HIGH COURT OF CHHATTISGARH, BILASPUR
CORAM: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri Rangnath Chandrakar, J J.
Criminal Appeal No. 475 of 1997
APPELLANT Arun Rampal, son of Roshanlal Punjabi, aged 30 years, resident of Adarsh Colony, Tingre Nagar, Poone, Maharashtra Accused No.3
Versus
RESPONDENT The State of Madhya Pradesh(Now The State of Chhattisgarh)
ANDCriminal Appeal No. 814 of 1997
APPELLANTS 1 Ram Singh, Son of Suraj Singh Yadav, aged 32 years, resident of Teda, Police Station Bhartahwa, District Itawa, U.P. Accused No.1
2 Sahib Singh, son of Mewaram Yadav, aged 35 years, resident of Teda, Police Station Bhartahwa, District Itawa, U.P. Accused No.2
Versus
RESPONDENT The State of Madhya Pradesh(Now The State of Chhattisgarh)
(Appeals under Section 374 (2) of The Code of Criminal Procedure)-------------------------------------------------------------------------------------------Appearance:
Mr. Ravi Bhagat, Advocate for the appellants.
Ms. Madhunisha Singh, Panel Lawyer for the State.-------------------------------------------------------------------------------------------
Criminal Appeals No. 475 & 814 of 1997
JUDGMENT(10.02.2014)
Following judgment of the Court was delivered by
Sunil Kumar Sinha, J.
(1) These appeals are directed against the judgment and order
dated 30th of January, 1997 passed in Sessions Trial No. 14/96 by the
Fourth Additional Sessions Judge, Durg. By the impugned
judgment, the appellants have been convicted and sentenced in
following manner with a direction to run the sentences
concurrently:-
Conviction Sentence
Appellant- Arun Rampal (A-3)
u/Ss. 302/109 IPC
u/Ss. 307/109 IPC
R.I. for life and fine of Rs.5,000/-, in default imprisonment for 6 months
R.I. for 10 years and fine of Rs.5,000/- (in 15 counts), in default imprisonment for 6 months
Appellants- Ram Singh & Sahib Singh (A-1 & A-2)
u/Ss. 302/34 IPC
u/Ss. 307/34 IPC
R.I. for life and fine of Rs.5,000/-, in default imprisonment for 6 months
R.I. for 10 years and fine of Rs.5,000/- (in 15 counts), in default imprisonment for 6 months
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The Facts:
(2) The facts, briefly stated, are as under:-
2.1 Kedia Distillery is situated in village Kumhari. A
Security Agency namely Top Detective and Security Services
Limited was engaged for security of the said Distillery at the
relevant time. The office of the Security Agency was situated
at the main gate. Arun Rampal (A-3) was Area Manager in the
Security Agency and the two other appellants- Ram Singh and
Sahib Singh (A-1 & A-2) were Security Guards. The Security
Guards (A-1 & A-2) used to carry 12 Bore Guns with
ammunitions. D.N. Singh (PW-1) was also a Security Officer
employed by Kedia Distillery. He was on duty on the main
gate at the relevant time. 2-3 other Security Guards of the
Security Agency including Prabhunath Pandey (PW-3) &
Mohd. Ali (PW-30), Dhananjoy Singh, Dadan Yadav,
Amarnath Singh, were also present there. Rajendra (PW-2)
was also present on the main gate. The salary of the Security
Guards of the Top Security Services was not paid to them
since last few months, therefore, they were unhappy and were
demanding their salary and tense situation was created on the
gate on 11.11.1995. Arun Rampal (A-3) came to the gate on a
Jeep at about 1.35 p.m. He was accompanied by Ram Singh
(A-1) and Sahib Singh (A-2) and an other Security Officer
namely- B.P. Tiwari (A-4 – acquitted accused). Arun Rampal
(A-3) was talking to the employees about their payment.
