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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 991 OF 2010

Brij Lal … Appellant

versus

State of Rajasthan … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. According  to  the  allegations  levelled  in  the  complaint,  the

appellant–Brij  Lal and Mohan Lal - PW-15 were both employed in the

Irrigation Department of the State Government.  They were both holding

the posts of Gauge Reader.  They also resided in government quarters at

Suleman-ki-Head, close to one another.  The appellant–Brij Lal allegedly

used to hurl abuses at Mohan Lal - PW-15 under the influence of liquor.

Some others,  including Kashi Ram, co-accused, used to side with the

appellant – Brij Lal, in his misbehaviour with Mohan Lal – PW-15.  In

order  to  settle  the  dispute  amicably  Mohan  Lal  –  PW-15  called  a

“panchayat” (council).  The endeavour of Mohan Lal – PW-15, through

the  panchayat,  proved  unsuccessful.  Eventually,  he  addressed  a

communication  dated  18.8.1983,  to  the  Assistant  Engineer  of  the

Irrigation  Department,  highlighting  the  inimical  attitude  of  the

appellant–Brij  Lal.   Since the said complaint also did not lead to any

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fruitful result, Mohan Lal – PW-15 quit his government accommodation,

and took up rental accommodation in the house of Mohan Ram – PW-1.   

2. The incident which has given rise to the present appeal, occurred

on 30.9.1983 at around 9 p.m., at the house of Mohan Ram – PW-1, i.e.,

the premises to which Mohan Lal – PW-15 had shifted, to keep himself

away from the appellant–Brij Lal.  At the time of occurrence, Mohan Lal –

PW-15  was  present  in  the  said  premises,  along  with  his  wife  and

children.  It was alleged, that the appellant–Brij Lal and the co-accused –

Kashi  Ram  hurled  abuses  at  Mohan  Ram  -  PW-1,  who  was  sitting

outside, in front of his house.  The appellant and the co-accused asked

Mohan Ram – PW-1, to call out Mohan Lal – PW-15, as they wanted to

kill him.  It was the assertion of Mohan Ram – PW-1, who eventually

lodged the complaint, that he had requested the appellant–Brij Lal and

the co-accused – Kashi Ram, not to create any trouble at his house.  He

asked them to fulfill their intentions at some other place.  Unmindful of

the  advice  tendered  by  Mohan  Ram  –  PW-1,  the  appellant  and  the

co-accused  started  hurling  abuses  at  Mohan  Ram  –  PW-1.   At  that

juncture,  Mohan  Ram  –  PW-1  realized,  that  the  accused  and  the

co-accused were in possession of pistols.  Mohan Lal – PW-15, having

heard  the  appellant  and  the  co-accused  hurling  abuses,  and  also,

threatening to kill him, scaled the boundary wall of the premises, and

hid in the flour mill of Milkha Singh, located in close vicinity of the house

of Mohan Ram–PW-1.

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3. Hearing the altercation and the phone-calls made by Mohan Ram –

PW-1 and Mohan Lal – PW-15, neighbours and co-villagers, came to the

place of occurrence.  They too requested the appellant – Brij Lal, and the

co-accused  –  Kashi  Ram,  to  go  away.   Instead  of  leaving,  the

accused-appellant,  as well  as,  the co-accused openly proclaimed,  that

they would not  leave without killing Mohan Lal  –  PW-15.   Under the

pressure of the neighbours and the co-villagers, they moved towards the

front of the house of Sultan Bhat, located in front of the house of Mohan

Ram–PW-1.  At that juncture, the neighbours and the co-villagers went

towards  the  spot  at  which  the  accused-appellant  –  Brij  Lal  and  the

co-accused –  Kashi  Ram had retreated,  and again  requested them to

desist from their intentions.  According to the assertions made in the

complaint, at the instance of the co-accused – Kashi Ram, the appellant

– Brij Lal fired at the gathering.  Om Prakash and Sultan Bhat received

bullet injuries from the shots fired by Brij Lal.  Om Prakash died on the

spot.   Sultan  Bhat  was  rendered  unconscious.   He  was  removed  to

hospital, where he died on the following day, i.e., on 1.10.1983.  Kashi

Ram also fired from the gun in his possession.  It hit Mst. Munni Devi (a

woman), who also died on the spot.  In the firing under reference, Labh

Singh and Sheria (a 5 year old boy) were also injured.  The report of the

above incident was lodged by Mohan Ram – PW-1, on 1.10.1983 at 12.05

a.m.

4. It is also relevant to mention, that the appellant – Brij Lal and the

co-accused – Kashi Ram got themselves admitted to a hospital.  As soon

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as they heard about the death of Sultan Bhat, they ran away from the

hospital.  The appellant – Brij Lal was however, arrested on 10.10.1983.

Based on the disclosure statement made by him, a 12 bore pistol and an

empty  cartridge  were  recovered.   The  co-accused  –  Kashi  Ram  was

successful in evading his arrest.  After investigation, the appellant – Brij

Lal was charged under Sections 302, 307 and 324 read with Section 34

of the Indian Penal Code (hereinafter referred to as, the IPC) and Sections

25 and 27 of the Indian Arms Act, by the Judicial Magistrate No.1, Sri

Ganganagar.  The learned Magistrate committed the case to the Court of

Session, which framed charges against the appellant – Brij Lal, under the

provisions referred to hereinabove.   

