused side. The

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complainant side were armed with firearms, lathis and pharsas

and attacked the accused side, whereupon the dispute started.

Both the sides have sustained injuries. It is further contended that

the prosecution has not explained the injuries, which are grievous

in nature and have been sustained by the accused side.

7. It is contended that a cross-FIR was registered, which case

was also tried by the same Court and 5 persons from the

complainant side have been convicted by the learned Trial Court.

It is also contended that no effort was made by the Investigating

Officer or the complainant side to establish that the land on which

the dispute took place, belonged to the complainant.

8. It is further contended that accused - Munsha Singh received

a gun-shot injury, which is established from his injury report

(Exhibit-D6), which shows that the complainant side were the

aggressors, as they came armed with weapons. It is argued that 3

persons from the accused side got injured and have received as

many as 4 grievous injuries.

9. It is contended that the learned Trial Court in the present

case has erred in coming to the conclusion that both the sides

were aggressors. It is argued that when the accused side were

ploughing their own field, there was no reason for the complainant

side to attack the accused appellants. It is also contended that

Dilip Singh and Rani Bai have been acquitted by the learned Trial

Court. An appeal was preferred by the complainant before the

High Court against their acquittal, which was dismissed by the

Division Bench of the High Court vide order dated 13.08.2021. It

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is argued that case of the prosecution fails for the very reason

that there was allegation of firing upon Dilip Singh, who has been

acquitted.

10. It is also contended that in fact, Mindarpal @ Mahendra

Singh (PW-2) fired, which accidentally hit Amarjeet Singh, as a

result of which, he died. This theory was put to all the witnesses.

It is further contended that the recovery of firearm at the instance

of Sukh Dev Singh is not established. As per the recovery memo

(Exhibit-P20), a gun was recovered on 22.10.2012, whereas as

per the Malkhana Register (Exhibit-P32A), the first item was

entered on 04.10.2012, which means that all the articles

recovered on whichever date were deposited after 4.10.2012.

There is cutting in the Malkhana Register as admitted by the

Malkhana Incharge (PW-23).

11. It is contended that name of Sukh Dev Singh was mentioned

as an accused in the FIR lodged on 27.09.2012 and he was

arrested on 22.10.2012. There is no reason as to why his house

was not searched by the police prior to 22.10.2012 i.e. for a

period of 1 month from the date of the incident.

12. It is also contended that there is no explanation on behalf of

the complainant with regard to the injuries sustained by the

accused side. All the witnesses, who have been produced before

the Court, have specifically stated that they have not caused any

injuries to the accused side. The complainant side was thus trying

to conceal important material facts from the Court and therefore,

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they should be treated as aggressors as they were armed with

weapons and gun-shot injury was received by Munsha Singh.

13. It is contended by the counsel for the accused appellants

that the complainant side were the aggressors and the accused

side only exercised their right of private defence. Gunshot injury

was also received by one of the accused and grievous injuries

were received by the accused appellants and in exercise of their

right of private defence, they caused injuries to the complainant

side. It is also contended that in fact, the gun was fired by

Mindarpal and it hit the deceased and this suggestion has been

given to all the eye-witnesses. It is further contended that the

prosecution has failed to establish that Charan Singh was in

possession of the land. The Investigating Officer - Rishiraj (PW-

17) has stated that he had obtained the revenue record,

jamabandi, khasra girdawary and naksha trace from the Revenue

Officer. As to why it was not produced before the Court has not

been explained by the Investigating Officer. It is also contended

that witness, Prakash Kaur (PW-1) has initially admitted that the

land was in possession of the accused side.

14. It is contended that it is an admitted case that Suchcha

Singh was getting the land tilled, meaning thereby he was in

possession of the land at the relevant time and it was the

complainant side, who were the aggressors and were armed with

firearm, lathis and pharsas. It is also contended that eye-

witnesses have tried to falsely implicate Sukh Dev Singh for the

injury. It is further contended that the entry wound is near the

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thighs and the exit wound is from kulha, however, the witnesses

have stated that Sukh Dev Singh fired at kulha (hip).

