The second contention advanced at the hands of learned counsel
for the appellant was, that the entire prosecution version discloses, that
the alleged intention of the accused-appellant – Brij Lal was to murder
Mohan Lal – PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persons, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit therein. The reason
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal – PW-15, by dissuading the
accused from insisting on to carry out their objective. Consequent upon
their being angered by the villagers, they retaliated by firing
indiscriminately at the gathering. Since it was not disputed by the
accused-appellant – Brij Lal, that three fatal (besides other) injuries, were
caused by the accused-appellant and his co-accused, the onus lies on
the appellant to demonstrate the reason and the justification for their
action. The evidence produced by the prosecution demonstrates, that
the accused had fired gunshots indiscriminately, on being angered by the
gathering, which was trying to persuade them from carrying out their
singular objective – to cause harm to the person of Mohan Lal – PW-15.
Having accepted, that they had actually fired at the neighbours and the
villagers, who had gathered at the place of occurrence, it does not lie in
their mouth to raise such a plea. For the aforesaid reasons, we find no
merit even in the instant contention.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 991 OF 2010
Brij Lal v State of Rajasthan.
Dated:August 17, 2016.
Citation:(2016) 13 SCC347
1. According to the allegations levelled in the complaint, the
appellant–Brij Lal and Mohan Lal - PW-15 were both employed in the
Irrigation Department of the State Government. They were both holding
the posts of Gauge Reader. They also resided in government quarters at
Suleman-ki-Head, close to one another. The appellant–Brij Lal allegedly
used to hurl abuses at Mohan Lal - PW-15 under the influence of liquor.
Some others, including Kashi Ram, co-accused, used to side with the
appellant – Brij Lal, in his misbehaviour with Mohan Lal – PW-15. In
order to settle the dispute amicably Mohan Lal – PW-15 called a
“panchayat” (council). The endeavour of Mohan Lal – PW-15, through
the panchayat, proved unsuccessful. Eventually, he addressed a
communication dated 18.8.1983, to the Assistant Engineer of the
Irrigation Department, highlighting the inimical attitude of the
appellant–Brij Lal. Since the said complaint also did not lead to any
1Page 2
fruitful result, Mohan Lal – PW-15 quit his government accommodation,
and took up rental accommodation in the house of Mohan Ram – PW-1.
2. The incident which has given rise to the present appeal, occurred
on 30.9.1983 at around 9 p.m., at the house of Mohan Ram – PW-1, i.e.,
the premises to which Mohan Lal – PW-15 had shifted, to keep himself
away from the appellant–Brij Lal. At the time of occurrence, Mohan Lal –
PW-15 was present in the said premises, along with his wife and
children. It was alleged, that the appellant–Brij Lal and the co-accused –
Kashi Ram hurled abuses at Mohan Ram - PW-1, who was sitting
outside, in front of his house. The appellant and the co-accused asked
Mohan Ram – PW-1, to call out Mohan Lal – PW-15, as they wanted to
kill him. It was the assertion of Mohan Ram – PW-1, who eventually
lodged the complaint, that he had requested the appellant–Brij Lal and
the co-accused – Kashi Ram, not to create any trouble at his house. He
asked them to fulfill their intentions at some other place. Unmindful of
the advice tendered by Mohan Ram – PW-1, the appellant and the
co-accused started hurling abuses at Mohan Ram – PW-1. At that
juncture, Mohan Ram – PW-1 realized, that the accused and the
co-accused were in possession of pistols. Mohan Lal – PW-15, having
heard the appellant and the co-accused hurling abuses, and also,
threatening to kill him, scaled the boundary wall of the premises, and
hid in the flour mill of Milkha Singh, located in close vicinity of the house
of Mohan Ram–PW-1.
3. Hearing the altercation and the phone-calls made by Mohan Ram –
PW-1 and Mohan Lal – PW-15, neighbours and co-villagers, came to the
place of occurrence. They too requested the appellant – Brij Lal, and the
co-accused – Kashi Ram, to go away. Instead of leaving, the
accused-appellant, as well as, the co-accused openly proclaimed, that
they would not leave without killing Mohan Lal – PW-15. Under the
pressure of the neighbours and the co-villagers, they moved towards the
front of the house of Sultan Bhat, located in front of the house of Mohan
Ram–PW-1. At that juncture, the neighbours and the co-villagers went
towards the spot at which the accused-appellant – Brij Lal and the
co-accused – Kashi Ram had retreated, and again requested them to
desist from their intentions. According to the assertions made in the
complaint, at the instance of the co-accused – Kashi Ram, the appellant
– Brij Lal fired at the gathering. Om Prakash and Sultan Bhat received
bullet injuries from the shots fired by Brij Lal. Om Prakash died on the
spot. Sultan Bhat was rendered unconscious. He was removed to
hospital, where he died on the following day, i.e., on 1.10.1983. Kashi
Ram also fired from the gun in his possession. It hit Mst. Munni Devi (a
woman), who also died on the spot. In the firing under reference, Labh
Singh and Sheria (a 5 year old boy) were also injured. The report of the
above incident was lodged by Mohan Ram – PW-1, on 1.10.1983 at 12.05
a.m.
4. It is also relevant to mention, that the appellant – Brij Lal and the
co-accused – Kashi Ram got themselves admitted to a hospital. As soon
3Page 4
as they heard about the death of Sultan Bhat, they ran away from the
hospital. The appellant – Brij Lal was however, arrested on 10.10.1983.
Based on the disclosure statement made by him, a 12 bore pistol and an
empty cartridge were recovered. The co-accused – Kashi Ram was
successful in evading his arrest. After investigation, the appellant – Brij
Lal was charged under Sections 302, 307 and 324 read with Section 34
of the Indian Penal Code (hereinafter referred to as, the IPC) and Sections
25 and 27 of the Indian Arms Act, by the Judicial Magistrate No.1, Sri
Ganganagar. The learned Magistrate committed the case to the Court of
Session, which framed charges against the appellant – Brij Lal, under the
provisions referred to hereinabove.
5. The accused appellant – Brij Lal, pleaded innocence. He sought
recourse to the plea of private defence, under the second exception under
Section 300 of the IPC. Section 300, IPC is reproduced below:
“300. Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in
consequence. A commits murder.
4Page 5
(b) A, knowing that Z is labouring under such a disease that a blow
is likely to cause his death, strikes him with the intention of
causing bodily injury. Z dies in consequence of the blow. A is guilty
of murder, although the blow might not have been sufficient in the
ordinary course of nature to cause the death of a person in a sound
state of health. But if A, not knowing that Z is labouring under any
disease, gives him such a blow as would not in the ordinary course
of nature kill a person in a sound state of health, here A, although
he may intend to cause bodily injury, is not guilty of murder, if he
did not intend to cause death, or such bodily injury as in the
ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to
cause the death of a man in the ordinary course of nature. Z dies in
consequence. Here, A is guilty of murder, although he may not have
intended to cause Z’s death.
(d) A without any excuse fires a loaded cannon into a crowd of
persons and kills one of them. A is guilty of murder, although he
may not have had a premeditated design to kill any particular
individual.
Exception 1.— xxx xxx xxx
Exception 2.—Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause
grievous hurt to A. A draws out a pistol. Z persists in the assault. A
believing in good faith that he can by no other means prevent
himself from being horsewhipped, shoots Z dead. A has not
committed murder, but only culpable homicide.
Exception 3.— xxx xxx xxx
Exception 4.— xxx xxx xxx
Exception 5.— xxx xxx xxx”
After the statements of the prosecution witnesses were recorded, and
that of the appellant was recorded under Section 313 of the Code of
Criminal Procedure, even though an opportunity was afforded to the
5Page 6
appellant, to lead evidence in his defence, he chose not to produce any
witness on his behalf.
6. Vide his judgment dated 22.1.1985, the Sessions Judge, Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of
self-defence raised by him by invoking the second exception under
Section 300, IPC.
7. Dissatisfied with the above judgment dated 22.1.1985, the State of
Rajasthan preferred D.B. Criminal Appeal No.227 of 1985, to assail the
order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar.
The High Court rendered the impugned judgment on 17.11.2009,
whereby the appeal preferred by the State of Rajasthan was accepted.
The judgment rendered by the Sessions Judge, Sri Ganganagar dated
22.1.1985, acquitting the appellant-Brij Lal, was set aside. The
appellant-Brij Lal was found guilty of having committed the offence
punishable under Section 302 of the IPC. Keeping in mind the fact, that
the occurrence had taken place in 1983, the High Court awarded the
sentence of life imprisonment to the appellant-Brij Lal. It also imposed a
fine of Rs.1,000/-, and in default thereof, awarded one year’s rigorous
imprisonment, to the appellant.
8. The appellant has approached this Court, to assail the impugned
judgment, rendered by the High Court dated 17.11.2009. During the
course of hearing, learned counsel for the appellant, summarized the
contentions advanced on behalf of the appellant, as under:
6Page 7
Firstly, it was contended, that the factum that the appellant-Brij Lal had
also suffered injuries, was sufficient to establish, that their retaliation by
firing gunshots at the gathering, was a matter of self-defence, and
nothing else. Secondly, it was urged, that the target of the appellant-Brij
Lal, as per the prosecution story, was Mohan Lal - PW-15. And as such,
there was no question of their having intentionally fired shots at the
neighbours and co-villagers and therefore, could not have been held
guilty of the offence under Section 302 of the IPC. Thirdly, it was
submitted, that the recovery of the weapon, namely, the gun with which
the appellant–Brij Lal, allegedly shot at the neighbours and co-villagers,
resulting in the death of Om Prakash, Sultan Bhat and Munni Devi, was
not proved to have been recovered from the appellant. And as such, in
the absence of proof of recovery of the weapon used in the occurrence
from the appellant, there was no justification, whatsoever, for the High
Court to have found the appellant guilty of the offence under Section 302
of the IPC. Fourthly, it was submitted, that the co-accused – Kashi Ram,
who was tried separately, was prosecuted in the same manner as the
appellant. It was submitted, that the same witnesses as were produced
by the prosecution against the appellant-Brij Lal, were also produced by
the prosecution, against the co-accused – Kashi Ram. On the
culmination of the trial against Kashi Ram, he was found innocent, and
was acquitted. It was submitted, that the State of Rajasthan, chose not
to prefer any appeal against the order of acquittal of the co-accused –
Kashi Ram. According to learned counsel, the prosecution cannot
7Page 8
succeed in one case, and fail in the other, when the witnesses produced
against both accused are the same. Fifthly, it was contended, that the
evidence produced by the prosecution reveals, that the incident had
occurred more than 200 feet away from the house of Mohan Ram – PW-1.