5. The accused appellant – Brij Lal, pleaded innocence.  He sought

recourse to the plea of private defence, under the second exception under

Section 300 of the IPC.  Section 300, IPC is reproduced below:

“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly. —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly. —If it is done with the intention of causing bodily injury to any  person  and  the  bodily  injury  intended  to  be  inflicted  is sufficient in the ordinary course of nature to cause death, or— Fourthly. —If  the person committing  the act  knows that  it  is  so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.  

Illustrations (a) A  shoots  Z  with  the  intention  of  killing  him.  Z  dies  in consequence. A commits murder.

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appellant, to lead evidence in his defence, he chose not to produce any

witness on his behalf.

6. Vide  his  judgment  dated  22.1.1985,  the  Sessions  Judge,  Sri

Ganganagar,  acquitted the appellant-Brij  Lal  by accepting the plea of

self-defence  raised  by  him  by  invoking  the  second  exception  under

Section 300, IPC.  

7. Dissatisfied with the above judgment dated 22.1.1985, the State of

Rajasthan preferred D.B. Criminal Appeal No.227 of 1985, to assail the

order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar.

The  High  Court  rendered  the  impugned  judgment  on  17.11.2009,

whereby the appeal preferred by the State of Rajasthan was accepted.

The judgment rendered by the Sessions Judge, Sri  Ganganagar dated

22.1.1985,  acquitting  the  appellant-Brij  Lal,  was  set  aside.   The

appellant-Brij  Lal  was  found  guilty  of  having  committed  the  offence

punishable under Section 302 of the IPC.  Keeping in mind the fact, that

the occurrence had taken place in 1983, the High Court awarded the

sentence of life imprisonment to the appellant-Brij Lal.  It also imposed a

fine of Rs.1,000/-, and in default thereof, awarded one year’s rigorous

imprisonment, to the appellant.

8. The appellant has approached this Court, to assail the impugned

judgment, rendered by the High Court dated 17.11.2009.  During the

course of  hearing,  learned counsel  for  the appellant,  summarized the

contentions advanced on behalf of the appellant, as under:

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Firstly, it was contended, that the factum that the appellant-Brij Lal had

also suffered injuries, was sufficient to establish, that their retaliation by

firing  gunshots  at  the  gathering,  was  a  matter  of  self-defence,  and

nothing else.  Secondly, it was urged, that the target of the appellant-Brij

Lal, as per the prosecution story, was Mohan Lal - PW-15.  And as such,

there was no question of  their  having intentionally  fired shots  at  the

neighbours  and  co-villagers  and  therefore,  could  not  have  been  held

guilty  of  the  offence  under  Section  302  of  the  IPC.   Thirdly,  it  was

submitted, that the recovery of the weapon, namely, the gun with which

the appellant–Brij Lal, allegedly shot at the neighbours and co-villagers,

resulting in the death of Om Prakash, Sultan Bhat and Munni Devi, was

not proved to have been recovered from the appellant.  And as such, in

the absence of proof of recovery of the weapon used in the occurrence

from the appellant, there was no justification, whatsoever, for the High

Court to have found the appellant guilty of the offence under Section 302

of the IPC.  Fourthly, it was submitted, that the co-accused – Kashi Ram,

who was tried separately, was prosecuted in the same manner as the

appellant.  It was submitted, that the same witnesses as were produced

by the prosecution against the appellant-Brij Lal, were also produced by

the  prosecution,  against  the  co-accused  –  Kashi  Ram.  On  the

culmination of the trial against Kashi Ram, he was found innocent, and

was acquitted.  It was submitted, that the State of Rajasthan, chose not

to prefer any appeal against the order of acquittal of the co-accused –

Kashi  Ram.   According  to  learned  counsel,  the  prosecution  cannot

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succeed in one case, and fail in the other, when the witnesses produced

against both accused are the same.  Fifthly, it was contended, that the

evidence  produced  by  the  prosecution  reveals,  that  the  incident  had

occurred more than 200 feet away from the house of Mohan Ram – PW-1.

Just  the  above  fact,  according  to  learned  counsel,  is  sufficient  to

demonstrate,  that  the  mob  which  had  assembled  at  the  place  of

occurrence,  was  acting  in  an  intimidating  manner,  resulting  in  the

accused-appellant – Brij Lal and the co-accused – Kashi Ram, retreating

away from the house of Mohan Ram – PW-1 towards the house of Sultan

Bhat.   It  is  therefore  apparent,  that  the  gunshots  fired  by  the

appellant-Brij  Lal  and  the  co-accused  –  Kashi  Ram,  were  in  their

self-defence, and nothing more.  Lastly, it was the contention of learned

counsel for the appellant,  that Mohan Lal – PW-15, in his deposition,

clearly and unequivocally acknowledged, that at the time of occurrence

when the  appellant  and the  co-accused fired  the  shots,  he  was  at  a

distance of 20 feet from the appellant–Brij Lal.  It was the contention of

learned  counsel,  that  if  the  prosecution  story  is  to  be  believed,  the

appellant  should  have  fired  at  Mohan  Lal  –  PW-15,  and  not  at  the

persons  gathered  at  the  place  of  occurrence,  as  alleged  by  the

prosecution.