15. It is contended by the learned counsel for the accused

appellants that nothing was recovered from Suchcha Singh and

Kulwant Singh. Rusted swords were recovered from Munsha

Singh, Amar Singh and Rukman Kaur. It is also contended that all

the recovered articles were sent to FSL, but no FSL report has

been produced before the Court, hence, the recovery do not

connect the appellants with the alleged crime. Learned counsel

has, therefore, prayed that these appeals may be allowed and

accused appellants may be acquitted of charges levelled against

them.

16. Learned counsel, Mr. Harendra Singh Sinsinwar, appearing

for the complainant(s) has vehemently opposed the appeals.

However, he has admitted that the parties have a common

lineage. They are all sons and grand sons of Swaran Singh, who

was the owner of 40 bighas of land. It is contended that Charan

Singh was in possession of the disputed land and Suchcha Singh

was trying to take over the land, on which, the dispute started. It

is also contended that the accused side were armed with firearms

and the deceased has received gun-shot injury, which is assigned

to Sukh Dev Singh and therefore, the conviction of Sukh Dev

Singh under Section 302 of IPC requires to be upheld.

17. It is contended that all the accused appellants were the

aggressors, they formed an unlawful assembly and attacked

Charan Singh and his family, thus they have been rightly convicted

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with the aid of Section 149 of IPC. It is also contended that the

learned Trial Court has rightly appreciated the evidence and has

not committed any illegality in convicting the accused appellants

for the alleged offences. It is admitted by Mr. Harendra Singh

Sinsinwar that two of the accused i.e. Dilip Singh and Rani Bai

were acquitted by the learned Trial Court and the appeal filed

against their acquittal has been dismissed by the Division Bench of

High Court.

18. We have considered the contentions raised by the learned

counsel for the parties and have carefully gone through the

material on record.

19. For consideration of the present matter, it is relevant to

quote the following Sections of the Indian Penal Code, 1860:-

"100. When the right of private defense of the body extends to causing death:-

The right of private defense of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First- 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- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

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Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

102. Commencement and continuance of the right of private defense of the body:

The right of private defense of the body commences as soon as a 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 such apprehension of danger to the body continues."

20. Admittedly, both the sides have received grievous injuries.

The complainant side has received 6 grievous injuries and 1

person has expired, whereas, accused side has received 4

grievous injuries, which includes gun-shot injury and injury on the

head. It is an admitted position that Suchcha Singh was getting

the farm tilled. As to whether the farm belonged to and was in

possession of Suchcha Singh is a moot question before this Court.

It was the duty of the prosecution to establish that the farm,

which was being tilled, was in possession of Charan Singh or that

he got that part of the land in family settlement. Neither revenue

record nor any family settlement have been produced before the

Court to establish that the disputed land, which was being tilled by

Suchcha Singh, belonged to the complainant side. In common

parlance, one who is tilling the land should be considered to be in

possession of the land. Prakash Kaur (PW-1), who is the

complainant, has initially admitted that Suchcha Singh was getting

his land tilled by a tractor, belonging to a Mev Community person,

however, later on, she has stated that Suchcha Singh was getting

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their farm tilled. Charan Singh (PW-8) in his cross-examination

has admitted that the farm, on which, the dispute took place, is in

the name of his father-Swaran Singh. He has also stated that the

land was given to him by his father, however, in the cross-

examination, he has admitted that particular land has not been

entered in the name of any person till date. He has further

admitted that a partition took place, but as to in whose possession

the partition deed is, he does not know. Gurmeet Singh (PW-9)

has admitted in his cross-examination that the farm, on which, the

dispute took place, is in the name of his grand-father Swaran

Singh. He has also admitted that in the record, land is yet not

divided. Neither possession of Charan Singh on the disputed land

has been established by any witness or any document nor the

injuries, which have been caused to the accused side, have been

explained by any of the witness except Ajay Singh (PW-7), who

has admitted that Suchcha Singh has also received injuries in the

fight.

