Gopi And Others vs State
2023 Latest Caselaw 1698 Raj/2

[2023/RJJP/001076]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR


                     D.B. Criminal Appeal No. 13/1990

State of Rajasthan through PP
                                                                      ----Appellant
                                       Versus
1. Shyoraj S/o Shri Kastura, R/o Budhkarwar Thana Dei, District
Bundi, Raj.
2. Nuwasi W/o Brijmohan, R/o Budhkarwar Thana Dei, District
Bundi, Raj.
3.     Moolchand S/o Shri Janshi, R/o Budhkarwar Thana Dei,
District Bundi, Raj.
4.    Hiralal S/o Shri Nathu, R/o Budhkarwar Thana Dei, District
Bundi, Raj.
5. Ramphool S/o Shri Janshi
     (R/o Piparwal Thana Dei, District Bundi, Raj.)
                                                                    ----Respondent

Connected With

D.B. Criminal Appeal No. 366/1989

1. Gopi S/o Shri Devilal,

2. Ramsagar S/o Shri Kalyan,

3. Rajaram S/o Jhansi,

4. Radhey Shyam @ Radhya S/o Kastura,

5. Shyopal S/o Shri Nathulal,

6. Jagdish, S/o Shri Kastura,

7. Morpal, S/o Nathu,

8. Birbal S/o Shri Kalyan,

9. Banshi S/o Shri Suraj Mal, (All residents of Village Budhkarwar, Police Station Dei, District Bundi, Raj.)

----Accused-Appellants Versus State of Rajasthan through PP

----Respondent D.B. Criminal Appeal No. 170/2003

1. Mohan S/o Shri Kastura,

2. Rekhraj, S/o Shri Jagga,

[2023/RJJP/001076] (2 of 12) [CRLA-13/1990]

3. Gendori @ Samidaa, D/o Shri Gopi, W/o Shri Ramkaran. (All R/o village Budhkarwar, Police Station Dei, District Bundi, Raj.)

----Accused-Appellants Versus State of Rajasthan through PP

----Respondent

For Appellant(s) : Mr. Javed Choudhary, Addl. GA in DB Criminal Appeal No.13/1990 Mr. S.K. Jain in DB Criminal Appeal Nos.366/1989 & 170/2003 For Respondent(s) : Mr. S.K. Jain in DB Criminal Appeal No.13/1990 Mr. Javed Choudhary, Addl. GA in DB Criminal Appeal Nos.366/198 & 170/2003

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Judgment

Judgment reserved on :: 30/01/2023 Judgment pronounced on :: 07/02/2023 (Per Hon'ble Pankaj Bhandari, J)

1. State has preferred Criminal Appeal No.13/1990

against the judgment dated 21.09.1989 passed by Sessions

Judge, Bundi in Sessions Case No.67/1988, whereby accused-

respondents have been acquitted from the offence under Sections

302, 302/149, 323, 325, 324, 447 IPC. Accused-respondents

namely, Janshi, Kastura, Manthari, Parsi and Anokhbai have

expired and the appeal filed by the State against them was abated

vide order dated 04.01.2023.

2. Accused-Appellants-Gopi, Ramsagar, Rajaram, Radhey

Shyam @ Radhya, Shyopal, Brijmohan, Jagdish, Morpal, Birbala

and Banshi have preferred Criminal Appeal No.366/1989 against

[2023/RJJP/001076] (3 of 12) [CRLA-13/1990]

the judgment dated 21.09.1989 passed by Addl. Sessions Judge,

Bundi in Sessions Case No.67/1988, whereby accused-appellants

have been convicted for offence under Sections 304 Part-1 read

with Section 149 IPC and they have been sentenced for ten years

rigorous imprisonment and fine of Rs.500/- and in default of

payment of fine, to further undergo six months rigorous

imprisonment. Appellant-Brij Mohan has expired and his appeal

was abated vide order dated 04.01.2023.

3. Accused-Appellants-Mahaveer, Mohan, Prabhulal,

Rekhraj and Gondari @ Samidaa have preferred Criminal Appeal

No.170/2003 against the judgment dated 22.01.2003 passed by

Addl. Sessions Judge No.1, Bundi in Sessions Case No.261/2001,

whereby they have been convicted for offence under Sections 148,

304 Part-1 read with Section 149 and 323/149 of IPC. For offence

under Section 148 IPC, they have been sentenced for one year

rigorous imprisonment and fine of Rs.200/- and in default of non-

payment of fine, to further undergo 15 days simple imprisonment.

