Holding

The accused exceeded the scope of private defence and is guilty of an offence punishable under Section 304 Part I of the IPC, not under Section 302.

Summary

Four brothers, including the deceased, were moving cattle through a field owned by Sonaram when Jalaram and six other accused, who were hiding in the field, assaulted them with lathis. Jalaram delivered a single blow to the deceased's forehead, causing instant death. The trial court convicted Jalaram under Sections 147, 302 and 323/149 IPC; the High Court upheld a murder conviction under Section 302. On appeal, the Supreme Court examined whether Jalaram could claim the right of private defence, noting that no easement or right of way existed and that the accused had no proven apprehension of a serious threat justifying lethal force. The Court held that the force used was excessive, the right of private defence was not available, and consequently Jalaram was guilty of culpable homicide not amounting to murder under Section 304 Part I IPC, not murder under Section 302. The appeal was partly allowed, reducing the conviction to Section 304 and imposing ten years of rigorous imprisonment with a fine.

Issues considered

The existence of a right of way/easement on the agricultural land and whether the accused had a lawful claim to be on the field.
Whether the accused were aggressors or victims, and if the right of private defence could be invoked.
Whether the force used by Jalaram was proportionate to any apprehended threat, qualifying the offence as murder (Section 302) or culpable homicide not amounting to murder (Section 304).
The adequacy of the prosecution's evidence regarding injuries to the accused and the necessity of explaining those injuries when private defence is claimed.

Legislation cited

Code of Criminal Procedure, 1973s. 319
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 304(1), s. 323, s. 325

Subjects

private defenceright of wayeasementtrespassmurderculpable homicideSection 302 IPCSection 304 IPCproportionate forceagricultural land dispute

Judgment

JALARAM A'
v.
STATE OF RAJASTHAN

NOVEMBER 24, 2005

[S.B. SINHA AND P.P. NAOLEKAR, JJ.] B

Penal Code, 1860; Ss. 147, '302 and 323114.9:

Right to private defence-Victims/four brothers trespassing into the
field of one of the accused-Accused allegedly inflicted fatal injury on the C
deceased and also assaulted his three brothers-Trial Court found one of the
accused guilty of the offences under Sections 147, 302 and 3231149 IPC; five
others for offences punishable under Ss.147, 302 and 3251149 /PC and
sentenced them accordingly but acquitted three accused persons-High Court
confirmed the conviction and sentence against the accused-appellant and D
held two others guilty for commission of offences punishable under Section
323 /PC and converted their sentence accordingly but acquitted one-On
appeal, Held: Since right of way on the field belonging to one of the accused
persons not established, apprehension of threat to trespass the field by the
deceased and his brothers in the mind of the accused could not be ruled
out-Only a lathi blow hurled by the accused-appellant on the forehead of E
the deceased-No motive on the part of the accused person in committing the
offence has been established-Prosecution failed to prove that the accused
were aggressors-Non-explanation of injurieS on the person of accused by
the prosecution gives credibility to the right of private defence as claimed
by the accused-However, the accused failed to establish that apprehension F
of threat to trespass was of such a degree .which would justify the injury
inflicted by him on the deceased with such a force that he breathed his last
on the spot-Thus, the accused exceeded his right ofprivate defence-Hence,
he is guilty of the offen;:e under Section 304 Part-/ and convicted and
sentenced accordingly.
G
According to the prosecution, on the fateful day when PWS along with
his three brothers including the deceased had been passing through the field
of one of the accused persons for grazing the cattle, the appellant/another
accused along with five others assaulted them with lathies. The appellant had

449 H
450 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R .

.A allegedly given a lathi blow on the head of the deceased who died on the spot
PW5, one of the brothers of the deceased, lodged the First Information Report
in the Police Station against all the accused persons. Although the appellant
was named in the First Information Report, no charge-sheet was submitted
against him as also against three other accused persons. But charge-sheet
B for commission of offences punishable under Section 147, 148, 302, 323 read
with Section 149 IPC was submitted against five other accused persons.
However, after examination of two prosecution witnesses and on an application
made in this behalf, charges were amended against all the accused. The Trial
Court acquitted three accused persons (Al, 4 and 5 respectively) but found
the appellant guilty for commission of offences punishable under Sections
C 147, 302 and 323/149 IPC and the other five accused persons for offences
punishable under Sections 147, 302/149 and 325/149 IPC and sentenced them
accordingly. Appeals preferred thereagainst by the accused were heard by a
Division Bench of the High Court and only the Appellant alone was held guilty
for commission of an offence punishable under Section 302 IPC and the other
accused persons were acquitted. The High Court, however, held two other
D accused guilty of commission of an offence punishable under Section 323 IPC
for causing hurt and sentenced them to the period already undergone. Hence
the present appeal.

