MOOLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant Moola was convicted under section 304 Part II, Indian Penal Code, and was sentenced to seven years' rigorous imprisonment by the Additional Sessions Judge, Sirohi by his judgment dated 14th May, 1974.

(2.) The prosecution case, in brief is that on 12.6.1973 at about 11.30 a m., the appellant Moola along with five others formed an unlawful assembly with the object of forcibly taking possession of Arath Khetava' situated in village Nadia and in pursuance of that common object they caused injuries to the deceased Punma. It is said that on the day of occurrence Kheta and Jetha's son Vela were ploughing the land. Thereafter, Punma came and asked them not to plough the land. Thereupon the accused persons including Moola arrived at the scene of occurrence armed with 'lathis'. It is said that the appellant Moola inflicted a 'lathi' blow on the head of Punma, whereby he fell con and thereafter all the accused persons inflicted blows. The occurrence was Kheta by Naharsingh (FW 5) and Meghsingh (PW 14). both of them then went to the village. The informant Amra was sitting along with other persons. Amra was asked about the 'sarpanch'. The occurrence was narrated to Amra & Amra was asked to lodge the report Thereupon, Amra got the report written and he submitted the written report Ex P/2 at the Police Station, Pinowara. On this report case under sections 147, 148, 149 and 307, Indian Penal Code, was registered. Punma was got medically examined on the same day at 4.30, p m., but he succumbed to his injuries on the same day at about 9.30, p.m Thereupon the case was converted to section 302, IPC. After usual investigation charge sheet was presented against the six accused persons in the Court of the Munsif Magistrate, Abu Road, who conducted the committal inquiry and committed the accused persons to the court of Additional Sessions Judge, Sirohi.

(3.) The Additional Sessions Judge, Sirohi, charged the accused persons for offences under sections 148 and 302/149, Indian Penal Code The accused persons, however, pleaded not guilty to the charges and claimed to be tried. The prosecution in this case examined as many as fifteen witnesses. The statements of the accused persons were recorded. Moola, the appellant, stated that he along with Nopa, Kheta and Vela came from Arath Vav to Arath Khetwa from the usual entrance. After ploughing the land for about an hour Punma arrived there and started hurling abuses and prevented ploughing. Thereupon, he requested not to obstruct ploughing, but he refused. Thereupon, he asked Kheta and Vela to resume the ploughing. Then Punma inflicted 'lathi' blow on his head, but he sustained no injury as he was wearing a turban and in self defence he and Nopa inflicted blows on Punma with Jewalas. No blows were inflicted after Punma fell down. He also produced Parcha Lagan of his Arath Ex. D/8. The accused persons examined two witnesses in defence. The learned Additional Sessions judge, alter hearing the arguments, acquitted the five accused persons, but convicted and sentenced the appellant Moola, as stated above. The learned Sessions Judge found that the accused persons were in possession of field in which the occurrence took place. He framed point No. 3 for determination as to whether the accused party or the complainant party was in possession of the field in dispute at the time of the incident ? This point was decided in favour of the accused party and he further found that at the time of incident the field was lying vacant and the accused persons were never dispossessed from this field. The prosecution case that the deceased had sown 'kura' crop in the disputed field, was found to be untrue. The learned trial judge further found that all the six accused persons participated in the beating of the deceased. However, be further found that the accused persons acted in exercise of their right of private defence of their property and they had the right of private defence of their person. Consequently, he held that there was no unlawful assembly. He further considered the question as to whether force used by the accused was justified, for which he found that it was not at all justified. Thereafter he considered the question as to who caused the fatal injury, as only that accused who is responsible for causing the fatal injury, can be held responsible for exceeding the right of private defence and while considering this question, observed that Moola inflicted a 'lathi' on the head of the deceased as a result of which he fell down. Injuries Nos. 8 and 9 were fractures on head and the medical opinion is that each of these injuries was individually sufficient to cause death in the ordinary course of nature, so on that basis the learned trial judge fastened the liability of causing the fatal injury to Moola and thereby he exceeded the right of private defence of person and property and he further stated that his act fails under section 304, Part 11, Indian Penal Code, because he must have known that the :injury is likely tocause the death though he may not have intended to cause the death. It is by this process of reasoning the learned trial judge found the appellant guilty of the offence under section 304 Part II, IPC. Aggrieved against his conviction and sentence Moola has preferred this appeal.