21. As to whether the injuries, which have been caused to the

complainant side, were caused in exercise of the right of private

defence, is to be seen by this Court. In Deo Narain Versus The

State of U.P.: 1973 SCC (1) 347, the Apex Court was dealing

with a case, which was on similar facts, wherein injuries were

caused to the accused side by lathis and the accused side used

spears, as a result of which, one of the persons of the complainant

side expired. The Apex Court after elaborately dealing with the

provisions of Sections 100 & 102 of IPC came to the conclusion

that when a blow of lathi is caused on the head, it gives a rise to

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the other side to exercise his/her right of private defence. Even

use of the lathi by one side gives right to the other side, as there

is a reasonable apprehension of danger to the body. The Apex

Court in that case gave the benefit to the accused side and held

that the accused had caused injuries exercising their right of

private defence and as a result, the accused was acquitted.

22. This Court in case of State of Rajasthan Versus Shyoraj:

D.B. Criminal Appeal No.13/1990 & connected matters,

decided on 07.02.2023 faced a similar situation wherein, right of

private defence was exercised. The Court held that rustic villagers

gave blows to the complainant side on being attacked with lathis

and gandasis. Thus, their case would squarely be covered under

Section 100 (clause first and second) of IPC. The Court also held

that while exercising the right of private defence, it is not required

that defence be modulated step by step as held by the Apex Court

in Deo Narain Versus State of U.P. (supra). In State of Rajasthan

Versus Bharat Lal: D.B. Criminal Appeal No.327/1986 decided

by this Court on 11.05.2023, the Court held that the accused have

rightly exercised their right of private defence of body as

enumerated under Section 100 of IPC.

23. Though the prosecution has not tried to explain the injuries

sustained by the accused side, it is evident from perusal of X-Ray

report of Suchcha Singh (Exhibit-D11) that Suchcha Singh, who is

said to be present on the field, received 3 grievous injuries

including a fracture on the left parietal bone. The possibility that

the complainant side initiated the quarrel and gave beating to

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Suchcha Singh including head injury, thus cannot be ruled out and

it is a possibility that in self-defence while exercising the right of

private defence, injuries were caused to the complainant side. It is

also evident that Munsha Singh received a gun-shot injury and a

grievous injury and Rani Bai also received a grievous injury i.e. a

fracture was caused to her. No explanation has been given by the

prosecution witnesses with regard to the injuries, which were

caused to the accused side more particularly, the fracture of

parietal bone of Suchcha Singh.

24. The prosecution has not even examined the tractor driver,

who was tilling the field and who was the most important witness,

as he was not related to either side. The complainant side i.e.

Charan Singh and his witnesses have failed to establish that

Charan Singh was in possession of the land, which was being tilled

by Suchcha Singh. They have not produced any document to

establish that this land fall in the share of Charan Singh in the

family settlement after demise of Swaran Singh. No revenue

record and family settlement was produced before the Court to

establish as to whom the land belonged. The fact remains that

Suchcha Singh was tilling the land meaning thereby that at the

relevant time, he was in possession of the land and it was the

complainant side, who in fact stopped him from tilling the land and

gave beating to him, as a result of which he received 3 grievous

injuries including a fracture of the skull. In the fight that ensued,

injuries were caused to the family members of Suchcha Singh.

Thus, the accused side clearly exercised their right of private

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defence and in exercising their right of private defence, they had

caused grievous injuries to the complainant side.

25. As to whether Amarjeet Singh - deceased died due to gun-

shot injury caused by Sukh Dev Singh is the next question which

arises for consideration before this Court. Sukh Dev Singh was

arrested after 26 days of the incident and at his instance from his

house, a gun was recovered which was in 3 pieces. The recovery

of the gun was effected on 22.10.2012 vide exhibit-P20, 4 empty

cartridges and 2 live cartridges were recovered from the site on

29.09.2012 i.e. after 3 days of the incident. The empty cartridges

and live cartridges, which were recovered on 29.09.2012, were

deposited in the Malkhana vide Serial No.120 and as per Malkhana

Register (Exhibit-P32A), the first entry made was on 04.10.2012,

however, as per the seizure memos, they were recovered on

different dates. In the Malkhana Register, they were numbered

from Serial No.1 to 11 and these shells are shown at Serial No.10

& 11 meaning thereby that they were either deposited together in

the Malkhana, which means that empty shells and live cartridges

remained with the Investigating Team, as the last article which

was seized, was a sword, which was seized on 23.10.2012, which

is shown at Serial No.9 in the Malkhana Register. Thus, the

recovery of empty shells and live cartridges becomes doubtful.

