MOHANLAL HEMRAJ KHATRI Vs. THE STATE OF GUJARAT

JUDGEMENT

(1.) The material questions arising for our consideration in this appeal against the order of conviction are two fold : (1) "whether having regard to the facts and circumstances of the case, the plea of the self-defence raised by the accused to the extent of causing the death of Harchandji Bhikhaji has been made out" ? and (2) "what is the standard and degree of the burden of proof the accused is expected to discharge in such cases ? Is that a heavy and high as one lying on the head of the prosecution to prove the case beyond doubt"

(2.) To start with, this appeal is directed against the judgment and order dated 5th October, 1984, rendered in Sessions Case No. 24/84 by the learned Sessions Judge, Banaskantha at Palanpur. In this case, out of the two accused persons viz. (i) Mohanlal Hemraj, and his son, and (ii) Asuram Mohanlal, who came to be tried on the charge of murder of one Harchandji Bhikhaji and for causing injury to Somaji Harchandji, under sections 302, 324 and 114 of IPC and under section 135 of the Bombay Police Act, 1951, Asuram Mohanlal came to be acquitted of all the charges while Mohanlal Hemraj was convicted for the alleged offences.

(3.) The prosecution case as found to be reflected in FIR Ex. 18 filed by Somaji Harchandji is to the effect that the occurrence in question wherein Harchandji came to be murdered took place on 23.11.1983 at about 8-15 a.m. on Wadi Road at Deesa. According to the complainant, he was doing business of selling fire-wood and was residing with his father and family members in a house, part of which was being used for storing the fire-wood. Just in front side of the said house of the complainant, there was a house of the accused Mohanlal Hemraj, who he was residing with his family and also running a tea-hotel. On 22.11.1983, at night time, a truck bearing No. GTF-9896 came loaded with fire-wood from Deodar and was lying parked near the store-house due to night time. In the morning of 23.11.1983 at 8.00 a.m., after unloading fire-wood from the truck, when its driver was taking the said truck in reverse, the complainant heard the voice of the accused saying "my hedge will be destroyed". Hearing this, Harchandji ran out from the house. Thereafter exchange of words between Harchandji on one side and accused Mohanlal and his family members on the other side took place. On hearing this hubbue, the complainant-Somaji and his brother Prahlad also rushed to the scene of quarral where they saw accused Mohanlal and his son accused Asuram armed with knife and pipe in their hands, and the exchange of words between them was going on. Harchandji was telling the accused party that the hedge was not broken, still however, the accused side got enraged and Mohanlal gave a knife blow on the chest of Harchandji. At this stage, in order to rescue Harchandji, the complainant ran and had scuffing with accused Asuram, During the course of the said Bcuffle accused Mohanlal who was armed with knife came. While attempting to snatch away the knife from the hand of accused Mohanlal, the complainant received injury on the right hand as well as fingers of the left hand. By this time, Harchandji having received the knife injury was found profusely bleeding and therefore was removed to the Civil Hospital at 9-20 a.m. in the meantime, PSI Rana receiving information that on Wadi Road some incident had taken place, rushed to the Government Hospital, where he learnt that injured Harchandji had already expired at 9-30 a.m. and his son Somaji who was also injured, was admitted for the treatment. PSI Rana thereafter contracted Somaji and recorded his FIR at about 9-30 a.m. On the basis of these facts, Mohanlal Hemraj and his son Asuram accused nos. 1 and 2 respectively were charge-sheeted to stand the trial.