2.2 The case of the prosecution is that in the said discussion,
a dispute arose between them. The allegations are that the 2
Security Guards (A-1 & A-2) had abused the workers and a
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situation of scuffling occurred between them. Seeing all this,
appellant- Arun Rampal (A-3) ordered the Security Guards to
take position, on which the 2 Security Guards fired from their
gun. Hearing the noise of gun-shot, the labour working in the
Distillery came out on the gate and a big mob gathered there
in support of the employees of the Security Company. Further
allegations are that seeing this Arun Rampal (A-3) said the 2
Security Guards (A-1 & A-2) to load their guns. However,
these 2 Security Guards opened fire on the mob. Arun Rampal
(A-3) thereafter ran away towards the office and the 2 Security
Guards (A-1 & A-2) ran towards the opposite direction from
the gate of the Distillery. 2-3 persons received gun-shot
injuries at that place. Further the case of the prosecution is that
thereafter the 2 appellants- Ram Singh & Sahib Singh (A-1 &
A-2) ran away towards village Atari. They were chased by the
workers of the Security Company, Kedia Distillery and the
villagers of the nearby villages. These 2 appellants (A-1 & A-2)
then again fired at a place which was at a distance of 1½
furlong. This time deceased- Sanjay Choudhary received gun-
shot injury. Other villagers had also received gun-shot
injuries. The mob chased them to the distance of 3-4 Km.
where they were surrounded by the mob on a culvert. There
also they had fired upon the mob. By that time the information
was received by the police party which ultimately reached to
village Atari and arrested the 2 appellants (A-1 & A-2).
2.3 Sanjay Choudhary (deceased) lost his life and 15 other
persons received gun-shot injuries in the said incident.
2.4 Dehatinalishi (Ex.-P/1) was lodged by D.N. Singh (PW-
1).
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2.5 Dr. S.K. Sinha (PW-23) conducted autopsy on the dead
body of deceased- Sanjay Choudhary, however, for expert
opinion the dead body was sent to Medical College, Raipur,
where it was examined by Dr. D.C. Jain (PW-35), Professor of
Forensic Science and Medicine. Deceased- Sanjay Choudhary
had received 22 pellet injuries spread over his right shoulder
and left portion of the chest. They were gun-shot injuries. The
Autopsy Surgeon opined that the cause of death was syncope
due to gun-shot injuries and it was homicidal in nature. The
postmortem report is Ex.-P/22.
2.6 Prabhunath (PW-3), Sheelwant Choudhary (PW-10),
Jitendra Yadav (PW-7), Surendra Singh, Vinod Kumar,
Naveen Kumar (PW-13), Rajesh Kumar (PW-14), Sidheshwar
Das (PW-15), Pawan Kumar (PW-12) had also received gun-
shot injuries. They were examined by Dr. S.R. Banjare (PW-
39). Their MLC reports are Ex.-P/50 to P/58. Pardeshi Ram
(PW-8) had also sustained gun-shot injury. He was examined
by Dr. Pradeep Kumar (PW-36). His injuries were grievous.
His MLC report is Ex.-P/41.
2.7 Ramji Nishad (PW-34), Jogaram (PW-33), Jagat (PW-9),
Raju Singh (PW-11), Mohd. Ali (PW-30), Arun Kumar (PW-4),
and Sunil Singh (PW-37) had also sustained simple injuries
like abrasion etc. These persons were examined by Dr.
Snehelata Singh (PW-38). Their MLC reports are Ex.-P/43 to
P/49.
2.8 Three (03) empty cartridges were seized from a place
near the Distillery vide seizure memo Ex.-P/9. One single
barrel 12 bore gun having rexine cartridge cover on the butt
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with live cartridge and license of the gun were seized from the
possession of Sahib Singh (A-2) vide seizure memo Ex.-P/11.
One single barrel 12 bore gun (loaded with live cartridge), 5
live cartridges of 12 bore fitted in a belt and license of the said
gun were seized from the possession of Ram Singh (A-1) vide
seizure memo Ex.-P/12.
