Jalaram Vs. State of
Rajasthan  Insc 669 (24 November 2005)
Sinha & P.P. Naolekar S.B. Sinha, :
This appeal is directed against the judgment and order dated 19.03.2004
passed by Rajasthan High Court whereby and whereunder an appeal preferred by
the Appellant herein against the judgment and order of conviction and sentence
passed against him under Sections 147, 302 and 323/149 of the Indian Penal Code
(for short, 'IPC') was converted to conviction under Section 302 IPC
The prosecution case as disclosed in the First Information Report is as
One Pratapa (PW-5) lodged a written report at about 2.00 p.m. on 14.3.1998
before the S.H.O., Police Station Bagoda, District Jalore, stating that at
about 9.00 a.m. on the said day while he was going with his brothers Hanja
(PW-1), Vasna (deceased) and Raimal (PW-4) from his dhani towards Oran for the
purpose of grazing the cattle and when they had been passing through the field
of the accused Sonaram, the Appellant herein together with Bhagirath, Kisana
Ram, Naringa, Poonmaram and Bhikhram, who were hiding themselves in the field,
assaulted them with lathies. Whereas the Appellant Jalaram is said to have
given a lathi blow on the head of the deceased, Bhagirath gave a lathi blow on
the head of PW-1 and Kisana Ram gave a lathi blow on the informant's leg.
Although the Appellant herein was named in the First Information Report, no
charge-sheet was submitted against him as also against Bhagirath, Poonmaram and
Bhikharam. A charge-sheet for commission of offences punishable under Sections
147, 148, 302, 323 read with Section 149 IPC was submitted against Kisana Ram,
Naringa, Sonaram, Ghamanda and Deva Ram. However, after examination of five
prosecution witnesses and on an application made in this behalf, the Appellant
herein and others were summoned by the Trial Judge in terms of Section 319 of
the Code of Criminal Procedure, whereafter charges were amended against all the
The prosecution examined 11 witnesses in support of its case.. The learned
Trial Court acquitted Sonaram, Ghamanda and Deva Ram (Accused Nos.1, 4 and 5
respectively) but found the Appellant guilty for commission of offences
punishable under Sections 147, 302 and 323/149 IPC and the other accused,
namely, Kisana Ram, Naringa, Bhagirath, Poonmaram and Bhikharam for offences
punishable under Sections 147, 302/149 and 325/149 IPC.
Two appeals preferred thereagainst by the accused were heard by a Division
Bench of the Rajasthan High Court and, as noticed hereinbefore, by reason of
the impugned judgment the Appellant alone was held guilty for commission of an
offence punishable under Section 302 IPC and the other accused persons were
acquitted. The High Court, however, held Kisana Ram and Naringa guilty of
commission of an offence punishable under Section 323 IPC for causing hurt to
Pratapa (PW-5) and Hanja (PW-1) and sentenced them to the period already
The High Court in its judgment held :
"Thus from the statements of star witnesses p.w. 5 Pratapa and p.w.1 Hanja,
the following facts have emerged :
(i) That at the time of alleged incident, six accused appellants, namely,
Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonmaram and Naringa were present.
(ii) That the alleged incident took place when p.w. 1 Hanja, p.w. 5 Pratapa
and deceased along with their revar (cattle) were passing through the way,
which was in the field of accused Sonaram (who has been acquitted by the
learned trial Judge).
(iii) That accused appellant Jalaram caused lathi blow on the head of the
(iv) That except accused appellant Jalaram, no other accused persons caused
any injury to the deceased.
(v) That accused appellant Kisana Ram caused lathi blow to p.w. 5 Pratapa.
(vi) That accused appellant Naringa caused lathi blow to p.w. 1 Hanja.
(vii) That p.w. 1 Hanja and p.w. 5 Pratapa have not explained the injuries
received by accused appellant Kisana Ram and accused Sonaram (who has been
acquitted by the learned trial judge).