Just the above fact, according to learned counsel, is sufficient to
demonstrate, that the mob which had assembled at the place of
occurrence, was acting in an intimidating manner, resulting in the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, retreating
away from the house of Mohan Ram – PW-1 towards the house of Sultan
Bhat. It is therefore apparent, that the gunshots fired by the
appellant-Brij Lal and the co-accused – Kashi Ram, were in their
self-defence, and nothing more. Lastly, it was the contention of learned
counsel for the appellant, that Mohan Lal – PW-15, in his deposition,
clearly and unequivocally acknowledged, that at the time of occurrence
when the appellant and the co-accused fired the shots, he was at a
distance of 20 feet from the appellant–Brij Lal. It was the contention of
learned counsel, that if the prosecution story is to be believed, the
appellant should have fired at Mohan Lal – PW-15, and not at the
persons gathered at the place of occurrence, as alleged by the
prosecution.
9. During the course of hearing, learned counsel for the rival parties,
in order to project their respective claims, relied on the statements of
only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal – PW-15.
We are of the view, that in our determination of the claims, projected on
8Page 9
either side, it is imperative to closely examine the testimony of these two
witnesses. We shall endeavour to do so, hereunder:
10. Mohan Ram – PW-1:
(i) In his opening statement, Mohan Ram acknowledged, that he knew
the accused-appellant – Brij Lal and Mohan Lal – PW-15, from before.
He affirmed, that just like them, he too was employed in the Irrigation
Department of the State Government. While Brij Lal and Mohan Lal were
employed in the department as Gauge Readers, he himself was working
as a Beldar. All of them were posted at the Head of Suleman. He stated,
that Mohan Lal and Brij Lal were allotted government quarters close to
one another, at Suleman-ki-Head. The fact, that they were quarreling
among themselves for some time prior to the incident, was also affirmed.
It was pointed out, that while Mohan Lal was living in his government
quarter along with his family, Brij Lal was residing by himself in his
separate quarter. He affirmed, that the accused-appellant – Brij Lal used
to drink liquor at night, and create a racket “every time”, thereafter. He
confirmed, that co-accused – Kashi Ram was Brijlal’s drinking partner,
and that, Kashi Ram also used to associate along with Brij Lal, in the
brawl. He testified, that Mohan Lal – PW-15, used to object to their
behaviour, and therefore, the accused-appellant – Brij Lal and the
co-accused – Kashi Ram, were inimical to Mohan Lal – PW-15. He
confirmed, that Mohan Lal – PW-15 had complained to him and others
about their behaviour on several occasions, and that, he had also spoken
to the accused-appellant – Brij Lal, to persuade him to desist from such
9Page 10
activities. He pointed out, that Brij Lal was adamant, and had refused to
stop. He also stated, that Mohan Lal – PW-15 had taken him to make a
representation against Brij Lal, to the Overseer of the Irrigation
Department. He (Mohan Lal – PW-15) had given up living in his allotted
quarter, and had moved to his (Mohan Ram – PW-1’s) house along with
his family, as his tenants. He confirmed, that the said shifting had taken
place about fifteen days prior to the occurrence.
(ii) With reference to the occurrence, it was stated, that it had taken
place between 8.30 p.m. and 9 p.m. He testified, that he was sitting in
front of his house on a cot, and that, Mohan Lal – PW-15, and his wife
and children, were inside the house. He deposed, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, had come
to his house with pistols in their hands. The accused-appellant – Brij
Lal, it was pointed out, asked him to call Mohan Lal – PW-15 outside, as
they had come to kill him. He stated, that he pleaded with the
accused-appellant, as also, the co-accused, not to do any such thing, at
his residence.
(iii) He confirmed, that he had seen Mohan Lal – PW-15 scale the wall
of his house, and cross over to the house of his neighbour Badri Ram,
and then proceeded to the flour mill of Milkha Singh. He stated, that he
had shouted out for help, whereafter, his neighbours and co-villagers,
hearing his clamour, had reached the place of occurrence. He deposed,
that all the persons gathered at the place of occurrence, had requested
the accused-appellant – Brij Lal, and the co-accused – Kashi Ram, to
10Page 11
leave the place, but Brij Lal and Kashi Ram were adamant in their
resolve. They had responded by stating, that they would not go
anywhere, as they had come to kill Mohan Lal – PW-15. He testified, that
at that juncture the accused-appellant – Brij Lal, and the co-accused –
Kashi Ram, moved away from his house and stood in front of the house
of Sultan Bhat, but still continued to hurl abuses. He pointed out, that
all the neighbours and co-villagers were at a distance of about 20 feet
from Brij Lal and Kashi Ram, and were persuading them to stop hurling
abuses. But, they were insistent. Mohan Ram – PW-1 further deposed,
that co-accused – Kashi Ram, at that juncture, exhorted Brij Lal to shoot
at the crowd, as everyone was siding with Mohan Lal – PW-15. He
deposed, that Brij Lal, on being so implored, fired at the gathering. He
affirmed, that Om Prakash and Sultan Bhat received firearm injuries. It
was his assertion, that in the meanwhile, the co-accused – Kashi Ram
also fired from his gun, which hit Munni Devi, Labh Singh Mistry and
Sheria. He deposed, that Munni Devi and Om Prakash died at the spot,
whereas Sultan Bhat became unconscious.
(iv) He also confirmed, that he had lodged a report of the incident, at
Police Station Chunawar, around mid-night. In his cross-examination
Mohan Ram – PW-1 asserted, that the persons, who had gathered at the
place of occurrence, comprised of men, women and children. He denied,
that those persons who had gathered there, intended to apprehend the
accused-appellant – Brij Lal or the co-accused – Kashi Ram. He
confirmed, that none amongst the crowd, was armed with any lathis or
11Page 12
sticks. He denied the suggestion, that Brij Lal and Kashi Ram were
attacked by the villagers, with lathis. He deposed, that neither Brij Lal
nor Kashi Ram had received any injuries during the occurrence. He also
denied the suggestion, that the persons gathered at the place of
occurrence, had chased the accused-appellant, and the co-accused. He
also denied the suggestion, that Brij Lal and Kashi Ram had come to the
general merchant shop to buy “biris” (traditional cigarettes), and had
never come to his residence, to beat or harm Mohan Lal – PW-15.
(v) The above deposition of Mohan Ram – PW-1, fully affirmed the
prosecution version of the occurrence.
11. Mohan Lal – PW-15:
(i) Mohan Lal deposed, that he was employed in the Irrigation
Department, of the Government of Rajasthan, and was posted at Head of
Suleman, as Gauge Reader. He confirmed, that he was living in a
government quarter allotted to him, along with his wife and three
children, at Suleman-ki-Head. He acknowledged, that the government
quarter of the accused-appellant – Brij Lal, was nearby his own quarter.
He asserted, that the accused-appellant – Brij Lal, used to abuse him
after drinking liquor, and that, Kashi Ram and his brother-in-law, used
to sometimes accompany the accused-appellant – Brij Lal. He stated,
that he had asked the accused to desist from using such language,
because he was a family man. He deposed, that he had called a
“panchayat” (council), to resolve the issue between himself and the
accused-appellant – Brij Lal. The “panchayat” was attended by
12Page 13
co-employees of the Irrigation Department. He confirmed, that Brij Lal,
on being called, had attended the panchayat. He deposed, that even at
the panchayat, the accused-appellant – Brij Lal had reiterated, that he
would do as he wished, and they (the members of the panchayat) may do
what they could. He also deposed, that after panchayat, he had given an
application to the Overseer (Exhibit P-12) of his department, complaining
about the conduct of the accused-appellant – Brij Lal. He stated that
despite the complaint, the behaviour of accused-appellant – Brij Lal did
not improve. He urged, that to avoid the appellant, he had surrendered
the government accommodation allotted to him at Suleman-ki-Head and
had moved to a rented accommodation, in the house of Mohan Ram –
PW-1. He deposed, that the occurrence had taken place within 10/15
days of his moving to the house of Mohan Ram – PW-1. The occurrence
is stated to have taken place between 8 p.m. and 9 p.m.. He asserted,
that Mohan Ram – PW-1, was sitting outside the gate of his house, whilst
he himself, his wife and children, were in the house. He deposed, that
the accused-appellant – Brij Lal and the co-accused – Kashi Ram were
calling him outside the house. He confirmed, that they were holding
pistols in their hands. On such exhortation, Mohan Ram – PW-1 had
told the accused-appellant and the co-accused, that he would not allow
them to kill Mohan Lal – PW-15 at his residence, but they did not listen
to him, and continued to hurl filthy abuses.
(ii) Mohan Lal asserted, that he jumped over the wall of the house of
Mohan Ram – PW-1, and from the side of the house of Badri Ram, he
13Page 14
entered the flour mill of Milkha Singh. He asserted, that the neighbours
and co-villagers hearing the shouts of Mohan Ram – PW-1, ran to the
place of occurrence. At that juncture, the accused-appellant – Brij Lal
and the co-accused – Kashi Ram, had moved towards the house of
Sultan Bhat. He asserted, that the crowd comprised of men, women and
children. He also deposed, that the villagers requested Brij Lal and
Kashi Ram to go away, but they were bent on carrying out their objective.
He stated, that Brij Lal and Kashi Ram fired shots from their pistols, and
the shots fired by the accused-appellant – Brij Lal hit Om Prakash and
Sultan Bhat, whereas, the shots fired by the co-accused – Kashi Ram hit
Muni Devi, Labh Singh and Sheria Ram. He confirmed, that Munni Devi
and Om Prakash died at the spot. He also stated, that the condition of
Sultan became serious, and therefore, the villagers had taken him to
hospital. He asserted, that the accused-appellant – Brij Lal and the
co-accused – Kashi Ram, went away from the spot after the incident.
(iii) In his cross-examination Mohan Lal – PW-15 stated, that the
conduct of accused-appellant – Brij Lal had worsened, about six months
prior to the occurrence. He stated, that his only difference with the
accused-appellant – Brij Lal was, that he used to abuse him. He denied
the suggestion, that the accused-appellant – Brij Lal had ever teased his
wife. He reiterated, that he had lodged a complaint against the
accused-appellant – Brij Lal, with his senior officers. He stated, that the
first time, accused-appellant – Brij Lal threatened to kill him, was after
he had summoned the “panchayat” (council), to resolve their dispute.