9. During the course of hearing, learned counsel for the rival parties,

in order to project their respective claims, relied on the statements of

only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal – PW-15.

We are of the view, that in our determination of the claims, projected on

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either side, it is imperative to closely examine the testimony of these two

witnesses.  We shall endeavour to do so, hereunder:

10. Mohan Ram – PW-1:

(i) In his opening statement, Mohan Ram acknowledged, that he knew

the accused-appellant – Brij Lal and Mohan Lal – PW-15, from before.

He affirmed, that just like them, he too was employed in the Irrigation

Department of the State Government.  While Brij Lal and Mohan Lal were

employed in the department as Gauge Readers, he himself was working

as a Beldar.  All of them were posted at the Head of Suleman.  He stated,

that Mohan Lal and Brij Lal were allotted government quarters close to

one another, at Suleman-ki-Head.  The fact, that they were quarreling

among themselves for some time prior to the incident, was also affirmed.

It was pointed out, that while Mohan Lal was living in his government

quarter  along with his family,  Brij  Lal  was residing by himself  in his

separate quarter.  He affirmed, that the accused-appellant – Brij Lal used

to drink liquor at night, and create a racket “every time”, thereafter.  He

confirmed, that co-accused – Kashi Ram was Brijlal’s drinking partner,

and that, Kashi Ram also used to associate along with Brij Lal, in the

brawl.   He testified, that Mohan Lal – PW-15, used to object to their

behaviour,  and  therefore,  the  accused-appellant  –  Brij  Lal  and  the

co-accused  –  Kashi  Ram,  were  inimical  to  Mohan  Lal  –  PW-15.   He

confirmed, that Mohan Lal – PW-15 had complained to him and others

about their behaviour on several occasions, and that, he had also spoken

to the accused-appellant – Brij Lal, to persuade him to desist from such

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activities.  He pointed out, that Brij Lal was adamant, and had refused to

stop.  He also stated, that Mohan Lal – PW-15 had taken him to make a

representation  against  Brij  Lal,  to  the  Overseer  of  the  Irrigation

Department.  He (Mohan Lal – PW-15) had given up living in his allotted

quarter, and had moved to his (Mohan Ram – PW-1’s) house along with

his family, as his tenants.  He confirmed, that the said shifting had taken

place about fifteen days prior to the occurrence.

(ii) With reference to the occurrence, it was stated, that it had taken

place between 8.30 p.m. and 9 p.m.  He testified, that he was sitting in

front of his house on a cot, and that, Mohan Lal – PW-15, and his wife

and  children,  were  inside  the  house.   He  deposed,  that  the

accused-appellant – Brij Lal and the co-accused – Kashi Ram, had come

to his house with pistols in their hands.  The accused-appellant – Brij

Lal, it was pointed out, asked him to call Mohan Lal – PW-15 outside, as

they  had  come  to  kill  him.   He  stated,  that  he  pleaded  with  the

accused-appellant, as also, the co-accused, not to do any such thing, at

his residence.

(iii) He confirmed, that he had seen Mohan Lal – PW-15 scale the wall

of his house, and cross over to the house of his neighbour Badri Ram,

and then proceeded to the flour mill of Milkha Singh.  He stated, that he

had shouted out for help, whereafter, his neighbours and co-villagers,

hearing his clamour, had reached the place of occurrence.  He deposed,

that all the persons gathered at the place of occurrence, had requested

the accused-appellant – Brij Lal,  and the co-accused – Kashi Ram, to

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leave  the  place,  but  Brij  Lal  and  Kashi  Ram were  adamant  in  their

resolve.   They  had  responded  by  stating,  that  they  would  not  go

anywhere, as they had come to kill Mohan Lal – PW-15.  He testified, that

at that juncture the accused-appellant – Brij Lal, and the co-accused –

Kashi Ram, moved away from his house and stood in front of the house

of Sultan Bhat, but still continued to hurl abuses. He pointed out, that

all the neighbours and co-villagers were at a distance of about 20 feet

from Brij Lal and Kashi Ram, and were persuading them to stop hurling

abuses.  But, they were insistent.  Mohan Ram – PW-1 further deposed,

that co-accused – Kashi Ram, at that juncture, exhorted Brij Lal to shoot

at  the  crowd,  as  everyone  was  siding  with  Mohan Lal  –  PW-15.   He

deposed, that Brij Lal, on being so implored, fired at the gathering.  He

affirmed, that Om Prakash and Sultan Bhat received firearm injuries.  It

was his assertion, that in the meanwhile, the co-accused – Kashi Ram

also fired from his gun, which hit Munni Devi, Labh Singh Mistry and

Sheria.  He deposed, that Munni Devi and Om Prakash died at the spot,

whereas Sultan Bhat became unconscious.