For offence under Section 304 Part-1 read with Section 149 IPC,

they have been sentenced for ten years rigorous imprisonment

and fine of Rs.500/- and in default of non-payment of fine, to

further undergo three months simple imprisonment. For offence

under Section 323/149 IPC, they have been sentenced for six

months simple imprisonment and fine of Rs.100 and in default of

non-payment of fine, to further undergo 15 days simple

imprisonment. Appellants-Mahaveer and Prabhulal have expired

and their appeal was abated vide order dated 04.01.2023.

4. Succintly stated the facts of the case are that on

14.03.1986 at 12:00 noon, Kanhaiyalal lodged an oral report at

[2023/RJJP/001076] (4 of 12) [CRLA-13/1990]

Police Station Dei, District Bundi, wherein he has stated that there

is a land dispute from last 15-20 years. Complainant-respondents

and other persons armed with gandasis and lathis started beating

the accused and other persons who were harvesting the crops.

The police after registering the case and after due investigation

initially submitted charge-sheet against 20 persons. Trial Court

framed charges under Sections 148, 302/149, 325/149, 323/149

and 447 IPC. Accused denied the charges and sought trial.

Prosecution examined as many as 25 witnesses and exhibited 39

documents. Accused were examined under Section 313 Cr.P.C. In

defence, one witness has been examined and seventeen

documents were exhibited. After framing the charges and after

recording the statement of witnesses, Trial Court convicted 10 of

the accused persons namely, Gopi, Ramsagar, Rajaram, Radhya,

Shyopal, Brijmohan, Jagdish, Morpal, Banshi and Birbal and

acquitted 10 persons namely, Janshi, Moolchand, Kastura,

Shyoraj, Mathri, Parsi, Anokhi Bai, Nuwasi, Moolchand, Hiralal &

Ramphool from all the charges. All the accused who were

convicted have been convicted for offence under Sections 304

Part-1 read with Section 149 IPC and were sentenced to ten years

rigorous imprisonment and fine of Rs.500/- and on non-payment

of fine to further undergo, three months simple imprisonment.

Aggrieved by the judgment and sentence dated 21.09.1989, State

has preferred Criminal Appeal No.13/1990 against acquittal of ten

accused. Out of which five accused namely, Janshi, Kastura,

Manthari, Parsi and Anokhbai have expired and the appeal filed by

the State against them was abated vide order dated 04.01.2023.

[2023/RJJP/001076] (5 of 12) [CRLA-13/1990]

5. A separate trial took place with regard to other accused

in this case namely Mahaveer, Mohan, Prabhulal, Rekhraj and

Gandori. Accused herein also denied the charges and sought trial.

The prosecution examined as many as 25 witnesses and got

exhibited 39 documents. Trial Court after hearing the arguments

convicted the accused under Sections 148, 304 Part-1 read with

Section 149 and Section 323/149 IPC. All the sentences shall run

concurrently. However, the Court acquitted the accused therein for

offence under Section 302 read with 149 IPC, 325 read with 149

IPC and 447 IPC by giving them benefit of doubt. For offence

under Section 304 Part-1, accused were sentenced ten years

rigorous imprisonment and fine of Rs.500/- and on non-payment

of fine, to further undergo three months simple imprisonment. For

offence under Section 323/149 IPC, each of the accused were

sentenced to six months simple imprisonment and fine of Rs.100/-

and on non-payment of fine, to further undergo 15 days simple

imprisonment. Aggrieved by the conviction and sentence dated

22.01.2003, Criminal Appeal No.170/2003 has been preferred.

6. All the other ten accused who were convicted vide

judgment and sentence dated 21.01.1989 have preferred Criminal

Appeal No.366/1989, out of which appellant-Brijmohan expired.

7. It is contended by learned counsel appearing for the

State that Moolchand & Hiralal were named in the FIR. However,

no overt act is assigned to them. PW-4 (Ramphool) who is one of

the injured has named Moolchand, Hiralal and Nuwasi. However,

no overt act is assigned by him as well. PW-5 (Harmal) one of the

injured has named all the accused-respondents. PW-6 (Ramgopal)

has also named Moolchand, Hiralal and Nuwasi but no overt act is

[2023/RJJP/001076] (6 of 12) [CRLA-13/1990]

assigned to them. PW-8 (Dakha) mentions the name of Hiralal and

Moolchand. It is also contended that since accused-respondents

who have been acquitted were named by the witnesses, there was

no justification for the Court below to acquit them.

8. Learned counsel appearing for the State has placed

reliance on Rajinder & Ors. Vs. State of Haryana 1995 SCC

(5) 187, Radheshyam and Anr. Vs. State of Rajasthan

Criminal Appeal No.1248/2022 (arising out of SLP (CRL.)

No.7283/2019) decided by Apex Court on 12.08.2022 and

Jassa Singh and Ors. Vs. State of Haryana 2002 SCC (Cri)

363.