14Page 15
Mohan Lal – PW-15 acknowledged, that he had never made such a
complaint to the police. He also clarified, that the accused-appellant –
Brij Lal and the co-accused – Kashi Ram, had been exhorting Mohan
Ram – PW-1, to call him (Mohan Lal – PW-15) outside the house. He
stated, that when accused-appellant – Brij Lal and the co-accused –
Kashi Ram were speaking to Mohan Ram – PW-1, they were visible to
him from within the house. He stated, that he became scared, and
therefore, ran away from the house. He deposed, that he had run away,
because the accused-appellant – Brij Lal was saying, that they were
going to kill him. He deposed, that he had run away by jumping into the
house of Badri Ram, and therefrom, went to the flour mill of Milkha
Singh. He testified, that Milkha Singh closed the doors, after he had
entered his mill, when he informed Milkha Singh, that the accused had
come to kill him. While in the flour mill of Milkha Singh, Mohan Lal –
PW-15 confirmed, that he could hear the sound of people coming to the
house of Mohan Ram – PW-1. He also confirmed hearing the shouts of
Mohan Ram – PW-1. He stated, that he became encouraged and lost his
fear, when he heard the voices of the co-villagers, whereupon, he himself
(Mohan Lal – PW-15) and Milkha Singh came out of the flour mill. On
coming out, he had seen the accused-appellant – Brij Lal and the
co-accused – Kashi Ram standing in front of the house of Sultan Bhat at
a distance of “…about 30-40-45 Ft…”, from the flour mill. He stated,
that he was standing near Om Prakash, when Om Prakash was shot.
And that, Sultan, Munni Devi and Sheria Ram were standing about 5
15Page 16
feet away from their side. He confirmed, that he was not hurt by any
pellet. He deposed, that the first shot was fired by the accused-appellant
– Brij Lal, and the next shot was fired by the co-accused – Kashi Ram.
He affirmed, that the accused-appellant – Brij Lal had no quarrel/enmity
with the deceased Om Prakash and Munni Devi. He stated, that Om
Prakash, Munni Devi and others had only come to the place of
occurrence, to save him. In his cross-examination, Mohan Lal – PW-15
deposed that, while the accused-appellant – Brij Lal and the co-accused
– Kashi Ram were standing in front of the house of Sultan Bhat, the
deceased and the injured were standing at a distance of about 20-25
feet, from the house of Sultan Bhat. The distance between the
accused-appellant – Brij Lal and the villagers was about 17 to 18 feet,
whereas, the distance between the co-accused – Kashi Ram and Munni
Devi was about 8 to 10 feet. He deposed, that it was not possible for
anyone to catch the accused-appellant – Brij Lal and the co-accused –
Kashi Ram, because “…all were empty handed…”. During his
cross-examination Mohan Lal – PW-15 deposed, that the crowd
comprised of 20 to 25 men, 10 to 15 women and some children, when
the firing had taken place. He also asserted, that the accused-appellant
– Brij Lal, asked Mohan Ram – PW-1, to send forward Mohan Lal –
PW-15 (i.e., himself), because they needed to kill him. In response to his
denial, Mohan Lal – PW-15 stated, that the accused-appellant – Brij Lal
shouted, that the accused would kill each one of those who were helping
Mohan Lal – PW-15. Mohan Lal - PW-15 reiterated, that none of the
16Page 17
villagers was armed with any weapon. The suggestion, that the villagers
were chasing the accused and the co-accused, was denied. The
suggestion, that the persons gathered at the place of occurrence had
lathis on their hands, and that, they had inflicted injuries on
accused-appellant – Brij Lal and the co-accused – Kashi Ram with lathis,
was also denied.
(iv) The above deposition of Mohan Lal – PW-15, fully affirmed the
prosecution version of the occurrence.
12. We shall now deal with the individual pleas canvassed at the hands
of learned counsel for the appellant.
13. The first contention advanced at the hands of learned counsel for
the appellant was, that the appellant had fired gunshots at the mob of
villagers only as a matter of self-defence, when the accused-appellant
and the co-accused, had been attacked. In this behalf, it would be
relevant to mention, that whilst it is open to an accused to raise a
defence in the nature suggested by learned counsel, there is an obvious
pitfall where an accused chooses to do so, in the sense that by raising
such a plea, the accused acknowledges the occurrence itself. There is
yet another predicament which he is liable to encounter, when raising
such a defence. The same emerges from Section 96 of the Indian
Evidence Act, which is extracted below:
“96. Evidence as to application of language which can apply to one
only of several persons.— When the facts are such that the
language used might have been meant to apply to any one, and
could not have been meant to apply to more than one, of several
17Page 18
persons or things, evidence may be given of facts which show
which of those persons or things it was intended to apply to.”
In this behalf, reference may also be made to the decision in Rizan v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as
under:
“13. Then comes plea relating to alleged exercise of right of private
defence. Section 96, IPC provides that nothing is an offence which
is done in the exercise of the right of private defence. The Section
does not define the expression 'right of private defence'. It merely
indicates that nothing is an offence which is done in the exercise of
such right. Whether in a particular set of circumstances, a person
acted in the exercise of the right of private defence is a question of
fact to be determined on the facts and circumstances of each case.
No test in the abstract for determining such a question can be laid
down. In determining this question of fact, the Court must
consider all the surrounding circumstances. It is not necessary for
the accused to plead in so many words that he acted in
self-defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to
consider such a plea. In a given case the Court can consider it even
if the accused has not taken it. If the same is available to be
considered from the material on record. Under Section 105 of the
Indian Evidence Act, 1872, the burden of proof is on the accused,
who sets of the plea of self-defence, and, in the absence of proof, it
is not possible for the Court to presume the truth of the plea of
self-defence. The Court shall presume the absence of such
circumstances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by eliciting
necessary facts from the witnesses examined for the prosecution.
An accused taking the plea of the right of private defence is not
required to call evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence itself. The
question in such a case would be a question of assessing the true
effect of the prosecution evidence, and not a question of the
accused discharging any burden. Where the right of private defence
is pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was
necessary for either warding off the attack or for forestalling the
further reasonable apprehension from the side of the accused. The
burden of establishing the plea of self-defence is on the accused
18Page 19
and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on
record. (See Munshi Ram and others v. Delhi Administration, AIR
1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478:
State of U.P. v. Mohd. Musheer Khan, AIR 1977 SC 2226
and Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private defence
of body. If a person has a right to private defence of body under
Section 97, that right extends under Section 100 to causing death
if there is reasonable apprehension that death or grievous hurt
would be the consequence of the assault. The oft quoted
observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC
391), runs as follows:
"It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea
in the cross-examination of the prosecution witnesses or by
adducing defence evidence."
The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as
in a civil case that the preponderance of probabilities is in favour of
his plea.”
(emphasis supplied)
14. The question that arises for consideration in the instant case is,
whether there is evidence on the record of this case, to substantiate the
plea of self-defence? Learned counsel for the appellant, answered in the
affirmative. The basis of the aforesaid answer is, the injuries suffered by
the appellant which, according to the appellant, were caused by the mob
when the appellant was attacked. It was submitted, that the gathering of
neighbours and villagers, at the place of occurrence had attacked them,
resulting in their being pushed back to the house of Sultan Bhat. It was
submitted, that it was only in retaliation of the above attack, resulting in
the injuries suffered by the accused, that the accused-appellant – Brij
Lal, as also, the co-accused – Kashi Ram, had fired gunshots at the
crowd, which was out and out to lynch them.
15. Having given our thoughtful consideration to the submissions
advanced, at the hands of learned counsel for the appellant, we are of
the view, that there is overwhelming evidence produced by the
prosecution, affirming that the crowd which had gathered at the place of
occurrence, consequent upon the shouting of Mohan Ram – PW-1, was
unarmed. There is also evidence on the record of the case to
authenticate, that all the villagers were only persuading the
accused-appellant – Brij Lal and his co-accused – Kashi Ram, not to
insist on carrying out their threat, to murder Mohan Lal – PW-15. The
testimony of the prosecution witnesses also demonstrates, that there was
substantial distance between the villagers, and the place at which the
accused were standing in the opposite of the house of Sultan Bhat. Not
only Mohan Ram – PW-1, but also Mohan Lal – PW-15, expressly
deposed that none of the neighbours and co-villagers, was armed.
Moreover, the reiteration by the witnesses, that the crowd comprised of
men, women and children, by itself is sufficient, to infer that the
neighbours and co-villagers were not aiming at causing any harm or
injury to the accused-appellant or the co-accused. It cannot be
overlooked, that one of the deceased - Mst. Munni Devi was a woman,
and one of the injured – Sheria was a child of 5 years. On taking into
consideration the entirety of the facts and circumstances of the case,
especially the absence of any material evidence produced by the
appellant (to demonstrate that gunshots fired by the accused and the
co-accused were in self-defence), the instant contention cannot be
accepted.
16. At this juncture, it is also necessary for us, to refer to two
judgments relied upon by learned counsel for the appellant. Reliance
was first placed, on Bhagwan Swaroop v. State of Madhya Pradesh,
(1992) 2 SCC 406, wherefrom our attention was invited to the following
observations:
“9. We do not agree with the courts below. It is established on
the record that Ramswaroop was being given lathi blows by the
complainant party and it was at that time that gun-shot was fired
by Bhagwan Swaroop to save his father from further blows. A lathi
is capable of causing a simple as well as a fatal injury. Whether in
fact the injuries actually caused were simple or grievous is of no
consequence. It is the scenario of a father being given lathi blows
which has to be kept in mind and we are of the view that in such a
situation a son could reasonably apprehend danger to the life of
his father and his firing a gun-shot at that point of time in defence
of his father is justified. We, therefore, set aside the finding of the
courts below on this point and hold that Bhagwan Swaroop fired
the gun-shot to defend the person of his father.”
(emphasis supplied)
Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC
612, wherefrom, learned counsel placed emphasis on the following
observations:
“8. From the above state of evidence, it appears that the defence
version regarding the incident is a probable one and is supported
by the find of blood from near the tubewell which is adjacent to the
'dera' of the appellant. When two versions are before the court, the
version which is supported by objective evidence cannot be
brushed aside lightly unless it has been properly explained. As
stated earlier, the prosecution has not explained how blood was
found from near the tubewell and no blood was found from the
spot where according to them the incident occurred. In addition to
this, the factum regarding the delay in lodging of the First
Information Report and the suspicion that it was delayed with a
view to concocting the prosecution case and further the delay in
forwarding the special report to the Magistrate as well as the case
papers to the hospital shows that the investigation was not above
board. In these circumstances, we think that the approach adopted
by the courts below cannot be justified.
9. Mr. Behl, learned Counsel for the State, however, vehemently
argued that the appellant had exceeded his right of private defence.
We do not think so. Both the appellant and his wife were attacked.
