ONKAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment, dated 6-1-79, of Sessions Judge, Sawaimadhopur; whereby the learned Judge convicted the accused appellant for offence under S. 304 Part II Penal Code and sentenced him to 21/2 year's rigorous imprisonment.

(2.) Brief facts giving rise to this case are that an incident took place on 10.6.75 at about 2.00 or 3.00 PM when an Excise party along with police personals went for raid on Aamkhora hills where they had the information that certain Kanjars are abstracting illicit liquor. The prosecution of the accused appellant along with ten others was launched on a complaint filed by Mst. Kamod wife of deceased Madan Singh on 16-9-75 for offence under Ss. 147, 148, 149, 302 and 307 IPC. Facts alleged in this complaint were that Nandlal and Shivdayal accused were wine contractors who were inimical with the complainant Mst. Kamod and her husband. Accused No. 4 to 11 were the employees of Excise Deptt. as well as police department. On 10.6.75 it was alleged that in the noon at about 2.00-3.00 p. m. when she along with her husband Madan Singh, Kailash, Mst. Jajam and Hansa were picking dried wood in Aamkhora forest and were also busy grassing sheep and goats two jeeps' load having contractors and the officials of Excise and police department came there at that time. She named all the 11 persons in report. According to her Nandlal was armed with a 12 bore gun. Rest were armed with lathies, pistols and rifles. They surrounded the complainant and her family members and Nandlal started abusing. Inspector asked her husband as to where is the working Still and fermented wash. On denial they stated that these persons shall be beaten or done to death. Saying so they started beating Madan who wanted to run and while to was running one constable Onkar armed with a rifle fired at him as a result of which he fell down. Nandlal also fired from the double barrel gun he had resulting in injuries on the person of Hansa and Kailash. Her husband is alleged to have succumbed to the injuries in Sawaimadhopur hospital. She sent one Jagatiya to lodge the report of the incident on which a report was taken down on 12.6.75 but the police is not doing anything; hence the complaint. It is pertinent to mention here that in the report which was filed as F.I.R No. 146/75 the police filed a final report and hence this complaint was registered and after recording the statements of the witnesses case was committed to Sessions for trial against as many as 11 persons. It is pertinent to mention here that accused persons moved an application under S. 197 Cr. P. C. which came up for hearing before learned Sessions Judge, Sawaimadhopur. Learned Sessions Judge came to the conclusion that the members of the police party, namely, Hajari Singh, Lakshman Singh, Mukhtar Lal and Ramjilal were entitled to protection of S. 197 Cr. P. C.; hence proceedings against them were ordered to be dropped vide order, dated 31.7.78. He left the issue of applicability of S. 197 Cr. P. C. qua accused Onkar Singh, Rahimuddin, Roopsingh and R. D. Barari open to be agitated at a later stage. He however held that no sanction was required qua accused Nandlal, Shiv Dayal, Onkar and Jagdish. Thus he started trial against seven accused persons including the appellant. The prosecution examined five witnesses in support of its case, out of which PW. 1 Mst. Kamod and PW. 3 Mst. Jajam are the widows of deceased Madan, while Kailash PW. 4 is the son of the deceased. PW. 5 in Dr. P. L. Bansal who had examined the injuries sustained by both the parties and also conducted post-mortem of deceased Madan. PW. 2 Hansa was produced as an eye witness but has been declared hostile. The learned Sessions Judge held that there was no unlawful assembly and that the accused party had gone for conducting raid about abstraction of illicit liquor where violence was caused by the complainant party and members of accused party sustained injuries. A cross case of the incident therefore, was registered for various offences and he recorded in his judgment that in the cross case of the same incident Kailash, Jajam etc. were convicted and sentenced for offences under Ss. 14/ and 332/149 IPC. He held that injuries sustained by Nandlal are not proved and further that injury caused by Onkar accused was in exercise of right he possessed and, therefore, he exceeded the right of private defence of person and had been guilty of offence under S. 304 Part II Penal Code and sentenced to 21/2 (Two and a half years) years' rigorous imprisonment as mentioned above. Aggrieved by this conviction and sentence this appeal is preferred.

(3.) It is contended by the learned counsel for the appellant that the prosecution story in substance has been disbelieved by the trial court and six accused out of seven have been released by him and no State appeal has been preferred. It is also submitted that the court has acted discriminately in extending the benefit of S. 197 Cr. P. C. to the members of the police party and refusing the same protection to the members of Excise party. Both, the members of the excise department as well as the members of police force, were deployed for the purpose of affairs of the State and had been acting in discharge of their official duties and they could not have been discriminated. Besides this, it is further submitted that there is no independent witness in the entire case and the evidence consist of only 3 relations, namely, PW. 1 Kamod, PW. 3 Jajam and PW. 4 Kailash. Out of them first two are the widows of the deceased and PW. 4 is the son. The only independent eye witness examined in the case was PW. 2 Hansa who has not supported the prosecution story. It is then submitted that several persons on the accused side sustained injuries who were medically examined on the same day by the same Doctor who not only examined the injuries of the complainant party but also conducted the postmortem. In the light of the injuries sustained by the accused persons the learned Judge ought to have extended the benefit of right of private defence or on the alternative ought to have disbelieved the testimony of the witnesses as they have suppressed the material part of the incident inasmuch as they did not explain the injuries sustained by the members of the raid party. It is also submitted that once the complainant party has been convicted for offence under Ss. 147 and 302/149 Penal Code the defence of the accused is automatically established. It is also submitted that the story implicating Onkar Singh has been invented subsequently inasmuch as there was no allegation in the F.I.R. lodged on 12.6.75, i. e., within two days after the occurrence and yet no overt Act was assigned to him. It is further submitted that a perusal of the statements of the witnesses would show that they were not knowing the names of the accused Onkar Singh prior to the incident and that names have been told by their lawyers. In this eventuality it is submitted that evidence is of no avail and the accused deserves to be acquitted.