(iv) He also confirmed, that he had lodged a report of the incident, at

Police Station Chunawar, around mid-night.  In his cross-examination

Mohan Ram – PW-1 asserted, that the persons, who had gathered at the

place of occurrence, comprised of men, women and children.  He denied,

that those persons who had gathered there, intended to apprehend the

accused-appellant  –  Brij  Lal  or  the  co-accused  –  Kashi  Ram.   He

confirmed, that none amongst the crowd, was armed with any lathis or

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sticks.   He denied the suggestion,  that  Brij  Lal  and Kashi  Ram were

attacked by the villagers, with lathis.  He deposed, that neither Brij Lal

nor Kashi Ram had received any injuries during the occurrence. He also

denied  the  suggestion,  that  the  persons  gathered  at  the  place  of

occurrence, had chased the accused-appellant, and the co-accused.  He

also denied the suggestion, that Brij Lal and Kashi Ram had come to the

general  merchant  shop to  buy “biris”  (traditional  cigarettes),  and had

never come to his residence, to beat or harm Mohan Lal –  PW-15.

(v) The  above  deposition of  Mohan Ram –  PW-1,  fully  affirmed the

prosecution version of the occurrence.

11. Mohan Lal – PW-15:

(i) Mohan  Lal  deposed,  that  he  was  employed  in  the  Irrigation

Department, of the Government of Rajasthan, and was posted at Head of

Suleman,  as  Gauge  Reader.   He  confirmed,  that  he  was  living  in  a

government  quarter  allotted  to  him,  along  with  his  wife  and  three

children, at Suleman-ki-Head.  He acknowledged, that the government

quarter of the accused-appellant – Brij Lal, was nearby his own quarter.

He asserted, that the accused-appellant – Brij Lal, used to abuse him

after drinking liquor, and that, Kashi Ram and his brother-in-law, used

to sometimes accompany the accused-appellant – Brij Lal.  He stated,

that  he  had  asked  the  accused  to  desist  from using  such  language,

because  he  was  a  family  man.  He  deposed,  that  he  had  called  a

“panchayat”  (council),  to  resolve  the  issue  between  himself  and  the

accused-appellant  –  Brij  Lal.   The  “panchayat”  was  attended  by

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co-employees of the Irrigation Department.  He confirmed, that Brij Lal,

on being called, had attended the panchayat.  He deposed, that even at

the panchayat, the accused-appellant – Brij Lal had reiterated, that he

would do as he wished, and they (the members of the panchayat) may do

what they could.  He also deposed, that after panchayat, he had given an

application to the Overseer (Exhibit P-12) of his department, complaining

about the conduct of the accused-appellant – Brij Lal.  He stated that

despite the complaint, the behaviour of accused-appellant – Brij Lal did

not improve.  He urged, that to avoid the appellant, he had surrendered

the government accommodation allotted to him at Suleman-ki-Head and

had moved to a rented accommodation, in the house of Mohan Ram –

PW-1.  He deposed, that the occurrence had taken place within 10/15

days of his moving to the house of Mohan Ram – PW-1.  The occurrence

is stated to have taken place between 8 p.m. and 9 p.m..  He asserted,

that Mohan Ram – PW-1, was sitting outside the gate of his house, whilst

he himself, his wife and children, were in the house.  He deposed, that

the accused-appellant – Brij Lal and the co-accused – Kashi Ram were

calling him outside the house.  He confirmed, that they were holding

pistols in their hands.  On such exhortation, Mohan Ram – PW-1 had

told the accused-appellant and the co-accused, that he would not allow

them to kill Mohan Lal – PW-15 at his residence, but they did not listen

to him, and continued to hurl filthy abuses.

(ii) Mohan Lal asserted, that he jumped over the wall of the house of

Mohan Ram – PW-1, and from the side of the house of Badri Ram, he

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entered the flour mill of Milkha Singh.  He asserted, that the neighbours

and co-villagers hearing the shouts of Mohan Ram – PW-1, ran to the

place of occurrence.  At that juncture, the accused-appellant – Brij Lal

and  the  co-accused  –  Kashi  Ram,  had  moved  towards  the  house  of

Sultan Bhat.  He asserted, that the crowd comprised of men, women and

children.   He  also  deposed,  that  the  villagers  requested  Brij  Lal  and

Kashi Ram to go away, but they were bent on carrying out their objective.

He stated, that Brij Lal and Kashi Ram fired shots from their pistols, and

the shots fired by the accused-appellant – Brij Lal hit Om Prakash and

Sultan Bhat, whereas, the shots fired by the co-accused – Kashi Ram hit

Muni Devi, Labh Singh and Sheria Ram.  He confirmed, that Munni Devi

and Om Prakash died at the spot.  He also stated, that the condition of

Sultan became serious,  and therefore,  the villagers had taken him to

hospital.   He  asserted,  that  the  accused-appellant  –  Brij  Lal  and the

co-accused – Kashi Ram, went away from the spot after the incident.

(iii) In  his  cross-examination  Mohan  Lal  –  PW-15  stated,  that  the

conduct of accused-appellant – Brij Lal had worsened, about six months

prior  to  the occurrence.   He stated,  that  his  only  difference with  the

accused-appellant – Brij Lal was, that he used to abuse him.  He denied

the suggestion, that the accused-appellant – Brij Lal had ever teased his

wife.   He  reiterated,  that  he  had  lodged  a  complaint  against  the

accused-appellant – Brij Lal, with his senior officers.  He stated, that the

first time, accused-appellant – Brij Lal threatened to kill him, was after

he had summoned the “panchayat”  (council),  to resolve their  dispute.