They had sustained injuries. In the course of assault on them they
caused injuries to the deceased and the prosecution witnesses. It is
true that the High Court has come to the conclusion that all the
injuries caused to the deceased were caused by the appellant Buta
Singh. However, that is not the prosecution case. Besides, even if it
were so, having regard to the nature of the incident, it is difficult to
say that he exceeded the right of private defence for the obvious
reason that he could not have weighed in golden scales in the heat
of the moment the number of injuries required to disarm his
assailants who were armed with lethal weapons. We are, therefore,
of the opinion that the submission of the learned Counsel for the
State cannot be accepted in the facts and circumstances of this
case.”
(emphasis supplied)
17. Having perused the judgments relied upon by learned counsel for
the appellant, and keeping in mind the facts and circumstances of the
case, we are of the view, that no benefit can be derived by the appellant
on the legal position expressed by this Court, with reference to the plea
of self-defence. Herein, there is no evidence to demonstrate, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram were
actually attacked, and it was as a matter of self-defence that they fired at
the crowd, with their pistols. We have already examined the relevant
evidence, on the instant aspect of the matter above. We therefore find no
merit in the first contention, advanced by learned counsel for the
appellant.
18. The second contention advanced at the hands of learned counsel
for the appellant was, that the entire prosecution version discloses, that
the alleged intention of the accused-appellant – Brij Lal was to murder
Mohan Lal – PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persons, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit therein. The reason
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal – PW-15, by dissuading the
accused from insisting on to carry out their objective. Consequent upon
their being angered by the villagers, they retaliated by firing
indiscriminately at the gathering. Since it was not disputed by the
accused-appellant – Brij Lal, that three fatal (besides other) injuries, were
caused by the accused-appellant and his co-accused, the onus lies on
the appellant to demonstrate the reason and the justification for their
action. The evidence produced by the prosecution demonstrates, that
the accused had fired gunshots indiscriminately, on being angered by the
gathering, which was trying to persuade them from carrying out their
singular objective – to cause harm to the person of Mohan Lal – PW-15.
Having accepted, that they had actually fired at the neighbours and the
villagers, who had gathered at the place of occurrence, it does not lie in
their mouth to raise such a plea. For the aforesaid reasons, we find no
merit even in the instant contention.
19. The third contention advanced by learned counsel for the appellant
was, that the recovery of the weapon, namely, the gun, with which the
accused-appellant – Brij Lal had shot at the crowd, was not proved to
have been recovered from the appellant. It was the contention of the
learned counsel, that one of the recovery witnesses had deposed, that the
gun recovered at the instance of the accused, was found wrapped when it
was dug out. The other witness to the recovery had stated otherwise.
First and foremost, as noticed hereinabove, such a plea could have been
raised only if the appellant had been in denial, and had adopted the
stance, that he had not fired at the crowd at the time of occurrence.
Since that is not his plea, the instant submission is wholly misconceived.
Secondly, the factum of recovery has been substantiated by the
prosecution through the statements of Mohan Ram – PW-1 and Mohan
Lal – PW-15. Even the signatures of the accused-appellant – Brij Lal
were obtained on the “mazhar” prepared at the time of recovery. In such
view of the matter, whether or not the recovered gun was found without
any covering, or in a wrapped condition, when the same was dug out, at
the instance of the accused-appellant – Brij Lal, makes no difference,
whatsoever. For the reasons recorded above, we find no merit in the
instant contention.
20. The fourth contention advanced by learned counsel for the
appellant was, that the co-accused – Kashi Ram, who was separately
24Page 25
tried, was acquitted. In this behalf, the projection of learned counsel
was, that the very same witnesses, who were relied upon by the
prosecution in the separate trial of the appellant, had deposed during the
course of the trial conducted against the co-accused – Kashi Ram, and as
such, the acquittal of Kashi Ram and the conviction of the
accused-appellant – Brij Lal, made no sense whatsoever. It would be
relevant to mention, that the most vital prosecution witness, in the case
on hand, was Mohan Lal – PW-15. All the allegations focus around
Mohan Lal – PW-15. The entire prosecution story revolved around the
fact, that the accused-appellant – Brij Lal and the co-accused – Kashi
Ram were out and out to harm Mohan Lal – PW-15, on account of their
previous discord. The witness Mohan Lal, who appeared as PW-15,
before the trial Court, in the matter out of which the instant appeal
arises, was fully described as, son of Balbir Chand, caste Meghwal, aged
38 years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station
Banga, District Jalandhar. Whereas, Mohan Lal who appeared as PW-16
in the trial of the co-accused – Kashi Ram, was described as, son of
Lekhram Bhat (in the judgment dated 18.3.1994 rendered by the
Additional Sessions Judge No.2, Sri Ganganagar, in Sessions Trial No.26
of 1993), wherein Kashi Ram was the accused. In the above judgment,
most of the prosecution witnesses had resiled, and did not identify the
co-accused – Kashi Ram, as the person involved in the occurrence. The
position in the present case is just the reverse. All the relevant
prosecution witnesses, duly identified the accused-appellant – Brij Lal. It
is therefore not possible for us to accept, that the accused-appellant –
Brij Lal deserves to be acquitted, because of the acquittal of Kashi Ram
in the separate trial conducted against him. The instant contention is
therefore, accordingly, declined.
21. The fifth contention advanced at the hands of learned counsel for
the appellant was, that as a consequence of the aggressive attitude of the
neighbours and the co-villagers, who had gathered at the place of
occurrence, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were pushed back to a distance of about 200 feet from the house of
Mohan Ram – PW-1. It was submitted, that the above factual position
itself was sufficient, to demonstrate that the attitude of the people, who
had gathered at the place of occurrence, was intimidatory in nature.
And that, firing by the accused-appellant – Brij Lal and the co-accused –
Kashi Ram, was merely a matter of self-defence. We have already
expressed our view with reference to the issue of self-defence raised on
behalf of the appellant, in substantial detail hereinabove. The aforesaid
submission is sought to be projected again, by adding one further aspect
to the factual narration, namely, the fact that when the gunshots were
fired by Brij Lal and Kashi Ram, they were at a distance of more than
200 feet from the residence of Mohan Ram – PW-1. We find hardly any
justification in the submission projected by learned counsel for the
appellant, in a different perspective. The prosecution has clearly
demonstrated through the testimony recorded on oath, that none of the
persons gathered at the place of occurrence was armed in any manner.
It is also apparent, that the crowd gathered at the place of occurrence
was comprised of men, women and children. The fact, that there was a
distance of about 17 to 18 feet between the accused-appellant – Brij Lal
and the villagers, shows that there was no real threat to him when he
opened firing at the unarmed gathering including women and children.
It was only because of their desire to retaliate against the crowd,
consequent upon the crowd having gathered to protect Mohan Lal –
PW-15, cannot be a satisfactory reason for the appellant to fire gunshots
indiscriminately. It is therefore, not possible for us to accept even the
fifth contention advanced by learned counsel for the appellant.
22. The last contention advanced by learned counsel for the appellant
was, that Mohan Lal – PW-15 was also a part of the crowd, which the
accused-appellant – Brij Lal and the co-accused – Kashi Ram were
facing, and as such, he ought to have fired at him, rather than at the
other members of the crowd. The instant submission is wholly
misconceived and does not arise at all. The accused-appellant did not
even make the above suggestion to the prosecution witnesses, when they
were being cross-examined on his behalf. Moreover, the actual
suggestion given was, that the accused had come to a general merchant
shop to buy “biris” (traditional cigarettes), and that, they never come to
the place of occurrence, or that, they had any intention to harm Mohan
Lal – PW-15. In view of the conclusions recorded by us in response to
the first, second and fifth contentions (advanced by learned counsel for
27Page 28
the appellant), we find no merit in the instant contention, and the same
is also hereby rejected.
23. To be fair to learned counsel for the appellant, we must also refer
to the judgment in Sunil Kumar Sambhudayal Gupta v. State of
Maharashtra, (2010) 13 SCC 657, wherefrom, learned counsel placed
emphatic reliance on the observations extracted herein below:
“38. It is a well-established principle of law, consistently reiterated
and followed by this Court that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on
record, so as to arrive at a finding as to whether the views of the
trial court were perverse or otherwise unsustainable. Even though
the appellate court is entitled to consider, whether in arriving at a
finding of fact, the trial court had placed the burden of proof
incorrectly or failed to take into consideration any admissible
evidence and/or had taken into consideration evidence brought on
record contrary to law; the appellate court should not ordinarily set
aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more
probable one. The trial court which has the benefit of watching the
demeanor of the witnesses is the best judge of the credibility of the
witnesses.
39. Every accused is presumed to be innocent unless his guilt is
proved. The presumption of innocence is a human right. Subject to
the statutory exceptions, the said principle forms the basis of
criminal jurisprudence in India. The nature of the offence, its
seriousness and gravity has to be taken into consideration. The
appellate court should bear in mind the presumption of innocence
of the accused, and further, that the trial court's acquittal bolsters
the presumption of his innocence. Interference with the decision of
the trial court in a casual or cavalier manner where the other view
is possible should be avoided, unless there are good reasons for
such interference.
40. In exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the
appellate court can interfere with the order of acquittal. The
findings of fact recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible
material. A finding may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. (See Balak Ram v. State of
U.P., (1975) 3 SCC 219, Shailendra Pratap v. State of U.P., (2003) 1
SCC 761, Budh Singh v. State of U.P., (2006) 9 SCC 731, S. Rama
Krishna v. S. Rami Reddy, (2008) 5 SCC 535, Arulvelu v. State,
(2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445
and Babu v. State of Kerala, (2010) 9 SCC 189).”
(emphasis supplied)
24. We have given our thoughtful consideration to the parameters laid
down in the above judgment. We are however of the considered view,
that the High Court relied upon cogent evidence, to set aside the order of
acquittal passed by the Additional Sessions Judge. We are also satisfied
in recording, that the trial Court had overlooked vital evidence recorded
on behalf of the prosecution, specially during the cross-examination of
the prosecution witnesses, whereupon, the position of there being any
second way of viewing the facts, was absolutely out of question. We are
of the considered view, that the statements of the two prosecution
witnesses, namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along
with the testimony of the other witnesses, would clearly and
unequivocally lead to the inference, that the accused-appellant – Brij Lal
was guilty of having committed the offence under Section 302 of the IPC,
insofar as his having caused the murders of Om Prakash and Sultan
Bhat are concerned. There is absolutely no question of extending the
benefit of any doubt to the accused-appellant – Brij Lal, in the present
case.
25. For the reasons recorded above, we find no merit in this appeal and
the same is, accordingly, dismissed.
....…………………………….J.
(Jagdish Singh Khehar)
New Delhi ………………………………..J.