2.9 After completion of other formalities a charge-sheet was
filed against 4 accused persons namely- Ram Singh (A-1),
Sahib Singh (A-2), Arun Rampal (A-3) and Basant Pratap (A-
4). The prosecution came with the case that all the 4 accused
persons came on a Jeep to the gate of Kedia Distillery, a
quarrel took place between the employees of the Security
Agency and the accused persons as the employees were
demanding their salary and Arun Rampal (A-3) was talking to
them in this regard. During the quarrel, Arun Rampal (A-3)
had ordered/exhorted the Security Guards Ram Singh and
Sahib Singh (A-1 & A-2), who were armed with 12 bore guns,
to load their guns and fire. On this, the 2 Security Guards (A-1
& A-2) opened fire and some employees of the Security
Agency got injured. Thereafter the workers of Kedia Distillery
also came out from the factory and a big mob gathered there.
Seeing this the 2 Security Guards (A-1 & A-2) ran towards
village Atari. They were chased by mob. On the way, at about
1 ½ furlong from the Distillery, they again fired, in which the
deceased had died and other persons got injured. They were
again chased by mob and were surrounded at a distance of 3-4
Km. on a culvert in village Atari, where the police party
arrested them.
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2.10 The learned Sessions Judge relied on the testimonies of
the injured witnesses and held that Arun Rampal (A-3) was
liable for punishment u/Ss 302/109 & 307/109 IPC and other
2 accused persons (A-1 & A-2) were liable for punishment
u/Ss 302/34 & 307/34 IPC. The appellants/accused (A-1 to A-
3), thus were convicted and sentenced as above.
Hence these appeals.
Submissions made by the Counsel:
(3) Mr. Ravi Bhagat, learned counsel appearing on behalf of the
appellants submitted that there is no evidence to show that Arun
Rampal (A-3) had exhorted or ordered the 2 other appellants (A-1 &
A-2) to open the fire. Dehatinalshi (Ex.-P/1) was lodged by D.N.
Singh (PW-1), in which nothing has been mentioned about
exhortation made by him. He took us to the evidence of other
witnesses. About other 2 appellants (A-1 & A-2), he submitted that
they opened fire exercising their right of private defence as they
were apprehending that they would be killed by the attack of the
mob of 300-400 people.
(4) On the other hand, Ms. Madhunisha Singh, learned Panel
Lawyer appearing on behalf of the State, opposed these arguments
and submitted that there is sufficient evidence of exhortation by
Arun Rampal (A-3) and the acts proved against Ram Singh and
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Sahib Singh (A-1 & A-2) would show that there was no situation for
them to exercise the right of private defence.
(5) We have heard counsel for the parties.
Discussion on the case of Arun Rampal (A-3):
(6) 4 witnesses have been examined to prove the first incident
which took place on the gate of Kedia Distillery (wine factory). They
are D.N. Singh (PW-1), Rajendra Dwivedi (PW-2), Prabhunath
Pandey (PW-3) and Mohd. Ali (PW-30).
(7) D.N. Singh (PW-1) was a Security Officer of Kedia Distillery,
whereas the 3 others were Security Guards. All above witnesses
were on duty at the gate of the Distillery. D.N. Singh (PW-1)
deposed that on the fateful day at about 5.30 p.m., when they were
on duty at the gate of the Distillery, 25-26 Security Guards of Top
Company were also present there. Some of them were inside the
gate, somewhere outside the gate. Small gate of the factory was
opened. The Security Guards of Top Company were not paid their
salary since many days. The officers of the Company were saying
them that their salary would be paid, but on account of non-
payment since long there was dissatisfaction. Arun Rampal (A-3)
was the main officer of the Top Company. On the date of incident
Arun Rampal (A-3) at about 2.00 p.m. came to the gate of Distillery
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on a Jeep. He was accompanied by 3 Security Guards (A-1, A-2 & A-
4). The Jeep was taken inside the factory premises. The accused
persons got down from the Jeep and came to the gate where 20-25
Guards of the Top Company were present. The Guards made
complaint to Arun Rampal (A-3) that they were being harassed as
their salary was not paid to them since many days. They were
demanding salary. Arun Rampal (A-3) stated to them that today
they would not be able to make payment, however the payment
would be made later on. Thereafter hot exchanges begun between
Arun Rampal (A-3) and Guards of the Security Company, Arun
Rampal (A-3) said that the security guards would not listen to him,
they should be kept out from the gate. On this, the Guards said that
they will not go out and they should be paid their salary. On this
Arun Rampal (A-3) said the 2 Security Guards (A-1 & A-2) to take
their position and fire. Hearing this, the Security Guards (A-1 & A-
2) started firing. Hearing the noise of firing, the workers of the
factory, came out from the factory to the main gate. Prabhunath
(PW-3), Mohd. Ali (PW-30), Dhananjoy Singh and Sanjay
Choudhary got gun-shot injuries. The accused Guards (A-1 & A-2)
looking to this situation started running away. Sanjay Choudhary
(deceased) in fact had come out along with the workers of the
factory. The workers of the factory started chasing these 2 accused
(A-1 & A-2). Sanjay Choudhary had received gun-shot injuries at a
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distance of 1 ½ furlong from the main gate of the factory and had
died. Arun Rampal (A-3) was caught in the premises of the factory.