26. The story of the defence that Mindarpal fired and it

accidentally hit the deceased and in relation of which, suggestion

was given to all the prosecution witnesses and in defence also,

defence witnesses have stated that in fact, it was Mindarpal Singh,

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who fired and accidentally deceased-Amarjeet Singh sustained the

injuries. The possibility that in fact it was Mindarpal Singh, who

fired, cannot be brushed aside for the very reason that from the

very beginning the defence has set up a case that it was Mindarpal

Singh, who fired and accidentally that fire hit the deceased. The

recovery of gun after 26 days of the incident from the house of

Sukh Dev Singh is also under a cloud of doubt, as there is no

independent witness to the said recovery. Sukh Dev Singh was

accused in this case right from the beginning i.e. his name is

appearing in the FIR. As to why his house was not searched till

22.10.2012, is also a question, which needs to be pondered upon.

The recovery of empty shells and live cartridges after 3 days of

the incident from the place of occurrence is also under a cloud of

doubt. There is no independent witness to this recovery as well. It

is the case of the prosecution that independent witnesses were

available, then as to why they were not made witnesses to the

recovery memo, also casts doubt on the prosecution case.

27. Be that as it may, the Apex Court in Deo Narain Versus State

of U.P. (supra) was dealing with a similar case wherein the

complainant side armed with lathis attacked the accused side and

the accused side in defence, caused injury with a spear on the

chest of the deceased. The Apex Court held that if someone is

attacked with lathis, he has a reasonable apprehension that he

may receive injuries, which may result in death and in that case, if

someone causes injury and even death, then it could be

considered to be act done in exercise of right of private defence.

In the present case, three persons from the accused side have

[2023:RJ-JP:16834-DB] (18 of 22) [CRLAD-474/2018]

received grievous injuries including a fracture of the parietal bone

of Suchcha Singh, it is also evident that Munsha Singh has

received a gun-shot injury, thus there was reasonable

apprehension on the accused side that death may be caused to

them, therefore, in exercise of right of private defence, if they

have caused any grievous injuries or even death of the

complainant side, the same would fall within the ambit of right of

exercising private defence. This Court in State of Rajasthan

Versus Bharat Lal & Ors. (supra) and State of Rajasthan Versus

Shyoraj & Ors. (supra) was dealing with similar facts and this

Court relying on Deo Narain Versus State of U.P. (supra) held that

the accused has exercised their right of private defence and were

entitled to acquittal.

28. If we scan the evidence with regard to the initiation of the

dispute as per Prakash Kaur (PW-1), she along with her husband -

Charan Singh went to see the farms. As per her version, when her

husband objected to the tilling of the field, Dilip Singh fired at

him; Smt. Rukman Kaur gave a blow of pharsa on his head; Rano

Bai also gave a pharsa blow on his head; Munsha Singh gave a

blow of sword on his head; Gurjant Singh also gave a blow of

sword on his head; Omi also gave a blow of sword on his head;

Deepo also gave a blow of pharsa on his head and Laxmi Bai also

gave a blow on his head with a pharsa. She has stated that after

raising the alarm, her son Gurmeet Singh, Amar Singh and

Mindarpal and her maternal grand-son Ajay Singh and her grand-

daughter Nirmal Kaur came running. However, Charan Singh (PW-

8) has stated that when he objected to tilling of the field, Amar

[2023:RJ-JP:16834-DB] (19 of 22) [CRLAD-474/2018]

Singh opened a fire in the air and Prakash Kaur (PW-1) started

raising an alarm, on which his family members came running to

the place of the incident. As per this witness, the dispute started

after arrival of his relatives i.e. his sons, grand-daughter and

maternal grand-son.

29. As per Mindarpal Singh (PW-2), Suchcha Singh continued

tilling the field even after they requested him not to do so. As per

Balbeer Kaur (PW-3), after Dilip Singh fired at Charan Singh, her

mother raised an alarm and then all the family members reached

the place of occurrence. As per Nirmal Kaur (PW-4), immediately

after her grand-mother - Prakash Kaur (PW-1) reached the farm,

she raised an alarm and all the family members immediately

rushed to the place of occurrence. As per this witness, the first

injury, which was caused to Charan Singh, was caused after they

reached the place of incident. She has clearly stated that no

incident had occurred before they reached the place of incident.

