Bhagwan Sahai vs State Of Rajasthan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.416 OF 2016 (Arising out of SLP(Crl.) No. 2301 of 2016)

Bhagwan Sahai and Anr. …..Appellants

Versus

State of Rajasthan …..Respondent

JUDGMENT

SHIVA KIRTI SINGH, J.

1. Both the appellants have assailed the impugned judgment of the

High Court of Judicature for Rajasthan at Jaipur Bench whereby

Criminal Appeal No. 1235 of 2011 was disposed of by the impugned

judgment and order dated 14.1.2016. The High Court set aside the

conviction of the appellants under Sections 307 and 307/34 of the

IPC respectively but found them guilty under section 308/34 of the

IPC. The High Court also set aside appellant’s conviction under

Section 326 and 326/34 IPC respectively in view of their being found

guilty under Section 308/34 of the IPC but maintained the conviction

under Sections 323 and 324 of the IPC. For the offences under

Section 308/34 IPC the appellants were inflicted with punishment of

two years rigorous imprisonment alongwith a fine of Rs.500/- with a

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default clause. For offences under Sections 323 and 324 of the IPC,

the lesser sentence awarded by the trial court were maintained.

2. In order to appreciate the submissions advanced on behalf of

the appellants that even if the allegations against them were to be

accepted as true, they are entitled to acquittal on the plea of right of

private defence of person, it is necessary to notice the prosecution

case, the injuries on appellant No.1 and his parents, including his

father who received serious injuries that proved fatal and whether the

prosecution have been able to offer any explanation for the injuries on

the side of the accused.

3. According to the prosecution case, two appellants who are

brothers alongwith female family members, Guddi Devi, Seema and

Gulab Devi formed an unlawful assembly in their village on 4.5.2008

at 10.00 a.m. Armed with lethal weapons they went near the “Bada” of

Jagram and caused injuries to Sajana Devi with blunt weapon, simple

injury to Jagram and his wife Malli Devi with blunt as well as incised

weapon and also caused simple as well as grievous injuries to Kailash

Chand with blunt and incised weapon. According to prosecution the

offences under Sections 147, 148, 323, 324, 326 and 327 read with

Section 149 of the IPC were committed by the accused persons on

account of old enmity between the parties.

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4. The defence of the accused persons is denial of the occurrence

in the manner alleged. According to the accused persons, the

prosecution case is false. They examined Dr. Suresh Chand Meena

and Bhagwan Sahai Meena as PW1 and PW2 and also proved

documentary evidence-exhibits D1 to D11. The defence witnesses

were examined to support the contention that the members of the

prosecution party had beaten one Kanchan, father of the appellants

and as a result he subsequently died. These injuries were proved by

Dr. Suresh Chand Meena who also proved injuries of Gulab Devi and

others.

5. The Trial Court noticed the defence case but failed to discuss

the same. The defence witnesses were neither commented upon nor

there was any comment upon the defence exhibits and injuries

sustained on their side.

6. The High Court in the impugned judgment has taken a

mechanical note of the defence witnesses 1 and 2 and thereafter has

given the following observations while noticing the injuries of

Kanchan, and of the appellant Bhagwan Sahai Meena and his mother

Gulab Devi:-

“Appellants were tried in case arising out of cross version. It is to be noted that in the occurrence, Kanchan father of both the appellants had died. Appellant Bhagwan Sahai, his mother Gulab Devi acquitted accused, Seema acquitted accused and

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appellant Satish had suffered injuries alongwith Jalli Devi. In respect of cross case, a separate appeal has been filed bearing D.B. Criminal Appeal No.1255/2011. The trial court had given a finding that there was a free fight between both the parties and therefore, had convicted the accused for their individual liability.

In the occurrence, Kanchan Lal father of the appellants had received following injuries:-

“1. Lacerated wound with bleeding 6 cm x 1 cm bone deep on left parietal region of scalp.

2. Lacerated wound with bleeding 2 cm x ½ cm on occipital region of scalp.”

Bhagwan Sahai appellant also received two injuries and the same were noted in the injury report as under:-

“1. Lacerated wound 3 cm x ½ cm x ½ cm on palmar aspect of base of left thumb.

2. Lacerated wound 1½ cm x ½ cm x ½ cm on right parietal region of scalp.”

Gulab Devi mother of both the appellants had also received two injuries and same are noted as under:-

“1. Lacerated wound with bleeding 1 cm x ½ cm x ½ cm on forehead.

2. Bruise (reddish) 10 cm x 2 cm over right shoulder.”

7. The High Court has also noted that both the sides had taken a

plea that the land in question where the occurrence had taken place

is in their possession. One of the injured Malli Devi-PW6 also

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deposed, as noted by the High Court, that the parties were having

dispute with the accused over land. The High Court has also noted

the Judgment of this Court in the case of Lakshmi Singh and others

v. State of Bihar1 which was relied upon by the counsel for the

accused persons in support of private defence and for acquittal on the

ground of non-explanation of death and injuries on the side of the

accused. The High Court drew correct inferences from the aforesaid

judgment but proceeded to convict the appellants on the misconceived

ground that since both the parties had withheld the origin and genesis

of the occurrence and since it cannot be determined as to which party

was the aggressor, the case had to be decided against the accused

persons treating it as a case of free fight between the parties.

8. The aforesaid view of the High Court is devoid of legal merits.

Once the Court came to a finding that the prosecution has suppressed

the genesis and origin of the occurrence and also failed to explain the

injuries on the person of the accused including death of father of the

appellants, the only possible and probable course left open was to

grant benefit of doubt to the appellants. The appellants can

legitimately claim right to use force once they saw their parents being

assaulted and when actually it has been shown that due to such

assault and injury their father subsequently died. In the given facts,

1 1976 (4) SCC 394

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adverse inference must be drawn against the prosecution for not

offering any explanation much less a plausible one. Drawing of such

adverse inference is given a go-bye in the case of free fight mainly

because the occurrence in that case may take place at different spots

and in such a manner that a witness may not reasonably be expected

to see and therefore explain the injuries sustained by the defence

party. This is not the factual situation in the present case.

9. Therefore, we have no hesitation in allowing the appeal and

acquitting the appellants of all the charges. We order accordingly.

They shall be released from jail custody forthwith, if not required in

any other case. The appeal is allowed.

.…………………………………….J. [DIPAK MISRA]

……………………………………..J. [SHIVA KIRTI SINGH] New Delhi.

June 03, 2016.

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