STATE OF RAJASTHAN v. MANOJ KUMAR (2014) INSC 277 (11 April 2014)

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State of Rajasthan ...Appellant Versus Manoj Kumar ...Respondent With CRIMINAL APPEAL NO. 1073 of 2007 State of Rajasthan ...Appellant Versus Raju @ Raj Kumar & Anr. ...Respondents J U D G M E N T

Dipak Misra, J.

The present appeals, by special leave, have been preferred against the common judgment and order dated 14.2.2006 passed by the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003, wherein the High Court has partly allowed the appeal of Raju @ Rajkumar by converting his conviction under" id="a_4 27of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in default of payment of fine, to suffer further six months rigorous imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj Kumar, who had preferred an independent appeal, has been acquitted of all charges.

2. At the very outset we may state that Raju @ Rajkumar has expired on 8.3.2012 and in proof thereof a death certificate has been brought on record. In view of the same, the Criminal Appeal No. 1073 of 2007 would stand abated as far as Raju @ Rajkumar is concerned and would only survive against the accused Hemant Kumar.

3. The prosecution case, in brief, is that the police recorded the statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on May 26, 1998 who had stated that around 8:30 p.m. on that day he along with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, had gone to the vacant plot belonging to him and his brother situated at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and Shanti Prasad would take possession of the plot. At that point of time sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot. As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gun shot injury on the right side of his chest and his brother Ramesh @ Umesh, PW 5, had brought him to the hospital. On the basis of his statement the concerned police officer registered FIR No. 243 of 1998 for the offences punishable under" id="a_18 34of IPC and he faced a separate trial in S.C. No. 8 of 2002.

4. The accused persons abjured their guilt and pleaded false implication because of property dispute and animosity. In order to prove its case the prosecution in the first trial examined as many as sixteen witnesses and got marked thirty-seven documents and also brought eight articles on record. In the second trial, the prosecution examined as many as twelve witnesses and similar numbers of documents were exhibited. In the second trial the defence produced one witness and tendered four documents in support of its plea.

5. The witnesses in both the trials are common and the prime witnesses, as mentioned in first trial are, Anjani Kumar, PW 1, brother of the deceased, Mahesh Kumar Saini, PW 2 an eye witness, Basant Kumar, PW-4, brother of the deceased, PW 5, Ramesh @ Umesh, another brother of the deceased, Dr. V.K. Soni, PW 6, who had examined the deceased and prepared the x-ray report, Dr. G.R. Tanwar, PW 10, who had conducted the post-mortem and Bhagwan Singh, PW 12, the Investigating Officer. After examining the oral and documentary evidence the learned trial Judge convicted Raj Kumar under" id="a_27 IPC.

6. The accused persons preferred two separate appeals and the High Court in its common judgment and order accepted the stand of all the accused persons relating to right of private defence. However, as the accused Raju has exceeded the right of private defence, the High Court converted his conviction to one under" id="a_31 Section 34was not applicable.

7. We have heard Mr. Milind Kumar, learned counsel appearing for the State and Mr. Sushil Kumar Jain, learned counsel appearing for the respondent.

8. Two questions that emerge for consideration in these appeals, are (i) whether the High Court was justified in accepting the contention of right of private defence; and (ii) whether the conclusion of the High Court that" id="a_32 Section 34IPC could not be attracted regard being had to the factual score, is correct.

9. On a perusal of the judgment of the learned trial Judge, it is demonstrable that he has set out in detail that a dispute existed between the parties over the possession of land in question. He has arrived at the conclusion that as per the evidence brought on record, both ocular and documentary, Parasram Lisadiya had sold the plot to Ramesh Kumar, the elder brother of the deceased, Anirudh Mishra, vide Registered Sale-deed, Ex.P-9. It has been brought on record that a dispute in regard to the plot was in existence between Parasram Lisadiya and Phool Chand Lisadiya and it has led Parasram to file the civil suit No. 131 of 1986 for permanent injunction wherein it was alleged that on 11.7.1986 Phool Chand had obstructed Parasram from commencing the construction on the plot. On 17.9.1997 the suit for permanent injunction was decreed ex-parte against Phool Chand restraining him from interfering with the possession of Parasram over the land in question. It is also reflectible from Ex.P-9 that by the time the suit was decided in favour of the plaintiff, Parasram had already sold the plot vide Registered Sale-deed, Ex.P-9, to Ramesh Mishra, who had obtained sanction for construction vide Ex.P-12 and the site plan vide Ex.P-14. The events happened in quick succession and Ramesh, after obtaining necessary sanction, had started collecting material for construction. It has come in the evidence of Ramesh, PW- 5, that the dispute existed between Parasram and Phool Chand over the possession even after the sale-deed was executed. It has also come on record that sanction for construction was obtained only four days prior to the incident; and that a cavil existed in regard to the plot between the informant and the accused persons as the original owner, Phool Chand had mortgaged the said plot to Shanti Prasad, father of the accused and they were in possession. As we notice from the evidence on record, there can be no iota of doubt that Rajkumar has fired the gunshot as a consequence of which Anirudh breathed his last. It is also clear that there was a dispute over the land and the possession still remained with the accused persons. It is also borne out from the evidence that the accused persons were not parties to the suit. In such a situation, Ramesh was trying to raise construction by collecting material at the site and, in fact, to take over possession, had sent his brother Anirudh and other brothers. After the deceased and the others came at the site the accused persons, getting the information, had reached to the house of Risadiya and initially a verbal altercation took place and, eventually, a gunshot was fired.