He further deposed that he was also chasing the 2 accused persons
(A-1 & A-2) for catching them. There was a village towards the
temple site. These 2 accused (A-1 & A-2) were firing while running
away towards the village. The villagers had also gathered to catch
them. They had also received gun-shot injuries. While running away
and chased by the villagers and Security Guards of the Top
Company, the 2 accused (A-1 & A-2) came on a culvert. They were
surrounded there by the villagers. By that time the officers of
Kumhari Police Outpost also came there and the 2 accused (A-1 &
A-2) were arrested by them. He had immediately lodged
Dehatinalishi (Ex.-P/1) which was recorded at that place.
(8) Rajendra Dwivedi (PW-2) was working as Assistant Security
Officer in liquor factory. He also deposed in similar fashion.
According to him, after the hot exchanges between Arun Rampal
(A-3) and the guards of the Top Security Company, Arun Rampal
(A-3) said his Security Guards (A-1 & A-2) that they should open
fire. Thereafter they had fired on the Security Guards who were
indulged in hot exchanges with Arun Rampal (A-3).
(9) Prabhunath Pandey (PW-3) is an injured witness. He was a
Security Guard of the Top Security Company. He deposed that the
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security guards of the Company were demanding their arrears.
When hot exchanges took place, Arun Rampal (A-3) ordered his
Security Guards (A-1 & A-2) to fire. Thereafter the guards (A-1 & A-
2) fired. He had received gun-shot injury on his right leg. Mohd. Ali
(PW-30) had also sustained gun-shot injury.
(10) Mohd. Ali (PW-30) was also a Security Guard of Top Security
Company. According to him, on the fateful day, he was on duty on
the gate of the factory. Prabhunath Panedy (PW-3) and Baldau
Verma were also on duty. Arun Rampal (A-3) came there on a Jeep.
Ram Singh, Sahib Singh and Tiwari (A-1, A-2 & A-4) were also with
him. They were talking to the Area Manager (A-3) about their
arrears of salary. D.N. Singh (PW-1) was also present there. Area
Manager (A-3) had agreed to make part payments. At that time, 8.00
a.m to 5.00 p.m. shift of the factory was over and the workers came
out from the factory. They gathered at the place where the talk was
going on. Then hot exchanges begun between the workers and Arun
Rampal (A-3). Thereafter Arun Rampal (A-3) went towards the
office and both the gunmen (A-1 & A-2) came out from the gate. The
workers, seeing guns in the hands of gunmen (A-1 & A-2), started
shouting like pakdo-pakdo. Thereafter both gunmen (A-1 & A-2) fired
in the air. The workers then became angry and they started going
towards gunmen. Thereafter, the 2 gunmen (A-1 & A-2) opened fire.
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Criminal Appeals No. 475 & 814 of 1997
Firstly they had fired aiming towards the earth. He had received
pellet injuries. Both the gunmen (A-1 & A-2) started running away
from the gate of the factory. He was taken to the hospital in
ambulance. Later on he came to know that Sanjay Choudhary had
died.
