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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.483 of 2013

JAGMAL & ORS.  

.... Appellant(s) Versus

STATE OF RAJASTHAN   

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

By  a  judgment  dated  06.01.2006  of  the  Additional

Sessions  Judge,  Neem-Ka-Thana,  District  Sikar,  the

Appellants  were  convicted  for  an  offence  under  Section

302/149 of the Indian Penal Code, 1860 (hereinafter referred

to as the ‘IPC’) and sentenced to undergo life imprisonment.

They  were  also  convicted  under  Section  452  IPC  and

sentenced  to  undergo  five  years’  rigorous  imprisonment.

They were further convicted for an offence under Section 148

IPC  and  were  sentenced  to  undergo  two  years’  rigorous

imprisonment.  The Appeal filed by them was dismissed by

the  High  Court  of  Rajasthan,  aggrieved  by  which  the

Appellants have filed this Appeal.      

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2. Initially 12 persons were named in the First Information

Report  (FIR).   After  investigation  7  persons  including  the

accused  were  charge-sheeted  and  tried.   The  Trial  Court

acquitted Gulabi Devi and Meva Devi.  Lal Chand died during

the pendency of trial.    Along with the appeal filed by the

Appellants, the revision filed against the acquittal of Gulabi

Devi and Meva Devi were also taken up and dismissed.   We

are  informed  that  one  of  the  Appellants,  Kana  Ram  died

during  the  pendency  of  this  Appeal.   At  present,  we  are

concerned  with  the  conviction  and  sentence  of  Appellants

Jagmal, Arvind and Om Prakash.

3. Bihari  Lal  lodged  a  report  at  Police  Station  Patan,

District Sikar, that his son Virendra and Lal Chand (accused

who died during  the  pendency of  trial)  had an altercation

during the course of the day on 19.02.2004.   At about 05:30

pm, the accused armed with lathies, iron rods, axe forcibly

entered into the house where Virendra, Vijendra, Patasi and

Gita  Devi  were  sitting  and  attacked  them.    The  injured

persons were taken to hospital at Neem-Ka-Thana.  As the

condition  of  Virendra  and Vijendra  was  serious  they  were

referred to SMS Hospital, Jaipur.  Virendra succumbed on

the  same  night.   The  post  mortem  was  conducted  on

20.02.2004.   There  were  11  injuries  on  the  body  of  the

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deceased.  The injured eye-witness PW-7 Gita Devi and PW-9

Smt.  Patasi  gave  a  graphic  account  of  the  assault  by  the

accused persons and the injuries suffered by Virendra.

4. There is no doubt about the incident on 19.02.2004 as

the accused claimed a right of private defence.   There is also

no  doubt  that  Virendra  died  due  to  the  attack  by  the

accused.    The  ocular  testimony  of  the  eye-witnesses  is

corroborated by the medical evidence.  We do not see any

reason to take a view different from that of the Courts below

that the Appellants had caused the death of Virendra.

5. The only point that remains to be considered is whether

the accused have acted in their right of private defence.  The

right to private defence was taken by the Appellants before

the  Court  below,  in  vain.    The submission of  Mr.  Sushil

Kumar  Jain,  learned  Senior  Counsel  for  the  Appellants  is

that there was a free fight and Lal Chand was attacked by

the complainant party and he snatched a stick and hit the

deceased in self defence.   The learned Senior Counsel relied

upon the FIR lodged by the accused and the injury reports of

the  Appellants  Jagmal  (Exh.D-19),  Arvind  (Exh.D-20)  and

injury report of Lal Chand (Exh.D-21).  The learned Senior

Counsel  also  relied  upon  the  suggestions  put  to  the

prosecution witnesses Gita Devi, Ram Chandra, Patasi Devi

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and Bihari Lal about the attack on Lal Chand.   He submitted

that  the  High  Court  erred  in  holding  that  there  was  no

suggestion made to any of the prosecution witness regarding

the attack on Lal Chand.   He also contended that the High

Court  went  wrong  in  rejecting  the  plea  of  right  of  private

defence of  the  accused by relying on the  statement  of  Lal

Chand under  Section 313 Cr.  P.C.  in which there was no

mention of self defence.

6. We have considered the material on record carefully and

we  are  of  the  opinion  that  there  is  substance  in  the

submissions  made  by  the  learned  Senior  Counsel  for  the

Appellants  regarding  the  right  to  private  defence  for  the

following reasons:

a) It  is  recorded in the judgment of  the High Court

that the Public Prosecutor argued that the deceased

was  beaten  outside  the  house  which  was

corroborated by the site plan.  b) The Investigating Officer stated in his evidence that

there  was  a  cross  case  lodged  by  Lal  Chand  in

which a charge-sheet under Section 323, 324, 326

and  34  IPC  was  filed  against  Bahadur  Mal  and

Vijay Singh @ Vijendra. c) The  injury  reports  of  the  accused  persons

Exh.D-18, D-19 and D-21 were filed. d) Suggestions  were  made  to  prosecution  witnesses

Gita,  Ram Chandra,  Patasi  and Bihari  about  the

complainant party being aggressors.   

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7. In view of the above facts and circumstances, we hold

that the conviction of the Appellants under Section 302 is

unsustainable.  However, we are convinced that the accused

are guilty of causing the death of Virendra and they are liable

for conviction for an offence punishable under Section 304

Part-I  IPC.   As  we  are  informed  that  the  Appellants  have

served a sentence of nearly 11 ½ years, we sentence them to

the period already undergone.  They may be set free, if they

are  not  required  in  any  other  case.  With  the  above

modification in the conviction and sentence of the Appellants,

the Appeal is disposed of.

       ........................................J         [S. A. BOBDE]

                 ..……................................J                                            [L. NAGESWARA RAO]

New Delhi, February 20, 2017

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