10. The High Court has taken into consideration various aspects, namely, there was dispute with regard to the ownership and possession over the plot in dispute; that the informant and others had gathered the materials for construction of the plinth few days before the incident; that the municipal council has granted sanction only four days prior to the incident; that Ramesh, PW-5, and others were apprehensive that they would lose possession; that an affirmative plea relating to possession by the accused persons had been taken; and that the accused Rajkumar with the intention to defend the possession of the property and to drive away the deceased and others had opened the fire, but, unfortunately, it hit the deceased. On the aforesaid analysis of the evidence, the High Court was persuaded to hold that the accused Rajkumar had exceeded his right of private defence.

11. Mr. Milind Kumar, learned counsel for the State, has submitted that the accused persons had not taken the plea of right of private defence in their statement under" id="a_38 Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt.

12. In the case at hand, the plea of right of private defence arises on the base of materials on record. As far as onus is concerned, we find that there is ocular and documentary evidence to sustain the concept of preponderance of probability. It can not be said that there is no material on record or scanty material to discard the plea. Thus, the aforesaid submission being unacceptable, are hereby repelled.

13. Learned counsel for the State next contended that when the accused persons had exceeded their right of private defence and caused the death of the deceased, all of them should have been convicted under" id="a_41 In Bhanwar Singh and others v. State of Madhya Pradesh[4] it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death and if the court were to reject the said plea, there are two possible ways in which this may be done, i.e., on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2.

14. On the touchstone of the aforesaid principles, the evidence brought on record and the conclusion arrived at by the High Court have to be tested. There is material on record that there were altercations between the accused and the deceased on the one hand and the others and there was threat that the informant and others would take over possession. The High Court has found that there was a threat to the property of Raj Kumar and he had made an effort to drive away the informant and others. Though the prosecution has come out with the version that the accused persons were trying to take over possession, yet on a scrutiny of the evidence it becomes quite vivid that they were in a hurry to raise construction at the site and, accordingly, were taking steps. In this context, the act of the accused is to be adjudged. It has to be appreciated regard being had to the surrounding circumstances and not by way of microscopic pedantic scrutiny, as has been held in" id="a_44 Section 304Part I IPC.

15. Presently, we shall advert to the facet of justifiability of the acquittal of the accused persons who had accompanied the accused who had fired the gunshot. Learned counsel for the State would urge that as they had come to the spot with the accused Raj Kumar and they had the common intention. Even if there was no prior intention, submits Mr. Milind Kumar, learned counsel for the State, it developed on the spot. On a perusal of the evidence, we find that accused Manoj Kumar and Hemant Kumar had accompanied accused Rajkumar to defend the right of possession. It is a case where accused Rajkumar exceeded the right of private defence. A three-Judge Bench in" id="a_45 State of Bihar v. Nathu Pandey and others[7], while accepting the reasoning of the High Court that some of the accused persons had exceeded the right of private defence, opined that when it is not possible to say that all the accused persons have the common object to commit murder and only those, who exceeded the right of private defence, would be held responsible for their murders.

16." id="a_48 Section 34IPC. Dealing with the same it has been held as follows: -

“We are unable to concur with the view of the High Court that any such common intention could be attributed to the appellants on the facts and in the circumstances of the case. They certainly had the common intention of defending the invasion of the right to property. While doing so if one or two out of them took it into his or their heads to inflict more bodily harm than was necessary, the others could not be attributed the common intention of inflicting the injuries which resulted in the death of the deceased." id="a_51 Section 34of the Indian Penal Code.”

17. The facts in the present case, as we understand, are similar to the factual score in the aforesaid case because the right of private defence had only been exceeded by Rajkumar. In such a case, the guilt of each of the accused, who had exceeded the right of private defence, has to be dealt with separately. The matter would have been totally different, had the right of private defence did not exist at all or the accused persons had done any overt act. Thus, in our considered opinion, the constructive liability, as envisaged under" id="a_52 Section 34IPC, is not attracted.

18. In view of our aforesaid analysis, we do not perceive any merit in these appeals and, accordingly, they are dismissed.