August 17, 2016 (Arun Mishra)
Print Page
for the appellant was, that the entire prosecution version discloses, that
the alleged intention of the accused-appellant – Brij Lal was to murder
Mohan Lal – PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persons, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit therein. The reason
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal – PW-15, by dissuading the
accused from insisting on to carry out their objective. Consequent upon
their being angered by the villagers, they retaliated by firing
indiscriminately at the gathering. Since it was not disputed by the
accused-appellant – Brij Lal, that three fatal (besides other) injuries, were
caused by the accused-appellant and his co-accused, the onus lies on
the appellant to demonstrate the reason and the justification for their
action. The evidence produced by the prosecution demonstrates, that
the accused had fired gunshots indiscriminately, on being angered by the
gathering, which was trying to persuade them from carrying out their
singular objective – to cause harm to the person of Mohan Lal – PW-15.
Having accepted, that they had actually fired at the neighbours and the
villagers, who had gathered at the place of occurrence, it does not lie in
their mouth to raise such a plea. For the aforesaid reasons, we find no
merit even in the instant contention.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 991 OF 2010
Brij Lal v State of Rajasthan.
Dated:August 17, 2016.
Citation:(2016) 13 SCC347
1. According to the allegations levelled in the complaint, the
appellant–Brij Lal and Mohan Lal - PW-15 were both employed in the
Irrigation Department of the State Government. They were both holding
the posts of Gauge Reader. They also resided in government quarters at
Suleman-ki-Head, close to one another. The appellant–Brij Lal allegedly
used to hurl abuses at Mohan Lal - PW-15 under the influence of liquor.
Some others, including Kashi Ram, co-accused, used to side with the
appellant – Brij Lal, in his misbehaviour with Mohan Lal – PW-15. In
order to settle the dispute amicably Mohan Lal – PW-15 called a
“panchayat” (council). The endeavour of Mohan Lal – PW-15, through
the panchayat, proved unsuccessful. Eventually, he addressed a
communication dated 18.8.1983, to the Assistant Engineer of the
Irrigation Department, highlighting the inimical attitude of the
appellant–Brij Lal. Since the said complaint also did not lead to any
1Page 2
fruitful result, Mohan Lal – PW-15 quit his government accommodation,
and took up rental accommodation in the house of Mohan Ram – PW-1.
2. The incident which has given rise to the present appeal, occurred
on 30.9.1983 at around 9 p.m., at the house of Mohan Ram – PW-1, i.e.,
the premises to which Mohan Lal – PW-15 had shifted, to keep himself
away from the appellant–Brij Lal. At the time of occurrence, Mohan Lal –
PW-15 was present in the said premises, along with his wife and
children. It was alleged, that the appellant–Brij Lal and the co-accused –
Kashi Ram hurled abuses at Mohan Ram - PW-1, who was sitting
outside, in front of his house. The appellant and the co-accused asked
Mohan Ram – PW-1, to call out Mohan Lal – PW-15, as they wanted to
kill him. It was the assertion of Mohan Ram – PW-1, who eventually
lodged the complaint, that he had requested the appellant–Brij Lal and
the co-accused – Kashi Ram, not to create any trouble at his house. He
asked them to fulfill their intentions at some other place. Unmindful of
the advice tendered by Mohan Ram – PW-1, the appellant and the
co-accused started hurling abuses at Mohan Ram – PW-1. At that
juncture, Mohan Ram – PW-1 realized, that the accused and the
co-accused were in possession of pistols. Mohan Lal – PW-15, having
heard the appellant and the co-accused hurling abuses, and also,
threatening to kill him, scaled the boundary wall of the premises, and
hid in the flour mill of Milkha Singh, located in close vicinity of the house
of Mohan Ram–PW-1.
3. Hearing the altercation and the phone-calls made by Mohan Ram –
PW-1 and Mohan Lal – PW-15, neighbours and co-villagers, came to the
place of occurrence. They too requested the appellant – Brij Lal, and the
co-accused – Kashi Ram, to go away. Instead of leaving, the
accused-appellant, as well as, the co-accused openly proclaimed, that
they would not leave without killing Mohan Lal – PW-15. Under the
pressure of the neighbours and the co-villagers, they moved towards the
front of the house of Sultan Bhat, located in front of the house of Mohan
Ram–PW-1. At that juncture, the neighbours and the co-villagers went
towards the spot at which the accused-appellant – Brij Lal and the
co-accused – Kashi Ram had retreated, and again requested them to
desist from their intentions. According to the assertions made in the
complaint, at the instance of the co-accused – Kashi Ram, the appellant
– Brij Lal fired at the gathering. Om Prakash and Sultan Bhat received
bullet injuries from the shots fired by Brij Lal. Om Prakash died on the
spot. Sultan Bhat was rendered unconscious. He was removed to
hospital, where he died on the following day, i.e., on 1.10.1983. Kashi
Ram also fired from the gun in his possession. It hit Mst. Munni Devi (a
woman), who also died on the spot. In the firing under reference, Labh
Singh and Sheria (a 5 year old boy) were also injured. The report of the
above incident was lodged by Mohan Ram – PW-1, on 1.10.1983 at 12.05
a.m.
4. It is also relevant to mention, that the appellant – Brij Lal and the
co-accused – Kashi Ram got themselves admitted to a hospital. As soon
3Page 4
as they heard about the death of Sultan Bhat, they ran away from the
hospital. The appellant – Brij Lal was however, arrested on 10.10.1983.
Based on the disclosure statement made by him, a 12 bore pistol and an
empty cartridge were recovered. The co-accused – Kashi Ram was
successful in evading his arrest. After investigation, the appellant – Brij
Lal was charged under Sections 302, 307 and 324 read with Section 34
of the Indian Penal Code (hereinafter referred to as, the IPC) and Sections
25 and 27 of the Indian Arms Act, by the Judicial Magistrate No.1, Sri
Ganganagar. The learned Magistrate committed the case to the Court of
Session, which framed charges against the appellant – Brij Lal, under the
provisions referred to hereinabove.
5. The accused appellant – Brij Lal, pleaded innocence. He sought
recourse to the plea of private defence, under the second exception under
Section 300 of the IPC. Section 300, IPC is reproduced below:
“300. Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in
consequence. A commits murder.
4Page 5
(b) A, knowing that Z is labouring under such a disease that a blow
is likely to cause his death, strikes him with the intention of
causing bodily injury. Z dies in consequence of the blow. A is guilty
of murder, although the blow might not have been sufficient in the
ordinary course of nature to cause the death of a person in a sound
state of health. But if A, not knowing that Z is labouring under any
disease, gives him such a blow as would not in the ordinary course
of nature kill a person in a sound state of health, here A, although
he may intend to cause bodily injury, is not guilty of murder, if he
did not intend to cause death, or such bodily injury as in the
ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to
cause the death of a man in the ordinary course of nature. Z dies in
consequence. Here, A is guilty of murder, although he may not have
intended to cause Z’s death.
(d) A without any excuse fires a loaded cannon into a crowd of
persons and kills one of them. A is guilty of murder, although he
may not have had a premeditated design to kill any particular
individual.
Exception 1.— xxx xxx xxx
Exception 2.—Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause
grievous hurt to A. A draws out a pistol. Z persists in the assault. A
believing in good faith that he can by no other means prevent
himself from being horsewhipped, shoots Z dead. A has not
committed murder, but only culpable homicide.
Exception 3.— xxx xxx xxx
Exception 4.— xxx xxx xxx
Exception 5.— xxx xxx xxx”
After the statements of the prosecution witnesses were recorded, and
that of the appellant was recorded under Section 313 of the Code of
Criminal Procedure, even though an opportunity was afforded to the
5Page 6
appellant, to lead evidence in his defence, he chose not to produce any
witness on his behalf.
6. Vide his judgment dated 22.1.1985, the Sessions Judge, Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of
self-defence raised by him by invoking the second exception under
Section 300, IPC.
7. Dissatisfied with the above judgment dated 22.1.1985, the State of
Rajasthan preferred D.B. Criminal Appeal No.227 of 1985, to assail the
order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar.
The High Court rendered the impugned judgment on 17.11.2009,
whereby the appeal preferred by the State of Rajasthan was accepted.
The judgment rendered by the Sessions Judge, Sri Ganganagar dated
22.1.1985, acquitting the appellant-Brij Lal, was set aside. The
appellant-Brij Lal was found guilty of having committed the offence
punishable under Section 302 of the IPC. Keeping in mind the fact, that
the occurrence had taken place in 1983, the High Court awarded the
sentence of life imprisonment to the appellant-Brij Lal. It also imposed a
fine of Rs.1,000/-, and in default thereof, awarded one year’s rigorous
imprisonment, to the appellant.
8. The appellant has approached this Court, to assail the impugned
judgment, rendered by the High Court dated 17.11.2009. During the
course of hearing, learned counsel for the appellant, summarized the
contentions advanced on behalf of the appellant, as under:
6Page 7
Firstly, it was contended, that the factum that the appellant-Brij Lal had
also suffered injuries, was sufficient to establish, that their retaliation by
firing gunshots at the gathering, was a matter of self-defence, and
nothing else. Secondly, it was urged, that the target of the appellant-Brij
Lal, as per the prosecution story, was Mohan Lal - PW-15. And as such,
there was no question of their having intentionally fired shots at the
neighbours and co-villagers and therefore, could not have been held
guilty of the offence under Section 302 of the IPC. Thirdly, it was
submitted, that the recovery of the weapon, namely, the gun with which
the appellant–Brij Lal, allegedly shot at the neighbours and co-villagers,
resulting in the death of Om Prakash, Sultan Bhat and Munni Devi, was
not proved to have been recovered from the appellant. And as such, in
the absence of proof of recovery of the weapon used in the occurrence
from the appellant, there was no justification, whatsoever, for the High
Court to have found the appellant guilty of the offence under Section 302
of the IPC. Fourthly, it was submitted, that the co-accused – Kashi Ram,
who was tried separately, was prosecuted in the same manner as the
appellant. It was submitted, that the same witnesses as were produced
by the prosecution against the appellant-Brij Lal, were also produced by
the prosecution, against the co-accused – Kashi Ram. On the
culmination of the trial against Kashi Ram, he was found innocent, and
was acquitted. It was submitted, that the State of Rajasthan, chose not
to prefer any appeal against the order of acquittal of the co-accused –
Kashi Ram. According to learned counsel, the prosecution cannot
7Page 8
succeed in one case, and fail in the other, when the witnesses produced
against both accused are the same. Fifthly, it was contended, that the
evidence produced by the prosecution reveals, that the incident had
occurred more than 200 feet away from the house of Mohan Ram – PW-1.