(viii) That there is a way in the field of accused Sonaram (who has been
acquitted by the learned trial judge) for reaching gochar land of Punasa and
that fact has also been stated by other prosecution witnesses." In
arriving at the said finding, the High Court held : (i) as the fight took place
without premeditation, the same can be said to be a sudden one and by reason
thereof no unlawful assembly can be said to have been formed; (ii) In the case
of group rivalry enmity, it often happens that the tendency develops to rope in
as many as persons as possible having participated in the assault and applying
the said principle, the finding of the trial court that the accused persons
formed a common intention was not correct; (iii) As no accused instigated the
Appellant Jalaram to inflict injuries on the deceased, and, thus, no unlawful
assembly was formed with a common object to commit the murder of the deceased;
(iv) The Appellant Jalaram alone was responsible for causing the death of the
deceased, as his presence on the scene of occurrence cannot be doubted in any manner;
(v) The Appellant has failed to prove his plea of alibi; (vi) He has also
failed to prove that he, in the peculiar facts and circumstances of the case ,
could exercise his right of private defence; (vii) As a right of way was
claimed in the field of Sonaram, there was no reasonable apprehension of danger
either to the body or the crops of the Appellant; and (viii) Although accused
Kisana Ram and Sonaram had received one injury each but the injury suffered by
them being simple in nature, it would reasonably be inferred that there had
been no reason for apprehension of danger to the body of the accused leading to
exercise of their right of private defence. (ix) The injury on the person of
Kisana Ram and Sonaram being minor in nature were not required to be explained.
Mr. Uday U. Lalit, the learned Senior Counsel appearing on behalf of the
Appellant, has raised a short question in support of this appeal. The learned
counsel contended that having regard to the fact that ten simple injuries had
been inflicted by the parties on each other; only because the Appellant herein
has inflicted an injury causing death of the deceased would not lead to the
conclusion that the Appellant herein had any motive therefor.
It was pointed out that it is not a case where several blows were hurled on
the deceased or other prosecution witnesses so as to arrive at a conclusion
that the Appellant had the requisite mens rea.
Mr. Kumar Kartikay, the learned counsel appearing on behalf of the State,
however, would draw our attention to the situs of the injury as also the force
with which the same was inflicted by the Appellant herein to support the
judgment of conviction and sentence passed by the High Court.
The short question, therefore, which arises for consideration is as to whether
in the facts and circumstances of the case, the Appellant herein can be said to
have committed an offence punishable under Section 302 IPC.
Hanja (PW-1) had received four injuries and Informant Pratapa (PW- 5) had
received five simple injuries. It is also not in dispute that the accused
Sonaram and Kisana Ram had also received one injury each. The injuries found on
the body of the deceased upon post-mortem are as under :
"(i) Lacerated wound 7 cm x 3 cm x bone deep with fracture of bone on
right side of parieto temporal region.
(ii) Abrasion 4" x 4" on left thigh on anterior side." It is
not in dispute that the occurrence took place in the field of Sonaram who has
been acquitted by the trial court. It is also not in dispute that Jalaram had
agricultural land nearby. It is furthermore not in dispute that no right of way
by way of path/passage between the lands appurtenant to Khasra nos. 865, 866
and 1006 and the boundaries of village Punasa was found to have been recorded
in the records of rights.
The defence had examined seven witnesses including DW-6 who was the
Investigating Officer in the case. He stated that upon investigation carried
out by him, he came to the opinion that no offence was made out against the
accused Jalaram, Bhikharam and Poonmaram. DW-7 Udda Ram, who is an independent
witness stated that there had been a free fight between 'Bishnois' and
'Rebaris' on the field of Sonaram Bishnoi. It has further not been disputed
that the deceased and other on the date of the incident were proceeding with
about 60 numbers of cattle for grazing to the field of Sonaram and Bhagirath.
It also deserves to be noticed that the eye-witnesses Hanja (PW-1), Raimal
(PW-4) and Pratapa (PW-5) although deposed that the accused persons gave
indiscriminate beatings to the deceased but, the same has been, in view of the
medical evidence, found to be not correct.