Accused-appellant contended that having regard to the fact that ten
E simple injuries had been inflicted by both the parties on each other, only
because the Appellant has inflicted an injury causing death of the deceased
would not lead to the conclusion that the Appellant had any motive therefor;
and that it is not a case where several blows were hurled on the deceased or
other prosecution witnesses so as.to· arrive at a conclusion that the Appellant
---
F
had the requisite mens rea.

Partly allowing the appeal, the Court

HELD: I.I. The right of way on the agricultural land belonging to one
-
of the accused has not been established. If there was no established right of
way by way of easement or otherwise and if there had been an appreMnsion
G in the mind of the accused that there was a threat of trespass in their land,
they. could exercis~ their right.of private defence. In any event, such an
apprehension on the part o( the Appellant and ottier accused persons cam:iot
be ruled out. [455-G; 456-AI

1.2. Only one blow was hurled by the Appellant on the forehead of the
H
JALARAM v. STATE OF RAJASTHAN 451
deceased. The genesis of the occurrence appears also not to have been A
disclosed by the prosecution. It is not the case of the prosecution that the
Appellant and other accused persons had been nurturing any grudge against
the deceased or the informant fl'om before or had any motive to commit the
offence. Any motive on the part of the appellant and other accused persons
for hiding themselves near the place of occurrence and committing the offence B
has not been established, and is thus, unacceptable.1456-B, CJ

1.3. It is true, as has been held by the High Court, that the nature of
injuries inflicted on the accused persons was simple one but it was, in the
peculiar facts and circumstances of the case, obligatory on the part of the
prosecution to prove as to how they received the same. It is also true that in C
all situations the injuries received by the accused persons need not be
explained but a different situation may arise when a right of private defence
is claimed. The prosecution has not placed any material before this court to
prove that it was the appellant and' other accused persons who were aggressors.
If they were not the aggressors, the plea of right of private defence was
available to them. Non-explanation of injuries on the person of the accused, D
thus, gains significance. Injuries on the person of the accused persons having
not been explained· by the prosecution gives rise to the credibility to the defence
put forth by the appellant as regard exercise of his right of private defence.
[456-D-F)

Triloki Nath & Ors. v. State of U.P., (2005) 9 SCALE 76; Bishna @ E
Bhiswadeb Mahato & Ors. v. State of West Bengal, JT (2005) 9 SC 290:
(2005) 9 SCALE 204 and Sekar alias Raja Sekharan v. State, Represented by
Inspector of Police, T.N., [2002] 8 SCC 354, relied on.

1.4. Though the appellant has raised a plea of private defence, but he F
has not been able to show that the threat on the person of two accused persons
was such or even threat of dispossession was such that he had to hit the
deceased at such place and with such force that he would breath his last on
the spot itself. He, therefore, exceeded his right of private defence. Hence,
the appellant is guilty of commission of an offence under Section 304 Part-I
IPC and not under Section 302 thereof. Keeping in view the facts and G
circumstances of the case, imposition of a sentence of 10 years Rigorous
imprisonment under the provision of law shall meet the ends of justice.
[457-G, H; 458-A, BJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 773 of
2005. H
452 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A From the Judgment and Order dated 19.3.2004 of the Rajasthan High
Court in D.B.Crl.A. No. 227 of2002. ·

U.U. Lalit, Ram Niwas, Nitin Sangra, Sarad Singhania and Ms. Pratibha
Jain for the Appellant.

B Kumar Kartikay for Aruneshwar Gupta for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, This appeal is directed against the judgment and order
dated 19.03.2004 passed by Rajasthan High Court whereby and whereunder
an appeal preferred by the Appellant herein against the judgment and order
C of conviction and sentence passed against him under Sections 147, 302 and
323/149 of the Indian Penal Code (for short, 'IPC') was converted to conviction
under Section 302 IPC simpliciter.