Just the above fact, according to learned counsel, is sufficient to
demonstrate, that the mob which had assembled at the place of
occurrence, was acting in an intimidating manner, resulting in the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, retreating
away from the house of Mohan Ram – PW-1 towards the house of Sultan
Bhat. It is therefore apparent, that the gunshots fired by the
appellant-Brij Lal and the co-accused – Kashi Ram, were in their
self-defence, and nothing more. Lastly, it was the contention of learned
counsel for the appellant, that Mohan Lal – PW-15, in his deposition,
clearly and unequivocally acknowledged, that at the time of occurrence
when the appellant and the co-accused fired the shots, he was at a
distance of 20 feet from the appellant–Brij Lal. It was the contention of
learned counsel, that if the prosecution story is to be believed, the
appellant should have fired at Mohan Lal – PW-15, and not at the
persons gathered at the place of occurrence, as alleged by the
prosecution.
9. During the course of hearing, learned counsel for the rival parties,
in order to project their respective claims, relied on the statements of
only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal – PW-15.
We are of the view, that in our determination of the claims, projected on
8Page 9
either side, it is imperative to closely examine the testimony of these two
witnesses. We shall endeavour to do so, hereunder:
10. Mohan Ram – PW-1:
(i) In his opening statement, Mohan Ram acknowledged, that he knew
the accused-appellant – Brij Lal and Mohan Lal – PW-15, from before.
He affirmed, that just like them, he too was employed in the Irrigation
Department of the State Government. While Brij Lal and Mohan Lal were
employed in the department as Gauge Readers, he himself was working
as a Beldar. All of them were posted at the Head of Suleman. He stated,
that Mohan Lal and Brij Lal were allotted government quarters close to
one another, at Suleman-ki-Head. The fact, that they were quarreling
among themselves for some time prior to the incident, was also affirmed.
It was pointed out, that while Mohan Lal was living in his government
quarter along with his family, Brij Lal was residing by himself in his
separate quarter. He affirmed, that the accused-appellant – Brij Lal used
to drink liquor at night, and create a racket “every time”, thereafter. He
confirmed, that co-accused – Kashi Ram was Brijlal’s drinking partner,
and that, Kashi Ram also used to associate along with Brij Lal, in the
brawl. He testified, that Mohan Lal – PW-15, used to object to their
behaviour, and therefore, the accused-appellant – Brij Lal and the
co-accused – Kashi Ram, were inimical to Mohan Lal – PW-15. He
confirmed, that Mohan Lal – PW-15 had complained to him and others
about their behaviour on several occasions, and that, he had also spoken
to the accused-appellant – Brij Lal, to persuade him to desist from such
9Page 10
activities. He pointed out, that Brij Lal was adamant, and had refused to
stop. He also stated, that Mohan Lal – PW-15 had taken him to make a
representation against Brij Lal, to the Overseer of the Irrigation
Department. He (Mohan Lal – PW-15) had given up living in his allotted
quarter, and had moved to his (Mohan Ram – PW-1’s) house along with
his family, as his tenants. He confirmed, that the said shifting had taken
place about fifteen days prior to the occurrence.
(ii) With reference to the occurrence, it was stated, that it had taken
place between 8.30 p.m. and 9 p.m. He testified, that he was sitting in
front of his house on a cot, and that, Mohan Lal – PW-15, and his wife
and children, were inside the house. He deposed, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, had come
to his house with pistols in their hands. The accused-appellant – Brij
Lal, it was pointed out, asked him to call Mohan Lal – PW-15 outside, as
they had come to kill him. He stated, that he pleaded with the
accused-appellant, as also, the co-accused, not to do any such thing, at
his residence.
(iii) He confirmed, that he had seen Mohan Lal – PW-15 scale the wall
of his house, and cross over to the house of his neighbour Badri Ram,
and then proceeded to the flour mill of Milkha Singh. He stated, that he
had shouted out for help, whereafter, his neighbours and co-villagers,
hearing his clamour, had reached the place of occurrence. He deposed,
that all the persons gathered at the place of occurrence, had requested
the accused-appellant – Brij Lal, and the co-accused – Kashi Ram, to
10Page 11
leave the place, but Brij Lal and Kashi Ram were adamant in their
resolve. They had responded by stating, that they would not go
anywhere, as they had come to kill Mohan Lal – PW-15. He testified, that
at that juncture the accused-appellant – Brij Lal, and the co-accused –
Kashi Ram, moved away from his house and stood in front of the house
of Sultan Bhat, but still continued to hurl abuses. He pointed out, that
all the neighbours and co-villagers were at a distance of about 20 feet
from Brij Lal and Kashi Ram, and were persuading them to stop hurling
abuses. But, they were insistent. Mohan Ram – PW-1 further deposed,
that co-accused – Kashi Ram, at that juncture, exhorted Brij Lal to shoot
at the crowd, as everyone was siding with Mohan Lal – PW-15. He
deposed, that Brij Lal, on being so implored, fired at the gathering. He
affirmed, that Om Prakash and Sultan Bhat received firearm injuries. It
was his assertion, that in the meanwhile, the co-accused – Kashi Ram
also fired from his gun, which hit Munni Devi, Labh Singh Mistry and
Sheria. He deposed, that Munni Devi and Om Prakash died at the spot,
whereas Sultan Bhat became unconscious.
(iv) He also confirmed, that he had lodged a report of the incident, at
Police Station Chunawar, around mid-night. In his cross-examination
Mohan Ram – PW-1 asserted, that the persons, who had gathered at the
place of occurrence, comprised of men, women and children. He denied,
that those persons who had gathered there, intended to apprehend the
accused-appellant – Brij Lal or the co-accused – Kashi Ram. He
confirmed, that none amongst the crowd, was armed with any lathis or
11Page 12
sticks. He denied the suggestion, that Brij Lal and Kashi Ram were
attacked by the villagers, with lathis. He deposed, that neither Brij Lal
nor Kashi Ram had received any injuries during the occurrence. He also
denied the suggestion, that the persons gathered at the place of
occurrence, had chased the accused-appellant, and the co-accused. He
also denied the suggestion, that Brij Lal and Kashi Ram had come to the
general merchant shop to buy “biris” (traditional cigarettes), and had
never come to his residence, to beat or harm Mohan Lal – PW-15.
(v) The above deposition of Mohan Ram – PW-1, fully affirmed the
prosecution version of the occurrence.
11. Mohan Lal – PW-15:
(i) Mohan Lal deposed, that he was employed in the Irrigation
Department, of the Government of Rajasthan, and was posted at Head of
Suleman, as Gauge Reader. He confirmed, that he was living in a
government quarter allotted to him, along with his wife and three
children, at Suleman-ki-Head. He acknowledged, that the government
quarter of the accused-appellant – Brij Lal, was nearby his own quarter.
He asserted, that the accused-appellant – Brij Lal, used to abuse him
after drinking liquor, and that, Kashi Ram and his brother-in-law, used
to sometimes accompany the accused-appellant – Brij Lal. He stated,
that he had asked the accused to desist from using such language,
because he was a family man. He deposed, that he had called a
“panchayat” (council), to resolve the issue between himself and the
accused-appellant – Brij Lal. The “panchayat” was attended by
12Page 13
co-employees of the Irrigation Department. He confirmed, that Brij Lal,
on being called, had attended the panchayat. He deposed, that even at
the panchayat, the accused-appellant – Brij Lal had reiterated, that he
would do as he wished, and they (the members of the panchayat) may do
what they could. He also deposed, that after panchayat, he had given an
application to the Overseer (Exhibit P-12) of his department, complaining
about the conduct of the accused-appellant – Brij Lal. He stated that
despite the complaint, the behaviour of accused-appellant – Brij Lal did
not improve. He urged, that to avoid the appellant, he had surrendered
the government accommodation allotted to him at Suleman-ki-Head and
had moved to a rented accommodation, in the house of Mohan Ram –
PW-1. He deposed, that the occurrence had taken place within 10/15
days of his moving to the house of Mohan Ram – PW-1. The occurrence
is stated to have taken place between 8 p.m. and 9 p.m.. He asserted,
that Mohan Ram – PW-1, was sitting outside the gate of his house, whilst
he himself, his wife and children, were in the house. He deposed, that
the accused-appellant – Brij Lal and the co-accused – Kashi Ram were
calling him outside the house. He confirmed, that they were holding
pistols in their hands. On such exhortation, Mohan Ram – PW-1 had
told the accused-appellant and the co-accused, that he would not allow
them to kill Mohan Lal – PW-15 at his residence, but they did not listen
to him, and continued to hurl filthy abuses.
(ii) Mohan Lal asserted, that he jumped over the wall of the house of
Mohan Ram – PW-1, and from the side of the house of Badri Ram, he
13Page 14
entered the flour mill of Milkha Singh. He asserted, that the neighbours
and co-villagers hearing the shouts of Mohan Ram – PW-1, ran to the
place of occurrence. At that juncture, the accused-appellant – Brij Lal
and the co-accused – Kashi Ram, had moved towards the house of
Sultan Bhat. He asserted, that the crowd comprised of men, women and
children. He also deposed, that the villagers requested Brij Lal and
Kashi Ram to go away, but they were bent on carrying out their objective.
He stated, that Brij Lal and Kashi Ram fired shots from their pistols, and
the shots fired by the accused-appellant – Brij Lal hit Om Prakash and
Sultan Bhat, whereas, the shots fired by the co-accused – Kashi Ram hit
Muni Devi, Labh Singh and Sheria Ram. He confirmed, that Munni Devi
and Om Prakash died at the spot. He also stated, that the condition of
Sultan became serious, and therefore, the villagers had taken him to
hospital. He asserted, that the accused-appellant – Brij Lal and the
co-accused – Kashi Ram, went away from the spot after the incident.
(iii) In his cross-examination Mohan Lal – PW-15 stated, that the
conduct of accused-appellant – Brij Lal had worsened, about six months
prior to the occurrence. He stated, that his only difference with the
accused-appellant – Brij Lal was, that he used to abuse him. He denied
the suggestion, that the accused-appellant – Brij Lal had ever teased his
wife. He reiterated, that he had lodged a complaint against the
accused-appellant – Brij Lal, with his senior officers. He stated, that the
first time, accused-appellant – Brij Lal threatened to kill him, was after
he had summoned the “panchayat” (council), to resolve their dispute.
