& ANR Vs. State of H. P  INSC 408 (7 October 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) VENKATACHALA N. (J) CITATION: 1994
AIR 523 1994 SCC Supl. (2) 552
1. Heard learned counsel for the parties.
2. On March 29, 1979 at village Dhakawa, in the district
of Hamirpura, an occurrence took place during the course of which Ram Chand and
Pritam Chand received fatal injuries and PW 23 Romesh Chand also received some
injuries. During the same occurrence, two of the accused persons, viz., Dev Raj
and Des Raj also received injuries. In relation to this incident, four accused
were tried for offences punishable under Sections 302, 307, 452/34 Indian Penal
Code. The trial court convicted all of them under Section 452 IPC and sentenced
553 each of them to undergo RI for three years. Dev Raj was convicted under
Section 302 IPC for causing the death of Ram Chand and also under Sections
302/34 IPC for the murder of Pritam Chand and under Sections 307/34 for
attempting to commit the murder of Romesh Chand (PW 23) and sentenced to
undergo imprisonment for life and to suffer RI for five years and sentences
were directed to run concurrently.
Des Raj was convicted under Section 302 IPC for causing the murder of Pritam Chand
and under Sections 302/34 for causing the death of Ram Chand under Sections
307/34 for attempting to commit the murder of Romesh Chand (PW 23) and
sentenced to undergo imprisonment for life and also to undergo RI for five
years. Ram Chand and Hem Raj the two other accused were also convicted under
Sections 302/34 IPC and under Sections 307/34 IPC for the same offence and
sentenced to undergo imprisonment for life and also to undergo RI for three
years. All the four convicted accused preferred an appeal to the High Court and
the High Court confirmed the convictions of Dev Raj and Des Raj under Section
302 IPC and sentenced them to undergo imprisonment for life thereunder. Dev Raj's
conviction under Section 307 IPC was upheld and sentence was also upheld.
Likewise, their convictions under Section 452 IPC was converted into one under
Section 451 and sentence was reduced to six months' RI. The High Court,
however, acquitted Hem Raj and Ram Chand of the murder charge as well as under
Sections 307/34 IPC but confirmed the convictions under Section 451 IPC and
reduced the sentence to the period already undergone.
present appeal is filed by Dev Raj and Des Raj. It is represented that Des Rajdied
in the mean time, therefore, the appeal against him abates.
prosecution case is as follows. Pandity Ram (PW 3) was in possession of two
canals of lands. He allowed his brother- in-law Ram Chand the deceased to set
up a sawmill over there. The machines erected by Ram Chand were covered by a
temporary shed. Ram Chand accused disputed the right of Pandity Ram (PW 3) over
the land which resulted in civil and criminal proceedings. PW 3 had two sons. Pritam
Chand the deceased and Romesh Chand (PW 23) used to work in the sawmill. On March 28, 1979, Ram Chand the deceased made an
application to the Forest Officer and he reported that Des Raj and the accused
Ram Chand had been illicitly felling the chill trees. The Forest Officer
checked the sawmill of Dhian Singh and 20 logs were reported to be of Des Raj
at that mill. Then, he checked the other mills. There he met PW 23 and 86 logs
were found lying at Srola Nallah. He gave the necessary direction to both the
mills and the mill- owners were directed not to release the logs belonging to
the accused. In the evening, Romesh Chand (PW 23) went to the mill of Ram Chand.
His brothers Pritam Chand and Ram Chand were present there. Bakshi Ram an
employee was also present there. At 8-9 p.m. they were sitting by the Chulla.
mill had electricity. Bulbs inside and outside of the mill were burning at that
time. Ram Chand accused along with his three sons viz., other accused came
there. They started abusing Ram Chand, deceased for giving information against
them to the Divisional Forest Officer. At that stage, Dev Raj and Des Raj
picked up iron pipes lying there, while the other two accused picked up wooden phattis,
all of them attacked Ram Chand, Pritam Chand and Romesh Chand. Dev Raj and Des Raj
were stated to have hit Ram Chand and Pritam Chand on the head with their
respective iron pipes. Dev 554 Raj hit Romesh Chand on the head with his pipe.
The other two accused were alleged to have entered the gate and started giving phatti
blows. The incident lasted for about 15-200 minutes. All the three injured
persons fell down.
accused left the place leaving behind iron pipes and wooden phattis. Soon after
the occurrence, PW Suresh Kumar arrived at the mill and he informed PW 3, who
came to the mill and found both his sons as well as his brother-in-law injured
on the floor. He was apprised of the incident by Bakshi Ram (PW 1). The injured
persons were shifted to the nearest hospital which was a primary health centre.
The doctor (PW 14) who examined the injured found injury on the scalp and other
lacerated wounds on the deceased Ram Chand as well as Pritam Chand. Likewise,
he found some injuries also on PW 23. The injured were referred to the civil
hospital, Hamirpura. Thereafter Ram Chand was transferred to PGI, Chandigarh since his condition became grave
and ultimately he died at 12 noon on April 3, 1979 the very next day of his admission
in the hospital. The doctor (PW 14) also examined Dev Raj and Des Raj between 9/9.30 a.m. on March 30, 1979.