9. Learned counsel for the accused-respondents contends

that the incident took place on 14.03.1986. As per the statement

of witnesses, it was the complainant party who went to the farm

belonging to the respondent party and started the dispute. It is

argued that no overt act is assigned to the respondents and an

acquittal order cannot be interfered with, unless grave illegality

has been committed by the Trial Court.

10. Our attention is drawn towards the statement of PW-17

(Moji Ram) who has admitted in his cross-examination that Shyoji

went to quarrel and in that incident, he expired. Our attention is

also drawn towards the judgment wherein learned Trial Judge has

held that on considering the entire evidence, the disputed land

was in possession of the accused party at the time of incident. It

is argued that the complainant party came to the fields of the

accused party to forcefully stop them from harvesting their crops

and they all came armed with lathis and gandasis and the first

blow was given by the Ramgopal to Rajaram. It is contended that

[2023/RJJP/001076] (7 of 12) [CRLA-13/1990]

since all the persons came to the field of the accused party armed

with lathis and gandasis and the first blow was given by the

accused side, there was reasonable apprehension that death

otherwise will be the consequence of such assault and there was

also apprehension that grievous hurt will otherwise be the

consequence of such assault.

11. Counsel for the accused has placed reliance on Ramlal

Vs. Delhi Administration AIR 1972 SC 2462 and State of

Bihar VS. Nathu Pandey and Ors. AIR 1970 SC 27.

12. We have considered the contentions and have gone

through the judgments passed by the Court below as well as the

record of the case.

13. As far as Criminal Appeal No.13/1990 is concerned,

learned Trial Court has held that as per the order of Revenue

Board, the disputed land belonged to the accused side.

Complainant party came to their land and tried to stop them from

harvesting their crops. It is also evident from the statement of

investigating officer (PW-51) that the accused party also sustained

injuries and they also filed a complaint. He has also admitted that

he did not investigate into that matter. No reason has been given

by the investigating officer for not making any investigation in the

complaint filed by the accused party who have also sustained

injuries in the said incident. Learned Court below has come to the

conclusion that no overt act is assigned to the present appellants

who have been acquitted by the Trial Court. There is nothing

incriminating found against the accused-respondents who have

been acquitted by the Trial Court. We are not inclined to interfere

with the judgment of acquittal as the matter is of year 1986 and a

[2023/RJJP/001076] (8 of 12) [CRLA-13/1990]

period of 36 years has lapsed since the date of incident. Hence,

we are not inclined to entertain the Criminal Appeal No.13/1990

filed by the State and the same is accordingly, dismissed.

14. As far as appeal of the appellants against conviction is

concerned, admittedly in this case as many as five persons i.e.

Hathida, Kanhaiya Lal, Prabhu Lal, Kisan Gopal and Shyoji have

expired and there were six injured i.e. Dakha Bai (PW-8), Harmal

(PW-5), Ramgopal (PW-6), Ramphool (PW-4), Rameshchand (PW-

23) and Suraj Mal (PW-22). From perusal of the judgment of the

Trial Court, it is evident that property in dispute was in possession

of the accused party. It is also not in dispute that the incident took

place at the disputed property. PW-21 (Ramphool) in his cross-

examination has admitted that the complainant party armed with

lathis and gandasis went to the disputed land to stop them from

harvesting the crops. He has also admitted that accused Rajaram

told Dakha and the other persons in the complainant party that

the farm belonged to him but, the complainant party told the

accused side that they will not let them harvest the crops and that

complainant party would harvest the crops. This witness has also

admitted that Ramgopal belonging to the complainant party

caused injury with gandasi on head and shoulder of Rajaram. He

has also admitted that the dispute started after Rajaram was hit

by Ramgopal. This witness has admitted that he was not armed

with any weapon, however, everyone accompanying the

complainant party were armed with lathis and gandasis and

Ramgopal was also having a gandasi. Deceased-Kishan Gopal,

Hathida, Prabhulal, Shyoji and Kanhaiya Lal were armed with

lathis. This witness has further admitted that if the complainant

[2023/RJJP/001076] (9 of 12) [CRLA-13/1990]

party would not have gone with weapons, no dispute would have

taken place. It is, thus evident from the evidence of the Ramphool

that it was the complainant party who armed with weapons went

to the fields of the accused party and started the incident by

causing injury to Rajaram with gandasi and thereafter, scuffle took

place.

15. We are now required to ascertain whether the case fall

within the ambit of Section 100 of IPC. Relevant part of Section

100 IPC reads as under:-

"When the right of private defence of the body extends to causing death.--The right of private defence 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:-- (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".