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Mohan  Lal  –  PW-15  acknowledged,  that  he  had  never  made  such  a

complaint to the police.  He also clarified, that the accused-appellant –

Brij  Lal and the co-accused – Kashi Ram, had been exhorting Mohan

Ram – PW-1, to call him (Mohan Lal – PW-15) outside the house.  He

stated,  that  when accused-appellant  –  Brij  Lal  and  the  co-accused  –

Kashi Ram were speaking to Mohan Ram – PW-1, they were visible to

him from within  the  house.   He  stated,  that  he  became scared,  and

therefore, ran away from the house.  He deposed, that he had run away,

because  the  accused-appellant  –  Brij  Lal  was  saying,  that  they  were

going to kill him.  He deposed, that he had run away by jumping into the

house of  Badri  Ram, and therefrom, went to  the flour mill  of  Milkha

Singh.  He testified, that Milkha Singh closed the doors, after he had

entered his mill, when he informed Milkha Singh, that the accused had

come to kill him.  While in the flour mill of Milkha Singh, Mohan Lal –

PW-15 confirmed, that he could hear the sound of people coming to the

house of Mohan Ram – PW-1.  He also confirmed hearing the shouts of

Mohan Ram – PW-1.  He stated, that he became encouraged and lost his

fear, when he heard the voices of the co-villagers, whereupon, he himself

(Mohan Lal – PW-15) and Milkha Singh came out of the flour mill.  On

coming  out,  he  had  seen  the  accused-appellant  –  Brij  Lal  and  the

co-accused – Kashi Ram standing in front of the house of Sultan Bhat at

a distance of “…about 30-40-45 Ft…”, from the flour mill.  He stated,

that he was standing near Om Prakash, when Om Prakash was shot.

And that, Sultan, Munni Devi and Sheria Ram were standing about 5

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feet away from their side.  He confirmed, that he was not hurt by any

pellet.  He deposed, that the first shot was fired by the accused-appellant

– Brij Lal, and the next shot was fired by the co-accused – Kashi Ram.

He affirmed, that the accused-appellant – Brij Lal had no quarrel/enmity

with the deceased Om Prakash and Munni Devi.  He stated, that Om

Prakash,  Munni  Devi  and  others  had  only  come  to  the  place  of

occurrence, to save him.  In his cross-examination, Mohan Lal – PW-15

deposed that, while the accused-appellant – Brij Lal and the co-accused

– Kashi Ram were standing in front of the house of Sultan Bhat, the

deceased and the injured were standing at a distance of about 20-25

feet,  from  the  house  of  Sultan  Bhat.   The  distance  between  the

accused-appellant – Brij Lal and the villagers was about 17 to 18 feet,

whereas, the distance between the co-accused – Kashi Ram and Munni

Devi was about 8 to 10 feet.  He deposed, that it was not possible for

anyone to catch the accused-appellant – Brij Lal and the co-accused –

Kashi  Ram,  because  “…all  were  empty  handed…”.   During  his

cross-examination  Mohan  Lal  –  PW-15  deposed,  that  the  crowd

comprised of 20 to 25 men, 10 to 15 women and some children, when

the firing had taken place.  He also asserted, that the accused-appellant

–  Brij  Lal,  asked Mohan Ram –  PW-1,  to  send forward Mohan Lal  –

PW-15 (i.e., himself), because they needed to kill him.  In response to his

denial, Mohan Lal – PW-15 stated, that the accused-appellant – Brij Lal

shouted, that the accused would kill each one of those who were helping

Mohan Lal – PW-15.  Mohan Lal - PW-15 reiterated, that none of the

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villagers was armed with any weapon.  The suggestion, that the villagers

were  chasing  the  accused  and  the  co-accused,  was  denied.   The

suggestion,  that  the persons gathered at  the place  of  occurrence had

lathis  on  their  hands,  and  that,  they  had  inflicted  injuries  on

accused-appellant – Brij Lal and the co-accused – Kashi Ram with lathis,

was also denied.

(iv) The  above  deposition  of  Mohan Lal  –  PW-15,  fully  affirmed  the

prosecution version of the occurrence.

12. We shall now deal with the individual pleas canvassed at the hands

of learned counsel for the appellant.

13. The first contention advanced at the hands of learned counsel for

the appellant was, that the appellant had fired gunshots at the mob of

villagers only as a matter  of  self-defence, when the accused-appellant

and  the  co-accused,  had been  attacked.   In  this  behalf,  it  would  be

relevant  to  mention,  that  whilst  it  is  open  to  an  accused  to  raise  a

defence in the nature suggested by learned counsel, there is an obvious

pitfall where an accused chooses to do so, in the sense that by raising

such a plea, the accused acknowledges the occurrence itself.  There is

yet another predicament which he is liable to encounter, when raising

such  a  defence.   The  same  emerges  from  Section  96  of  the  Indian

Evidence Act, which is extracted below:

“96. Evidence as to application of language which can apply to one only  of  several  persons.—  When  the  facts  are  such  that  the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several

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and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and others v. Delhi Administration, AIR 1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478: State  of  U.P. v. Mohd.  Musheer  Khan, AIR  1977  SC  2226 and Mohinder  Pal  Jolly v. State  of  Punjab,  AIR  1979  SC  577). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right to private defence of body under Section 97, that right extends under Section 100 to causing death if  there  is  reasonable  apprehension that  death or  grievous hurt would  be  the  consequence  of  the  assault.  The  oft  quoted observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows: "It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in  the  cross-examination  of  the  prosecution  witnesses  or  by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”