14Page 15
Mohan Lal – PW-15 acknowledged, that he had never made such a
complaint to the police. He also clarified, that the accused-appellant –
Brij Lal and the co-accused – Kashi Ram, had been exhorting Mohan
Ram – PW-1, to call him (Mohan Lal – PW-15) outside the house. He
stated, that when accused-appellant – Brij Lal and the co-accused –
Kashi Ram were speaking to Mohan Ram – PW-1, they were visible to
him from within the house. He stated, that he became scared, and
therefore, ran away from the house. He deposed, that he had run away,
because the accused-appellant – Brij Lal was saying, that they were
going to kill him. He deposed, that he had run away by jumping into the
house of Badri Ram, and therefrom, went to the flour mill of Milkha
Singh. He testified, that Milkha Singh closed the doors, after he had
entered his mill, when he informed Milkha Singh, that the accused had
come to kill him. While in the flour mill of Milkha Singh, Mohan Lal –
PW-15 confirmed, that he could hear the sound of people coming to the
house of Mohan Ram – PW-1. He also confirmed hearing the shouts of
Mohan Ram – PW-1. He stated, that he became encouraged and lost his
fear, when he heard the voices of the co-villagers, whereupon, he himself
(Mohan Lal – PW-15) and Milkha Singh came out of the flour mill. On
coming out, he had seen the accused-appellant – Brij Lal and the
co-accused – Kashi Ram standing in front of the house of Sultan Bhat at
a distance of “…about 30-40-45 Ft…”, from the flour mill. He stated,
that he was standing near Om Prakash, when Om Prakash was shot.
And that, Sultan, Munni Devi and Sheria Ram were standing about 5
15Page 16
feet away from their side. He confirmed, that he was not hurt by any
pellet. He deposed, that the first shot was fired by the accused-appellant
– Brij Lal, and the next shot was fired by the co-accused – Kashi Ram.
He affirmed, that the accused-appellant – Brij Lal had no quarrel/enmity
with the deceased Om Prakash and Munni Devi. He stated, that Om
Prakash, Munni Devi and others had only come to the place of
occurrence, to save him. In his cross-examination, Mohan Lal – PW-15
deposed that, while the accused-appellant – Brij Lal and the co-accused
– Kashi Ram were standing in front of the house of Sultan Bhat, the
deceased and the injured were standing at a distance of about 20-25
feet, from the house of Sultan Bhat. The distance between the
accused-appellant – Brij Lal and the villagers was about 17 to 18 feet,
whereas, the distance between the co-accused – Kashi Ram and Munni
Devi was about 8 to 10 feet. He deposed, that it was not possible for
anyone to catch the accused-appellant – Brij Lal and the co-accused –
Kashi Ram, because “…all were empty handed…”. During his
cross-examination Mohan Lal – PW-15 deposed, that the crowd
comprised of 20 to 25 men, 10 to 15 women and some children, when
the firing had taken place. He also asserted, that the accused-appellant
– Brij Lal, asked Mohan Ram – PW-1, to send forward Mohan Lal –
PW-15 (i.e., himself), because they needed to kill him. In response to his
denial, Mohan Lal – PW-15 stated, that the accused-appellant – Brij Lal
shouted, that the accused would kill each one of those who were helping
Mohan Lal – PW-15. Mohan Lal - PW-15 reiterated, that none of the
16Page 17
villagers was armed with any weapon. The suggestion, that the villagers
were chasing the accused and the co-accused, was denied. The
suggestion, that the persons gathered at the place of occurrence had
lathis on their hands, and that, they had inflicted injuries on
accused-appellant – Brij Lal and the co-accused – Kashi Ram with lathis,
was also denied.
(iv) The above deposition of Mohan Lal – PW-15, fully affirmed the
prosecution version of the occurrence.
12. We shall now deal with the individual pleas canvassed at the hands
of learned counsel for the appellant.
13. The first contention advanced at the hands of learned counsel for
the appellant was, that the appellant had fired gunshots at the mob of
villagers only as a matter of self-defence, when the accused-appellant
and the co-accused, had been attacked. In this behalf, it would be
relevant to mention, that whilst it is open to an accused to raise a
defence in the nature suggested by learned counsel, there is an obvious
pitfall where an accused chooses to do so, in the sense that by raising
such a plea, the accused acknowledges the occurrence itself. There is
yet another predicament which he is liable to encounter, when raising
such a defence. The same emerges from Section 96 of the Indian
Evidence Act, which is extracted below:
“96. Evidence as to application of language which can apply to one
only of several persons.— When the facts are such that the
language used might have been meant to apply to any one, and
could not have been meant to apply to more than one, of several
17Page 18
persons or things, evidence may be given of facts which show
which of those persons or things it was intended to apply to.”
In this behalf, reference may also be made to the decision in Rizan v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as
under:
“13. Then comes plea relating to alleged exercise of right of private
defence. Section 96, IPC provides that nothing is an offence which
is done in the exercise of the right of private defence. The Section
does not define the expression 'right of private defence'. It merely
indicates that nothing is an offence which is done in the exercise of
such right. Whether in a particular set of circumstances, a person
acted in the exercise of the right of private defence is a question of
fact to be determined on the facts and circumstances of each case.
No test in the abstract for determining such a question can be laid
down. In determining this question of fact, the Court must
consider all the surrounding circumstances. It is not necessary for
the accused to plead in so many words that he acted in
self-defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to
consider such a plea. In a given case the Court can consider it even
if the accused has not taken it. If the same is available to be
considered from the material on record. Under Section 105 of the
Indian Evidence Act, 1872, the burden of proof is on the accused,
who sets of the plea of self-defence, and, in the absence of proof, it
is not possible for the Court to presume the truth of the plea of
self-defence. The Court shall presume the absence of such
circumstances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by eliciting
necessary facts from the witnesses examined for the prosecution.
An accused taking the plea of the right of private defence is not
required to call evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence itself. The
question in such a case would be a question of assessing the true
effect of the prosecution evidence, and not a question of the
accused discharging any burden. Where the right of private defence
is pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was
necessary for either warding off the attack or for forestalling the
further reasonable apprehension from the side of the accused. The
burden of establishing the plea of self-defence is on the accused
18Page 19
and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on
record. (See Munshi Ram and others v. Delhi Administration, AIR
1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478:
State of U.P. v. Mohd. Musheer Khan, AIR 1977 SC 2226
and Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private defence
of body. If a person has a right to private defence of body under
Section 97, that right extends under Section 100 to causing death
if there is reasonable apprehension that death or grievous hurt
would be the consequence of the assault. The oft quoted
observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC
391), runs as follows:
"It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea
in the cross-examination of the prosecution witnesses or by
adducing defence evidence."
The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as
in a civil case that the preponderance of probabilities is in favour of
his plea.”
(emphasis supplied)
14. The question that arises for consideration in the instant case is,
whether there is evidence on the record of this case, to substantiate the
plea of self-defence? Learned counsel for the appellant, answered in the
affirmative. The basis of the aforesaid answer is, the injuries suffered by
the appellant which, according to the appellant, were caused by the mob
when the appellant was attacked. It was submitted, that the gathering of
neighbours and villagers, at the place of occurrence had attacked them,
resulting in their being pushed back to the house of Sultan Bhat. It was
submitted, that it was only in retaliation of the above attack, resulting in
the injuries suffered by the accused, that the accused-appellant – Brij
Lal, as also, the co-accused – Kashi Ram, had fired gunshots at the
crowd, which was out and out to lynch them.
15. Having given our thoughtful consideration to the submissions
advanced, at the hands of learned counsel for the appellant, we are of
the view, that there is overwhelming evidence produced by the
prosecution, affirming that the crowd which had gathered at the place of
occurrence, consequent upon the shouting of Mohan Ram – PW-1, was
unarmed. There is also evidence on the record of the case to
authenticate, that all the villagers were only persuading the
accused-appellant – Brij Lal and his co-accused – Kashi Ram, not to
insist on carrying out their threat, to murder Mohan Lal – PW-15. The
testimony of the prosecution witnesses also demonstrates, that there was
substantial distance between the villagers, and the place at which the
accused were standing in the opposite of the house of Sultan Bhat. Not
only Mohan Ram – PW-1, but also Mohan Lal – PW-15, expressly
deposed that none of the neighbours and co-villagers, was armed.
Moreover, the reiteration by the witnesses, that the crowd comprised of
men, women and children, by itself is sufficient, to infer that the
neighbours and co-villagers were not aiming at causing any harm or
injury to the accused-appellant or the co-accused. It cannot be
overlooked, that one of the deceased - Mst. Munni Devi was a woman,
and one of the injured – Sheria was a child of 5 years. On taking into
consideration the entirety of the facts and circumstances of the case,
especially the absence of any material evidence produced by the
appellant (to demonstrate that gunshots fired by the accused and the
co-accused were in self-defence), the instant contention cannot be
accepted.
16. At this juncture, it is also necessary for us, to refer to two
judgments relied upon by learned counsel for the appellant. Reliance
was first placed, on Bhagwan Swaroop v. State of Madhya Pradesh,
(1992) 2 SCC 406, wherefrom our attention was invited to the following
observations:
“9. We do not agree with the courts below. It is established on
the record that Ramswaroop was being given lathi blows by the
complainant party and it was at that time that gun-shot was fired
by Bhagwan Swaroop to save his father from further blows. A lathi
is capable of causing a simple as well as a fatal injury. Whether in
fact the injuries actually caused were simple or grievous is of no
consequence. It is the scenario of a father being given lathi blows
which has to be kept in mind and we are of the view that in such a
situation a son could reasonably apprehend danger to the life of
his father and his firing a gun-shot at that point of time in defence
of his father is justified. We, therefore, set aside the finding of the
courts below on this point and hold that Bhagwan Swaroop fired
the gun-shot to defend the person of his father.”
(emphasis supplied)
Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC
612, wherefrom, learned counsel placed emphasis on the following
observations:
“8. From the above state of evidence, it appears that the defence
version regarding the incident is a probable one and is supported
by the find of blood from near the tubewell which is adjacent to the
'dera' of the appellant. When two versions are before the court, the
version which is supported by objective evidence cannot be
brushed aside lightly unless it has been properly explained. As
stated earlier, the prosecution has not explained how blood was
found from near the tubewell and no blood was found from the
spot where according to them the incident occurred. In addition to
this, the factum regarding the delay in lodging of the First
Information Report and the suspicion that it was delayed with a
view to concocting the prosecution case and further the delay in
forwarding the special report to the Magistrate as well as the case
papers to the hospital shows that the investigation was not above
board. In these circumstances, we think that the approach adopted
by the courts below cannot be justified.
9. Mr. Behl, learned Counsel for the State, however, vehemently
argued that the appellant had exceeded his right of private defence.
We do not think so. Both the appellant and his wife were attacked.