The right of way on the agricultural land belonging to Sonaram has not been
established. If there was no established right of way by way of easement or
otherwise and if there had been an apprehension in the mind of the accused that
there was a threat of trespass in their land, indisputably they could exercise
their right of private defence. In any event, such an apprehension on the part
of the Appellant and other accused persons cannot be ruled out.
We have noticed hereinbefore, that the only one blow was hurled by the
Appellant herein was on the forehead of the deceased. The genesis of the
occurrence, appears also not to have been disclosed by the prosecution.
It is not the case of the prosecution that the Appellant herein and other
accused persons had been nurturing any grudge against the deceased or the
informant from before or had any motive to commit the aforementioned offence.
Any motive on the part of the Appellant and other accused persons for hiding
themselves near the place of occurrence and committing the offence has not been
established. It is, thus, difficult to accept that part of the prosecution
Sonaram and Kisana Ram had also received one injury each. It is true, as has
been held by the High Court, that the nature of injuries was simple one but it
was, in the peculiar facts and circumstances of this case, obligatory on the
part of the prosecution to prove as to how they received the same. It is also
true that in all situations the injuries received by the accused persons need
not be explained but a different situation may arise when a right of private
defence is claimed. The prosecution has not placed any material before this
Court to prove that it was the Appellant and other accused persons who were
aggressors. If they were not the aggressors, the plea of right of private
defence was available to them. Non-explanation of injuries on the person of
Sonaram and Kisana Ram, thus, gains significance.
Injuries on the persons of the accused persons having not been explained by
the prosecution gives rise to the credibility to the defence put forth by the
Appellant as regard exercise of his right of private defence.
"No decision relied upon by the Appellants lays down a law in absolute
terms that in all situations injuries on the persons of the accused have to be
explained. Each case depends upon the fact situation obtaining therein."
2005 (9) SC 290 : 2005 (9) SCALE 204], a Division Bench of this Court has
recently noticed the nuances of the said right wherein it was held:
"In a large number of cases, this Court, however, has laid down the law
that a person who is apprehending death or bodily injury cannot weigh in golden
scales on the spur of the moment and in the heat of circumstances, the number
of injuries required to disarm the assailants who were armed with weapons. In
moments of excitement and disturbed equilibrium it is often difficult to expect
the parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where assault is
imminent by use of force. All circumstances are required to be viewed with
pragmatism and any hyper-technical approach should be avoided.
To put it simply , if a defence is made out, the accused is entitled to be
acquitted and if not he will be convicted of murder. But in case of use of
excessive force, he would be convicted under Section 304 IPC." It was
"Private defence can be used to ward off unlawful force, to prevent
unlawful force, to avoid unlawful detention and to escape from such detention.
So far as defence of land against trespasser is concerned, a person is entitled
to use necessary and moderate force both for preventing the trespass or to
eject the trespasser. For the said purposes, the use of force must be the
minimum necessary or reasonably believed to be necessary. A reasonable defence
would mean a proportionate defence.
Ordinarily, a trespasser would be first asked to leave and if the trespasser
fights back, a reasonable force can be used." In Sekar alias Raja Sekharan
vs. State Represented by Inspector of Police,T.N. [(2002) 8 SCC 354], it was
"10. In order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to his
safety, the injuries caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all relevant
factors to be considered." The Appellant herein also has raised a plea of
private defence. He, however, has not been able to show that the threat on the
person of Sonaram and Kisana Ram was such or even threat of dispossession was
such, he had to hit the deceased at such place and with such force that he
would breathe his last on the spot itself. He, therefore, in our considered
opinion, exceeded his right of private defence.
We, therefore, are of the considered view that the Appellant is guilty of
commission of an offence under Section 304, Part I of the Indian Penal Code and
not under Section 302 thereof.
Keeping in view of the facts and circumstances of this case, we are of the
opinion that imposition of a sentence of 10 years Rigorous Imprisonment under
the aforementioned provision shall meet the ends of justice. The Appellant
shall also pay a fine of Rs. 500/- in default whereof he will undergo simple
imprisonment of three months. The Appeal is allowed in part and to the extent