(emphasis supplied)

14. The question that arises for consideration in the instant case is,

whether there is evidence on the record of this case, to substantiate the

plea of self-defence?  Learned counsel for the appellant, answered in the

affirmative.  The basis of the aforesaid answer is, the injuries suffered by

the appellant which, according to the appellant, were caused by the mob

when the appellant was attacked.  It was submitted, that the gathering of

neighbours and villagers, at the place of occurrence had attacked them,

resulting in their being pushed back to the house of Sultan Bhat.  It was

submitted, that it was only in retaliation of the above attack, resulting in

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the injuries suffered by the accused, that the accused-appellant – Brij

Lal,  as  also,  the co-accused –  Kashi  Ram, had fired gunshots  at  the

crowd, which was out and out to lynch them.

15. Having  given  our  thoughtful  consideration  to  the  submissions

advanced, at the hands of learned counsel for the appellant, we are of

the  view,  that  there  is  overwhelming  evidence  produced  by  the

prosecution, affirming that the crowd which had gathered at the place of

occurrence, consequent upon the shouting of Mohan Ram – PW-1, was

unarmed.   There  is  also  evidence  on  the  record  of  the  case  to

authenticate,  that  all  the  villagers  were  only  persuading  the

accused-appellant  – Brij  Lal  and his co-accused – Kashi Ram, not to

insist on carrying out their threat, to murder Mohan Lal – PW-15.  The

testimony of the prosecution witnesses also demonstrates, that there was

substantial  distance between the villagers, and the place at which the

accused were standing in the opposite of the house of Sultan Bhat. Not

only  Mohan  Ram  –  PW-1,  but  also  Mohan  Lal  –  PW-15,  expressly

deposed  that  none  of  the  neighbours  and  co-villagers,  was  armed.

Moreover, the reiteration by the witnesses, that the crowd comprised of

men,  women  and  children,  by  itself  is  sufficient,  to  infer  that  the

neighbours  and co-villagers  were  not  aiming at  causing any harm or

injury  to  the  accused-appellant  or  the  co-accused.   It  cannot  be

overlooked, that one of the deceased - Mst. Munni Devi was a woman,

and one of the injured – Sheria was a child of 5 years.  On taking into

consideration the entirety of  the facts and circumstances of  the case,

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especially  the  absence  of  any  material  evidence  produced  by  the

appellant (to demonstrate that gunshots fired by the accused and the

co-accused  were  in  self-defence),  the  instant  contention  cannot  be

accepted.

16. At  this  juncture,  it  is  also  necessary  for  us,  to  refer  to  two

judgments relied upon by learned counsel for the appellant.  Reliance

was  first  placed,  on  Bhagwan  Swaroop  v.  State  of  Madhya  Pradesh,

(1992) 2 SCC 406, wherefrom our attention was invited to the following

observations:

“9. We do not agree with the courts below. It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence.  It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gun-shot to defend the person of his father.”

(emphasis supplied)

Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC

612,  wherefrom,  learned  counsel  placed  emphasis  on  the  following

observations:

“8. From the above state of evidence, it appears that the defence version regarding the incident is a probable one and is supported by the find of blood from near the tubewell which is adjacent to the 'dera' of the appellant. When two versions are before the court, the version  which  is  supported  by  objective  evidence  cannot  be brushed aside  lightly  unless  it  has  been properly  explained.  As stated earlier,  the prosecution has not explained how blood was

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found from near the tubewell  and no blood was found from the spot where according to them the incident occurred. In addition to this,  the  factum  regarding  the  delay  in  lodging  of  the  First Information Report and the suspicion that it was delayed with a view to concocting the prosecution case and further the delay in forwarding the special report to the Magistrate as well as the case papers to the hospital shows that the investigation was not above board. In these circumstances, we think that the approach adopted by the courts below cannot be justified.

9.  Mr. Behl, learned Counsel for the State, however, vehemently argued that the appellant had exceeded his right of private defence. We do not think so. Both the appellant and his wife were attacked. They had sustained injuries. In the course of assault on them they caused injuries to the deceased and the prosecution witnesses. It is true that the High Court has come to the conclusion that all the injuries caused to the deceased were caused by the appellant Buta Singh. However, that is not the prosecution case. Besides, even if it were so, having regard to the nature of the incident, it is difficult to say that he exceeded the right of private defence for the obvious reason that he could not have weighed in golden scales in the heat of  the  moment  the  number  of  injuries  required  to  disarm  his assailants who were armed with lethal weapons. We are, therefore, of the opinion that the submission of the learned Counsel for the State cannot be accepted in the facts and circumstances of this case.”

(emphasis supplied)

17. Having perused the judgments relied upon by learned counsel for

the appellant, and keeping in mind the facts and circumstances of the

case, we are of the view, that no benefit can be derived by the appellant

on the legal position expressed by this Court, with reference to the plea

of self-defence.  Herein, there is no evidence to demonstrate, that the

accused-appellant  –  Brij  Lal  and  the  co-accused  –  Kashi  Ram  were

actually attacked, and it was as a matter of self-defence that they fired at

the crowd, with their pistols.  We have already examined the relevant

evidence, on the instant aspect of the matter above.  We therefore find no

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merit  in  the  first  contention,  advanced  by  learned  counsel  for  the

appellant.