(11) In appreciation of evidence of these witnesses, we find that
Mohd. Ali (PW-30) did not depose about the alleged exhortation
made by Arun Rampal (A-3) to the 2 gunmen (A-1 & A-2) to open
fire on the mob. According to his evidence, after a long discussion
between Arun Rampal (A-3) and the workers, Arun Rampal (A-3)
simply went towards the office. Dehatinalishi (Ex.-P/1) which was
recorded by D.N. Singh (PW-1) was first hand information given to
the police. In Dehatinalishi (Ex.-P/1) facts relating to demand of
salary and hot exchanges between Arun Rampal (A-3) and the
Security Guards of the Top Security Company are mentioned, but it
is not mentioned that Arun Rampal (A-3) had ordered or exhorted
the 2 gunmen (A-1 & A-2) to open fire on the mob. This was an
important omission in the nalishi (Ex.-P/1) recorded by D.N. Singh
(PW-1). He simply said in the nalishi that Arun Rampal (A-3) said
the gunmen (A-1 & A-2) to take their position and nothing more,
but gunmen opened fire.
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(12) That apart, there are many omissions and contradictions in the
evidence of 3 other eye-witnesses namely D.N. Singh (PW-1),
Rajendra Dwivedi (PW-2) and Prabhunath Pandey (PW-3). The
learned Sessions Judge has taken the above omissions into
consideration, but he has not given much importance to them. In
Para-66 of the impugned judgment, the Sessions Judge has observed
that there are omissions in the diary statements of Rajendra Dwivedi
and Prabhunath Pandey (PW-2 & PW-3) that Arun Rampal (A-3)
had ordered/exhorted the 2 gunmen (A-1 & A-2) to open fire.
However, vide Para-79 of the judgment it was held that presence of
Arun Rampal (A-3) as a superior officer itself was sufficient to hold
that he has abetted the 2 other appellants (A-1 & A-2) for opening
the fire which resulted into death of Sanjay Choudhary. His
presence as a superior officer on duty while commission of such an
offence by subordinate officers (security guards) was sufficient to
hold that he had abetted the commission of above acts.
(13) In Jainul Haque –Vs- State of Bihar, AIR 1974 SC 45, the
Supreme Court held that “The evidence of exhortation is, in the very
nature of things, a weak piece of evidence. There is quite often a
tendency to implicate some person in addition to the actual assailant
by attributing to that person an exhortation to the assailant to
assault the victim. Unless the evidence in this respect be clear,
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cogent and reliable, no conviction for abetment can be recorded
against the person alleged to have exhorted the actual assailant. The
Supreme Court further held that the evidence adduced at the trial in
respect of the part alleged to have been played by the appellant is
contradictory and far from convincing and on that the conviction of
the appellant was set-aside and he was acquitted.”
(14) If we look on the entire evidence regarding abetment, it would
be clear that the fact relating to abetment by Arun Rampal (A-3) was
an omission in the nalishi (Ex.-P/1) recorded by D.N. Singh (PW-1).
It was also omission in the diary statements of Rajendra Dwivedi
and Prabhunath Pandey (PW-2 & PW-3) and further Mohd. Ali
(PW-30) did not depose that Arun Rampal (A-3) even said the
gunmen to take position which was said by other witnesses, as
according to him, after the hot exchanges, Arun Rampal (A-3)
simply went inside the office and the 2 gunmen (A-1 & A-2) started
running away towards the village during which they had fired and
the deceased and other injured persons had sustained injuries. We
are of the view that the finding recorded by the learned Sessions
Judge that Arun Rampal (A-3) had abetted the 2 other appellants
(A-1 & A-2) to open fire or he abetted the commission of above
offences by the 2 gunmen was not correct and the same deserves to
be set-aside.
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Criminal Appeals No. 475 & 814 of 1997
Discussion on the cases of Ram Singh & Sahib Singh (A-1 & A-2):
(15) About these appellants (A-1 & A-2), it was vehemently argued
that they had fired while exercising their right of private defence as
they were apprehending that they would be killed by the attack of
the mob of 300-400 people.