On Dev Raj, doctor found incised wound in occipito-parietal region in the shape
8 cms x 1 cm and bruise on the right shoulder and also some bruises on the left
thigh. The doctor opined that all the injuries were simple. On Des Raj, doctor
found incised wounds in occipitoparietal region and enter-posteriorly
elliptical 10 cms from right mastoid process and also some other simple
injuries. The police was informed and the case was registered. After inquest,
the two dead bodies were sent for postmortem. The doctor who conducted the
postmortem on the dead body of Pritam Chand on internal examination found that
the death was caused due to neurogenic shock and cardiorespiratory failure due
to injury to brain and due to internal haeomorrhage in the left lung. On the
dead body of Ram Chand, he found lacerated (stitched) wound on the right side
of scalp. Some abrasions were also found. An antero- posterior fracture
starting from middle of supra-orbital margin extended upwards and backwards and
slightly medially to reach a point 3 cms from middle line and 5 cms above right
parietal eminence. He also found a fracture on the parietal region and bone was
found depressed. The doctor opined that the injuries were sufficient in the
ordinary course of nature to cause death.
After completion of the investigation, a charge-sheet was laid and the accused
were arrested. The prosecution mainly relied on PW 1 and PW 23 the injured
When examined under Section 313 CrPC Ram Chand and Hem Raj denied their
presence at the scene of occurrence. Dev Raj and Des Raj pleaded that they were
attacked by the complainant party and they acted in the selfdefence. The
learned Sessions Judge as stated above, held that all the four accused had the
common intention and accordingly, caused the death of the two persons and also
injuries to PW 1 and PW 23 and accordingly convicted them.
High Court, however, after consideration of the entire evidence and the pleas
of the accused held that the accused had no right of self-defence and convicted
Dev Raj and Des Raj for their individual acts for causing the death of Ram Chand
and Pritam Chand and for causing injuries to Romesh Chand, PW 23 for offence
punishable under Sections 307/34 IPC. So far as Ram Chand and Hem Raj are
concerned, the High Court convicted them for the offence punishable under
Section 323 IPC and acquitted them of the major charges.
Conviction of Dev Raj and Des Raj under Section 302 IPC was upheld by the High
Learned counsel for the appellants submits that the prosecution has failed to
explain the injuries on the two accused persons and as a matter of fact, later
a medical board was constituted, and the doctor found on the body of Des Raj
accused that there was fracture on the postro- lateral aspect of the left
forearm with scab off 1" above the lower ulnar prominence transverse in
direction 2.5 cms x 1 cm and 6" below the elbow joint 1 cm x 1/2 cm among
other wounds. His further submission is the failure on the part of the
prosecution to explain the injuries on the accused would go to show that they
suppressed the genesis of the occurrence and the right of private defence to
these two accused cannot be denied. It is also his further submission that the
accused need not prove their defence like the prosecution and it is enough if
by preponderance of probabilities and on the basis of the circumstances they
can show that they had such a right, then, they should be given the benefit of
already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as
Des Raj undoubtedly received injuries during the same occurrence and when they
have taken the plea that they acted in self-defence, that cannot be lightly
ignored particularly in the absence of any explanation of their injuries by the
prosecution. It is not necessary to refer to various decisions where it has
been held that the accused if acted on self-defence, need not prove beyond all
reasonable doubt and if two views are possible, the accused should be given the
benefit of doubt.
regard to the nature of the injuries on the two accused persons, we find it
difficult to hold that their pleas altogether are unfounded. Then the next
question would be whether they had exceeded the right of self- defence.
Admittedly, the occurrence is said to have taken place in a sudden manner.
Even, according to the prosecution, they did not come there armed. A quarrel
ensued there and they picked up iron pipes and wooden phattis that were lying
there and a clash took place. In such a situation, their plea of right of
private defence has to be accepted, but having regard to the injuries inflicted
by them on the two deceased persons as well as on PW 23, they have definitely
exceeded the right of private defence and the accused are entitled to the
benefit of Exception 2 of Section 300 and the offence punishable is one under
Section 304 Part I IPC. Accordingly, conviction of Dev Raj under Section 302
IPC and the sentence of imprisonment for life awarded thereunder are set aside
and, instead, he is convicted under Section 304 Part I IPC and sentenced to RI
for seven years. His conviction under Section 307 IPC and the sentence of five
years' RI, are, however, confirmed.
sentences are to run concurrently. His conviction under Section 451 IPC and the
sentence of six months' RI and fine on default clause, if any, are confirmed. Sentences
to run concurrently. Dev Raj shall surrender and serve out the remaining
sentence. In the result, the appeal abates so far as Des Raj is concerned and
allowed partly so far as Dev Raj is concerned to the extent indicated above.