The prosecution case as disclosed in the First Information Report is as
under:
D
One Pratapa (PW-5) lodged a written report at about 2.00 p.m.- on
14.3.1998 before the S.H.O., Police Station Bagoda, District Jalore, statin~. that
at about 9.00 a.m. on the said day while he was going with his brothers Hanja
(PW-1 ), Vasna (deceased) and Raimal (PW-4) from his dhani towards Oran for
E the purpose of grazing the cattle and when they had been passing through
the field of the accused Sonaram, the Appellant herein together with Bhagirath,
Kisana Ram, Naringa, Poonmaram and Bhikhram, who were hiding themselves
in the field, assaulted them with lathies. Whereas the Appellant Jalaram is said
to have given a lathi blow on the head of the deceased, Bhagirath gave a lathi
blow on the head of PW-I and Kisana Ram gave a lathi blow on the informant's
F leg.

Although the Appellant herein was named in the First Information
Report, no charge-sheet was submitted against him as also against Bhagirath,
Poonmaram and Bhikharam. A charge-sheet for commission of offences
punishable under Sections 147, 148, 302, 323 read with Section 149 IPC was
G submitted against Kisana Ram, Naringa, Sonaram, Chamanda and Deva Ram.
However, after examination offtve prosecution witness..!S and on an application
made in this behalf, the Appellant herein and others were summoned by the
Trial Judge in terms of Section 319 of the Code of Criminal Procedure, whereafter
charges were amended against all the accused.

H The prosecution examined 11 witnesses in support of its case .. The
JALARAM v. ST ATE OF RAJASTHAN [SINHA, J.] 453
learned Trial Court acquitted Sonaram, Ghamanda and Deva Ram (Accused A
Nos. I, 4 and 5 respectively) but found the Appellant guilty for commission
ofoffences punishable under Sections 147, 302 and 323/149 IPC and the other
accused, namely, Kisana Ram, Naringa, Bhagirath, Poonmaram and Bhikharam
for offences punishable under Sections 147, 302/149 and 325/149 IPC.

Two appeals preferred thereagainst by the accused were heard by a B
Division Bench of the Rajasthan High Court and, as noticed herein before, by
reason of the impugned judgment the Appellant alone was held guilty for
commission of an offence punishable under Section 302 IPC and the other
accused persons were acquitted. The High Court, however, held Kisana Ram
and Naringa guilty of commission of an offence punishable under Section 323 C
IPC for causing hurt to Pratapa (PW-5) and Hanja (PW-1) and sentenced them
to the period already undergone.

The High Court in its judgment held :

"Thus from the statements of star witnesses p.w. 5 Pratapa and D
p. w. l Hanja, the following facts have emerged :

(i) That at the time of alleged incident, six accused appellants,
namely, Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonmaram and
Naringa were present.

(ii) That the alleged incident took place when p.w. l Hanja, p.w. E
5 Pratapa and deceased along with their revar (cattle) were passing
through the way, which was in the field of accused Sonaram (who has
been acquitted by the learned trial Judge).

(iii) That accused appellant Jalaram caused lathi blow on the head
of the deceased. F
(iv) That except accused appellant Jalaram, no other accused
persons caused any injury to the deceased.

(v) That accused appellant Kisana Ram caused lathi blow to p.w.
5 Pratapa. G
(vi) That accused appellant Naringa caused lathi blow to p.w. 1
Hanja.

(vii) That p.w. l Hanja and p.w. 5 Pratapa have not explained the
injuries received by accused appellant Kisana Ram and accused H
454 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Sonaram (who has been acquitted by the learned trial judge).