(16) In Bishna alias Bhiswadeb Mahato and others –Vs- State of
W.B., (2005) 12 SCC 657, it was observed vide Paras- 74 to 78 as
follows:
“74. “Right of private defence” is not defined. Nothing
is an offence in terms of Section 96 of the Penal Code, if it is
done in exercise of the right of private defence. Section 97
deals with the subject-matter of private defence. The plea of
right of private defence comprises the body or property. It,
however, extends not only to the person exercising the right;
but to any other person. The right may be exercised in the case
of any offence against the body and in the case of offences of
theft, robbery, mischief or criminal trespass and attempts at
such offences in relation to property. Sections 96 and 98 confer
a right of private defence against certain offences and acts.
Section 99 lays down the limit therefor. The right conferred
upon a person in terms of Section 96 to 98 and 100 to 106 is
controlled by Section 99. In terms of Section 99 of the Penal
Code, the right of private defence, in no case, extends to
inflicting of more harm than it is necessary to inflict for the
purpose of defence. Section 100 provides that the right of
private defence of the body extends under the restrictions
mentioned in the last preceding section to the voluntary
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causing of death or of any other harm to the assailant if the
offence which occasions the exercise of the right be of any of
the descriptions enumerated therein, namely, “First – Such an
assault, as may reasonably cause the apprehension that death
will otherwise be the consequence of such assault; Secondly –
Such an assault as may reasonably cause the apprehension
that grievous hurt will otherwise be the consequence of such
assault”. To claim a right of private defence extending to
voluntary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden in this behalf is on the accused.
75. Sections 102 and 105 IPC deal with
commencement and continuance of the right of private
defence of body as well as property. It commences as soon as a
reasonable apprehension of danger to the body arises from an
attempt, or threat, to commit the offence, although the offence
may not have been committed, but not until there is
reasonable apprehension. In other words, the right lasts so
long as the reasonable apprehension of the danger to the body
continues.
76. So far as exercise of the right of private defence of
property extended to causing death is concerned, the same is
covered by Section 103 of the Penal Code. Such a right is
available if the offence, the commission of which, or the
attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions enumerated viz.
robbery, housebreaking by night, mischief by fire committed
on any building, theft, mischief or house-trespass. The said
provision, therefore, has no application.
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77. Section 104 provides that in relation to the offences
as enumerated in Section 103, the right of private defence can
be exercised to the voluntary causing to the wrongdoer of any
harm other than death. Section 105 provides for
commencement and continuance of the right of private
defence of property which reads as under:
“105. Commencement and continuance of the right of private
defence of property.- The right of private defence of property
commences when a reasonable apprehension of danger to the
property commences.
The right of private defence of property against theft
continues till the offender has effected his retreat with the
property or either the assistance of the public authorities is
obtained, or the property has been recovered.
The right of private defence of property against robbery
continues as long as the offender causes or attempts to cause
to any person death or hurt or wrongful restraint or as long as
the fear or instant death or of instant hurt or of instant
personal restraint continues.
The right of private defence of property against criminal
trespass or mischief continues as long as the offender
continues in the commission of criminal trespass or mischief.
The right of private defence of property against
housebreaking by night continues as long as the house-
trespass which has been begun by such housebreaking
continues.”
78. Section 105 of the Evidence Act casts the burden of
proof on the accused who sets up the plea of self-defence and
in the absence of proof, it may not be possible for the court to
presume the correctness or otherwise of the said plea. No
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positive evidence although is required to be adduced by the
accused; it is possible for him to prove the said fact by eliciting
the necessary materials from the witnesses examined by the
prosecution. He can establish his plea also from the attending
circumstances, as may transpire from the evidence led by the
prosecution itself.”
(17) In Salim Zia –Vs- State of Uttar Pradesh, AIR 1979 SC 391, it
was held that 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 prosecution witnesses
or by adducing defence evidence.
(18) In the instant case, firing took place at three places. First, on
the gate of the liquor factory; second, on a place at a distance of 1 ½
furlong from the gate of the factory; and third, on the culvert near
village Atari.