18. The second contention advanced at the hands of learned counsel

for the appellant was, that the entire prosecution version discloses, that

the alleged intention of the accused-appellant – Brij Lal was to murder

Mohan Lal – PW-15.  It was submitted, that there was no occasion for

the appellant to cause fatal injuries to three unknown persons, by firing

shots at them.  Even though, the second contention advanced by learned

counsel seems to be interesting, yet we find no merit therein.  The reason

why the neighbours and the co-villagers had gathered at the place of

occurrence  was,  to  protect  Mohan  Lal  –  PW-15,  by  dissuading  the

accused from insisting on to carry out their objective.  Consequent upon

their  being  angered  by  the  villagers,  they  retaliated  by  firing

indiscriminately  at  the  gathering.   Since  it  was  not  disputed  by  the

accused-appellant – Brij Lal, that three fatal (besides other) injuries, were

caused by the accused-appellant and his co-accused, the onus lies on

the appellant to demonstrate the reason and the justification for their

action.  The evidence produced by the prosecution demonstrates, that

the accused had fired gunshots indiscriminately, on being angered by the

gathering, which was trying to persuade them from carrying out their

singular objective – to cause harm to the person of Mohan Lal – PW-15.

Having accepted, that they had actually fired at the neighbours and the

villagers, who had gathered at the place of occurrence, it does not lie in

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their mouth to raise such a plea.  For the aforesaid reasons, we find no

merit even in the instant contention.

19. The third contention advanced by learned counsel for the appellant

was, that the recovery of the weapon, namely, the gun, with which the

accused-appellant – Brij Lal had shot at the crowd, was not proved to

have been recovered from the appellant.  It was the contention of the

learned counsel, that one of the recovery witnesses had deposed, that the

gun recovered at the instance of the accused, was found wrapped when it

was dug out.  The other witness to the recovery had stated otherwise.

First and foremost, as noticed hereinabove, such a plea could have been

raised only if  the appellant  had been in denial,  and had adopted the

stance, that he had not fired at the crowd at the time of  occurrence.

Since that is not his plea, the instant submission is wholly misconceived.

Secondly,  the  factum  of  recovery  has  been  substantiated  by  the

prosecution through the statements of Mohan Ram – PW-1 and Mohan

Lal – PW-15.  Even the signatures of the accused-appellant – Brij Lal

were obtained on the “mazhar” prepared at the time of recovery.  In such

view of the matter, whether or not the recovered gun was found without

any covering, or in a wrapped condition, when the same was dug out, at

the instance of  the accused-appellant – Brij  Lal,  makes no difference,

whatsoever.  For the reasons recorded above, we find no merit in the

instant contention.

20. The  fourth  contention  advanced  by  learned  counsel  for  the

appellant  was,  that  the co-accused – Kashi Ram, who was separately

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tried, was acquitted.  In this behalf,  the projection of learned counsel

was,  that  the  very  same  witnesses,  who  were  relied  upon  by  the

prosecution in the separate trial of the appellant, had deposed during the

course of the trial conducted against the co-accused – Kashi Ram, and as

such,  the  acquittal  of  Kashi  Ram  and  the  conviction  of  the

accused-appellant – Brij Lal,  made no sense whatsoever.  It  would be

relevant to mention, that the most vital prosecution witness, in the case

on hand,  was  Mohan Lal  –  PW-15.   All  the  allegations focus around

Mohan Lal – PW-15.  The entire prosecution story revolved around the

fact, that the accused-appellant – Brij Lal and the co-accused – Kashi

Ram were out and out to harm Mohan Lal – PW-15, on account of their

previous  discord.   The  witness  Mohan  Lal,  who  appeared  as  PW-15,

before  the trial  Court,  in  the matter  out  of  which the instant  appeal

arises, was fully described as, son of Balbir Chand, caste Meghwal, aged

38 years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station

Banga, District Jalandhar.  Whereas, Mohan Lal who appeared as PW-16

in the trial  of  the co-accused – Kashi Ram, was described as,  son of

Lekhram  Bhat  (in  the  judgment  dated  18.3.1994  rendered  by  the

Additional Sessions Judge No.2, Sri Ganganagar, in Sessions Trial No.26

of 1993), wherein Kashi Ram was the accused.  In the above judgment,

most of the prosecution witnesses had resiled, and did not identify the

co-accused – Kashi Ram, as the person involved in the occurrence.  The

position  in  the  present  case  is  just  the  reverse.  All  the  relevant

prosecution witnesses, duly identified the accused-appellant – Brij Lal.  It

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is therefore not possible for us to accept, that the accused-appellant –

Brij Lal deserves to be acquitted, because of the acquittal of Kashi Ram

in the separate trial conducted against him.  The instant contention is

therefore, accordingly, declined.   

21.  The fifth contention advanced at the hands of learned counsel for

the appellant was, that as a consequence of the aggressive attitude of the

neighbours  and  the  co-villagers,  who  had  gathered  at  the  place  of

occurrence, the accused-appellant – Brij Lal and the co-accused – Kashi

Ram, were pushed back to a distance of about 200 feet from the house of

Mohan Ram – PW-1.  It was submitted, that the above factual position

itself was sufficient, to demonstrate that the attitude of the people, who

had gathered at  the place  of  occurrence,  was intimidatory  in nature.