(viii) That there is a way in the field of accused Sonaram (who has
been acquitted by the learned trial judge) for reaching gochar land of
Punasa and that fact has also been stated by other prosecution
witnesses."
B
In arriving at the said finding, the High Court held : (i) as the fight took
place without premeditation, the same can be said to be a sudden one and
by reason thereof no unlawful assembly can be said to··l'lave been formed;
(ii) In the case of group rivalry enmity, it often happens that the tendency
develops to rope in as many as persons as possible having participated in
C the assault and applying the said principle, the finding of the trial court that
the accused persons formed a common intention was not correct; (iii) As no
accused instigated the Appellant Jalaram to inflict injuries on the deceased,
and, thus, no unlawful assembly was formed with a common object to commit
the murder of the deceased; (iv) The Appellant Jalaram alone was responsible
D for causing the death of the deceased, as his presence on the scene of
occurrence cannot be doubted in any manner; (v) The Appellant has failed
to prove his plea of alibi; (vi) He has also failed to prove that he, in the
peculiar facts and circumstances of the case , could exercise his right of
private defence; (vii) As a right of way was claimed in the field of Sonaram,
there was no reasonable apprehension of danger either to the body or the
E crops of the Appellant; and (viii) Although accused Kisana Ram and Sonaram
had received one injury each but the injl;lry suffered by them being simple in
nature, it would reasonably be inferred that there had been no reason for
apprehension of danger to the body of the accused leading to exercise of their
right of private defence. (ix) The injury on the person of Kisana Ram and
F Sonaram being minor in nature were not required to be explained.
Mr. Uday U. Lalit, the learned Senior Counsel appearing on behalf of
the Appellant, has raised a short question in support of this appeal. The
learned counsel contended that having regard to the fact that ten simple
injuries had been inflicted by the parties on each other; only because the
G Appellant herein has inflicted an injury causing death of the deceased would
not lead to the conclusion that the Appellant herein had any motive therefor.
It was pointed out that it is not a case where several blows were hurled on
the deceased or other prosecution witnesses so as to arrive at a conclusion
that the Appellant had the requisite mens rea.

H Mr. Kumar Kartikay, the learned counsel appearing on behalf of the
JALARAM 'v. STATE OF RAJASTHAN [SINHA, J.] 455
State, however, would draw our attention to the situs of the injury as also the A
force with which the same was inflicted by the Appellant herein to support
the judgment of conviction and sentence passed by the High Court.

The short question, therefore, which arises for consideration is as to
whether in the facts and circumstances of the case, the Appellant herein can
be said to have committed an offence punishable under Section 302 IPC. B
Hanja (PW-I) had received four injuries and Informant Pratapa (PW-5) had
received five simple injuries. It is also not in dispute that the accused Sonaram
and Kisana Ram had also received one injury each. The injuries found on the
body of the deceased· upon post-mortem are as under :
r "(i) Lacerated wound 7 cm x 3 cm x bone deep with fracture of C
bone on right side of parieto temporal region.

(ii) Abrasion 4" x 4" on left thigh on anterior side."

It is not in dispute that the occurrence took place in the field of Sonaram
who has been acquitted by the trial court. It is also not in dispute that Jalaram D
had agricultural land nearby. It is furthermore not in dispute that no right of
way by way of path/passage between the lands appurtenant to Khasra nos.
865, 866 and l 006 and the boundaries of village Punasa was found to have
been recorded in the records of rights.

The defence had examined seven witnesses including DW-6 who was E
the Investigating Officer in the case. He stated that upon investigation carried
out by him, he came to the opinion that no offence was made out against the
accused Jalaram, Bhikharam and Poonmaram. DW-7 Udda Ram, who is an
independent witness stated that there had been a free fight between 'Bishnois'
and 'Rebaris' on the field ofSonaram Bishnoi. lt has further not been disputed p
that the deceased and other on the date of the incident were proceeding with
about 60 numbers of cattle for grazing to the fie Id of Sonaram and Bhagirath.
It also deserves to be noticed that the eye-witnesses Hanja (PW-1), Raimal
(PW-4) and Pratapa (PW-5) although deposed that the accused persons gave
indiscriminate beatin~s to the deceased but, the same has been, in view of
the medical evidence: found to be not correct. G
The right of way on the agricultural land belonging to Sonaram has not
been established. If there was no established right of way by way of easement
or otherw,ise and if there had beerr an apprehension in the mind of the
accused that there was a threat of trespass in their land, indisputably they H
456 SUPREME COURT
,,.,..
REPORTS [2005) SUPP. 5 S.C.R.
__

A could exercise their right of private defence. In any event, such an apprehension
on the part of the Appellant and other accused persons cannot be ruled out.