(19) The incident at the gate took place at about 5.30 p.m. It comes
in the evidence of D.N. Singh (PW-1) that about 25-26 guards of the
Top Security Company were present on the main gate. They were
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demanding their salary as their salary was not paid since so many
days. There was dissatisfaction among those security guards as the
high officers of the Company though were promising to pay their
salary, but in fact, it was never paid to them. The case of the
prosecution is that the appellants (A-1 to A-3) and acquitted accused
(A-4) came on a Jeep at about 2.00 p.m. on the gate of the factory
and they came to the security guards. Thereafter the security guards
started demanding their salary. Arun Rampal (A-3) had stated them
that payments shall be made later on. It is on this statement, hot
exchanges begun between Arun Rampal (A-3) and the security
guards who were demanding their salary. The hot exchanges also
took place between Arun Rampal (A-3) and Prabhunath Pandey
(PW-3). Thereafter Arun Rampal (A-3) said that the guards will not
understand and they should be kept out of the gate. It is after all
this, as per the prosecution, on the exhortation of Arun Rampal (A-
3), the 2 gunmen (A-1 & A-2) opened fire and Mohd. Ali (PW-30)
and 2 more persons received gun-shot injuries. According to the
Dehatinalishi (Ex.-P/1), the incident took place at about 16.30 hours.
This shows that a long discussion from 2.00 p.m. to 4.30 p.m. had
taken place in which Arun Rampal (A-3) was trying to convince the
agitating guards, and thereafter the incident of firing took place.
This shows that there was no intention of either of the appellants to
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commit murder of the deceased or to cause injuries to the injured
persons.
(20) Mohd. Ali (PW-30), who received gun-shot injury on the gate
of the factory, deposed that after the discussion, the Area Manager,
Arun Rampal (A-3), had agreed to make part payments to the
security guards. At that time the shift of the factory (8.00 a.m. to 5.00
p.m.) was over and the workers of the factory had come out from
the factory to the main gate where the hot talks were going on. Arun
Rampal (A-3) thereafter went inside the factory and the 2 gunmen
(A-1 & A-2) came out from the main gate. When the workers saw
guns in the hands of gunmen, they started shouting like pakdo-pakdo,
thereafter the gunmen fired in the air. It is on this action of the 2
gunmen, the workers became hot and angry and the mob started
moving towards the gunmen and on this only, the gunmen fired. He
added in clear words in Para-2 of his evidence that firstly the
gunmen had fired towards the earth and he was hit by a pellet. The
gunmen then ran away from the gate of the factory.
(21) In light of the above evidence, it appears that when after a
long discussion of 2 ½ hours when nothing was settled and hot
exchanges took place between the Security Officer (A-3) and
security guards and when the workers of the factory came out after
their shift was over, an atmosphere of terror was created as they
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Criminal Appeals No. 475 & 814 of 1997
started shouting to catch the gunmen, who were holding the guns
and when the mob tried to chase them, the gunmen (A-1 & A-2) had
fired in the air and then they fired aiming towards earth, which they
did in exercising their right of private defence.
(22) The gunmen had ran away towards a temple and they were
chased by the workers who were also joined by many villagers of
village Atari and nearby area. It comes in the evidence of D.N. Singh
(PW-1), who was also chasing the gunmen, that Sanjay Choudhary
(deceased) had received gun-shot injury at a distance of 1 ½ furlong
from the gate of the factory. This shows that the gunmen had not
fired upon Sanjay Choudhary at once with an intention to commit
his murder, but when they were chased by mob, in which Sanjay
Choudhary (deceased) was also there, to a distance of 1 ½ furlong,
then only they had fired towards the mob and unfortunately Sanjay
Choudhary received serious pellet injuries and succumbed to those
injuries and many other persons also received pellet injuries. The
above facts and circumstances would show that after the first
incident when the mob chased them, then only the 2 gunmen had
fired which was also an act of right of private defence.