However, Angrej Singh (PW-5) has stated that Charan Singh had

received the injury prior to their reaching the place of occurrence.

30. As per Ajay Singh (PW-7), his grand-mother-Prakash Kaur

(PW-1) raised an alarm and all the family members went running

to the place of occurrence. As per this witness, the dispute started

after they reached the place of occurrence. As per Charan Singh

(PW-8), after his family members reached the place, then he

received the gun-shot injury. He has clearly stated that before he

received the gun-shot injury, he had not received any injury.

[2023:RJ-JP:16834-DB] (20 of 22) [CRLAD-474/2018]

31. As per Gurmeet Singh (PW-9) when his grand-mother-

Prakash Kaur (PW-1) raised an alarm, the dispute started after

they reached the place. As per this witness, when they reached

the place, Dilip Singh fired at his father. He has clearly stated that

Charan Singh had received the injury after he has reached the

place of occurrence. He has also clearly stated that Charan Singh

and Prakash Kaur (PW-1) had not received any injury before they

reached the place of occurrence. Gurdev Singh (PW-13) has also

stated that the dispute took place on the farm, which was being

tilled. He has also stated that the dispute lasted for 25 minutes

and when they reached the place of occurrence, till then, Charan

Singh has not received any injury. He has clearly stated that all

the injuries that Charan Singh received, were received after they

reached the place of occurrence.

32. From the above evidence, it can be inferred that the dispute

started after the family members of Charan Singh reached the

place of occurrence. It is also evident from the evidence that the

dispute lasted for about half an hour and both the sides gave

beating to each other. Though the prosecution witnesses have not

stated or explained the injuries caused to the accused side, but

from the documents produced in defence, it is clear that the

accused side have also received injuries and it is a case where

both the sides gave beating to each other. Further, the co-accused

Dilip against whom allegation of fire arm was levelled, has been

acquitted by the trial Court and appeal against acquittal has also

been dismissed by this Court.

[2023:RJ-JP:16834-DB] (21 of 22) [CRLAD-474/2018]

33. In the present case in hand, Suchcha Singh, who was

physically disabled, was mercilessly beaten by the complainant

side and he received as many as 3 fractures including a fracture of

the parietal bone, Munsha Singh received gun-shot injury, thus

the accused side had a reasonable apprehension that death may

result by the assault caused by the complainant side and so the

accused also caused injuries to the complainant side, which would

fall within the ambit of injuries caused while exercising the right of

private defence. We are, therefore, of the considered view that the

accused side and the complainant side who were belonging to the

same lineage had a dispute pertaining to the land, which was

being tilled by Suchcha Singh and in exercise of their right of

private defence of body as well as property, injuries were caused

by the accused side. The fact that the complainant side caused

injuries to the accused is also evident, as they have been

convicted by the learned Trial Court vide its judgment and order

dated 17.05.2017.

34. In light of the above, we are of the considered view that the

accused have rightly exercised their right of private defence and

the case would fall within the ambit of Section 100 of IPC. The

learned Trial Court has clearly erred in convicting the accused

appellants for the alleged offences and has also erred in

sentencing them. For the foregoing reasons, we are inclined to set

aside the judgment of conviction and order of sentence dated

17.05.2017 passed against the accused appellants. Consequently,

the appeals succeed and the same are, accordingly, allowed. The

judgment of conviction and order of sentence dated 17.05.2017 is

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set aside. The accused appellants are acquitted from the charges

levelled against them. The appellant - Sukh Dev Singh, who is in

jail, be set at liberty forthwith, if not required in any other case or

for any other purpose. The bail bonds of the remaining accused

appellants, who are on bail, shall be treated as cancelled.

35. Appellants are directed to furnish personal bond in the sum

of Rs.50,000/- each and a surety bond in the like amount in

accordance with Section 437-A of Cr.P.C. before the Registrar

(Judicial) within two weeks from the date of release to the effect

that in the event of filing of Special Leave Petition against this

judgment or on grant of leave, the appellants on receipt of notice

thereof, shall appear before the Hon'ble Apex Court. The bail bond

will be effective for a period of six months.

36. A copy of this order be placed in each of the connected file.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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