RAJKUMAR ANANDILAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant rajkumar Anandilal (hereinafter referred to as accused) has filed this appeal impugning a judgment and order dated 17-7-1999 passed by the IV Additional Sessions Judge, Jalgaon in Sessions Case No. 293 of 1995, holding the accused guilty of committing an offence punishable under Section 302 of the Indian penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs. 500/-, in default to suffer further R. I. for a period of six months.

(2.) The brief facts of the prosecution case were as follows : (a) That, on 23-7-1989, at about 12.30 p. m. , P. W. No. 4 Aslam Khan Hussain who was a crane operator in the railways,, was on only duty on the crane at the railways steam loco shed at Bhusaval. He was loading, coal in the railway engine by crane. At about 12.30 to 12.45 p. m. he got down from his crane and saw the accused Rajkumar passing by. Rajkumar told P. W. No. 4 Aslam that he was going to have a cup of tea. They both walked for some distance talking with each other. While they were so walking they saw a boy putting coal into a gunny bag. They went towards that boy and the accused accosted the boy. On being questioned by the accused that boy told him that he was taking coal for the deceased Jainuddin Mohd. The accused allowed him to continue to load the coal. At that time the deceased Jainuddin arrived at the spot. The accused Rajkumar told Jainuddin that he should not be afraid and should continue with his work. Jainuddin then tied the gunny bag containing coal and put the bag on his bicycle and asked the accused to have a cup of tea in his canteen. Accused then walked 8 to 10 ft. away from Jainuddin, pointed his rifle towards the Jainuddin and fired a shot from his 303 rifle at Jainuddin. The bullet hit jainuddin on the right side of his chest. The accused then fired a second shot which hit the deceased and Jainuddin fell down. A third bullet was fired by the accused in the direction of the boy but the boy ran away but that bullet hit a railway wagon. The accused then tore off his clothes, scratched his left hand, took out knife from his person and placed it near the body of Jainuddin. All this was witnessed by P. W. No. 4-Aslam Khan from a distance of about 10 to 12 ft. The incident in question took place below a electric pole and the bulb on this pole was on. P. W. No. 4 Aslam Khan then boarded an engine and narrated the said incident to the Engine driver Anand. He then went towards the crane and narrated the incident to one Mangalsingh. After the incident, he had seen that the accused was searching something on the ground and was dancing. Mangalsingh told him to over look the matter. P. W. No. 4 then restarted his work in the crane and later on saw that some R. P. F. men had gathered on the spot. (b) The boy who was along with deceased Jainuddin was P. W. No. 5 Rajesh atrawalkar. After running away from the spot rajesh went to the house of the deceased and informed about the incident which he had witnessed at the loco shed. On learning about the incident from Rajesh, the brother of the deceased Jainuddin by name Mohammed maikan proceeded to file a complaint in the office of the railway police at Bhusaval. Initially the police refused to register his complaint but ultimately on 24-7-1989, the railway police recorded the complaint and recorded a spot panchanama and seized the gun of the accused. However, they did not take any further action on the said complaint. In the circumstances, the complainant Mohammed Habib lodged a private complaint on 1-8-1990 in the Court of judicial Magistrate First Class (Railways) at bhusaval. The Magistrate found that there was a prima facie case made out against the accused under Section-302 of the Indian Penal Code, he issued process against the accused. As the offence made out was exclusively triable by the Court of Sessions, the J. M. F. C. ultimately committed the matter to the court of Sessions. (c) After committal, the Sessions Court framed the charge and the trial against the accused commenced. To prove its case, the prosecution examined in all five witnesses. Out of these, P. W. No. 4 Aslam Khan and P. W. No. 5 Rajesh were the eye-witnesses. P. W. No. 3 Dr. Vishnu Zope was the Medical Officer who has conducted the post-mortem, prepared the post-mortem notes (Exh. 30) and proved the same. P. W. No. 1 Mohammed Habib, the brother of the deceased and the complainant was examined by the prosecution as a corroborating witness. P. W. No. 2 Mohammed gulam Ali was examined as a witness on the question of motive for the commission of the crime. On behalf of the defence, two defence witnesses were examined. The accused stepped into the witnesses box as defence witness No. 1. The defence version was brought on record through the evidence of this witness and was that at about 00. 45 hours on 23-7-1989, the accused who was a constable with the railway police force, was on patrolling duty with a colleague by name Ruprao Pethe. (Defence Witness No. 2). At about 00. 45 hours on 23-7-1989 while they were patrolling the loco shed they saw two persons stealing coal from the shed. Both the constables ran towards them. The accused Rajkumar caught hold of one of these two persons who was a tall man. A scuffle commenced between Rajkumar and this tall man. This person took out a knife and raised the same towards accused Rajkumar. Rajkumar tried to protect himself by holding out his rifle. However, the person continued to assault and due to the said assault the accused rajkumar fell backward on his back. He pointed his gun towards the person and fired two bullets one after another to protect himself. That, the other thief was running away and hence, accused Rajkumar fired a bullet in his direction. D. W. No. 2 Constable Pethe who was also attached to the railway protection force chased the other thief but he fled away. The person on whom the accused Rajkumar had fired had fallen on the ground. Accused Rajkumar asked pethe to inform about the incident to the office. Accused Rajkumar also went to his office and the rifle was seized from him and the panchanama of the scene of offence was made. That the accused did not know the person upon whom he had fired his rifle. In support of the defence version, the second constable Ruprao pethe was examined as D. W. No. 2 and he supported the version given by the accused in his evidence. (d) Based upon such material on record the Sessions Court passed the impugned judgment and order convicting and sentencing the accused as aforesaid and hence, this appeal is preferred before us.

(3.) On behalf of the accused a contention raised were that the accused was a member of the Armed Forces of the Union and that therefore, in view of the provisions of section 197 (2) of the Code of Criminal procedure, 1973 the court could not have taken cognizance of the offence particularly since the offence was committed while acting or purporting to act in the discharge of his official duty, without the previous sanction of the central Government and which in fact had admittedly not been taken. He contended that the accused had acted initially to protect the railway property and later when the accused was attacked with a knife, then in self defence. These actions were part of the same transaction. That, the trial court disbelieved the two eye-witnesses but convicted the accused on the basis of circumstances and the evidence of the defence witnesses. That, the material on record indicated that a knife was found on the spot of the scene of offence. This fact was corroborative of the defence version. That injuries had been caused to the accused during the scuffle which was another factor supporting the defence version. That the attack by the deceased on the accused with a knife would clearly raise an apprehension of grievous injury or death in the mind of the accused and therefore, would give rise to a right of private defence which would extend to the causing of the death of the deceased. It was further contended that, even if the accused exceeded his right of private defence, such act in excess would also remain within the parameter of an act committed in the discharge of the official duty. He contended that the service of the accused was governed by the Railway protection Force Act, 1957. That, the procedure required to be followed for bringing any criminal action against the member of the railway protection force as prescribed by 20 (3) of the said Act, had not been followed and this was another factor that would vitiate the conviction against the accused. It was contended that the acts of the accused in retaliation after being attacked by knife could not be weighed in golden scales and could not be said to be act in excess of the right of private defence. In short, on merits, it was argued that the accused was acting in good faith in order to defend his life and had fired two bullets in pursuance of his right to defend his body and avoid grievous injury or death.