They had sustained injuries. In the course of assault on them they
caused injuries to the deceased and the prosecution witnesses. It is
true that the High Court has come to the conclusion that all the
injuries caused to the deceased were caused by the appellant Buta
Singh. However, that is not the prosecution case. Besides, even if it
were so, having regard to the nature of the incident, it is difficult to
say that he exceeded the right of private defence for the obvious
reason that he could not have weighed in golden scales in the heat
of the moment the number of injuries required to disarm his
assailants who were armed with lethal weapons. We are, therefore,
of the opinion that the submission of the learned Counsel for the
State cannot be accepted in the facts and circumstances of this
case.”
(emphasis supplied)
17. Having perused the judgments relied upon by learned counsel for
the appellant, and keeping in mind the facts and circumstances of the
case, we are of the view, that no benefit can be derived by the appellant
on the legal position expressed by this Court, with reference to the plea
of self-defence. Herein, there is no evidence to demonstrate, that the
accused-appellant – Brij Lal and the co-accused – Kashi Ram were
actually attacked, and it was as a matter of self-defence that they fired at
the crowd, with their pistols. We have already examined the relevant
evidence, on the instant aspect of the matter above. We therefore find no
merit in the first contention, advanced by learned counsel for the
appellant.
18. The second contention advanced at the hands of learned counsel
for the appellant was, that the entire prosecution version discloses, that
the alleged intention of the accused-appellant – Brij Lal was to murder
Mohan Lal – PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persons, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit therein. The reason
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal – PW-15, by dissuading the
accused from insisting on to carry out their objective. Consequent upon
their being angered by the villagers, they retaliated by firing
indiscriminately at the gathering. Since it was not disputed by the
accused-appellant – Brij Lal, that three fatal (besides other) injuries, were
caused by the accused-appellant and his co-accused, the onus lies on
the appellant to demonstrate the reason and the justification for their
action. The evidence produced by the prosecution demonstrates, that
the accused had fired gunshots indiscriminately, on being angered by the
gathering, which was trying to persuade them from carrying out their
singular objective – to cause harm to the person of Mohan Lal – PW-15.
Having accepted, that they had actually fired at the neighbours and the
villagers, who had gathered at the place of occurrence, it does not lie in
their mouth to raise such a plea. For the aforesaid reasons, we find no
merit even in the instant contention.
19. The third contention advanced by learned counsel for the appellant
was, that the recovery of the weapon, namely, the gun, with which the
accused-appellant – Brij Lal had shot at the crowd, was not proved to
have been recovered from the appellant. It was the contention of the
learned counsel, that one of the recovery witnesses had deposed, that the
gun recovered at the instance of the accused, was found wrapped when it
was dug out. The other witness to the recovery had stated otherwise.
First and foremost, as noticed hereinabove, such a plea could have been
raised only if the appellant had been in denial, and had adopted the
stance, that he had not fired at the crowd at the time of occurrence.
Since that is not his plea, the instant submission is wholly misconceived.
Secondly, the factum of recovery has been substantiated by the
prosecution through the statements of Mohan Ram – PW-1 and Mohan
Lal – PW-15. Even the signatures of the accused-appellant – Brij Lal
were obtained on the “mazhar” prepared at the time of recovery. In such
view of the matter, whether or not the recovered gun was found without
any covering, or in a wrapped condition, when the same was dug out, at
the instance of the accused-appellant – Brij Lal, makes no difference,
whatsoever. For the reasons recorded above, we find no merit in the
instant contention.
20. The fourth contention advanced by learned counsel for the
appellant was, that the co-accused – Kashi Ram, who was separately
24Page 25
tried, was acquitted. In this behalf, the projection of learned counsel
was, that the very same witnesses, who were relied upon by the
prosecution in the separate trial of the appellant, had deposed during the
course of the trial conducted against the co-accused – Kashi Ram, and as
such, the acquittal of Kashi Ram and the conviction of the
accused-appellant – Brij Lal, made no sense whatsoever. It would be
relevant to mention, that the most vital prosecution witness, in the case
on hand, was Mohan Lal – PW-15. All the allegations focus around
Mohan Lal – PW-15. The entire prosecution story revolved around the
fact, that the accused-appellant – Brij Lal and the co-accused – Kashi
Ram were out and out to harm Mohan Lal – PW-15, on account of their
previous discord. The witness Mohan Lal, who appeared as PW-15,
before the trial Court, in the matter out of which the instant appeal
arises, was fully described as, son of Balbir Chand, caste Meghwal, aged
38 years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station
Banga, District Jalandhar. Whereas, Mohan Lal who appeared as PW-16
in the trial of the co-accused – Kashi Ram, was described as, son of
Lekhram Bhat (in the judgment dated 18.3.1994 rendered by the
Additional Sessions Judge No.2, Sri Ganganagar, in Sessions Trial No.26
of 1993), wherein Kashi Ram was the accused. In the above judgment,
most of the prosecution witnesses had resiled, and did not identify the
co-accused – Kashi Ram, as the person involved in the occurrence. The
position in the present case is just the reverse. All the relevant
prosecution witnesses, duly identified the accused-appellant – Brij Lal. It
is therefore not possible for us to accept, that the accused-appellant –
Brij Lal deserves to be acquitted, because of the acquittal of Kashi Ram
in the separate trial conducted against him. The instant contention is
therefore, accordingly, declined.
21. The fifth contention advanced at the hands of learned counsel for
the appellant was, that as a consequence of the aggressive attitude of the
neighbours and the co-villagers, who had gathered at the place of
occurrence, the accused-appellant – Brij Lal and the co-accused – Kashi
Ram, were pushed back to a distance of about 200 feet from the house of
Mohan Ram – PW-1. It was submitted, that the above factual position
itself was sufficient, to demonstrate that the attitude of the people, who
had gathered at the place of occurrence, was intimidatory in nature.
And that, firing by the accused-appellant – Brij Lal and the co-accused –
Kashi Ram, was merely a matter of self-defence. We have already
expressed our view with reference to the issue of self-defence raised on
behalf of the appellant, in substantial detail hereinabove. The aforesaid
submission is sought to be projected again, by adding one further aspect
to the factual narration, namely, the fact that when the gunshots were
fired by Brij Lal and Kashi Ram, they were at a distance of more than
200 feet from the residence of Mohan Ram – PW-1. We find hardly any
justification in the submission projected by learned counsel for the
appellant, in a different perspective. The prosecution has clearly
demonstrated through the testimony recorded on oath, that none of the
persons gathered at the place of occurrence was armed in any manner.
It is also apparent, that the crowd gathered at the place of occurrence
was comprised of men, women and children. The fact, that there was a
distance of about 17 to 18 feet between the accused-appellant – Brij Lal
and the villagers, shows that there was no real threat to him when he
opened firing at the unarmed gathering including women and children.
It was only because of their desire to retaliate against the crowd,
consequent upon the crowd having gathered to protect Mohan Lal –
PW-15, cannot be a satisfactory reason for the appellant to fire gunshots
indiscriminately. It is therefore, not possible for us to accept even the
fifth contention advanced by learned counsel for the appellant.
22. The last contention advanced by learned counsel for the appellant
was, that Mohan Lal – PW-15 was also a part of the crowd, which the
accused-appellant – Brij Lal and the co-accused – Kashi Ram were
facing, and as such, he ought to have fired at him, rather than at the
other members of the crowd. The instant submission is wholly
misconceived and does not arise at all. The accused-appellant did not
even make the above suggestion to the prosecution witnesses, when they
were being cross-examined on his behalf. Moreover, the actual
suggestion given was, that the accused had come to a general merchant
shop to buy “biris” (traditional cigarettes), and that, they never come to
the place of occurrence, or that, they had any intention to harm Mohan
Lal – PW-15. In view of the conclusions recorded by us in response to
the first, second and fifth contentions (advanced by learned counsel for
27Page 28
the appellant), we find no merit in the instant contention, and the same
is also hereby rejected.
23. To be fair to learned counsel for the appellant, we must also refer
to the judgment in Sunil Kumar Sambhudayal Gupta v. State of
Maharashtra, (2010) 13 SCC 657, wherefrom, learned counsel placed
emphatic reliance on the observations extracted herein below:
“38. It is a well-established principle of law, consistently reiterated
and followed by this Court that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on
record, so as to arrive at a finding as to whether the views of the
trial court were perverse or otherwise unsustainable. Even though
the appellate court is entitled to consider, whether in arriving at a
finding of fact, the trial court had placed the burden of proof
incorrectly or failed to take into consideration any admissible
evidence and/or had taken into consideration evidence brought on
record contrary to law; the appellate court should not ordinarily set
aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more
probable one. The trial court which has the benefit of watching the
demeanor of the witnesses is the best judge of the credibility of the
witnesses.
39. Every accused is presumed to be innocent unless his guilt is
proved. The presumption of innocence is a human right. Subject to
the statutory exceptions, the said principle forms the basis of
criminal jurisprudence in India. The nature of the offence, its
seriousness and gravity has to be taken into consideration. The
appellate court should bear in mind the presumption of innocence
of the accused, and further, that the trial court's acquittal bolsters
the presumption of his innocence. Interference with the decision of
the trial court in a casual or cavalier manner where the other view
is possible should be avoided, unless there are good reasons for
such interference.
40. In exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the
appellate court can interfere with the order of acquittal. The
findings of fact recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible
material. A finding may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. (See Balak Ram v. State of
U.P., (1975) 3 SCC 219, Shailendra Pratap v. State of U.P., (2003) 1
SCC 761, Budh Singh v. State of U.P., (2006) 9 SCC 731, S. Rama
Krishna v. S. Rami Reddy, (2008) 5 SCC 535, Arulvelu v. State,
(2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445
and Babu v. State of Kerala, (2010) 9 SCC 189).”
(emphasis supplied)
24. We have given our thoughtful consideration to the parameters laid
down in the above judgment. We are however of the considered view,
that the High Court relied upon cogent evidence, to set aside the order of
acquittal passed by the Additional Sessions Judge. We are also satisfied
in recording, that the trial Court had overlooked vital evidence recorded
on behalf of the prosecution, specially during the cross-examination of
the prosecution witnesses, whereupon, the position of there being any
second way of viewing the facts, was absolutely out of question. We are
of the considered view, that the statements of the two prosecution
witnesses, namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along
with the testimony of the other witnesses, would clearly and
unequivocally lead to the inference, that the accused-appellant – Brij Lal
was guilty of having committed the offence under Section 302 of the IPC,
insofar as his having caused the murders of Om Prakash and Sultan
Bhat are concerned. There is absolutely no question of extending the
benefit of any doubt to the accused-appellant – Brij Lal, in the present
case.
25. For the reasons recorded above, we find no merit in this appeal and
the same is, accordingly, dismissed.
....…………………………….J.
(Jagdish Singh Khehar)
New Delhi ………………………………..J.
August 17, 2016 (Arun Mishra)
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