(23) The 2 gunmen (A-1 & A-2) then were chased by the mob to a
distance of about 3-4 Kms and they were surrounded by the mob on
the culvert. Here also on account of the above long chasing by a
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Criminal Appeals No. 475 & 814 of 1997
mob of 300-400 people, they had to fire for their own protection. We
also note that among injured persons all had not received gun-shot
injuries and they had received simple injuries like abrasion etc. Thus
it is clear that in the above facts and circumstances, the 2 gunmen
(A-1 & A-2) had fired in right of their private defence when they
were tried to catch by mob and were chased for a distance of about
3-4 Kms and their lives were saved only when the police party came
to the culvert where they were surrounded by the persons of the
mob.
(24) The right of private defence, as stated above, is made subject
to certain restrictions. In the first instance, the right, in no case,
extends to the inflicting of more harm than it is necessary to inflict
for the purposes of defence. If, therefore, a person exercising the
right of private defence, causes death where it is not necessary to do
so for the purposes of such defence, he exceeds the power so given to
him by law under Exception 2 of Section 300 IPC. The question of the
operation of Exception 2 arises only if the alleged offender exceeds
the right of private defence subject to limitations that he caused
death of a person without premeditation and that the death of the
deceased was without any intention of doing more harm than what
was necessary for the purposes of defence.
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Criminal Appeals No. 475 & 814 of 1997
(25) In the instant case, these 2 appellants (A-1 & A-2) had fired 3-4
rounds. 3 empty cartridges were seized from a place near the
Distillery. The appellants had firstly fired on the gate of the
Distillery, where Mohd. Ali (PW-30) and some other persons
received injuries. Then they ran away towards village Atari and
when they reached at a distance of 1 ½ furlong from the main gate
of the Distillery, they again fired in which the deceased died and
some persons were injured. It comes in the evidence that on the gate
of Distillery, the appellants had fired in the air and then looking to
the situation, they had fired aiming towards earth. This appears to
be on account of reasonable apprehension of danger to their lives
and it may be said to be justified for saving their lives. However
when they were chased by the mob and when they reached at a
distance of 1 ½ furlong from the gate of the Distillery, it does not
come that they had fired in the air or they had fired aiming towards
the earth. This time, they had fired towards mob in which the
deceased lost his life. Though it was without premeditation and
without any intention of doing more harm then what was necessary
for the purpose of defence, but by doing so they had certainly
exceeded the power given to them under the law as they could have
avoided to fire towards the mob and this time also they could have
fired in the air without aiming towards the mob. We are of the
opinion that in the above facts and circumstances, it was a case of
23
Criminal Appeals No. 475 & 814 of 1997
exceeding the right of private defence by these 2 appellants making
them liable for commission of culpable homicide not amounting to
murder.
Conclusion:
(26) For the foregoing reasons:-
(i) Cr.A.No. 475/1997 filed by appellant- Arun Rampal (A-3) is
allowed. The conviction and sentences awarded to him u/Ss
302/109 & 307/109 IPC are set-aside. The appellant is
acquitted of the charges framed against him &
(ii) Cr.A. No. 814/1997 filed by the appellants- Ram Singh and
Sahib Singh (A-1 & A-2) are partly allowed. The conviction
and sentences awarded to them u/Ss 302/34 & 307/34 IPC are
set-aside. Instead thereof, they are convicted for culpable
homicide not amounting to murder and sentenced to undergo
R.I.for 10 years u/Ss 304 Part-II/34 IPC.
JUDGE JUDGE
vatti
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Criminal Appeals No. 475 & 814 of 1997
HEADLINE
1. Right of Private Defence of Person – Principles Discussed.
1- O;fDr ds izfrj{kk dk vf/kdkj & fLk)kUr foosfpr A
B.O.
(R.K. Vatti)Private Secretary
25
Criminal Appeals No. 475 & 814 of 1997
HIGH COURT OF CHHATTISGARH, BILASPUR
CORAM: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri Rangnath Chandrakar, J J.
Criminal Appeal No. 475 of 1997
Arun Rampal
Vs.
The State of Madhya Pradesh(Now The State of Chhattisgarh)
&(Connected Criminal Appeal No. 814 of 1997)
JUDGMENT
For consideration
Judge /02/2014
HON’BLE SHRI JUSTICE RANGNATH CHANDRAKAR
Judge /02/2014
Post for Judgment : /02/2014
Judge /02/2014
26