KANHIYALAL ANDOTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Gokul (Accused No. 31 mid his three sons Kanhaiyalal (Accused No. 1), Geelaram (Accused No. 2) and Ratanlal (Accused No. 4) were charged for the murder of Chhotu and for causing injuries to his brother Bhura and other family members. The learned Additional Sessions Judge, Ajmer convicted Accused Nos. 1 and 2 under S. 302, I.P.C. and S. 302/34, I.P.C. for causing the death of Chhotu. Accused Nos. 3 and 4 were convicted under S. 325. and S. 325/34, I.P.C. for causing injuries to Chhotu, Bhura and others. Accused Nos. 1 and 2 were sentenced to suffer rigorous imprisonment for life. Accused No. 3 was sentenced to suffer rigorous imprisonment for 4 years under S. 325, I.P.C. Accused No. 4 being under 21 years of age was given the benefit of S. 4 of the Probation of Offenders Act and was directed to be released on his executing a personal bond in the sum of Rs. 1,000/- to maintain peace and be of good behaviour for a period of two years.

(2.) The accused feeling aggrieved by the order of conviction and sentence preferred an appeal to the High Court of Rajasthan. The Division Bench of the High Court which heard the appeal came to the conclusion that in the facts and circumstances of the case the conviction of accused Nos. 1 and 2 under S. 302/34, I.P.C. was not maintainable and they could properly be convicted under S. 304, Part I read with S. 34, I.P.C. Their substantive conviction under S. 302, I.P.C. was held to be wholly unsustainable. So far as accused Nos. 3 and 4 are concerned, their conviction under S. 325/34, I.P.C. was sustained. Accused Nos. 1 and 2 were directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 250/-each, in default to suffer further imprisonment for three months. It appears that in the meantime Accused No. 3 passed away. The remaining three accused Nos. 1, 2 and 4 have approached this Court Art. 136 of the Constitution of India on Special Leave. The learned counsel for the appellants contended that the facts and circumstances of the case show that the accused persons had caused injuries to Chhotu, Bhura and others in exercise of their right of private defence and therefore their convictions were thoroughly unsustainable. In order to appreciate this contention we may notice the relevant facts.

(3.) The incident occurred one day after Holi i.e. on 27th March, 1975 at about 11.00 or 11.30 a.m. On that day the deceased Chhotu, Bhura and other family members were harvesting the wheat crop in their field adjacent to Bantawali Kuai (well). The accused were also in their field at some distance from the field of Chhotu and Bhura. The prosecution case is that one day before Holi Accused No. 1 and 2 were acquitted of the charge of beating PW 18 Hazari (Mali), an incident which had taken place a couple of years back. On that occasion PW 18 was saved by Chhotu and others. Jubiliant about their acquittal, the accused are alleged to have come to the field of Chhotu and Bhura armed with 'Lathis'. The accused addressing the complainat party stated that you saved Hazari but who will save you now. So stating accused No. 2 opened the assault on Chhotu followed by accused No. 1. On receipt of injuries from accused Nos. 1 and 2 Chhotu fell down. Accused Nos. 3 and 4 who were in the field had also arrived in the meantime and they too give stick blows to the fallen Chhotu. After seriously injuring Chhotu they turned to Bhura and caused serious injuries to him also. Injuries were also caused to PW 1 Prem, daughter of Chhotu, PW 3 Champa, wife of Bhura and PW 19 Lad, daughter of Bhura. PW 4 Hagami wife of Chhotu also claimed to have received injuries but no injury marks were found on her person. After causing these injuries the accused ran away in the direction of their field.