16. From the judgment of the Trial Court, it is evident that

accused party were the owners of the property. They had an order

of Revenue Board in their favour. They were in possession of their

land and they were harvesting the crops sown by them. It is the

complainant party who tried to stop them and took law in their

own hands by causing injury with a gandasi to Rajaram. Since the

persons in the complainant party were armed with lathis and

gandasis and were the aggressors, every member of the accused

[2023/RJJP/001076] (10 of 12) [CRLA-13/1990]

party had an apprehension that death or grievous hurt would be

the consequence of such assault. Thus, the same would fall within

the ambit of Section 100 (clause firstly and secondly) of IPC.

17. It is also evident from perusal of the statement of PW-

51 (investigating officer) that Rajaram who had sustained an axe

blow on head and injury on his shoulder went to the police to

lodge a complaint. PW-51 has admitted that accused-Rajaram had

lodged a complaint against the complainant party. He has also

admitted that at the time when the complaint was lodged,

Rajaram and Ramsagar were having injuries on their body. He has

also admitted that he did not register the case and did not do any

investigation in the complaint lodged by Rajaram. It is indeed

surprising as to why no investigation was done on the complainant

side lodged by the accused side when admittedly Rajaram and

Ramsagar belonging to the accused side has sustained injuries as

admitted by PW-51. The learned Trial Court has acquitted the

appellants for offence under Section 304 Part-1 IPC. The Trial

Court was moved by the fact that five persons have expired in the

incident and that probably was the only reason, why out of twenty

accused named in the charge-sheet, only 10 were convicted for

offence under Section 304 Part-1 read with Section 149 IPC.

18. We are of the considered view that Section 149 of IPC

is not attracted in the present case as admittedly all the accused

persons were on their fields harvesting their crops and there was

no meeting of minds to commit any offence prior to the

occurrence of this offence. Moreover, it is the complainant side

who tried to stop the accused party from harvesting their crops

[2023/RJJP/001076] (11 of 12) [CRLA-13/1990]

and who initiated the dispute. It is evident from perusal of the

postmortem reports of the deceased in this case Ex.P-12, P-18, P-

19, P-16 and P-17 that all of them suffered injuries. Hathida

(Ex.P-12) had a ruptured spleen which resulted in his death.

Kanhaiyalal (Ex.P-18) sustained head injury caused by blunt

weapon, Prabhulal (Ex.P-19) also sustained head injury,

Kishangopal (Ex.P-16) also sustained head injury. Shyoji (Ex.P-17)

died due to injury over chest which caused fracture of ribs as a

result of which his lungs collapsed. None of the deceased have

sustained any injuries by sharp weapon. 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 firstly and secondly) of IPC.

19. It is well established law that while exercising right of

private defence, it is not required that defence be modulated step

by step. This has been held by the Apex Court in Deo Narain Vs.

State of UP 1973 AIR 473.

20. Learned Trial Court has not found any accused guilty

under Section 302 IPC and has convicted them for offence under

Section 304 Part-1 with aid of Section 149 IPC. As discussed

above, we have come to the conclusion that Section 149 IPC will

not apply in this case, hence, the conviction under Section 304

Part-1 with aid of Section 149 cannot be sustained. We are of the

considered view that accused-appellants were in their field

harvesting their crops. They have an order of Board of Revenue in

their favour and it was the complainant party who barged into

their land and started the quarrel by causing injuries to the

[2023/RJJP/001076] (12 of 12) [CRLA-13/1990]

accused side and in exercise of their right of private defence, they

rightly exercised their right of private defence of body as

enumerated under Section 100 IPC. We are thus inclined to allow

the appeal filed by the accused appellants while setting aside the

judgment of conviction dated 21.09.1989 and 22.01.2003.

21. Criminal Appeal Nos.366/1989 and 170/2003 are

accordingly, allowed.

22. Criminal Appeal No.13/1990 is hereby dismissed.

23. Accused-appellants are acquitted of the charges

levelled against them. The accused-appellants-Gopi, Ramsagar,

Rajaram, Radhey Shyam @ Radhya, Shyopal, Jagdish, Morpal,

Birbal, Banshi, Mohan, Rekhraj and Gendori @ Samidaa in

Criminal Appeal Nos.366/1989 and 170/2003 are on bail. The bail

bonds earlier submitted by the accused-appellants shall stand

cancelled.

24. Accused-appellants- Gopi, Ramsagar, Rajaram, Radhey

Shyam @ Radhya, Shyopal, Jagdish, Morpal, Birbal, Banshi,

Mohan, Rekhraj and Gendori @ Samidaa 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.

                                   (ANIL KUMAR UPMAN),J                                          (PANKAJ BHANDARI),J
                                   CHANDAN /








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