HIGH COURT OF CHHATTISGARH, BILASPURhighcourt.cg.gov.in/Afr/courtJudgementandAFR/2014/Feb… · · 2017-11-24HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: ... conducted autopsy on

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

8


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

9


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

10


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.

11


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.

12


(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,

13


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.

14


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

15


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.

16


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

17


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

18


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

19


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

20


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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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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(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


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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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


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

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