And that, firing by the accused-appellant – Brij Lal and the co-accused –

Kashi  Ram,  was  merely  a  matter  of  self-defence.   We  have  already

expressed our view with reference to the issue of self-defence raised on

behalf of the appellant, in substantial detail hereinabove.  The aforesaid

submission is sought to be projected again, by adding one further aspect

to the factual narration, namely, the fact that when the gunshots were

fired by Brij Lal and Kashi Ram, they were at a distance of more than

200 feet from the residence of Mohan Ram – PW-1.  We find hardly any

justification  in  the  submission  projected  by  learned  counsel  for  the

appellant,  in  a  different  perspective.   The  prosecution  has  clearly

demonstrated through the testimony recorded on oath, that none of the

persons gathered at the place of occurrence was armed in any manner.

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It is also apparent, that the crowd gathered at the place of occurrence

was comprised of men, women and children.  The fact, that there was a

distance of about 17 to 18 feet between the accused-appellant – Brij Lal

and the villagers, shows that there was no real threat to him when he

opened firing at the unarmed gathering including women and children.

It  was  only  because  of  their  desire  to  retaliate  against  the  crowd,

consequent  upon  the  crowd  having  gathered  to  protect  Mohan  Lal  –

PW-15, cannot be a satisfactory reason for the appellant to fire gunshots

indiscriminately.  It is therefore, not possible for us to accept even the

fifth contention advanced by learned counsel for the appellant.

22. The last contention advanced by learned counsel for the appellant

was, that Mohan Lal – PW-15 was also a part of the crowd, which the

accused-appellant  –  Brij  Lal  and  the  co-accused  –  Kashi  Ram  were

facing, and as such, he ought to have fired at him, rather than at the

other  members  of  the  crowd.  The  instant  submission  is  wholly

misconceived and does not arise at all.  The accused-appellant did not

even make the above suggestion to the prosecution witnesses, when they

were  being  cross-examined  on  his  behalf.  Moreover,  the  actual

suggestion given was, that the accused had come to a general merchant

shop to buy “biris” (traditional cigarettes), and that, they never come to

the place of occurrence, or that, they had any intention to harm Mohan

Lal – PW-15.  In view of the conclusions recorded by us in response to

the first, second and fifth contentions (advanced by learned counsel for

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the appellant), we find no merit in the instant contention, and the same

is also hereby rejected.

23. To be fair to learned counsel for the appellant, we must also refer

to  the  judgment  in  Sunil  Kumar  Sambhudayal  Gupta  v.  State  of

Maharashtra,  (2010)  13 SCC 657,  wherefrom,  learned counsel  placed

emphatic reliance on the observations extracted herein below:

“38. It is a well-established principle of law, consistently reiterated and followed by this Court that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding  of  fact,  the  trial  court  had  placed  the  burden  of  proof incorrectly  or  failed  to  take  into  consideration  any  admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside  a  judgment  of  acquittal  in  a  case  where  two  views  are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the  statutory  exceptions,  the  said  principle  forms  the  basis  of criminal  jurisprudence  in  India.  The  nature  of  the  offence,  its seriousness and gravity has to be taken into consideration.  The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

40. In exceptional cases where there are compelling circumstances, and  the  judgment  under  appeal  is  found  to  be  perverse,  the appellate  court  can  interfere  with  the  order  of  acquittal. The findings of fact recorded by a court can be held to be perverse if the

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findings  have  been  arrived  at  by  ignoring  or  excluding  relevant material  or  by  taking  into  consideration  irrelevant/inadmissible material. A finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See Balak Ram v. State of U.P., (1975) 3 SCC 219, Shailendra Pratap v. State of U.P., (2003) 1 SCC 761, Budh Singh v. State of U.P., (2006) 9 SCC 731, S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535,  Arulvelu v. State, (2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445 and Babu v. State of Kerala, (2010) 9 SCC 189).”

(emphasis supplied)

24. We have given our thoughtful consideration to the parameters laid

down in the above judgment.  We are however of the considered view,

that the High Court relied upon cogent evidence, to set aside the order of

acquittal passed by the Additional Sessions Judge.  We are also satisfied

in recording, that the trial Court had overlooked vital evidence recorded

on behalf of the prosecution, specially during the cross-examination of

the prosecution witnesses, whereupon, the position of there being any

second way of viewing the facts, was absolutely out of question.  We are

of  the  considered  view,  that  the  statements  of  the  two  prosecution

witnesses, namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along

with  the  testimony  of  the  other  witnesses,  would  clearly  and

unequivocally lead to the inference, that the accused-appellant – Brij Lal

was guilty of having committed the offence under Section 302 of the IPC,

insofar as his having caused the murders of  Om Prakash and Sultan

Bhat are concerned.  There is absolutely no question of extending the

benefit of any doubt to the accused-appellant – Brij Lal, in the present

case.

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25. For the reasons recorded above, we find no merit in this appeal and

the same is, accordingly, dismissed.

....…………………………….J. (Jagdish Singh Khehar)

New Delhi ………………………………..J. August 17, 2016 (Arun Mishra)

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