KISHANA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal against the judgment of Sessions Judge, Sikar, dated May 29, 1982 convicting the accused-appellant for offence under S. 304 Part II Penal Code and sentencing him to five years rigorous imprisonment and a fine of Rs. 200.00, in default of payment of fine he was directed to further undergo two months' rigorous imprisonment.

(2.) This case started on an oral report made by Jhabarmal son of Baluram resident of Balaran at police station, Lakshmangarh on June 30, 1981 about 4.00 PM wherein he stated that at 1.30 in the noon his real cousin Kishanaram son of Ladu Ram was putting a thatch (Chhapper) near his house which was objected to by him. Kishana gave two lathi blows on his head as a result of which his head started bleeding. Just then his sons Bajranglal, Jagan and Makhan arrived and so also Purnaram son of Laduram came and he gave a lathi blow to Jagan. Sohan Singh also arrived who intervened and separated them. He went to the police station along with his three sons Bajranglal, Jagan and Makhan. The S.H.O. noted injuries below this report and sent all the four injured for medical examination. Jhabarmal succumbed to the injuries and on 1.7.1981 his post-mortem was conducted by PW.12 Dr. V.K. Khanna. According to him deceased Jhabarmal died as a result of the fracture of skull and concussion of brain caused as a result of injury on the head. The investigation officer therefore, converted the case into one under S. 302 Penal Code and completed the investigation. After that he submitted a charge-sheet against Kishnaram and Poornaram in the court of Munsiff and Judicial Magistrate, Fateh-pur was committed both of them to the court of Sessions to face trial. The learned Sessions Judge, Sikar framed charge against Kishana for offence under S. 302 Penal Code and in the alternative under S. 302 read with S. 34 IPC, 323 and 325 read with S. 34 IPC. Kishana denied the charges and claimed to be tried. Similar charges were read over to Poornaram who too denied the charges and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The accused in their statements under Sec. 313 Crimial P.C. stated that Jhabarmal and his sons came to their residence and beat them. They examined three witnesses in defence to substantiate their plea of right of private defence of person and properly. The learned Sessions Judge found the prosecution case proved to the extent of offence under S. 304 Part II IPC. He thus acquitted the accused-appellant of the charge of murder and instead convicted and sentenced him as indicated above. Aggrieved by the said conviction and sentence this appeal has been filed.

(3.) It is submitted by the learned counsel appearing for the applicant that the trial court has erred in not correctly appreciating the law concerning right of private defence of person and property. The submission is that it has not been brought on record as to in what manner the incident started, i.e., the genesis of the prosecution story has not been put forth which was essential in the circumstances of the case because both the accused had also sustained multiple injuries on their persons in same incident. It is further submitted that it is an admitted case of the prosecution that incident started when the accused appellant Kishanaram was peacefully exercising his right of putting of catch in his own portion and the deceased came and objected to it. The incident thereafter has to be judged in the peculier circumstances as both the accused had sustained injuries along with one lady of their family. The trial court made an illusory differentiation by holding that it was after the falling of Jhabarmal at the hands of Kishana Ram that another incident started in which both the parties sustained injuries. It is submitted that this runs counter to the circumstances available in the case. It is then submitted that there is no independent evidence to corroborate the prosecution version and the witnesses examined are highly interested. It is then submitted that the story of partition of the property which has been developed subsequently by the prosecution and accepted by the learned Sessions Judge is an afterthought in as much as the same does not find place in the F.I.R. There is yet another important aspect of the matter as to where the report could be lodged by deceased Jhabarmal at all because according to the medical evidence of PW. 12 Dr. V.K. Khanna it could not have been possible for Jhabarmal after receipt of the injury that he could have remained conscious. His submission is that the loss of consciousness will be instantaneous. It is then submitted that the injuries on the person of Kishana, Pooranmal and Mst. Teeja Devi wife of Kishana also have not at all been explained by the prosecution and for these both the reasons and/or either of the two, i.e., the accused exercised the right of private defence of person and property or in the alternative the prosecution has failed to come out with the genesis of the case and explain the injury of the accused, the prosecution story is not worthy of reliance and the accused is-entitled to benefit of doubt.