We have noticed hereinbefore, that the only one blow was hurled ~y
the Appellant herein was on the forehead of the deceased. The genesis of
the occurrence, appears also not to have been disclosed by the prosecution.
B It is not the case of the prosecution that the Appellant herein and other
accused persons had been nurturing any grudge against the deceased or the
infonnant from before or had any motive to comrriit the aforementioned offence.
Any motive on the part of the Appellant and other accused persons for
hiding themselves near the place of occurrence and committing the offence
C has not been established. It is, thus, difficult to accept that part of the
prosecution case.

Sonaram and Kisana Ram had also received one injury each. It is true,
as has been held by the High Court, that the nature of injuries was simple
one but it was, in the peculiar facts and circumstances of this case, obligatory
D on the part of the prosecution to prove as to how they received the same.
It is also true that in all situations the injuries received by the accused
persons need not be explained but a different situation may arise when a right
of private defence is claimed. The prosecution has not ptaced any material
before this Court to prove that it was the Appellant and other accused
persons who were aggressors. If they were not the aggressors, the plea of
E right of private defence was available to them. Non-explanation of injuries on
the person of Sonaram and Kisana Ram, thus, gains significance. Injuries on
the persons of the accused persons having pot been explained by the
prosecution gives rise to the credibility to the'' defence put forth by the
Appellant as regard exercise of his right of p~ivate defence.
F In Triloki Nath & Ors. v. State of U.P., (2005) 9 SCALE 76], it has been
held:

"No decision relied upon , by the Appellants lays down a law in
absolute tenns that in all situations injuries on the persons of the
G acct1sed have to be explained. Each case depends upon the fact
situation obtaining therein. "

In Bishna@ Bhiswadeb Mahato & Ors. v. State of West Bengal, JT
(2005) 9 SC 290: (2005) (9) SCALE 204], a Division Bench of this Court has
recently noticed the nuances of the said right wherein it was held:
H
JALARAM v. ST ATE OF RAJASTHAN [SINHA, .I.] 457
"In a large number of cases, this Court, however, has laid down the A
law that a person who is apprehending death or bodily injury cannot
weigh in golden scales on the spur of the moment and in the heat of
circumstances, the number of injuries required to disann the assailants
who were anned with weapons. In moments of excitement and disturbed
equilibrium it is often difficult to expect the parties to preserve B
composure and use . exactly only so much force in retaliation
commensurate) with the danger apprehended to him where assault is
immin~use of force. All circumstances are required to be viewed
with pragmatism and any hyper-technical approach should be avoided.
: . • .r.
.. ,.: :To put it simply , if a defence is made out, the accused is entitled to C
be acquitted and if not he will be convicted of murder. But in case of
use of excessive force, he would be convicted under Section 304 IPC."

It was further observed:

"Private defence can be used to ward off unlawful force, to prevent
unlawful force, to avoid unlawful detention and to escape from such D
detention. So far as defence of land against trespasser is concerned,
a person is entitled to use necessary and moderate force both for
preventing the trespass or to eject the trespasser. For the said purposes,
the use of force must be the minimum necessary or reasonably believed
to be necessary. A reasonable defence would mean a proportionate E
defence. Ordinarily, a trespasser would be first asked to leave and if
the trespasser fights back, a reasonable force can be used."

In Sekar alias Raja Sekharan v. State Represented by Inspector of
Police, T.N., (2002] 8 SCC 354, it was observed :
F
"I 0. In order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to
his safety, the injuries caused by the accused and the circumstances
whether the accused had time to have recourse to public authorities
are all relevant factors to be considered."
G
The Appellant herein also has raised a plea of private defence. He,
however, has not been able to show that the threat on the person of Sonaram
and Kisana Ram was such or even threat of dispossession was such, he had
to hit the deceased at such place and with such force that he would breathe
his last on the spot itself. He, therefore, in our considered opinion, exceeded
his right of private defence. H
458 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A We, therefore, are of the considered view that the Appellant is guilty
of commission of an offerice under Section 304, Part I of the Jndian Penal
Code and not under Section 302 thereof.

Keeping in view of the facts and circumstances of this case,. we are of
the opinion that imposition of a sentence of 10 years Rigorous Imprisonment
B under the aforementioned provision shall meet the ends of justice. The
Appellant shall also pay a fine of Rs. 500/- in default whereof he will undergo
simple imprisonment of three months. The Appeal is allowed in part and to
the extent mentioned hereinbefore.

S.K.S. Appeal partly allowed.